Yogesh Gowda Murder: Karnataka High Court Upholds Transfer Of Case To CBI

Upholding the same, a division bench of Justice B. Veerappa and Justice N S Sanjay Gowda said,

"By careful perusal of the provisions of Section 173(8) of the Code of Criminal Procedure, it is clear that it does not prohibit the Police from conducting further investigation nor does it impinge on the power of the State Government to entrust the matter to CBI for further investigation under Section 6 of Delhi Special Police Establishment Act (DSPE), 1946."

It added, "In the present case, the State Government by the impugned Government Order has granted its consent and accordingly, the Central Government also ordered for the extension of the provisions of the DSPE Act by issuing a notification. Therefore, the order passed by the State Government entrusting the matter to CBI for further investigation is in accordance with law."

Background:

The investigation for murder of Yogesh Gowda, Member of Dharwad Zilla Panchayat was given over by the State Government to the CBI on September 6, 2019. The Single Judge of the Karnataka High Court while issuing notice in a plea filed by the first accused, Basavaraj Shivappa Muttagi, had earlier stayed the effect and operation of the GO.

Being aggrieved, the CBI had preferred an appeal before the Top Court, which as an interim measure directed for staying the operation of the single-judge's order.

This stay in the form of interim measure resulted in CBI conducting and carrying out the investigation. The CBI, after such investigation, filed a challan on May 2, 2020 and added 8 more persons in the array of accused. Cognizance in respect of the first Challan filed by the CBI was also taken on the same day.

CBI had also filed further Challans adding four more persons, who happen to be public servants, as accused. Sanction to prosecute them was also obtained by the agency. The concerned court on June 7, 2021, took cognisance in respect of the said challans.

Later, on August 11, 2021, the Supreme Court asked the High Court to dispose of the proceedings challenging the grant of permission by the State Government to CBI as early as possible and preferably within two months.

Arguments of the Petitioners:

Senior counsels representing different accused in the case primarily argued that, "The impugned order is passed by the State Government in the absence of any request by the family members of the deceased, it is nothing but political motivation."

It was contended that the power to refer further investigation to different agencies does not come under the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946. The authority to conduct further investigation should be backed by material emerging from records necessitating the same and not merely on the ground that such authority exists, it was argued. Therefore, the impugned order passed by the State Government is opposed to fundamental principles of criminal jurisprudence and as such, it is liable to be quashed, the counsels said.

It was also their case that the provisions of Section 173(8) of CrPC cannot be exercised by a 'new agency' without the consent of the Court. Moreover, inspite of the opinion of the Commissioner of Police that there is no reason for entrusting the matter to the CBI, the State Government has proceeded to pass an unreasonable order in violation of Section 300 of the Code of Criminal Procedure.

It was also contended that "Once the trial has commenced, there cannot be further investigation conducted on 06.09.2019 by new agency after completion of trial as it is impermissible and thereby Annexures-A and B are null and void in the eye of law."

Arguments by the State:

The state counsels on the other hand contended that provisions of Section 6 of the DSPE Act permits a central agency to investigate an offence having taken place in the said territory with the consent of the State Government. It is an "ordinary exercise of executive powers" by the State Government. This ordinary exercise of executive power is an independent power which can be exercised at any stage by the State Government and will not have any impact or create any imbalance in the federal structure, it was argued.

Further, it was said, "Further investigation into any criminal offence is a statutory right of the police. It is, in fact, a right coupled with the duty not only in the interest of the victim, but also in the interest of the accused as in a given set of facts, it might transpire that either wrong persons were implicated or real culprits were left out either by default or by design, which is impermissible."

Also it was said, "Article 21 which brings within its ambit a free, fair and neutral investigation also mandates an obligation to unearth the truth and therefore, any restricted or truncated interpretation on the power of the investigating agency to conduct further investigation under Section 173(8) will be violative of Article 21 of the Constitution. The stage at which the investigating agency can conduct further investigation depends upon the facts of each case. The only test to decide the correct stage for further investigation is the test of Article 21 of the Constitution of India i.e., to unearth the truth at any stage."

Court's Findings:

The Court on analysing the additional charge sheets filed by the CBI said, "The material on record clearly depicts that there are overt acts against the accused persons in the supplementary charge sheets and the competent Court took cognizance of the additional charge sheets. Therefore, the contention of the learned counsel for the petitioners that the investigation is defective, malafide and there is no permission obtained from the Court, cannot be accepted and the same is devoid of any merit."

Secondly, the Court noted that,

"A careful reading of the said provisions, makes it that clear sub section (8) of Section 173 of the Code of Criminal Procedure does talk about "further investigation". The term, "further investigation" has, however, not been defined in the Code and must therefore depend on the facts of each case as culled from the record."

It added, "The further investigation conducted by the 2nd respondent (CBI) revealed that 88 witnesses were examined and 75 documents were produced, which depicts the overt acts against the additional accused persons and accordingly filed the supplementary charge sheets before the Court, which clearly indicates that the nature of the investigation conducted by the 2nd respondent amounts to a continuation of further investigation in Crime No.135/16 and not reinvestigation."

Thirdly, the court observed the parties were unable to show how a miscarriage of justice has occurred in taking cognizance of the supplementary charge sheets filed by the 2nd respondent/CBI by the competent authority. It said, "A defect or illegality in the investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial."

It added, "Admittedly, either filing of the supplementary charge sheets or taking cognizance by the competent court, is not challenged by the petitioners (accused persons) in the present writ petitions. Therefore, the contention of learned counsel for the petitioners that once the initial action is not in consonance with law, all subsequent developments including filing of the supplementary charge sheets after an investigation by the CBI and taking cognizance are invalid, cannot be accepted."

Relying on the dictum of the Supreme Court in the case of R.A.H. Siguran v. Shankare Gowda, the court said "It is well settled that even if the investigation is not conducted by the authorized officer, the trial is not vitiated unless prejudice is shown."

Further, the court observed, "After cognizance has been taken by the learned Magistrate and the case was committed to the Court of Sessions, now it is not open for the petitioners to contend that in the event the very entrustment of the matter by the State to CBI as per the Government Order dated 6.9.2019 is held to be invalid, all consequential procedures are invalid."

The court also relied on the complaint made by the mother of the deceased to the government seeking further investigations. It said, "Admittedly, in the present case, during the course of further investigation by CBI, it has come to light that some of the Police officials including previous Investigating Officer, are also found to be involved in the case and are found to have taken gratification to scuttle the investigation and they have been arrayed as Accused Nos.19 and 20. Accused No.19 is the previous Investigating Officer and Accused No.20 is the Supervisory Officer of Accused No.19. Therefore, the Government is justified in entrusting the matter to the CBI, an independent agency to conduct a fair trial and investigation. When there is an improper investigation by state police and high Police officials are involved, in order to do complete justice, direction for investigation by an independent and specialized agency like CBI, is warranted."

The court then went on to opine that

"A criminal trial is required to be fair to all the stakeholders i.e, the accused, the prosecution and the victim. The purpose of a criminal trial is to ascertain the truth about the allegations levelled against the accused persons and it is not just about over technicalities and over-zealous protection of rights available to the accused. A criminal trial is to be conducted in a fair manner and has to be undertaken as an objective and unbiased search for the truth so that justice is done to the stakeholders i.e., the accused, the prosecution and the victim, avoiding injustice in the process and also in the interest of justice and in furtherance of search of truth that such materials are placed before the learned Sessions Judge."

Further, "It is well settled that the trial should not be victim-centric, forgetting the valuable rights available to the accused, but, when the relevant material becomes available in accordance with law before the trial Court, the accused cannot be heard to say that the same cannot be looked into for a fair trial."

It also noted, "Ultimately after trial, the truth always prevails and hence, no injustice would be caused to the accused persons in facing the trial. In the circumstances, this is not a fit case where this Court can interfere with the impugned order passed by the State Government."

Commenting that this is a classic case where the political parties and the Police authorities have tried to misuse their power to bury the truth, the court directed the Addl. City Civil and Sessions Judge, Bengaluru to expedite the trial in the case.

Even After 75 Years Of Independence No Political Party Is Fighting To Protect Rights Of Every Citizen

The bench in its judgement observed, "It is well settled that the State Government acting under the Constitution, is under constitutional duty coupled with power. Every Government is a trustee of the society and in all facets of public administration, every Government has to exhibit honesty, integrity, sincerity and faithfulness in the implementation of the political, social, economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. Government is entrusted with duty and power to implement constitutional policy under Articles 14, 21 and 300A and all inter-related directive principles of state policy under the Constitution, should exhibit transparency in implementation and be accountable for due effectuation of constitutional goals."

It added,

"Unfortunately, even after lapse of 75 years of independence of our country, no political party is fighting to protect the rights of every citizen of the country and every political party have their own agenda and design to continue in the power forever and every political party is trying to take advantage of the judicial process and misuse their power including the Investigating Officers, Police officials and official missionary."

Regarding criminalisation of politics, the court said, "It is well settled that criminalisation of politics is an anathema to the sacredness of democracy. The growth and spread of crime indicate Indian society has been pervading and criminal elements developed an extensive network of contacts and the nexus between the politicians, bureaucrats and criminal elements in our country has been on rise, the adverse effects of which are increasingly being felt on various aspects of social life in India. Indeed, the situation has worsened to such an extent that the President of our country felt constrained to make references to the phenomenon in his Addresses to the Nation on the eve of Republic day in 1996 as well as in 1997 and hence it is required to be handled with extreme care and circumspection."

The court then said, "It is high time for the judiciary to protect the fundamental rights of the citizens of this country to ensure justice must not only be done but must be seen to be done and majesty of rule of law is to be upheld and it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed."

It added, 

"This Court being the protector of the civil liberties of the citizens, has not only power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by part III in general and Article 21 of the Constitution in particular, zealously and vigilantly."

Case Title: Basavaraj Shivappa Muttagi v. State of Karnataka

Case No: WP 51012/2019

Date of Order: October 16, 2021

Appearance: Senior Advocate Mukul Rohtagi, A/W Advocate Girish Ganapathrao Nilegar, Senior Advocate C.H. Jadhav, A/W Advocate Shivayogesh, Senior Advocate S.M. Chandrashekar, A/W Advocate Shivaprasad Shantanagoudar, Senior Advocate Dr. Ashwani Kumar, A/W Advocate H S Chandramouli, Advocate Srikanth Patil For Petitioners

Solicitor General Of India Tushar Mehta A/W Advocate H.R. Showri, Advocate General Prabhuling K Navadgi, For R1

Additional Solicitor General S.V. Raju, A/W Advocate P. Prasanna Kumar, For R2;

Senior Advocate Vivek S Reddy A/W Advocate Deepak Shetty For Interveners.

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