"Serious Allegations ": Karnataka High Court Vacates Stay, Orders Thorough Investigation Against Karnataka CM BS Yediyurappa in 'Operation Kamala' case

In a set back to Chief Minister B.S. Yediyurappa, the Karnataka High Court vacated the stay granted on investigation and ordered a thorough  probe to be conducted in the First Information Report in which he is accused of trying to woo JD(S) MLA Naganagouda Kandkur's son Sharanagouda with promise of money and Ministry in 2019 [Operation Kamala Case]

"As the uncontroverted allegations made in the FIR and the contents of the complaint lodged by respondent No.2, prima facie disclose the commission of cognizable offences, the jurisdiction of this Court under section 482 Cr.P.C. and Article 226 and 227 of the Constitution of India cannot be exercised to quash the above complaint and the FIR registered against the petitioners. Resultantly, petitioners being not entitled for the main relief claimed in the petitions, the question of continuing the interim order may not arise at all.",Justice John Michael Cunha said  in his order

Case Background:

It is alleged in the complaint/FIR, that on 07.02.2019 at about 10.40 p.m., the respondent No.2 / complainant (SHARANAGOUDA) received an anonymous phone call and the caller identified himself as Shivanagouda Naik, MLA, Devdurga Constituency (accused No.2).

It is alleged that Naik asked him to come over to Devdurga circuit house immediately and when he replied that since it was late night and it would not be possible for him to come over to circuit house, accused No.2 is stated to have called him again and handed over the call to accused No.1 (Yediyurappa) who asked the complainant to come immediately to discuss some urgent matter and thereafter the complainant left to Devdurga and reached the circuit house around 12 O' clock midnight.

Further, it is stated that he was taken to a room wherein accused Nos.1, 3 and 4 were sitting and accused No.1 told the complainant that if he would help the accused No.1 and persuade his father to resign his seat, then accused No.1 would make the complainant win the Assembly Election from Gurmitkal Constituency, meet all the election expenses and make him In-charge Minister of Yadgir District.

It was also alleged that accused No.1 told the complainant that if he persuaded his father to resign as a MLA, then in the By-Election, accused No.1 would give the complainant a seat from the Bharatiya Janata Party and make him win the seat and also give him Rs.10 crores as bribe.

Further, it is alleged that accused No.1 told the complainant to go to Mumbai and stay in the resort along with other MLAs who were already staying in the said resort and that the amount would be delivered to the house of the complainant when the complainant's father tenders his resignation as a MLA. The aforesaid conversation was recorded by the complainant.

Following which an FIR came to be registered and Yediyurappa and other accused moved the court seeking to quash the complaint dated 13.02.2019 and the FIR registered for the offences punishable under sections 8 and 12 of Prevention of Corruption (Amendment) Act 2018 and for the offences under sections 120B and 506 read with section 34 of IPC and to quash all further proceedings thereto (vide Annexure-'C').

By way of an interim order dated 22.02.2019, the high court passed a common interim order staying further investigation and all further proceedings pursuant to the registration of FIR in Crime No.0019/2019 until disposal of the writ petitions and the petitions were admitted and notices were issued to respondent No.2.

Since the interim order was passed ex-parte, respondent No.2 filed applications seeking recall of the order dated 22.02.2019.

Court Findings:

As regards the locus standi of respondent No.2 to maintain the application for vacation of the interim order. The court relied on the observations made by the Supreme Court in SUBRAMANIAN SWAMY v. MANMOHAN SINGH AND ANOTHER, (2012) 3 SCC 64 in which it is noted that;

"The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law."

The court extracted Rule 18 and Rule 12, 13 of the Writ Proceedings Rules, 1977 and went on to note that "In the instant cases, no rule was issued and the order dated 22.02.2019 was passed without service of notice on respondent No.2.

Accordingly it held " In the wake of these provisions, the argument of learned Senior Counsels appearing for the petitioners, assailing the locus standi of respondent No.2, is an argument of desperation and is nothing but an ingenious attempt to hold on to the interim order, so as to delay and frustrate the impending probe."

It added "That apart, the interim order secured by the petitioners having the effect of stalling the investigation prone to cause disappearance of the crucial evidence to the disadvantage of the law enforcing agency and respondent No.1 / State appears to have acquiesced in the matter as is evident from the unprecedented haste and alacrity in which a Special Public Prosecutor was appointed even before the matter was listed before the court, but after suffering an adverse order, no steps have been taken to expedite the matter, instead tacitly supporting the continuance of the interim order made in favour of the petitioners speaks in volume about the interestedness of respondent No.1."

As regards the contention regarding vacating of stay the bench said "Though the petitioners have invoked Article 226 and 227 of the Constitution of India, yet the reliefs claimed in the petitions are in essence lie within the ambit of section 482 Cr.P.C and the ultimate effect of the relief claimed by the petitioners is to stall the investigation into the corruption charges leveled against the petitioners."

Finally the court observed "Even going by the case pleaded in the writ petitions and having regard to the allegations and counter allegations made therein, in my view, no option is left with the court other than permitting the investigating agency to continue the probe and unearth the true facts behind the secret meeting held within the closed doors at an unearthly hour."

It added "These allegations, if found true, would even attract the ingredients of the offences under sections 120B, 124A, 171H of IPC as the allegations made in the complaint and the material produced in support thereof clearly disclose that an attempt has been made by the petitioners to excite disaffection towards the Government established by law by encouraging defection so as to topple the Government by lure of money and position prima facie making out the ingredients of sections 120B, 124A and Section 171H of Indian Penal Code. Thus a clear case has been made out by respondent No.2 to vacate the interim order of stay granted by this Court and to order a thorough probe into the matter."

Court points out delay tactic:

Referring to the orders passed before the court in mention is made of appointment of special public prosecutor and then termination of his services. The court said "The said submissions were being repeated at the instance of respondent No.1 / State and the matters were being adjourned from time to time till 28.02.2020."

It observed "The above strategy appears to have been adopted only to procrastinate and delay the disposal of the I.As. filed by respondent No.2 to vacate the interim order of stay."

The court also found that when the cases were listed before the court only on 15.03.2021, despite the directions to list all pending criminal cases involving sitting / former Legislators ( MPs. and M.L.As.), particularly those wherein a stay has been granted. Surprisingly, these two cases did not figure in the lists submitted to the Court, as a result, the directions issued by the Hon'ble Supreme Court in ASHWINI KUMAR UPADHYAY & Others vs. UNION OF INDIA & Others in W.P.(Civil) No.699/2016 dated 16.09.2020 to hear the matter on a day-to-day basis and to dispose of the same expeditiously, within a period of two months therefrom could not be complied with.

The bench thus directed "The Registry to bring the same to the notice of the Chief Justice so as to take appropriate action against the erring officials as the records clearly indicate that the lapses in listing the cases were deliberate and intentional and obviously to the advantage of the petitioners."

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