Karnataka High Court Reserves Order On Plea To Quash FIR Involving Nirmala Sitharaman, BJP Leaders Over Alleged Electoral Bonds Extortion

Former State BJP president Naleen Kumar Kateel, seeking quashing of an FIR registered against him for allegedly extorting money under the guise of electoral bonds, told the Karnataka High Court on Wednesday that co-accused Finance Minister Nirmala Sitharaman and others are not in receipt of any property as has been defined in the relevant provision for the offence.

Kateel further submitted that it was not as if the alleged victim was complaining and if the victim did complain the complexion of the entire complaint would change. The complaint filed by one Adarsh Iyer alleges that action by government agencies like ED was used to threaten companies and make them buy electoral bonds.

A single judge bench of Justice M Nagaprassana after hearing all the parties reserved its order. The court also continued the operation of its interim protection order till the pronouncement of judgment.

Allegations of Extortion made out in complaint, even citizens can move court

During the hearing, advocate Prashant Bhushan appearing for the complainant Adarsh Iyer argued that the allegations made in the matter are a “classic case of extortion” as defined. He said, “person against whom extortion is done is also beneficiary of the crime, because after paying, raids of ED, IT stopped against him. So he did not report it. It is only ordinary citizens who are going to report the crime”.

He submitted, "Lordships has stayed investigation the main ground it seemed it required serious consideration and said complaint can be made only by aggrieved.The specific bar is created by CrPC for example, offence regarding marriages. Similarly, there is specific bar for prosecution for defamation under new code".

He further said that there is no bar created for the offence of extortion and that there is a positive obligation created by the new code on the public to give information for certain offence.

"So far as this particular offence of extortion is concerned no bar created by new CrPC. But the offence of extortion in this case is kind of extortion where every member of public is interested. This is an extortion to take money on behalf of political party. SC in its judgment said such taking of money through EB is eschewing the election platform. Therefore, everybody is aggrieved," he said.

He submitted that due to this level playing field in the election is affected and therefore every person is an aggrieved person. "SC said that contribution if made with intend to alter public policy or to hide a crime..certainly then everybody would be interested," Bhushan added.

"When ruling party is able to secure huge money through electoral bonds, then milord, its distorts the level playing filed in electoral politics and every citizen is aggrieved. It is extortion to close criminal offence," he said.

At this stage the high court orally asked, "Would it meet the ingredients of Sec 383 IPC which describes extortion?". To this Bhushan said, "It will. Those companies which paid money through extortion were being investigation by ED etc. After raids the money was given and after payment raids/probe stopped".

He further submitted that as Supreme Court's decision in Lalita Kumari, magistrate has to go by allegations made in the complaint and that all the ingredients of extortion are made in the complaint. Referring to the provision on extortion Bhushan said that it says that a person has to be put under fear, adding that the fear herein are the proceedings under PMLA will continue and the concerned persons "may be put in jail and loose reputation". This, thereby induces that person to pay, he said.

Bhushan then said, "ED is under Central Govt and Central Govt is of ruling party. ED function as instrumentality of that govt and puts the company under fear. They give electoral bond and then action ceases.As per Lalitha Kumari only the facts have to looked into by the magistrate and further details will come out during investigation. It is clearly an allegation of extortion. No option for police or magistrate but to order FIR.In my submission, in such offence there is no requirement that only aggrieved person should move the court".

Bhushan further said that stopping or interdicting the investigation would lead to great harm to public and sought that the quashing plea be dismissed.

Victim not before court, complainant has not suffered

Meanwhile senior advocate KG Raghavan appearing for the petitioner said that interpretation of Section 383 IPC (extortion) cannot change upon facts of each case, adding that the victim was not before the court and the complainant had not suffered.

At this stage the high court orally enquired about the accused in the matter. Raghavan said, "First Accused is Nirmala Sitaraman, Union Finance Minister, ED, officer bearers of BJP and petitioner Kateel".

The court then asked, "Your submission is that Finance minister or etc are not in receipt of any property or anything as defined in the section?". To this Raghavan said, "Yes and it is not so even in the complaint".

He thereafter referred to Section 39 (Public to give information of certain offences) CrPC, and said that it is a statute law. He thereafter read the section in regard to what are the cases where person is required to give information to police and said that Sec 383 IPC (extortion) is not set out in the provision.

"If a person who is deprived of property does not want to make a grievance about it, then third person cannot say you have been deprived of your property...can somebody else come and say NO we dont want thieves in the society to go Scot free. Therefore, i will lodge a complaint This is taking the law to an absurd situation.If somebody assaults me and i dont want to complaint. Then can somebody else complaint. Sec 39 of CrPC sets out the offence in which a person who is not aggrieved can file the complaint," Raghavan said.

He submitted that there are several remedies available to the complainant, adding that the complainant is not the victim and neither have the accused benefitted anything. He further said that the victim is not complaining and if the victim makes the complaint the complexion of the complaint will change.

"However, bonafide the complaint and may be canvassed in public interest. But having regard to the state of the law, we are bound to go not substantial provisions of penal code but also by provisions of Criminal code," he added.

Case title: Naleen Kumar Kateel v State of Karnataka