Karnataka High Court Reserves Order On Plea Challenging State Govt's Withdrawal Of Consent For CBI Probe Against DK Shivakumar

The Karnataka High Court on Monday reserved its order on the petitions filed by the Central Bureau of Investigation and BJP MLA Basangouda Patil Yatnal challenging the State government's decision to withdraw consent for CBI probe into corruption allegations against Congress leader and Karnataka's Deputy Chief Minister DK Shivakumar.

A division bench of Justice K Somashekhar and Justice Umesh M Adiga reserved the order after hearing all the parties in detail. A single judge bench had earlier referred the case to a division bench stating that the case is a first of its kind in the State and the enormity of legal issues involved require consideration by a larger bench.

CBI counsel Prasanna Kumar submitted that in almost identical circumstances, the Supreme Court has taken a view that once consent is accorded by the State government, it cannot be withdrawn and in any case it cannot be withdrawn with retrospective effect.

Further he submitted that General consent is granted by the State Government to CBI to CBI to probe FIR against central government servants working in the state. In cases where the State government makes a request to the CBI to probe a case against an individual the general consent follows the request.

Advocate Venkatesh Dalwai appearing for Patil argued that the special leave petition filed by petitioner (Kumar) challenging the single judge seeking quashing of offence has been dismissed. So it has merged with the single judge bench. Referring to Article 131 of the Constitution of India, he said “There is no question of writ petition not being maintainable. My petition is maintainable. the submission of R3 that the petition is not maintainable is not maintainable.”

He added “The question before this court is once consent is granted even if withdrawn can the investigation FIR registered by the CBI be annulled. Article 131 will not be applicable to this case because there are a combination of parties here and all are necessary parties not formal parties.”

Finally he said that once the CBI registers a case it has to culminate into a final report. Proceedings may be quashed by the Supreme Court or High Court but State and Union Governments have no role to play in it.

Both CBI and counsel appearing for an intervenor had argued that the GO was motivated to protect the interests of the Congress leader.

Senior Advocate Kapil Sibal appearing for the state government questioned the maintainability of the petitions. Questioning the reliance placed by petitioners on the Supreme Court judgment dismissing the case filed by Shivakumar he said “The petition filed before single judge by DK Shivakumar is under section 482 CrPC which says prosecution against me is not correct and to quash the FIR. State has nothing to do with the quashing. The parties were Shivakumar and CBI. State is not a party, consent was not the subject matter of that petition.”

It was contended that in this case, the state (previous government) played fraud on the court about how consent was obtained. He said that consent was given by the previous government on oral directions and now that the government had changed, is it not that the state can come before the court.

Finally he said “The question before the court is not about the withdrawal of consent but it is a question of illegality of consent.” He added “If the Central Government is aggrieved then it can file Article 131 plea.”

Senior Advocate Abhishek Manu Singhvi also raised objection on the maintainability of the petitions and submitted that CBI is challenging the withdrawal of consent, an issue which is between the Central and the State government. "CBI is acting like an alter ego of the Central government. He said “Merely because this private person (Shivakumar) is made a party to the petitioner it cannot be said that Article 131 will not lie,” the counsel submitted.

Background:

The Income Tax department had carried out a raid in August 2017 at various premises of Shivakumar in New Delhi and other places and they collected Rs.8,59,69,100. It is alleged that Rs.41.00 lakhs was recovered from his premises. Subsequently, a case was registered against Shivakumar before the Special Court for Economic Offences under the provisions of the Income Tax Act, 1961. Based upon registering the income tax case, the Directorate of Enforcement also registered a case and subsequently, Shivakumar was arrested on September 3, 2019.

Thereafter, the office of the Special Director of ED issued a letter dated 09.09.2019 to the State Government by acting under Section 66(2) of Prevention of Money Laundering Act, 2002. Following this,the Government of Karnataka (led by BJP) accorded sanction against Shivakumar, referring the matter to the CBI for investigating the case.

Earlier, the High Court had dismissed Deputy Chief Minister DK Shivakumar's plea to quash CBI's disproportionate assets case against him under provisions of the Prevention of Corruption Act. The same came to be challenged in the Supreme Court but was dismissed.

However, after the Congress party formed the Karnataka government in May 2023, it withdrew its consent for the CBI probe in November 2023. Later, the High Court had permitted Deputy CM DK Shivakumar to withdraw his petition and appeal challenging the consent to prosecute him given to CBI in the disproportionate assets case.

Appearance: Senior Advocate Kapil Sibal a/w Advocate General Shashi Kiran Shetty for State Government.

Senior Advocate Dr Abhishek Many Singhvi for D K Shivakumar.

Advocate Prasanna Kumar for CBI

Advocate Venkatesh Dalwai for Petitioner.

Case Title: BASANAGOUDA R PATIL (YATNAL) AND State of Karnataka & Others

Case No: WP 27220/2023 c/w WP 670/2024.