Another Setback To CM Yediyurappa As Karnataka High Court Refuses To Quash Corruption Case Against Him

A single bench of Justice John Michael Cunha, while dismissing the petition on Tuesday, said:

"Since the allegations made in the complaint and the documents produced in support thereof prima-facie disclose the ingredients of the alleged offences under P.C. Act as well as under IPC, the investigation therein cannot be stalled as sought for by the petitioner."

The case relates to the denotification of 1.11 acre land at Gangenahalli, which is part of the Matadahalli layout in RT Nagar in the city in which former Chief Minister H D Kumaraswamy and others are also accused. Based on a complaint by social activist Jayakumar Hiremath, the Lokayukta police had on 05.05.2015  registered a case under sections 13(1)(c), 13(1) (d) r/w 13(2) of Prevention of Corruption Act, 1988 and sections 409, 413, 420, 120(b) r/w 34 IPC and sections 3 and 4 of The Karnataka Land (Restriction on Transfer) Act, 1991.

On December 23, 2020 the high court had refused to quash another criminal complaint registered under the Prevention of Corruption Act, against Chief Minister B S Yediyurappa, who is alleged of de-notifying parcels of land and allotting it to entrepreneurs, during his tenure as the Deputy Chief Minister of the state, between February 2006 and October 2007.

Yediyurappa's arguments

Senior Advocate C V Nagesh appearing for the petitioner had argued that the prosecution launched against the petitioner is illegal and an abuse of process of Court; that the allegations made in the complaint even if accepted on their face value do not constitute the ingredients of the offences insofar as the petitioner is concerned. Further, the petitioner ordered for de-notification based on the notings put up by the officials pursuant to the powers vested in him under section 48 of the Land Acquisition Act and as such no illegalities or malafides could be imputed to the petitioner especially when the facts disclose that order was made in discharge of the official duties and the power vested with the petitioner.

It was also submitted that the "Doctrine of Public Trust", though enjoins upon the Government, to protect resources for the enjoyment of the general public and to permit their use for providing ownership or commercial purpose, but this Doctrine cannot be invoked to fasten criminal liability against the ministers and public servants entrusted with public duties.

Prosecution opposed the plea:

Special Public Prosecutor Venkatesh. S Arabatti, pointed that the complaint in question is demonstrative of abuse of power by two Chief Ministers who not only ignored the law and the legal principles, but also deliberately and with dishonest intention de-notified the lands which had been acquired by the Government decades ago and which had vested with the State in terms of Land Acquisition Act, 1984.

He further said that the de-notified lands were sold by the mother-in-law of H.D. Kumaraswamy to her own son and brother-in-law of H.D. Kumaraswamy based on the de-notified ordered by the petitioner which smacks of a well designed conspiracy to make unlawful gain. It squarely attracts the offence under section 13(1) (c), 13(1) (d) r/w 13(2) of PC Act and sections 409, 418, 420, 120(b) and section 24 of IPC.

The court went through the land file notings and observed that "In the light of the notings at paras 33 to 37, the petitioner could not have ordered for de-notification of the subject lands. The order at para 39 on the face of it is indefensible. There is nothing in para 39 to suggest that the petitioner had ordered for de-notification based on the notings put up by the officials in exercise of the power under section 48 of the Land Acquisition Act on satisfaction that the land has not vested with the Government."

It added "The question as to whether the said order was passed by the petitioner by abuse of power or in furtherance of the common object of the conspiracy need to be ascertained only after a thorough investigation."

Complainant sought to withdraw from case; HC did not permit

During the hearing the petitioner moved an application seeking amendment of the petition so as to urge a further ground to quash the criminal proceedings in view of the insertion of section 17A to the PC Act.

Though this was opposed by the prosecution, contending that section 17A of the amended PC Act was not applicable to the facts of the case since the case was registered much prior to the amended PC Act came into force.

However, the complainant Hiremath filed a memo dated 09.12.2020 seeking leave to withdraw the petition on the ground that in view of the insertion of section 17A of the PC Act, respondent No.2 is left with no other option than to concur with the claim of the petitioner that the investigation/inquiry/ enquiry cannot be undertaken in the absence of an appropriate permission / approval / sanction / consent by the appropriate authority as the subject matter relates to an order passed by the public servant in discharge of his duties as a public servant.

Following which he was directed to appear before the Court to explain the circumstances of filing the said memo. In his response he engaged Senior Counsel Ashok Haranahalli and filed an affidavit reiterating the averments made in the memo and further asserted that as on the date of filing the complaint, he was not having materials as were necessary that would connect the accused with commission of the offence and that subsequently, he was able to advert to the relevant documents which had come on record in the course of investigation of the crime to prima facie establish the offence said to have been committed by the accused.

Justice Cunha said "The contents of the above affidavit, I may hasten to add, when compared with the facts and events narrated by respondent No.2 in the complaint lodged by him in the year 2015, make it evident that an ingenious attempt has been made to bail out the petitioner and other accused persons named in the FIR."

The court added:

"Though respondent No.2 has no legal right or locus standi to seek withdrawal of the complaint or to enter into composition with accused, yet, the hidden motive of respondent No.2 is glaringly evident from the manner in which he has made audacious statements in the affidavit contrary to the records which he claimed to have been "able to advert' and "which had come on record in the course of investigation" and sought to justify them by engaging a Senior counsel on his behalf. It is really preposterous and disgusting to note that in his eagerness to justify the acts of the petitioner, he has even gone to the extent of taking upon himself the role of an investigator, prosecutor and the Judge, making a grand declaration on oath that "a careful examination of the record of the case" indicated to him that "possession of the land has remained only on paper" and that "number of unauthorised structures have also come into existence over the lands notified for acquisition etc".

The bench opined :

"From the reading of the above affidavit and the memo, one can readily draw an inference that respondent No.2 has either fallen a prey to the allurements or has yielded to the pressure of the petitioner or other accused persons named in the FIR, as it is evident that at the instance of the petitioner, petition was amended solely with a view to create a ruse for respondent No.2 to seek withdrawal of the complaint."

The court directed the investigating agency as well as the trial Court which is seized of matter, to take note of the unscrupulous, immoral and unholy nexus between the petitioner and respondent No.2 and other offenders and take suitable action as per law at appropriate stage.

Case Details

Case Title: B S YEDDYURAPPA And THE STATE OF KARNATAKA

Case No: WRIT PETITION NO.29046 OF 2017

Date of Order : 05TH DAY OF JANUARY, 2021

Coram: JUSTICE JOHN MICHAEL CUNHA

Appearance: Senior Advocate C.V. NAGESH, A/W Advocate SWAMINI GANESH MOHANAMBAL for petitioners.

SPP VENKATESH S ARABATTI, FOR R1;

Senior Advocate ASHOK HARANAHALLI, A/W R. SHASHIDHARA, FOR R2