Karnataka High Court Restores Bribery Complaint Against Former CM Yediyurappa

The Karnataka High Court has restored a bribery complaint filed against former Chief Minister B.S. Yediyurappa, his son B.Y. Vijayendra and others alleging offences under Prevention of Corruption Act.

A single judge bench of Justice S Sunil Dutt Yadav partly allowed the petition filed by complainant Abraham T.J. and set aside the order dated July 8, 2021 passed by the Special Court set up for trying cases against Legislators.

The bench held that the Complainant approaching the Governor for sanction for prosecution is of no legal significance, as he was not competent to seek for sanction. Thus, rejection of such request should have been ignored, as such request was not made either by the Police Officer or an Officer of Investigation Agency or other law enforcement Authorities; nor pursuant to the order of Court as contemplated under First Proviso to Section 19 of the PC Act.

"Thus, the rejection of sanction for prosecution would not come in the way of continuance of proceedings against Accused No.1 upon restoration of the complaint. Sanction as regards Accused No.1 would be an aspect for consideration at the appropriate stage as per law."

Case Details:

The complaint alleged that crores of rupees have been exchanged in Bengaluru allegedly in the name of the stalled project of BDA and work order was issued in favour of M/s.Ramalingam Construction Company Pvt. Ltd., a company owned by accused No.5 Chandrakanth Ramalingum and Rs.12.5 Crores was demanded by Yediyurappa's son, on his father's behalf.

Further, It was alleged that accused No.7 Dr.G.C Prakash received Rs.12.5 Crores from accused No.8 K.Ravi on the assurance that the amount will be handed over to Yediyurappa, through his son Vijayendra.

The third allegation against the former CM was that he and other co-accused indulged in corruption by using shell companies and Rs.3,41,00,000/- amount was transferred to the shell companies and in turn the said amount was transferred to the bank account of the companies owned by Yediyurappa's family members.

Special Judge, referring to the judgment of Apex Court in Anil Kumar and Others v. M.K. Aiyappa and Another (2013) 10 SCC 705, recorded a finding that an order of reference for investigation under Section 156(3) of Cr.P.C. cannot be made without valid sanction under Section 19(1) of the P.C. Act.

Findings:

The bench said on a reading of Section 19(1) of P.C. Act and Section 197 of Cr.P.C. it is clear that no Court can take cognizance of offences as regards a public servant except with previous Sanction. Where the Magistrate is seeking to take cognizance of the Police Report in terms of Section 190(1)(b) of Cr.P.C, the sanction for prosecution is required. Section 19(1) of P.C. Act would also require sanction for prosecution before the Special Court takes cognizance of offences under Sections 7, 11, 13 and 15 of P.C. Act.

However, where the Special Court seeks to take cognizance of an offence under Section 19 of P.C. Act on the basis of complaint of facts under Section 190(1)(a) of Cr.P.C. and follows the procedure laid down in Chapter-XV of Cr.P.C., the requirement of sanction is only at the stage where the Special Court has not dismissed the complaint under Section 203 of Cr.P.C. and the Court directs the Complainant to obtain sanction for prosecution to enable further proceeding by issuance of process to the accused persons under Section 204 of Cr.P.C.

It then observed, "This is the procedure as laid down by virtue of Amendment Act 16 of 2018 by insertion of the proviso to Section 19(1) of the P.C. Act." It added, "Sanction for prosecution as contemplated under Section 19(1) of P.C. Act is required to be obtained where the Special Court takes cognizance of the offences on the basis of Police Report or prior to issuance of process to the accused persons under Section 204 of Cr.P.C., where the Special Judge has proceeded under Chapter XV as regards a Private Complaint."

Referring to the reference made to a larger bench in the case of Manju Surana (supra) the bench noted the Court has clarified that the order of reference would not come in the way of ordering investigation under Section 156(3) of Cr.P.C. i.e., the question of sanction for passing an order under Section 156 would not arise, as it is that very question that has been referred to the larger Bench and is still to be determined.

Further it said, "Taking cognizance of offence would only be where cognizance is taken under Section 190 under Chapter-XIV of Cr.P.C. and that an order of reference for investigation under Section 156(3) under Chapter-XII of Cr.P.C., would not amount to an act of taking cognizance of the offence."

It then went on to hold that insofar as offences under Sections 8, 9 and 10 of P.C. Act, in light of the Amendment in 2018 to Section 19(1) of the P.C. Act, no previous sanction is required and if the Special Judge were to proceed against the accused as regards such offence, the question of previous sanction will not arise.

It added ,"If that were to be so, the question of insisting sanction for prosecution at the stage of passing the order under Section 156(3) of Cr.P.C. would not arise. Accordingly, the bar as noticed in Aiyappa (supra) as regards such a stage cannot be read in as a restriction on the power of the Court."

Further observing that the bar for enquiry, inquiry or investigation is only a fetter on the power of the Police Authorities and wherever the Court itself is in seisin of a Private Complaint and proceeds to order for investigation by the Authorities pursuant to order under Section 156(3) of Cr.P.C, such bar under Section 17A of the P.C. Act would not be an embargo on the Court's power. Accordingly, the bar under Section 17A of P.C. Act would kick in only post registration of FIR when Police are required to commence investigation.

The bench said, "In the present case, the private complainant is before the Court and not before the Police Authorities. When the Special Judge has already entertained the opinion at para-18 of the impugned order that there are "some material to refer the complaint for investigation", there is no reason for bar under Section 17A of P.C. Act to prohibit the Court from referring the matter for investigation. Upon such direction and order, if passed under Section 156(3) of Cr.P.C., the Police Authorities are obligated to register FIR which is the commencing point of investigation."

Hence, it held that the impugned order cannot be supported by the contention that lack of approval under Section 17A of P.C. Act would also prohibit the Special Judge from passing an order under Section 156(3) of Cr.P.C.

However, the court clarified that once FIR is registered and the Police Authorities entertain any doubt as to the bar of 17A of P.C. Act to commence investigation, it is always open to the Investigating Authorities to obtain clarification from the Special Judge.

Further it said "The question of proceeding as regards to the offences under the PMLA would not arise as the Special Court is debarred from taking cognizance of any offence under Section 4 except upon a complaint made by officers mentioned under Section 45 of PMLA. Accordingly, the Special Judge cannot direct proceedings for the offences under PMLA and liberty is reserved to the Complainant to initiate appropriate proceedings as per permissible procedure in accordance with law."

Case Title: Abraham T.J v B.S. Yediyurappa & Others

Case No: CRIMINAL PETITION No.5659/2021

Citation: 2022 LiveLaw (Kar) 354

Date of Order: 7TH DAY OF SEPTEMBER 2022

Appearance: Vikas Upadhyay, Advocate a/w Ashwin Kumar Nair, Advocate and Gaurav G.K. Advocate, Akash V.T., Advocate, Anusha Nandish, Advocate for petitioner.

C.V. Nagesh, Senior Advocate for Sandeep S. Patil and Swamini G. Mohanambal, Advocates for R1 & R2.

Manmohan P.N., Advocate for Vinay N., Advocate for R5.

A.S. Mahesha, Advocate for R6,

Nagendra Naik, Advocate for Amar Correa, Advocate for R7.

Siddharth B. Muchandi, Advocate for R4.

Srinivasa C Advocate for R8.

Vinayaka B Advocate for R3 and R9;

Venkatesh S. Arbatti, Amicus Curiae

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