'Protection Was Not There On Date Of Offence': Supreme Court Questions Former Karnataka CM's HD Kumaraswamy's Plea

The Supreme Court today(February 3) briefly heard a Special Leave Petition filed against the Karnataka High Court's order refusing to quash a criminal case registered against former Chief Minister of Karnataka, H D Kumaraswamy, in which it is alleged that he denotified two different plots of land acquired by the Bangalore Development Authority (BDA), during his tenure as Chief Minister between June 2006 and October 2007, for pecuniary gains.

In this case, one M.S. Mahadeva Swamy filed a private complaint before the Special Judge under the Prevention of Corruption Act at Bangalore City seeking prosecution of HD Kumaraswamy and 18 others for the alleged offences punishable under sections 120-B r/w. 406, 420, 463, 465, 468, 471 of IPC, sections 13(1)(c), 13(1)(d), 13(1)(e) read with 13(2) of Prevention of Corruption Act and under sections 3 and 4 of the Karnataka Land (Restriction of Transfer) Act read with 34 of IPC. Against the order of the Special Court taking cognizance, Kumaraswamy approached the High Court.

By an order dated October 9, 2020, Justice John Michael Cunha of the High Court observed: "There is sufficient material to proceed against the petitioner for the alleged offences. In the absence of any material to show that the action initiated against the petitioner is an abuse of process of court and has resulted in failure of justice, there is no ground to quash the impugned proceedings as sought for in the petition."

In January 2021, before a comprising Justices Ashok Bhushan and MR Shah, which issued notice limited to the question as to whether without sanction the Special Judge could have taken cognizance of a complaint under the Prevention of Corruption Act. It was contended by the petitioner that in view of the amendment made in Section 19(1)(b) of the Prevention of Corruption Act in 2018, a sanction was required even though the petitioner was not holding the office at the time when the cognizance was taken.

The SLP today came up before a bench of Justice Dipankar Datta and Manmohan. While both counsels pressed to accommodate some time, Justice Datta orally remarked that there is nothing left in the matter. Nevertheless, the Court kept the matter to be heard on February 25.

He remarked:

"What was argued should not have been accepted in view of the earlier proceedings which came up to the Supreme Court and your SLP got dismissed. In 2012, if you have done something, and the amendment comes in 2018, can you say the sanction is still required? Both from the angle of 197[CrPC] and Section 19[of the Prevention of Corruption Act], the High Court in the previous round elaborately dealt with the matter and held that sanction was not required. After that, how could you raise this point? And this point, which has been raised before the Supreme Court for the first time, neither appears in the High Court petition nor in the SLP. It is not the abstract question of law we are going to decide. Question of law must have relevance. The offence that is alleged against you, you have done it in 2012. That protection was not there. Once Supreme Court has upheld the order, where is the question of [revisiting it]? How could you do it? The property has been acquired and possession taken by the Bengaluru Development Authority and you being the Chief Minister denotified it? What consideration? We cannot keep all this matter pending."

Case Details: H. D. KUMARSWAMY v. THE STATE OF KARNATAKA AND ANR.|SLP(Crl) No. 6740/2020