The Karnataka High Court on Wednesday paved the way for an investigation against Chief Minister BS Yediyurappa in relation to a criminal case registered against him in 2019 for allegedly trying to buy out Janata Dal (S) MLA Naganagouda Kandkur by offering him money and ministerial berth.

Justice John Michael Cunha passed the order vacating the stay on the probe against Yediyurappa for his alleged role in 'Operation Kamala', the name given for the plan by BJP, which was then in opposition in the State, to lure MLAs from the ruling Congress-JD(S) coalition.

"As the uncontroverted allegations made in the FIR and the contents of the complaint lodged by respondent No.2, prima facie disclose the commission of cognizable offences, the jurisdiction of this Court under section 482 Cr.P.C. and Article 226 and 227 of the Constitution of India cannot be exercised to quash the above complaint and the FIR registered against the petitioners. Resultantly, petitioners being not entitled for the main relief claimed in the petitions, the question of continuing the interim order may not arise at all," said the Single Judge said in his order.

It is alleged in the FIR that on February 7, 2019, the complainant, one Sharanagouda, received an anonymous phone call from Shivanagouda Naik, MLA of Devdurga constituency (accused No.2).

It is alleged that Naik asked him to come over to Devdurga circuit house immediately. When the complainant replied that it would not be possible to do so, Naik is stated to have called him again and handed over the call to Yediyurappa, who asked the complainant to come immediately to discuss some urgent matter. Thereafter, the complainant left to Devdurga and reached the circuit house at around midnight.

Sharanagouda then lodged a complaint at Devadurga Police Station against Yediyurappa others accusing them of trying to lure his father Naganagouda Kandakur, the JDS MLA representing the Gurumitkal constituency, to join the BJP.

To back his allegations, the complainant had also provided an audio recording of the conversation in question.

Pursuant to this, an FIR was registered and Yediyurappa and others for offences punishable under Sections 8 (taking gratification, in order, by corrupt or illegal means, to influence public servant) and 12 (punishment for abetment of offences) of Prevention of Corruption (Amendment) Act 2018 and Sections 120B (criminal conspiracy) and 506 (punishment for criminal intimidation) read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code.

This prompted the accused to move the High Court seeking to quash the complaint dated February 13, 2019. By way of an interim order dated February 22, 2019, the High court passed a common interim order staying all further investigation and proceedings pursuant to the registration of FIR in the said crime.

Since the interim order was passed ex-parte, the complainant filed applications seeking recall of the February 22 order.

What the Court held

With regard to the locus standi of the complainant to maintain the application for vacation of the interim order, the Court relied on the judgment in Dr Subramanian Swamy v. Dr Manmohan Singh and another to state,

"The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law."

The Court further added,

"That apart, the interim order secured by the petitioners having the effect of stalling the investigation prone to cause disappearance of the crucial evidence to the disadvantage of the law enforcing agency and respondent No.1 / State appears to have acquiesced in the matter as is evident from the unprecedented haste and alacrity in which a Special Public Prosecutor was appointed even before the matter was listed before the court, but after suffering an adverse order, no steps have been taken to expedite the matter, instead tacitly supporting the continuance of the interim order made in favour of the petitioners speaks in volume about the interestedness of respondent No.1."

The Court further said that the material produced before the Court clearly disclose that an attempt has been made to topple the government .

"These allegations, if found true, would even attract the ingredients of the offences under sections 120B, 124A, 171H of IPC as the allegations made in the complaint and the material produced in support thereof clearly disclose that an attempt has been made by the petitioners to excite disaffection towards the Government established by law by encouraging defection so as to topple the Government by lure of money and position prima facie making out the ingredients of sections 120B, 124A and Section 171H of Indian Penal Code. Thus a clear case has been made out by respondent No.2 to vacate the interim order of stay granted by this Court and to order a thorough probe into the matter."

The Court also found that the cases were listed only on March 15, 2021, despite the Supreme Court's directions to list all pending criminal cases involving sitting/former legislators, particularly those wherein a stay has been granted.

Interestingly, the Court observed that these cases did not figure in the lists submitted to the Court. As a result, the directions issued by the Supreme Court in Ashwini Kumar Upadhyay and others v. Union of India on September 9, 2020 to hear such matters on a day-to-day basis and to dispose of the same expeditiously, within a period of two months, could not be complied with.

The Bench therefore, proceeded to direct that

"The Registry to bring the same to the notice of the Chief Justice so as to take appropriate action against the erring officials as the records clearly indicate that the lapses in listing the cases were deliberate and intentional and obviously to the advantage of the petitioners."

[Read order here]