Challenge to withdrawal of consent for CBI probe against DK Shivakumar: Karnataka High Court moots reference to larger bench

Justice Krishna S Dixit of the Karnataka High Court on Friday opined that it would be better if a division bench hears the challenge to the Congress-led Karnataka government's decision to rescind consent for a probe by the Central Bureau of Investigation (CBI) against Deputy Chief Minister DK Shivakumar..The judge observed that there were several larger questions of seminal importance arising in the matter, which may be dealt with better by a larger bench. .The Court was dealing with two petitions, one by Bharatiya Janata Party (BJP) MLA Basangouda Patil Yatnal and the other by the CBI, which also has now objected to the State's decision to withdraw consent for the corruption investigation against Shivakumar. .Justice Dixit today ordered that both these petitions be placed before Chief Justice PB Varale so that a decision could be made on whether the matter should be heard by a division bench. "I am of a considered opinion that the papers be placed at the hands of Hon'ble the Chief Justice in terms of Section 8 of the Karnataka High Courts Act for consideration of the bench and strength of his choice so that once for all the matter would be over at the level of this Court. The Court shares view of petitioners that the bench, if so constituted at discretion of Chief Justice, may take the matter and treat it at a war footing. So ordered," Justice Dixit said while dictating the order. .The Court further recorded a request by the petitioner (Yatnal) and the CBI that the Lokayukta Police, to whom the probe against Shivakumar was transferred, should keep their hands off until a decision in made on which bench will hear the matter. Similarly, the Court recorded the Advocate General's submission that the CBI should also keep their hands off during this time. .By way of background, on September 25, 2019, the then BJP-government in Karnataka had granted CBI consent to register a first information report (FIR) against Shivakumar in a case involving allegations of corruption and holding of disproportionate assets.Shivakumar later moved a writ petition before a single-judge bench of the High Court challenging the same. On April 4, 2023, the plea was dismissed, following which Shivakumar moved an appeal before a division bench.Meanwhile, the Congress government came to power in the State in May 2023 and on November 28, it withdrew the consent granted to CBI for the probe. By this time, Shivakumar was also appointed the Deputy Chief Minister of Karnataka.In November 2023, Shivakumar was allowed by the Division Bench of the High Court to withdraw his plea which had become infructuous since the CBI did not have consent any longer to investigate him in the case.Aggrieved by this, Yatnal moved a writ petition. .Earlier Justice M Nagaprasanna had heard the matter briefly and had asked the State to argue on whether the petition is maintainable since Yatnal was not a personally aggrieved person. Yatnal's counsel, advocate Venkatesh Dalwai argued today before Justice Dixit that any private citizen has a right to challenge decision of the State cabinet if it stifles criminal prosecution."Withdrawal is illegal. As a responsible citizen, he (petitioner) can come before the Court and point out that there is an illegality. My interest is to see that law of the land is violated by the State government," the counsel asserted. Advocate General K Shashi Kiran Shetty, however, maintained that Yatnal has no locus to approach the Court in connection with criminal proceedings since he was a third party and not personally aggrieved. Meanwhile, the Court noted the CBI has now filed a petition in the matter and challenged the State's decision. "Whether Mr. Dalwai's client (Yatnal) has locus standi or not will pale in significance because CBI is also before the Court now," Justice Dixit noted. .However, he eventually opined that the case should ideally be heard by a larger bench since there were several important questions of law involved. "Many other Constitutional questions will arise. In a democratic set up, what is the role of this government which is elected subsequently? Whether consent given by earlier government affects the subsequent government? Because we have adopted the rule of continuity of government. So many aspects are there. The Cabinet is a constitutional authority. Now there is an order by the constitutional authority. The constitutional court is examining its validity. Naturally, many larger questions arise ... In deciding matters of this enormity, I feel the matter should be referred to a division bench," the judge orally observed. .[Read live coverage of the hearing]