Karnataka High Court allows DK Shivakumar to withdraw plea against CBI after Congress government reverses consent for probe

The Karnataka High Court on Wednesday allowed Deputy Chief Minister DK Shivakumar to withdraw an appeal challenging a Central Bureau of Investigation (CBI) probe against him in a corruption case, considering that the (now) Congress-led State government recently withdrew consent for the CBI probe. .A bench of Chief Justice PB Varale and Justice Krishna S Dixit took note of Shivakumar's submission that the writ appeal was now infructuous since the matter rested on the State's sanction for a CBI probe which has now been withdrawn. .On these terms, the Court disposed of the matter, but not before the judges made comments flagging concern about how such decisions appeared to rest on shifting political regimes. "We accept there is a rule of continuity of the government. If one policy is accepted by the government, it is possible that there will be change in the government. There may be A party holding power, and B party may come to power later.. But if this change (in policy) is effected every time, will it not affect the rule of the continuity of governance?" Chief Justice Varale asked..The CBI's case against Shivakumar concerns irregularities in mining and real estate activities.The Enforcement Directorate (ED) had initially filed a case against Shivakumar under the Prevention of Money Laundering Act, in connection with which he was arrested on September 3, 2019.However, he was later released on bail following an order from the Delhi High Court, which was confirmed by the Supreme Court.Meanwhile, on September 9 2019, relying on the ED's letter, the then BJP-led State government allowed the CBI to conduct an investigation into the matter as well.Recently, the Congress-led government (which came into power in Karnataka in 2023) announced that it was withdrawing the earlier consent given to the CBI in the matter..Appearing for the CBI, advocate P Prasanna Kumar submitted that he had no objection to the withdrawal of Shivakumar's appeal or even the withdrawal of consent. He added that the law would take its own course and that the CBI would follow the law.He, however, questioned whether the CBI probe itself could be halted at the present stage. He argued that once consent has been given and the investigation has commenced, any withdrawal of consent is "non-est" or of no consequence. In this regard, he also relied on the Supreme Court's ruling in Kazi Lhendup Dorji vs CBI, although the State replied that the said judgment involved distinct facts. .Meanwhile, advocate Venkatesh Dalaway appeared for Bharatiya Janata Party (BJP) MLA Basanagouda Patil Yatnal (an intervention applicant) to oppose the State's decision to withdraw consent for the CBI probe."My opposition is to consent order, which is tailor-made to scuttle the investigation ... State acting like this is a serious concern. The appellant (Shivakumar) is not an ordinary man," the counsel argued..The Court, however, replied that if at all the State's decision has to be challenged, it should be done in independent proceedings. The Court added that it may also not be comfortable with how the CBI consent was withdrawn because of a change in the political regime. It may have a different opinion outside the Court on the larger issue but it cannot go beyond what the law says, the bench opined. "The things that are happening may not be that pleasant to us also. But law does not dependent on what judge is feeling or comfortable, etc. We have to do things according to law," Justice Dixit explained..Appearing for Shivakumar, Senior Advocate AM Singhvi asserted the aspect of whether the State's decision should be challenged is not one to be considered at the present stage. Since the State's sanction for a CBI probe no longer existed, Shivakumar's appeal was now infructuous and should be allowed to be withdrawn, he contended. .Appearing for the Karnataka government, Senior Advocate Kapil Sibal weighed in by underscoring that Shivakumar, being the dominus litis (master of the case), was entitled to decide whether or not the appeal should be withdrawn..In a lighter vein, Senior Advocate Sibal also noted both the initiation and the closure of a CBI probe are often politically motivated. "If I may be permitted to say, with your lordships' vast experience, and my somewhat limited experience in politics, we know when matters, how they are referred to CBI, why and when they are withdrawn. There are two sides to the coin - one side need not be clean, the other need also not be clean," Sibal said..The Court proceeded to allow Shivakumar to withdraw his appeal."We are not asking why State is acting like this, it is not in our domain," the bench added orally, in response to a submission by BJP MLA Yatnal..Responding to concerns by the CBI's counsel, the Court also assured that it has only closed Shivakumar's appeal and that it has not foreclosed the right of anyone else to challenge the State's withdrawal of consent for the CBI probe. .[Read live coverage of the court hearing].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.