- Apprentice Lawyer
In what may be seen as another setback to Karnataka Chief Minister BS Yediyurappa, the Karnataka High Court on Tuesday refused to quash a First Information Report (FIR) filed against him in relation to the illegal land de-notification case he is allegedly involved in [BS Yediyurappa v. State of Karnataka].
The Court imposed Rs 25,000 as costs upon Yediyurappa, while hearing the plea moved by him in 2017.
Significantly, the Court also took serious note of the "unscrupulous, immoral and unholy nexus" between the Chief Minister and the complainant, who had sought to withdraw his complaint on flimsy grounds.
While dismissing the petition seeking quashing of FIR filed against the CM, the Single Judge Bench of Justice John Michael Cunha held,
"Since the allegations made in the complaint and the documents produced in support thereof prima-facie disclose the ingredients of the alleged offences under P.C. Act (Prevention of Corruption Act) as well as under IPC, the investigation therein cannot be stalled as sought for by the petitioner."
The case pertains to the denotification of a 1.11 acre land at Gangenahalli, which is part of the Matadahalli Layout in Bangalore's RT Nagar. Former Chief Minister HD Kumaraswamy and others are also accused in the case.
Based on a complaint by social activist Jayakumar Hiremath, the Lokayukta Police had registered a case May 5, 2015 under various sections of Prevention of Corruption Act, 1988, Indian Penal Code (IPC) and the Karnataka Land (Restriction on Transfer) Act, 1991.
Arguments raised by the parties
Senior Advocate CV Nagesh, appearing for Yediyurappa, had argued that the prosecution launched against his client is illegal and an abuse of the process of court.
He submitted that the allegations made in the complaint, even if accepted on their face value, do not constitute the ingredients of the alleged offences insofar as the Chief Minister is concerned.
Further, it was argued that Yediyurappa had ordered for de-notification of the land based on the notings put up by the officials pursuant to the powers vested in him under Section 48 of the Land Acquisition Act. As such, no illegalities or malafides could be imputed to him, Nagesh claimed.
Nagesh also said that the Doctrine of Public Trust, which made it incumbent upon the government to protect resources for the enjoyment of the general public, cannot be invoked to fasten criminal liability against ministers and public servants.
On the other hand, Special Public Prosecutor Venkatesh S Arabatti pointed out that the complaint in question is demonstrative of abuse of power by two Chief Ministers who not only ignored the law and the legal principles, but also deliberately and with dishonest intention de-notified the lands which had been acquired by the government decades ago.
He further said that the de-notified lands were sold by the mother-in-law of HD Kumaraswamy to her own son and brother-in-law of HD Kumaraswamy based on the de-notification ordered by Yediyurappa, which smacks of a well-designed conspiracy to make unlawful gains.
What the Court held
After going through the rival submissions and the documents produced, the Court concluded that Yediyuruppa could not have ordered for de-notification of the subject lands.
"In the light of the notings at paras 33 to 37 (of the documents produced), the petitioner could not have ordered for de-notification of the subject lands. The order at para 39 on the face of it is indefensible. There is nothing in para 39 to suggest that the petitioner had ordered for de-notification based on the notings put up by the officials in exercise of the power under section 48 of the Land Acquisition Act on satisfaction that the land has not vested with the Government."
The Court added,
"The question as to whether the said order was passed by the petitioner by abuse of power or in furtherance of the common object of the conspiracy need to be ascertained only after a thorough investigation."
It was further held that the allegations made in the complaint and the materials produced in support prima facie disclose the ingredients of the offences alleged against the petitioner, therefore warranting a thorough investigation.
"Unholy nexus" between CM and complainant
Strangely, the complainant later filed a memo dated December 9, 2020 seeking leave to withdraw the petition in view of the insertion of section 17A of the PC Act.
His memo read that he is left with no other option than to concur with the claim of Yediyurappa that the investigation cannot be undertaken in the absence of an appropriate permission by the appropriate authority, as the subject matter relates to an order passed by the public servant in discharge of his duties as a public servant.
The complainant's "out of the blue" memo prompted the Court to direct him to appear before it to explain the circumstances of filing the same.
Karnataka High Court
In his response, he engaged Senior Counsel Ashok Haranahalli and filed an affidavit reiterating the averments made in the memo. Haranahalli submitted that the complainant was not having materials as were necessary that would connect the accused with commission of the alleged offence.
Taking into account the submissions of the complainant, Justice Cunha said,
"The contents of the above affidavit, I may hasten to add, when compared with the facts and events narrated by respondent No.2 (complainant) in the complaint lodged by him in the year 2015, make it evident that an ingenious attempt has been made to bail out the petitioner and other accused persons named in the FIR."
Adding on, the Bench stated that,
"Though respondent No.2 has no legal right or locus standi to seek withdrawal of the complaint or to enter into composition with accused, yet, the hidden motive of respondent No.2 is glaringly evident from the manner in which he has made audacious statements in the affidavit contrary to the records which he claimed to have been "able to advert' and "which had come on record in the course of investigation" and sought to justify them by engaging a Senior counsel on his behalf.
It is really preposterous and disgusting to note that in his eagerness to justify the acts of the petitioner, he has even gone to the extent of taking upon himself the role of an investigator, prosecutor and the Judge, making a grand declaration on oath that "a careful examination of the record of the case" indicated to him that "possession of the land has remained only on paper" and that "number of unauthorised structures have also come into existence over the lands notified for acquisition etc".
Among other stringent observations, the Court stated that it was quite obvious that the complainant had fallen "prey" to the pressure of the current Chief Minister.
"From the reading of the above affidavit and the memo, one can readily draw an inference that respondent No.2 has either fallen a prey to the allurements or has yielded to the pressure of the petitioner or other accused persons named in the FIR, as it is evident that at the instance of the petitioner, petition was amended solely with a view to create a ruse for respondent No.2 to seek withdrawal of the complaint."
The Court directed the investigating agency as well as the trial court which is seized of matter to take note of the unscrupulous, immoral and unholy nexus between the petitioner and the complainant and take suitable action as per law at appropriate stage.
With these observations, the Court rejected the the memo filed by the complainant seeking to withdraw the complaint.
In December, the High Court refused to quash a criminal complaint registered against Yediyurappa in another case, for alleged illegal de-notification of land when he was Deputy Chief Minister of the State, between February 2006 and October 2007.
[Read order here]