Karnataka High Court: While considering the petition filed by the current Chief Minister of Karnataka, Siddaramaiah challenging the Gubernatorial Order, granting permission under Section 17-A of the Prevention of Corruption Act, 1988 (PC Act) and sanction under Section 218 of the Nagarik Suraksha Sanhita, 2023 (‘BNSS’) against him in connection to MUDA Scam; the Bench of M. Nagaprasanna, J., found that the complainants were justified in registering the complaint or seeking approval at the hands of the Governor. The Court also held that approval under Section 17A of the PC Act is mandatory in the fact situation.
Furthermore, the Court pointed out that the Governor in the normal circumstance has to act on the aid and advice of the Council of Ministers as obtaining under Article 163 of the Constitution but can take independent decision in exceptional circumstances and opined that the instant case was one such exception. The Court also did not find any fault in the action of the Governor exercising independent discretion to pass the impugned order. The order was read to be restrictive to an approval under Section 17A of the Act.
“If this were to be a case of common man, he would not have fought shy of facing the investigation. In the opinion of the Court, the Chief Minister, a leader of the proletariat, the bourgeois and of any citizen, should not fight shy of any investigation. There is lurking suspicion, looming large allegations, and the beneficiary of `56 crores, is the family of the Chief Minister (…), the irresistible conclusion is, an investigation becomes necessary”.
Background:
The respondents (complainants) alleged that the Chief Minister indulged in criminal manipulations for corrupt gains by corrupt means, for himself & his family to enrich themselves illegitimately and illegally vis-a-vis grant of land by the Mysore Urban Development Authority (MUDA) to the CM’s wife.
Complainants, sought to register a complaint, initially before the jurisdictional police. The complaint was not acted upon. One of complainant approached the Commissioner of Police in registering the complaint both in compliance with Section 154(1) and 154(3) of CrPC, however, no action was taken. The complainants knocked at the doors of the Special Court invoking Section 200 of CrPC seeking registration of the crime and the proceedings were kept in abeyance awaiting approval at the hands of the Competent Authority under Section 17A of the PC Act.
The complainant then presented their petitions before the Governor, who then issued a show cause notice to the CM. The same is also sent to the Chief Secretary, to place it before the Cabinet, as necessary in law.
The office of the Governor, thereafter, communicated the State the decision according sanction against the Chief Minister under Section 17A of the PC Act and Section 218 of the BNSS on 17-08-2024.
Major Contentions:
Counsels for the CM contended that the order of the Governor suffered from blatant non-application of mind, and the show cause notice to the CM was issued only on the petition presented by one of the complainants which was in violation of the principles of natural justice, as the impugned order made reference to two petitions, but show cause notice was issued only on one petition.
It was further argued on the facts that, every act right from 1992, till the date of grant of compensation or alternate 14 sites allotted in favour of the CM’s wife, are all acts done in accordance with law. It was not the CM who had been benefited out of any transaction nor his wife was the sole applicant for grant of compensatory sites. There were 120 people whose lands were taken over by the MUDA, notwithstanding the lands had either been notified or de-notified or without notification for acquisition. This mistake of MUDA had resulted in the Authority granting sites on compensation, in terms of a Rule that was in existence from 2015, to end all litigation against MUDA.
Per contra, the complainants submitted that the order of the Governor is not like an order of a Tahsildar granting sanction/approval to prosecute a Village Accountant. It is the order emanating from a high office. The order per se, need not contain elaborate reasons. The reasons in the order must be those which are culled out from the file. The complainant further argued on facts that non-existent agricultural land was purchased; non-existent agricultural land was converted; non-existent agricultural land was made the subject matter of compensatory sites and for non-existent things, Rs 56/- crores compensatory sites were granted all out of public money; hence, the matter would require investigation in the least.
Issues Raised:
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Whether the petitions before the Governor and the complaints before the concerned Court were justified in the fact situation?
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Whether the approval under Section 17A of the PC Act is mandatory in the teeth of facts and whether Section 17A requires only a Police Officer to seek approval from the Competent Authority?
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Whether the order of the Governor suffers from want of application of mind?
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Whether it would suffice for reasons to be recorded in the file of the decision making authority and the same culled out in parts in the impugned order?
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Whether the decision taken by the Governor in alleged hottest haste of issuing a show cause notice on the same day of receipt of the petition has vitiated the entire decision?
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Whether reference to Section 218 of BNSS in the impugned order vitiates the entire order?
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Whether prima facie role of the petitioner is established?
Court’s Assessment:
Persuing the facts in detail and the contentions raised by the parties, the Court noted that from 1996 to 1999, Siddaramaiah was the Deputy Chief Minister of Karnataka State. Again in 2004 and 2005 he was the Deputy Chief Minister; from 2013 to 2018 he was the Chief Minister and between 2018 and 2023 his son was an MLA. Therefore, intermittently on and off, Siddaramaiah had been at the helm of affairs.
The Court further pointed out that it is rather difficult to accept that the beneficiary of the entire transaction to which compensation was determined at Rs 3.56 lakhs to become Rs 56 crores is not the family of the CM. In the decision making process at certain time, his son was a party to the meeting which took a decision finally to allot 14 sites. “It is too bleak contention meriting any acceptance albeit prima facie that the petitioner was not behind every thing standing just behind the curtain. It is not behind the smoke screen but behind the curtain even”.
Delving into the facts the Court stated that if events or the link in the chain of events are noted, there are few dots to be connected. It is that connection of dots that would require an inquiry or an investigation in the least. “I say so for the reason that immediately after 14 sale deeds were registered in favour of the wife of the petitioner, the Urban Development Department issues directions to the Commissioner, MUDA to stop allocation of compensatory sites till guidelines are formulated”. Therefore, the law was completely towards prima facie illegality only to favour the CM’s wife as the very allotment of sites as compensation was said to be contrary to the Compensation for Land Acquired Rules 2009 and Incentive Scheme of Voluntary Surrender of Land Rules,1991.
Analyisng the genesis of Section 17-A of PC Act, 1988, the Court noted that the CMS is a public servant and the allegations against him are wanting to be investigated into. If investigation has to ensue, it must pass through the gates of 17A. Therefore, an approval under Section 17A from the hands of the Competent Authority is imperative, as it is the mandate of the statute. Without an approval under Section 17A, no enquiry, inquiry or investigation can commence against a public servant.
Vis-a-vis the impugned Gubernatorial order, the Court noted that it appeared that the Governor perused the file, directed putting of comparative statements of the objections — Chief Minister’s reply and the Cabinet decision. This was complied with and placed before the Governor on 14-08-2024. The Court noted that the entire sheet anchor of the submission is that the Governor should not have declined to accept the Cabinet decision or the resolution of the Council of Ministers as the CM did not participate in the deliberations, but nominated the Deputy Chief Minister, to preside over the said meeting. It need not bear scientific accumen to prima facie hold that the Council of Ministers who are appointed on the advice of the Chief Minister would go against the Chief Minister and pass a resolution that permission should be accorded for grant of approval by the Governor for prosecution. “Such a situation cannot be contemplated today as, if such a situation emerges, it would be an utopian land, while it is not”. Therefore, testing the decision of the Cabinet on the bedrock of bias, the Court found no fault in the discretion exercised by the Governor. “Considered on the touchstone of the principles of bias, as laid down by the Supreme Court and on the perusal of the preamble of the Cabinet note supra what would unmistakably emerge it that the decision of the Cabinet nominated by the Chief Minister, would not be free from bias or being partisan towards their leader. It is in such exceptional circumstance, independent discretion is imperative; the Governor has thus taken an appropriate decision to independently assess the matter, exercise his independent discretion and pass the order”.
The Court rejected the arguments raised by the CM’s counsels vis-a-vis violation of principles of natural justice and stated that if the submission is accepted, it would undoubtedly be stretching natural justice to an unnatural extent, as prior to registration of the crime, every accused will have to be heard. Likewise, prior to approval being granted, the person against whom approval is sought will have to be heard. “This is turning the law topsy-turvy”.
Finally touching upon the prima facie role of the CM in the MUDA scam, the Court noted that How and why laws were bent in favour of the family of the Chief Minister is what is required to be investigated into. “If the beneficiary were to be a stranger, this Court would have shown the complainants their door of exit, while it is not. The beneficiary is the family of the petitioner, not today, right from 2004, the day on which the Brother-in-law purchases the property and more so, from 2010 when he gifts the property to the wife of the petitioner. Even if it is taken that there are allegations from 2010, it would suffice for an investigation, in the light of the preceding analysis/findings”.
Furthermore, the Court pointed out that merely because the CM’s wife had indulged in all these acts, legal or illegal, the CM cannot be said to be completely ignorant of what is happening in the life of his wife, qua these factors. It, prima facie, depicts stretching of the arms of undue influence and portrays abuse of power of the seat of the Chief Minister or any other post held by the petitioner.
Conclusions:
The complainants were right in seeking registration of complaint and seeking Governor’s approval.
Section 17A, PC Act nowhere requires Police Officer to seek approval in a private complaint registered under Section 200 of the Cr.P.C./223 of BNSS against a public servant for offences punishable under the provisions of the Act. It is the duty of the complainant to seek such approval. Furthermore, grant of an opportunity of hearing prior to approval under Section 17A, PC Act is not mandatory. If the authority chooses to do so, it is open to it.
It would suffice if the reasons are recorded in the file of the decision making authority, particularly of high office, and those reasons succinctly form part of the impugned order. A caveat, reasons must be in the file. Reasons for the first time cannot be brought before the constitutional Court, by way of objections.
The Gubernatorial order nowhere suffers from want of application of mind. The decision of the Governor of alleged hottest haste has not vitiated the order. The facts narrated in the petition would undoubtedly require an investigation. In the teeth of the fact that the beneficiary of all these acts is not anybody outside, but the wife of the petitioner.
[Siddaramaiah v. State of Karnataka, 2024 SCC OnLine Kar 91, decided on 24-9-2024]
*Judgment by Justice M. Nagaprasanna
Advocates who appeared in this case :
For petitioner: ABHISHEK MANU SINGHVI, A/W., PROF. RAVI VARMA KUMAR, SR. ADVOCATE FOR SRI SHATHABISH SHIVANNA, SRI SAMRUDH S.HEGDE, AND SRI ABHISHEK J., ADVOCATES
For Respondents: SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SRI B.N.JAGADEESHA, ADDL. SPP; SRI S.ISMAIL ZABI ULLA, ADDITIONAL ADVOCATE GENERAL SMT. ANUKANKSHA KALKERI, HCGP FOR R1; SRI TUSHAR MEHTA, SOLICITOR GENERAL OF INDIA A/W., SRI ABHISHEK KUMAR, SRI KANU AGARWAL, SRI TANMAY MEHTA, AND SRI KEERTHI REDDY, ADVOCATES FOR R2; SRI RANGANATHA REDDY, ADVOCATE FOR R3; SRI MANINDER SINGH, SENIOR ADVOCATE A/W., SRI K.G.RAGHAVAN, SENIOR ADVOCATE SMT. LAKSHMY IYENGAR, SENIOR ADVOCATE FOR SRI SUSHAL TIWARI N., SRI VASANTHA KUMARA, SRI SKANDA ARUN KUMAR, SRI PRABHAS BAJAJ, SRI NISHANTH KUSHALAPPA, SMT. ANITHA M.PATIL, ADVOCATES FOR R4; SRI PRABHULING K.NAVADGI, SENIOR ADVOCATE A/W., SRI PRAKASH M. H., ADVOCATE FOR R5
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