Stay in corruption trials-judicial apathy?

The Supreme Court of India on 1.5.13 stayed criminal proceedings before the Judge, Prevention of Corruption Act, Karnataka where the current Minister for Energy in the Karnataka Government, Mr. D K Shivakumar was one of the accused persons. Another accused, apart from certain government officials, is Mr. Yedurappa, the former Chief Minister of Karnataka. The learned Additional City Civil and Special Judge, Prevention of Corruption Act at Bangalore, on two private complaints filed on 5.3.12 and 6.3.12, ordered investigation by the Karnataka Lokayukta Police under section 156 (3) of the Code of Criminal Procedure, 1973, vide order dated 7.3.12. The learned judge took congizance of the final report filed by the Lokayukta Police on 5.7.12 and issued summons to the accused persons.  The learned Judge noted the following from the final report of the Lokayukta Police whilst taking cognizance:

“16. It is revealed in the report that, accused no 1 Mr. D K Shivkumar has been Minister for Urban Development, Government of Karnataka from 20.6.2002 to 13.5.2004 and purchased, the land to the extent of 4 acres 20 guntas on 18.12.2003 by violating the norms at Benniganahalli village, K R Puram Hobli and also influenced the then senior Sub-Registrar. Ti is also claimed that after purchasing the aid land, he exercised his influence over the accused no 4, 5 and 6 in getting the Khata made in his name and the land was converted illegally for residential purpose with the object for constructing apartments. In investigation also reveals that the accused no 1 as public servant during the relevant point of time and it is claimed that he grossly  ignored the public interest and used his official position for his personal pecuniary benefit and committed the offence punishable under section 13 (1) (c), 13 (1) (d) read with section 13 (2) of Prevention of Corruption Act 1988 and section 129 (B), 169 of IPC.

24. It is revealed that the accused no. 1 being a Minister, public servant, purchased a notified land with an object of illegally getting it converted for personal pecuniary gains and prevailed upon the officials for getting favourable orders. And the official and responded favourable but illegally.

27. It is the claim of the investigating agency, at this crucial level accused no. 1 got the land converted i his name and also earlier to which the other revenue documents were done in a greater velocity suppressing the fact of notification order dated 18.10.1986.

30. Investigation also reveals that the accused no. 1 made illegal attempt to keep the tracks away from the public domain wherein filed separate application for conversion in his name and de-notification in the name of  BK Srinivas.

36. Thus the de-notification of the land takes place at the discretion of Mr BS Yeddurappa and the direct beneficiary is accused No. 2 DK Shivkumar. It is necessary to mention that the de-notification of the land was made on 13.5.2010 which is literally more than 6 years 10 months to the date of the death of erstwhile owner BK Srinivas.”

The accused, Mr. Shivakumar, went before the High Court of Karnataka in Writ Petition (26555 of 2012) challenging the criminal proceedings against him. The Karnataka High Court on 1.8.12 initially stayed the proceedings before the trial judge, but on being shown the ban on stay in the Prevention of Corruption Act, later rightly vacated it on 15.4.13. Mr. Shivakumar, however, preferred an SLP (Special Leave Petition) against the vacation of stay. On the first hearing itself, the Supreme Court, on 1.5.13 without hearing the Respondent, the original complainant, stayed the proceedings in the trial court. As a result of the stay which continues till today, the proceedings in the trial court have been completely stalled.   

This stay has been granted by the Supreme Court in the teeth of embargo contained in the Prevention of Corruption Act in Section 19 (3)(c). The provision says thus:

“(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(c) No court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in inquiry, trial, appeal or other proceedings.”

Quite shockingly, the accused, Mr Shivakumar had been elevated in the cabinet, and apparently, his elevation was defended by the current Chief Minister Mr. Siddaramaiah on the ground of the aforesaid stay by the Apex Court.

Quite contrary to the aforementioned approach of the Supreme court, the Court through Justices Lodha and Joseph, in Public Interest Foundation and Ors. v. Union of India and Anr(Writ Petition Civil No 536/2011), made a striking observation, while dealing with the Law Commission’s 244th report Report titled “Electoral Disqualifications”. Faced with the menace of presence of tainted MLAs and MPs in country’s politics, Justice Lodha, speaking for the court held the following (vide order dated 10.3.14):

“4. In so far as the first question is concerned , the Law Commission has observed that disqualification upon conviction had proved to be incapable of curbing the growing criminalisation of politics, owing to long delays in trials and rare convictions. The law needs to evolve to pose an effective deterrence, and to prevent subversion of the process of justice….

12. We accordingly direct that in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in section 8(1). 8(2)and 8(3) of the RP Act, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). In such cases, as far as possible, the trial shall be conducted  on a day to day basis. If for some extraordinary circumstances the concerned court is not being able to conclude the trial within one year from the date of framing of charge(s), such court would submit the report to the Chief Justice of the respective High Court indicating special reasons for not adhering to the above time limit and delay in conclusion of the trial….”

It may be noted that the Representation of People Act, 1951 (RP Act) under Section 8 (1) (m) lists the Prevention of Corruption Act, 1988. Thus the aforementioned direction of the Apex Court applies squarely to corruption trials. The law covering the present controversy is fairly settled. The accused, Mr. Shivkumar, approached the High Court of Karnataka in a writ petition under Article 226 of the Constitution. While the remedy of writ petition, being plenary, can’t be taken away by a statute such as the Prevention of Corruption Act, the same cannot be used to thwart an express statutory provision (ban of stay in this case). This statement of law was reiterated in M C Mehta v. Kamal Nath and Ors, AIR 2000 SC 1997, para 19-21. The Supreme Court, while commenting upon Section 482 of CrPC (which is similar to Article 226 of the Constitution in terms of powers conferred upon the High Court) held that it cannot be used to stay proceedings de hors the bar contained in the Prevention of Corruption Act. It is trite law that powers under Article 226 are to be used very sparingly and only to prevent abuse of process of the Court or to correct error of law apparent on the face of record. Such jurisdiction is not to be used for fact finding or for re-appraisal of facts or evidence. This has been repeatedly held by the Supreme Court in a plethora of cases such as Harjinder Singh v. Punjab State Warehousing Corporation (2010) 3 SCC 192, para 10, 11 and Surya Dev Rai v. Ram Chander Rai and Ors.(2003) 6 SCC 675, para 37.

Thus, only exceptional circumstances would justify stay of proceedings of trial Court in writ jurisdiction. Finding no such exceptional circumstances, the High Court rightly allowed the trial to proceed before the trial court.

Thus, with respect, it is submitted that the continuing stay of proceedings by the Supreme Court, is not only against the spirit and true intent of the Act but also defeats the purpose its own subsequent dictum. Such demeanour of the Apex Judicial Body, may well be the last nail in the coffin for the idea of corruption-free politics.