K Shivanagouda Naik And Ors Vs State Of Maharashtra And Ors: Karnataka High Court Vacates Stay Orders Through Investigation Against Karnataka Chief Minister In Operation Kamala

CRUX: K. Shivanagouda Naik and ors vs state of Karnataka and ors - Karnataka High Court Vacates Stay, Orders Thorough Investigation Against Karnataka Chief Minister B.S. Yediyurappa in 'Operation Kamala' case

DATE OF FILING: 19/02/2019

DATE OF JUDGEMENT: 31.03.2021

JUDGE: Hon`ble Judge JOHN MICHAEL CUNHA

PARTIES

• Appellant - K. SHIVANAGOUDA NAIK AND ORS
• Respondents - STATE OF KARNATAKA AND ORS

COUNSEL: S.S. MAMADAPUR and GOVT ADV FOR R1

SUMMARY: Karnataka High Court Vacates Stay, Orders Thorough Investigation Against Karnataka Chief Minister B.S. Yediyurappa in 'Operation Kamala' case as Judge John Michael Cunha allowed further investigation into the matter.

ISSUE: The question before the court was - whether the FIR against B.S. Yeddyurappa can be quashed or is there a need for further investigation into the matter.

IMPORTANT PROVISIONS

Section 482 of Criminal Procedure Code, 1973
Section 8 and 12 prevention of corruption act 2018
Section 120 B, 506, 124 A, and 171 H of Indian Penal Code, 1860
Section 34 of Indian Penal Code, 1860
Articles 226 and 227 of the Indian Constitution
Rules 18, 12, and 13 of the writ proceedings rules, 1977

OVERVIEW

1. 18 February 2019 the then Chief Minister of Karnataka and JDS leader HD Kumaraswamy had released and audio tape of an adult conversation between state BJP head BS Yeddyurappa and Sharanagowda. In this tape, Yeddyurappa allegedly attempted to poach JDS MLAs by offering them money and cabinet births. Yeddyurappa in his defence claimed that - "it is true that Sharanagowda came and I spoke to him". However, he also claimed that the audio clip released by the Karnataka Chief Minister had been edited according to their convenience.
2. The primary petitions are filed under article 226 and 227 of the Indian Constitution read with section 482 of Criminal Procedure Code season to dismiss the complaint dated 13th February 2019 file by the second respondent and to to dismiss the FIR in Crime Number 0019/2019 dated on 13th February 2019 which was registered for the offences under section 8 and 12 prevention of corruption act 2018 and for the offences under section 120 B, and 506 read with section 34 of IPC and to quash all further proceeding thereto.
3. The petitioner B.S. Yeddyurappa is assigned as 1 use number 1. And ke Shivanagonda Nayak, Preethamgowda and M.B. Maramkal are assigned as accused no 2,3, and 4 respectively.
4. On 22nd February 2019, the high court of Karnataka passed a common interium order staying further investigation into the matter and all further proceedings in regards of the FIR until disposal of the writ petitions were admitted and notices were issued to respondent number to send the above order passed ex-parte.
5. When these applications came up for hearing the counsel for respondent no.2 sought for accommodation for rectification of the mistakes which was present in the prayer of the applications as a result the matter was it joint from time to time.
6. It was observed that the above strategy appears to have been adopted only to procrastinate and delay the disposal of I.As. filed by respondent number to to vacate the order of stay.

ANALYSIS OF JUDGEMENT

1. Regarding the locus standi of the respondent to maintain the application for vacation of the interim order the court relied heavily upon the observations made by the supreme court in the case of Subramanyam Swami vs Manmohan Singh and another1 in which it was observed by the apex court that -
2. Private citizens right to file a complaint against a corrupt political leader or a public servant must be equated with his right to access the court in order to set the actions of criminal law in motion against such official. The right to access being such an important constitutional right should not be burdened with unreasonable fetters. the court further observed that when a private citizen approaches a court of law against such officials not only vindication of personal grievance of that citizen is at stake but also the question of bringing orderliness in society and maintaining equal balance in the rule of law.
3. Regarding rule 18, 12, and 13 of the writ proceedings rules, 1977 the court held that keeping in mind the above-mentioned provisions the argument of the petitioner is an argument of desperation and is nothing but an ingenious attempt to hold on the interior I'm order as to delay the proceedings.
4. The court added "That apart, the interim order secured by the petitioners having the effect of stalling the investigation prone to cause disappearance of the crucial evidence to the disadvantage of the law enforcing agency and respondent No.1 / State appears to have acquiesced in the matter as is evident from the unprecedented haste and alacrity in which a Special Public Prosecutor was appointed even before the matter was listed before the court, but after suffering an adverse order, no steps have been taken to expedite the matter, instead tacitly supporting the continuance of the interim order made in favour of the petitioners speaks in volume about the interestedness of respondent no. 1."
5. The court further observed that by going through the case pleaded in the writ petition and then having regard to the allegations and counter allegations made by both the parties therein, the court is of the opinion that "no option is left other than permitting the investigating agency to continue the probe and an Earth the true facts behind the secret meeting held within closed doors at an unearthly hour."
6. the bench also added that if these allegations are found to be true it would also attract ingredients of the offences under section 120 B, 124 A, and 171 H of IPC along with the original allegations made.
7. The court further added that when the cases were listed before the court despite the directions to list down all the pending criminal cases involving sitting aur formal legislators, the directions issued by the honorable supreme court of India in Ashwani Kumar Upadhyay and others vs union of India and others2 to hear the matter on day-to-day basis and to dispose the same am expeditiously within a period of two months could not be complied with.
8. The bench finally directed that the registry to bring the same to the notice of the chief justice so as to take appropriate actions against the erring officials as the records clearly indicate that the lapses in listing the cases were deliberate and intentional and obviously to the advantage of the petitioners.

CONCLUSION

The present case was brought before the high court of Karnataka when several positions were filed against ministers of the legislation one such petition was filed against B.S. Yeddyurappa where allegations were made against him that he and his party tried to lure the opposition's legislators by offering the money and birth in the parliament in 2019. Although B.S. Yeddyurappa said that such meeting took place, he denied the corruption allegations.

In this case an interim order had stayed the probe in the case back in February 2019. But with this order, Justice John Michael Cunha has been created the stay order in the probe and has also denied BS Yeddyurappa's plea seeking the coaching of FIR.

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