The Karnataka High Court comprising of a single bench of Justice John Michael Cunha has set aside the order of a Special Court under the Prevention of Corruption Act which dismissed a complaint of corruption filed against Chief Minister B S Yeddiyurappa and former Minister of Large and Medium Scale Industries Katta Subramanyam.
The bench while setting aside the order directed the special court for corruption cases to reinstate an old case against Chief Minister B S Yediyurappa that had been dropped by a Sessions court in July 2016 and take cognizance of the offences made out in the charge sheet against Yeddiyurappa and Subramanyam (named as accused Nos.1 and 2 in the charge sheet) and proceed in accordance with law.
The bench while setting aside the order said "The impugned order being wholly perverse, arbitrary and contrary to law and facts of the case, in my view, cannot be sustained."
The bench observed that the Special Court errred in dismissing the complaint after chargesheet was filed against the accused.
The bench in its order stated, "Once the charge sheet is filed, the Magistrate or the Court has no other option than to take cognizance of the offence alleged in the charge sheet and proceed in accordance with law".
Fatcs of the case
The plea for reinstatement of the this case was lodged by activist Alam Pasha in 2016.
Pasha was the original complainant in land privatization case filed in 2012 against Yediyurappa, minister Katta Subramanya Naidu and 11 others.
Pasha has contended before the High Court that the sessions court had wrongly dropped the case in 2016 by quoting a closure report submitted by the police.
The accusation against Yediyurappa and Naidu were that they have wrongly used their ministerial positions to permit the release of over 24 acres of government-acquired land in north Bengaluru to private persons which in turn has result in loss to the State exchequer.
The Lokayukta police, following investigations, had filed a final report dropping the cases against nine persons named within the case since no evidence have been collected against them and a filed a chargesheet against Yediyurappa and Naidu.
In 2016, the Special Judge dismissed the case by saying that the complaint had no allegations against Yediyurappa and Subramanya Naidu.
"There are no allegations in the complaint against the charge sheeted accused B.S. Yeddyurappa and Katta Subramanya Naidu. When there is no allegations made against the charge sheeted accused Nos. 1 and 2 in the complaint and non arriving of the said charge sheeted accused Nos. 1 and 2 in the complaint, this Court is unable to take cognizance of the offence against the charge sheeted accused for the alleged offences."
Challenging the dismissal, the petitioner approached the High Court.
Contention of the parties
The contention of learned counsel for the petitioner was that the impugned order is illegal and perverse on the face of it; the learned Special Judge had no jurisdiction to dismiss the complaint while considering the ‘B’ summary report submitted by the Investigating Agency. Placing reliance on the decision in the case of Hardeep Singh V. State Of Punjab And Others, (2014) 3 SCC 92, learned counsel pointed out that “after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.”
The Counsel highlighting these principles emphasized that a complaint could be dismissed only under section 203 Cr.P.C. provided the learned Magistrate or the Special Court decides to proceed under section 200 Cr.P.C., whereas, in the instant case, the learned Special Judge himself having directed investigation and having secured an investigation report, he had no other option other than to take cognizance of the offences against the offenders even if they were not named in the FIR.
He further on the issue maintainability of the petition under Section 397 Cr.P.C., relied on the decision in Manju Surana V. Sunil Arora And Others, (2018) 5 SCC 557 and submitted that an order of dismissal of the complaint has the effect of discharging the accused against whom charge sheet has been laid by the police thus finally terminating the proceedings and therefore the impugned order is amenable for challenge under Section 397 Cr.P.C.
Sri. Kiran S. Javali, learned counsel representing Sri. Chandrashekara. K appearing for respondent No.11 at the outset questioning the locus-standi of the petitioner to maintain the petition against respondent Nos.10 and 11, submitted that accused Nos.10 and 11 were not named in the PCR or in the FIR registered by police; the investigation was undertaken only against accused Nos.1 to 9; there were no allegations against accused Nos.10 and 11, under the said circumstances, the petitioner has no locus-standi to challenge the order passed by the Special Court when the investigating agency themselves have not chosen to prefer any appeal or revision against the order passed by the Special Court and thus sought to dismiss the complaint.
Special Public Prosecutor B.S. Prasad, said the impugned order cannot be sustained under law or on fact; the learned Special Judge while considering the final report cannot dismiss the complaint; the order passed by the Special Judge has the effect of discharging the accused; the impugned order does not reflect any application of mind by the Court.
Court’s Observation & Judgment
Firstly, the court said the impugned order has been passed by the learned Special Judge while considering the 'B' Summary report submitted by the Investigating Agency insofar as accused Nos.1 to 9 are concerned.
The High Court referring to the procedure to be followed by the Magistrate or the Court in accepting or rejecting the 'B' summary report, as it has been laid down by the Apex Court in the case of Kamalapati Trivedi V. State Of West Bengal', (1980) SCC (2) 91 said :
"As the learned Special Judge has failed to consider the 'B' summary report and has not passed any orders either rejecting or accepting the report filed by the respondent No.13 insofar as respondent Nos.1 to 9 (original accused Nos.1 to 9), the impugned order is liable to be set aside only on that score."
The Court coming to the issue of chargesheet filed by the police against Yediyurappa and Subramanyam said,
"In the instant case, on going through the impugned order, I find that the Special Court was oblivious of the fact that it was dealing with the allegations relating to the violation of the provisions of P.C. Act that was enacted with the avowed object of eradicating corruption in public life."
The court then went on to point to the object of the Prevention of corruption act it said, "It encompasses within its fold not only the public servants but also those who abet and conspire with them in respect of the offences enumerated therein. Though by subsequent amendment to the P.C.Act much greater protection has been provided to the public servants by introducing section 17A of PC Act and allied provisions; but the law as existed required the Special Court to effectuate the object and purpose of the P.C. Act."
It also noted that unlike other criminal courts, the Special Judge manning the Special court constituted under section 3 of the P.C. Act has been invested with the original jurisdiction and the power of Magistrate as well as the Sessions Judge and even the power of the District Judge while exercising the power under The Criminal Law (Amendment) Ordinance, 1944.
The bench also observed that "under Section 5(1) of the PC Act, the Special Judge could take cognizance of the offences under the Act without the matter being committed to him. Therefore, when a charge sheet is filed before the learned Special Judge alleging commission of cognizable offences under the provisions of the P.C. Act, he has no discretion to choose to ignore the cognisable offence staring on the face of the record and give reprieve to the accused on the flimsy ground that the allegations of the cognizable offences are not made in the complaint or in the FIR."
The court concluded by saying "The reasoning of the Special Judge that there were no allegations in the complaint against the charge sheeted accused B.S. Yeddiyurappa and Katta Subramanya Naidu and therefore, no cognizance could be taken against them being contrary to the settled principles of law, cannot be sustained."
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