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ಅ#¸ÀÆಚ1ೆ Lೊರ?@ ಭೂ ಾ,#ೕನ ಪ?@PÉÆAqÀÄ ಅVಾ¬ ಣ R@ರುFಾ. ೆ. ಆನಂತರ ಭೂ
[ಾSೕಕರು ಸ ಾ ರ ೆ9 ಮನK ಸST@ „ೆಡೂf• ಸ,c.8ೆ Lೊರ?@ರುವ ಭೂ ಾ,#ೕನ ಪ”_”Bಯನು/
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18.5.1998 ರಂದು ಅ#ಸೂಚ1ೆ Lೊರ?@ „ೆಡೂf• ಸ,ತ.ನು/ ಭೂ ಾ,#ೕನ ಕ”ಮ ಂದ ೈ ಟು
ಆ0ೇw@ರುತ.0ೆ.
„ೆಡೂf• ಸ,ತ.ನು/ ಮೂಲ [ಾSೕಕ ಾದ ಂಗ ಜವರ ಮೃತ ಾ)ದುC ಅವರ ಾZಾ
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1ೊಂ0ಾRತ ಕ”ಯಪತ”ದ ಮೂಲಕ w”ೕ .ಎಂ. ಮST ಾಜು ನ ಾ,> ಮ Sಂಗಯf ರವ 8ೆ
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ಕUೇ ಯST 11ೇ ಪ$ಸ.ಕದ ದ ಾ.Vೇಜು ನಂ, MYN-1-06088-2004-05 CD NANDE No.MYND2
1ಾಂಕ 25.8.2004 ರಂದು 1ೊಂದOpಾ)ರುತ.0ೆ. ಅನಂತರ ಸದ .ಎಂ.ಮST ಾಜು ನ ಾ,>
89
ತಮ; Lೆಸ 8ೆ rಾFೆ ವ8ಾ R@ ೊಂಡು ಅವರ ಸಂಪhಣ ಹಕು9 [ಾSೕಕತ, ಮತು.
ಾ,#ೕ1ಾನುಭವದSTರುವ ಸ,Fಾ.)ರುತ.0ೆ.
!ೆಡೂf• ಸ,ತ.ನು/ ೕಲ9ಂಖ .ಎಂ.ಮST ಾಜು ನ ಾ,> ವfವ ಾಯ ಉ0ೆCೕಶ ಂದ
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[ಾ? ಅನfPÁæAvÀ ಆ0ೇಶ Lೊರ?@ರುFಾ. ೆ. ಆ ಮೂಲಕ „ೆಡೂf• ಸc.8ೆ [ಾನf ‡ZಾT# ಾ ಗಳ
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12432-2010-11 CD No.MYND252 1ಾಂಕ:20.10.2010 ರಂದು 1ೊಂ0ಾRಸಲœG ರುತ.0ೆ. ಆ ಮೂಲಕ
„ೆಡೂf• ಸ,c.ನ rಾFೆಯನು/ ತಮ; Lೆಸ 8ೆ ವ8ಾ R@ ೊಂಡು ಸಂಪhಣ ಕಂ0ಾಯ !ಾವc@
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ಸ,Fಾ.)ರುತ.0ೆ. ಆ ೕFಾf „ೆಡೂf• ಸ,ತ.ನು/ ತಮ; ಇ†ಾ»ನು ಾರ KZೇVಾ [ಾಡುವ ಸಂಪhಣ
ಹಕು9ಳ=ವ ಾ)ರುFಾ. ೆ.
ಈ ಹಂತದST ೖಸೂರು ನಗ ಾ ವೃ !ಾ”# ಾರವ$ ಅಂ ನ Kಶ,ಸgಮಂಡ< ಯವರು
ೖಸೂರು FಾಲೂTಕು ಕಸJಾ Lೋಬ< ೆಸ ೆ 8ಾ”ಮದ ಸVೆ ನಂ.464 ರST 3.16 ಗುಂŠೆ ಪhಣ
ಜ>ೕನನು/ ಅಂದ ೆ „ೆಡೂf• ಸ,ತ.ನು/ ಈ8ಾಗZೇ ಭೂ ಾ,#ೕನ ಪ”_”BRಂದ ನಗ ಾ ವೃ
ಸ˜Vಾಲಯ ಭೂ ಾ,#ೕನ ಕ”ಮ ಂದ ೈ G ದCರೂ ಸಹ ಮತು. ೖಸೂರು ನಗ ಾ ವೃ
!ಾ”# ಾರವ$ !ಾ”# ಾರದ (ೕಜ1ಾ ನ¤ೆಯST ೕಲ9ಂಡ ಜ>ೕನನು/ ೈ ಡZಾ)ದCರೂ ಕೂಡ
ಜ>ೕನನು/ ಅ ವೃ ಪ?ಸುವ ಸಮಯದST „ೆಡೂf• ಸ,ತ.ನು/ ಸಹ ಅ ವೃ ಪ?@ ಉ0ಾfನವನ, ರ ೆ.
Lಾಗೂ ಬ6ಾವ7ೆ ರ˜@ Vೇಶನಗಳನು/ ಪZಾನುಭKಗ<8ೆ ಹಂಚZಾ)ರುತ.0ೆ. ಸದ VೇಶನಗಳST
ಮಂಜೂ ಾc0ಾರರು ಕಟ ಡ [ಾ ಣ [ಾ? VಾಸVಾಡುc.ದುC, ಸದ „ೆಡೂf• ಸ,ತು. ಈ8ಾಗZೇ
!ಾ”# ಾರದ ಬ6ಾವ7ೆpಾ) [ಾ!ಾ 6ಾ)ರುತ.0ೆ.
ತದನಂತರ „ೆಡೂf• ಸ,c.ನ [ಾSೕಕ ಾದ w”ೕಮc .ಎಂ.!ಾವ c ರವರು 1ಾಂಕ
23.6.2014 ರಂದು !ಾ”# ಾರ ೆ9 ಅ‡ ಸST@ „ೆಡೂf• ನST Kವ @ರುವ 3 ಎಕ ೆ 16 ಗುಂŠೆ
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90
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: 50 ಅನು!ಾತದST ಅ ವೃ ಪ?@ದ ಸgಳದST Vೇಶನಗಳನು/ ಮಂಜೂರು [ಾ? ೊಡJೇ ೆಂದು
ಮನK ಸST@ರುFಾ. ೆ.
ಅದರಂFೆ ೖಸೂರು ನಗ ಾ ವೃ !ಾ”# ಾರವ$ ಸದ Kಷಯವನು/ Kಷಯ ಸಂrೆf 30 ರ
jÃvÁå ¢£ÁAPÀ 15.12.2017 ಮತು. 1ಾಂಕ 30.12.2017 ರ !ಾ”# ಾರದ ¸À¨ÉsAiÀÄ°è
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„ೆಡೂf• ನST ನಮೂ @ರುವ ಸ,ತ.ನು/ ಭೂ [ಾSೕಕ ಂದ ಪ6ೆದು ೊಂಡು 50 :50 ರ ಅನು!ಾತದST
ಅ‡ 0ಾರ 8ೆ ಅ ವೃ ಪ?@ರುವ ಬ6ಾವ7ೆಯST Vೇಶನದ ರೂಪದST ೕಡಲು ಬಹುಮತ ಂದ
ಣ ಯVಾ)ರುತ.0ೆ. ಈ ಣ ಯವ$ !ಾ”# ಾರದ Kಷಯ ಸಂrೆf 29ರ 1ಾಂಕ 20.11.2020ರST
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ಣ ಯದಂFೆ ಜ>ೕ ನ [ಾSೕಕರು !ಾ”# ಾರ ೆ9 ಸದ „ೆಡೂf• ಸ,c.ನST ತಮ)ರುವಂತಹ
ಹಕ9ನು/ ಪ Fಾfಜನ ಪತ”ದ ಮೂಲಕ ಟು ೊG ರುFಾ. ೆ. „ೆಡೂf• ಸgcನST 21ೇ !ಾG 0ಾರ 8ೆ
ಇರತಕ9ಂತಹ ಹಕ9ನು/ !ಾ”# ಾರ ೆ9 ಈ ನVೇ ಟು ೊG ರುFಾ. ೆ.
„ೆಡೂf• ಸ,c.8ೆ ಸಂಬಂ#@ದ ಎZಾT ಮೂಲ 0ಾಖZಾc ಪತ”ಗಳನು/ Lಾಗೂ ಾಗದ ಪತ”ದ
ಸ ೕತ ಸವ [ಾSೕಕತ,0ೊಡ1ೆ 3ೆಡೂf• ಸ,c.ನ ಾ,#ೕನವನು/ ಮ8ೆ ಈ ನVೇ ವ^@ರುFೆ.ೕ1ೆ.
ಇSTಂದ ಮುಂ0ೆ ಷಡೂf• ಸ,c.ನSTರಬಹು0ಾದ ಜಲ,ತರು!ಾ„ಾ7ಾ ಅಷ eೋಗ Fೇಜ
ೌಮfಂಗ<ಗೂ ೕVೇ ಹಕು90ಾರ ಾ), ಅವ$ಗಳ ಆ eೋಗ, ಪ ಾ#ೕನ, 0ಾನ, ಚತುಷ ಯಂಗ<ಗೂ
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ಅನುಭK@ ೊಂಡು Lೋಗುವ ಸಂಪhಣ ಹಕು9ಳ=ವ ಾ)ರುc.ೕ . ಈ ನದವ ೆKಗೂ ಎZಾT jÃwAiÀÄ
ಕಂ0ಾಯ !ೆ1ಾS ವ8ೈ ೆಗಳನು/ ಸಂಬಂಧಪಟ ಕUೇ ಗ<8ೆ !ಾವcಸZಾ)0ೆ. „ೆಡೂf• ಸ,ತ.ನು/
pಾವ$0ೇ ಋಣeಾರರ^ತVಾ) ಎZಾT ಪhVಾ #ಗಳನು/ Fೆ 8ೆ Lಾಗೂ ಇತ ೆ Jಾ_ಗಳ ಮತು.
pಾವ$0ೇ PÉèöÊಮುಗ<ಂದ ಅವರ Vೈಯ_.ಕ Lಾಗೂ ರು!ಾ#ಕVಾ) „ೆಡೂf• ಸ,ತ.ನು/ LಾS ಮ8ೆ
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ಕ ಾರು, ಆŸಾರ, ಪರeಾ ೆ, eೋಗf ಪ ಾ#ೕನ. ವ8ೈ ೆಗ<8ೆ ಈಡು [ಾ?ರುವ$ ಲT.
3ೆಡೂf• ಸ,c.8ೆ ಸಂಬಂಧಪಟ ಂFೆ ನನ/ನು/ Lೊರತು ಪ?@ Jೇ ೆpಾ ಗೂ ಸಹ pಾವ$0ೇ
KಧVಾದ ಹಕು9, ^Fಾಸ_., eಾ8ಾಂಶ ವ8ೈ ೆ ಇರುವ$ ಲT. „ೆಡೂf• ಸ,ತು. ನನ/ ಸ,pಾ‡ ತ
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Lೆಸ 8ೆ [ಾ?@ ೊಳ=ಲು ಸಂಪhಣ ಒ-œ8ೆ ಇರುತ.0ೆ. „ೆಡೂf• ಸ,ತ.ನು/ ಉತ.ಮ ೕcಯST
91
ಅನುಭKಸಲು Jೇ ಾಗುವ pಾವ$0ೇ ಾಗದಪತ”, ಕ”ಮವ8ೈ ೆಗಳನು/ ವ ^@ ೊಡಲು
ಬದ ರುFಾ. ೆಂದು ಈ ಮೂಲಕ ಒ-œರುFಾ. ೆ.
ಈ ಪ Fಾfಜನ ಪತ”ವ$ ಕ1ಾ ಟಕ ನಗ ಾ ವೃ !ಾ”# ಾರ ( ಭೂ>ಯನು/ ಸ, ಇ†ೆ»Rಂದ
ಟು ೊಡುವ$ದ ಾ9) ¥”ೕFಾNಹ0ಾಯಕ (ೕಜ1ೆ) ಯಮಗಳ 1991 ರST # ಷ ಪ?@ರುವ ಮತು.
ಷರತು.ಗ<8ೆ ಒಳಪG ರುತ.0ೆ. ಮತು. ಸದ ಭ ಂಧಗಳ ಮತು. ಷರತು.ಗಳ ಈ ಪ Fಾfಜನ ಪತ”ದ
ಒಂದು eಾಗVಾ)ರುವ$ದು ಎಂದು eಾKಸತಕ9ದುC.
ಒಂದು VೇWೆ „ೆಡೂf• ಸ,c.ನ ೕZೆ ಇರುವ Kwಷ ಹಕು9 eಾದfFೆಗWೇ1ಾದರೂ
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[ಾ? ೊಳ=ಲು ನ>;ಂದ pಾವ$0ೇ ೕcಯ ತಂŠೆ ತಕ ಾರುಗಳ ಇರುವ$ ಲT. ಇSTಂದ ಮುಂ0ೆ
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ಬ ೆದು ೊಟ ಪ Fಾfಜನ ಪತ”ದ ಸ^.
– : !ೆಡೂf• :-
ೖಸೂರು FಾಲೂTಕು, ಕಸJಾ Lೋಬ<, ೆಸ ೆ 8ಾ”ಮ ೆ9 ೇ ದ ಸVೆ ನಂ. 464 ರ 3 ಎಕ ೆ
16 ಗುಂŠೆ ಖು¶Ì ಜ>ೕ 8ೆ ಚಕು9ಬಂ# :-
ಪhವ ೆ9 : ಸVೆ ನಂ. 462 ರ ಜ>ೕನು
ಪwjಮ ೆ9: ಸVೆ ನಂ. 467 ರ ಜ>ೕನು
ಉತ.ರ ೆ9: ಸVೆ ನಂ. 466 ರ ಜ>ೕನು
ದPಣ ೆ9 : ಸVೆ ನಂ. 462 ರ ಜ>ೕನು
92ೕಲ9ಂಡ ಎZಾT ಅಂಶಗಳನು/ ಓ @, ೇ< ಸ pಾ)0ೆ ಎಂದು ಒ-œ, ನಮ;ಗಳ ಆತ;
ಸಂFೋಷ ಂದಲೂ ಮತು. ಖುದುC ಾ‡Rಂದಲೂ ೖಸೂರು ನಗರದST ೕಲ9ಂಡ 1ಾಂಕದಂದು
ೆಳಕಂಡ ಾPಗಳ ಸಮXಮದST ಒ-œ ಸ^ [ಾ?ರುFೆ.ೕVೆ.
ಾPಗಳ : 1. ಸ^/-
ಸ^/-
2. ಸ^/- ಹ ಾ.ಂತ ಸುವವರು
ಸ^/-
ಹ ಾ.ಂತ @ ೊಳ =ವವರು.”
The MUDA then orders allotting 38,284 sq. ft. to the petitioner. The
same was determined by way of 14 sites on 05-01-2022. The order
dated 05-01-2022 and what was appended to it, both read as
follows:
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The relinquishment deed narrates entire history as to how the wife
of the petitioner becomes the owner of the property. After
relinquishment deed dated 25-11-2021 MUDA determines number
of sites to be granted in favour of the wife of the petitioner. The
alternate sites in lieu of 3 acres 16 guntas of land in terms of
Government order dated 5-01-2022 which was to be in terms of the
prevailing market value is as follows:
94
“Guidelines Value in the year 2018, for the Alternative
Sites allotted in lieu of the 3 Acres & 16 Guntas, in Sy.No.464,
of Kesere Village, belonging to Smt.B.M.Parvathi W/o
Sri.Siddaramiah, utilised by MUDA, for the formation of the
Devanur 3rd Stage, Mysore, in accordance with the GO dated
UDD/TTP/2014 dated 05-01-2022 and the decision of the MUDA
dated 20-11-2020.
Although the prevalent Market Value in Vijayanagar
is between 10 & 12 thousand, calculating the MARKET
RATE at a rate of approximately Rs.15,000/- Per Sq. Feet,
as being demanded Mr.Siddaramiah in public.
Sl. Allottee Site No. Measuring Location Guidelines Market
No. Value / & total Rate/Sq.fts
cost for total & Total cost
Sq.Mts for total
Sq.Fts
1 Smt.Parvathi 25 15 X 24=360 Vijaynagar, Rs.24,000/- Rs.5,81,25,150/-
B.M Mts 3rd Stage, 'C' Rs.86,40,000/-
3875.01 Sq.Fts Block
2 Smt.Parvathi 331 12 x 18 =216 Vijaynagar, Rs.24,000/- Rs.3,48,75,000/-
B.M Mts 3rd Stage, 'D' Rs.51,84,000/-
2325 Sq.Fts Block
3 Smt.Parvathi 332 12 x 18 =216 Vijaynagar, Rs.24,000/- Rs.3,48,75,000/-
B.M Mts 3rd Stage, 'D' Rs.51,84,000/-
2325 Sq.Fts Block
4 Smt.Parvathi 213 15 X 24=360 Vijaynagar, Rs.24,000/- Rs.5,81,25,150/-
B.M Mts 3rd Stage, 'E' Rs.86,40,000/-
3875.01 Sq.Fts Block
5 Smt.Parvathi 214 15 X 24=360 Vijaynagar, Rs.24,000/- Rs.5,81,25,150/-
B.M Mts 3rd Stage, 'E' Rs.86,40,000/-
3875.01 Sq.Fts Block
6 Smt.Parvathi 215 15 X 24=360 Vijaynagar, Rs.24,000/- Rs.5,81,25,150/-
B.M Mts 3rd Stage, 'E' Rs.86,40,000/-
3875.01 Sq.Fts Block
7 Smt.Parvathi 5 12 x 18 =216 Vijaynagar, Rs.25,000/- Rs.3,48,75,000/-
B.M Mts 3rd Stage, 'G' Rs.54,00,000/-
2325 Sq.Fts Block
8 Smt.Parvathi 5108 09 x 12= 108 Vijaynagar, Rs.23,312/- Rs.1,74,37,500/-
B.M Mts 4th Stage, 2nd Rs.25,17,696/-
1162.5 Sq.Fts Phase
9 Smt.Parvathi 5085 09 x 12= 108 Vijaynagar, Rs.23,312/- Rs.1,74,37,500/-
B.M Mts 4th Stage, 2nd Rs.25,17,696/-
1162.5 Sq.Fts Phase
10 Smt.Parvathi 11189 12 x 18 =216 Vijaynagar, Rs.23,312/- Rs.3,48,75,000/-
95
B.M Mts 4th Stage, 2nd Rs.50,35,392/-
2325 Sq.Fts Phase
11 Smt.Parvathi 10855 12 x 18 =216 Vijaynagar, Rs.23,312/- Rs.3,48,75,000/-
B.M Mts 4th Stage, 2nd Rs.50,35,392/-
2325 Sq.Fts Phase
12 Smt.Parvathi 12065 12 x 15=180 Vijaynagar, Rs.23,312/- Rs.2,90,62,500/-
B.M Mts 4th Stage, 2nd Rs.41,96,160/-
1937.5 Sq.Fts Phase
13 Smt.Parvathi 12068 12 x 15=180 Vijaynagar, Rs.23,312/- Rs.2,90,62,500/-
B.M Mts 4th Stage, 2nd Rs.41,96,160/-
1937.5 Sq.Fts Phase
14 Smt.Parvathi 216 15 X 24=360 Vijaynagar, Rs.24,000/- Rs.5,81,25,150/-
B.M Mts 3rd Stage, 'E' Rs.86,40,000/-
3875.01 Sq.Fts Block
GUIDELINE VALUE MARKET VALUE at the rate of
Rs.12,000/- Per Sq.Feet.
Rs.86,40,000/-x5=Rs.4,32,00,000/- Rs.5,81,25,150/-
X5=Rs.29,06,25,750/-
Rs.51,84,000/-x2=Rs.1,03,68,000/- Rs.3,48,75,000/-
X5=Rs.17,43,75,000/-
Rs.54,00,000/-x1=Rs. 54,00,000/- Rs.1,74,37,500/-X2=Rs.
3,48,75,000/-
Rs.25,17,696/-x2=Rs. 50,35,392/- Rs.2,90,62,500/-X2=Rs.
5,81,25,000/-
Rs.50,35,392/-x2=Rs.1,00,70,784/-
Rs.41,96,160/-x2=Rs. 83,92,320/-
Total Rs.8,24,66,496/- Total Rs.55,80,00,750/-"
The guidance value for entire sites that are allotted is ` 8,24,000/-
but the market value is `55,80,00,000/-. The total market value of
14 sites is `55,80,00,750/-, close to `56/- crores. Therefore, the
figures would go like this. The purchase of the property on an
offset price in the year 1935 was at `300/-; the determined
compensation amount in favour of the owner of the land is at
96`3,56,000/- in the year 1997 and in 2021 this becomes `56 crores
as compensation to the owner; the owner is wife of the petitioner.
On 5-01-2022 sites are allotted in favour of wife of the petitioner by
issuance of 14 allotment letters and khatas are changed by MUDA
in favour of the wife of the petitioner for all 14 sites. Therefore, the
wife of the petitioner becomes the owner of 14 sites value. Its value
is as indicated hereinabove. Then comes 14 sale deeds registered in
faovur of the petitioner on 12-01-2022. The aforesaid facts are all
borne out of records. All these things have happened between
1996 to 2022. This is the period in which the petitioner was at the
helm of affairs twice; a law maker twice; the Chief Minister once.
25. From 1996 to 1999 the petitioner 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 son of the petitioner was an MLA.
Therefore, intermittently on and off, the petitioner has been at the
helm of affairs. Notwithstanding the aforesaid period of the
petitioner at the helm of affairs, the vehement contention of the
petitioner is that he made no recommendation nor has signed any
97document nor has any connection to the transaction. It is rather
difficult to accept that the beneficiary of the entire transaction to
which compensation is determined at `3.56 lakhs to become `56/-
crores is not the family of the petitioner. In the decision making
process at certain time son of the petitioner 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.
26. 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 wife of the petitioner as the very
98allotment of sites as compensation is said to be contrary to the
Compensation for Land Acquired Rules 2009 and Incentive Scheme
of Voluntary Surrender of Land Rules,1991. In the Assembly
elections of 2023, the petitioner swings back as Chief Minister. On
27.10.2023 the Government cancels the resolution dated
14.09.2020. What is the resolution dated 14-09-2020 is the one
that led to a decision for allotment of 14 sites in favour of the wife
of the petitioner in which the son of the petitioner was a participant.
27. After cancelling the resolution it appears that a Technical
Committee was appointed by Government to go into the illegalities
of MUDA. The Technical Committee is said to have submitted its
report highlighting huge corruption and fraud played by MUDA
officials. When all these inquiries were going on a complaint comes
to be registered by 3rd and 4th respondents before the jurisdictional
police on 3-07-2024. The jurisdictional Police though acknowledged
the complaint, did not take it further. On 12-07-2024 both the 3rd
and 4th respondents register complaints before the Commissioner of
Police. This was in compliance with clause (1) of sub-section (2) of
Section 154 of the Cr.P.C.. Even then, no action is taken. The 4th
99respondent then approaches the Lokayukta on 26-07-2024 to
register a complaint against the petitioner. When things stood thus,
the 3rd and 4th respondents file their respective private complaints
before the Special Court constituted exclusively to deal with
criminal cases against MPs and MLAs. It is then, the 3rd respondent
knocks at the doors of the Governor seeking approval/sanction to
prosecute the petitioner as obtaining under Section 17A of the Act.
The facts narrated would clearly justify the
complaints/petitions by the complainants. The issue is
answered accordingly.
Issue Nos.2 & 3:
(2) Whether the approval under Section 17A of the Act is
mandatory in the teeth of facts?
&
(3) Whether Section 17A of the Act requires only a Police
Officer to seek approval from the Competent Authority?
Since issues 2 and 3 are intertwined, the two are considered
together. It therefore becomes necessary to go back to the genesis
of Section 17A of the PC Act.
100
GENESIS OF SECTION 17A OF THE PC ACT:
28. The Prevention of Corruption Act (Amendment Bill) when
it was first introduced in the year 2014, it did not contain any
clauses akin to Section 17A. The Standing Committee of Rajya
Sabha on Personnel, Public Grievances, Law and Justice and the
Law-Commission had proposed certain amendments. Amongst
them was a new Section 17A. A question arose as to who should
grant approval. It was initially envisaged that the Lokpal or the
Lokayukta should be empowered to grant approval, on a requisition
or application under Section 17A as Section 17A was thought of a
protective filter or an entry check point. It is then the bill was
referred to the select committee which presented its report in the
month of August 2016. The bone of contention as to who should
grant approval, was changed from Lokpal or Lokayukta, to the
Competent Authority who is empowered to grant sanction under
Sectiion 19 of the PC Act for prosecution, to be the authority to
grant approval under Section 17A. The present statute as it stands
today is what is chiseled after 4 years of deliberation. The purport
of Section 17A need not detain this Court for long or delve deep
101into the matter. This Court in W.P.200356 of 2021 disposed on
26-03-2021 while considering the importance of Section 17A, has
held as follows:
“13. The amendment dated 26.07.2018 introduced several
changes to the Prevention of Corruption Act, 1988. One such
amendment was introducing Section 17A with an object of
giving protection to public servants who have done or ordered
or approved certain actions as public servants in the bonafide
discharge of their official functions without any dishonesty or
malafide intentions. The amendment in the form of this new
Section was necessitated owing to certain unfortunate
circumstances where even honest officers were prosecuted
under the Prevention of Corruption Act.
14. Since the marrow of the lis lies in consideration and
interpretation of the newly introduced Section 17A of the
Prevention of Corruption Act, 1988 which was brought into force
on 26.07.2018, Section 17A is extracted for the purpose of
quick reference:
“17-A. Enquiry or inquiry or investigation of
offences relatable to recommendations made or
decision taken by public servant in discharge of
official functions or duties.–(1) No police officer shall
conduct any enquiry or inquiry or investigation into any
offence alleged to have been committed by a public servant
under this Act, where the alleged offence is relatable to any
recommendation made or decision taken by such public servant
in discharge of his official functions or duties, without the
previous approval –
(a) in the case of a person who is or was employed, at the time
when the offence was alleged to have been committed, in connection
with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time
when the offence was alleged to have been committed, in connection
with the affairs of a State, of that Government;
102
(c) in the case of any other person, of the authority competent to
remove him from his office, at the time when the offence was alleged
to have been committed:
Provided that no such approval shall be necessary for cases
involving arrest of a person on the spot on the charge of accepting or
attempting to accept any undue advantage for himself or for any other
person:
Provided further that the concerned authority shall convey its
decision under this section within a period of three months, which
may, for reasons to be recorded in writing by such authority, be
extended by a further period of one month.”
In terms of the above extracted provision of law introduced
by an amendment, no Police Officer shall conduct any enquiry or
inquiry or investigation into any offence alleged to have been
committed by a public servant under the Prevention of
Corruption Act, where the alleged offence is relatable to any
recommendation made or decisions taken by such public servant
in discharge of his official functions or duties without the
previous approval of the officer or authority concerned.
15. Clause (a) thereof provides that in case of public
servant who is or was employed in connection with the affairs of
the Union at the time when the offence alleged to have been
committed, the previous approval of the Central Government
shall be obtained. Clause (b) likewise provides that in case of a
public servant who is or was an employee in connection with the
affairs of the State at the time when the offence was alleged to
have been committee, the approval of the State Government
shall be obtained before proceeding. Clause (c) provides that in
case of any other person who comes within the definition of
public servant previous approval of the competent authority to
remove him from office at the time when the offence alleged to
have been committee should be obtained. The narrative
hereinabove cannot but indicate that the object of the Section
was to protect public servants from malicious, vexatious or
baseless prosecution. However, if enquiry into the
circumstances in which the alleged administrative or official act
was done by the public servant or where malfeasance
committed by the public servant which would involve an
103element of dishonesty or impropriety is to be proceeded against,
the approval of the competent authority is required.
16. In my considered view Section 17A and its purport
must be observed with complete strictness bearing in mind
public interest and protection available to such officers against
whom offences are alleged, failing which many a time it would
result in a malicious prosecution. Section 17A is clearly a filter
that the prosecution must pass in order to discourage or avoid
vexatious prosecution, though cannot be considered as a
protective shield for the guilty, but a safeguard for the innocent.
17. The provision (supra) was also considered by the Apex
Court in the case of YESHWANTH SINHA v. CENTRAL
BUREAU OF INVESTIGATION reported in (2020) 2 SCC 338.
The Apex Court though did not consider as to how the previous
approval of the competent authority has to be taken, but
considered the amendment and its importance in the following
paragraphs:
“117. In terms of Section 17-A, no police officer is permitted to
conduct any enquiry or inquiry or conduct investigation into
any offence done by a public servant where the offence
alleged is relatable to any recommendation made or decision
taken by the public servant in discharge of his public
functions without previous approval, inter alia, of the authority
competent to remove the public servant from his office at the
time when the offence was alleged to have been committed.
In respect of the public servant, who is involved in this case, it
is clause (c), which is applicable. Unless, therefore, there is
previous approval, there could be neither inquiry or enquiry or
investigation. It is in this context apposite to notice that the
complaint, which has been filed by the petitioners in Writ
Petition (Criminal) No. 298 of 2018, moved before the
first respondent CBI, is done after Section 17-A was
inserted. The complaint is dated 4.10.2018. Para 5 sets out the
relief which is sought in the complaint which is to register an
FIR under various provisions. Paras 6 and 7 of the complaint
are relevant in the context of Section 17-A, which read as
follows:
“6. We are also aware that recently, Section 17-A of the Act
has been brought in by way of an amendment to introduce the
104requirement of prior permission of the Government for investigation or
inquiry under the Prevention of Corruption Act.
7. We are also aware that this will place you in the peculiar
situation, of having to ask the accused himself, for permission to
investigate a case against him. We realise that your hands are tied in
this matter, but we request you to at least take the first step, of
seeking permission of the Government under Section 17-A of the
Prevention of Corruption Act for investigating this offence and under
which, “the concerned authority shall convey its decision under this
section within a period of three months, which may, for reasons to
be recorded in writing by such authority, be extended by a further
period of one month”.
(emphasis supplied)
118. Therefore, the petitioners have filed the complaint fully
knowing that Section 17-A constituted a bar to any inquiry or
enquiry or investigation unless there was previous approval. In fact, a
request is made to at least take the first step of seeking permission
under Section 17- A of the 2018 Act. Writ Petition (Criminal) No.
298 of 2018 was filed on 24.10.2018 and the complaint is based on
non-registration of the FIR. There is no challenge to Section 17-A.
Under the law, as it stood, both on the date of filing the petition and
even as of today, Section 17-A continues to be on the statute book
and it constitutes a bar to any inquiry or enquiry or investigation.
The petitioners themselves, in the complaint, request to seek approval
in terms of Section 17-A but when it comes to the relief sought
in the writ petition, there was no relief claimed in this behalf.
119. Even proceeding on the basis that on petitioners’
Complaint, an FIR must be registered as it purports to disclose
cognizable offences and the Court must so direct, will it not be
a futile exercise having regard to Section 17-A. I am, therefore, of
the view that though otherwise the petitioners in Writ Petition
(Criminal) No. 298 of 2018 may have made out a case,
having regard to the law actually laid down in Lalita Kumari [Lalita
kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524],
and more importantly, Section 17-A of the Prevention of
corruption Act, in a review petition, the petitioners cannot succeed.
However, it is my view that the judgment sought to be reviewed,
would not stand in the way of the first respondent in Writ Petition
(Criminal) No. 298 of 2018 from taking action on Ext. P-1,
complaint in accordance with law and subject to first respondent
obtaining previous approval under Section 17-A of the Prevention of
Corruption Act.”
105
The Apex Court has considered the importance of previous
approval of the competent authority in the afore-extracted judgment.
18. Section 17A casts an obligation of application of mind
on the part of the Competent Authority in three situations. The
Section makes it clear that no officer shall conduct any enquiry
or inquiry or investigation without previous approval.
Therefore, the approving authority will have to look into the
materials, apply its mind in all the three contingencies i.e.,
enquiry or inquiry or investigation. Though, enquiry and inquiry
are often used interchangeably, there exists a difference
between the two. Etymologically, the source of both enquiry
and inquiry could be the same as ‘en’ is derived from French
and ‘in’ is from Latin. Inquiry has a formal and official ring to
it. Enquiry is informal and can be unofficial. Enquiry could even
mean, to question; Inquiry is a formal investigation;
investigation is a search. Therefore, the act casts an obligation
of application of mind upon the authority to consider whether
approval is sought for an enquiry, inquiry or an investigation. It
becomes imperative for the authority to apply its mind to what
is brought before it, as application of mind is the bedrock of any
order that an authority passes, failing which, it would be
contrary to the principles of natural justice, as non-application
of mind is in itself violative of principles of natural justice.”
This Court considered the importance and purport of Section 17A.
The petitioner 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
106
commence against a public servant. The who of it, I mean, who
should seek approval, has become the bone of contention.
29. The submission of the learned senior counsel for the
petitioner that only a Police Officer is required to seek approval for
enquiry or inquiry and nobody else is noted only to be rejected. In a
complaint so registered under Section 154(1) of the Cr.P.C. against
a public servant or even a complaint to the higher ups under
Section 154(3) are taken or acted upon, there would be no
problem. It is only those officers will have to seek approval under
Section 17A for commencement of enquiry, inquiry or investigation.
It is trite that the criminal law can be set into motion by any
person, concept of locus is alien to criminal law. If the criminal law
can be set into motion by any person which is inclusive of offences
under the Act, the vacuum emerges when a private citizen would
knock at the jurisdictional police or the Lokayukta seeking to
register a complaint and if no action is taken on the complaint both
at the level of Section 154(1) and Section 154(3) of the Cr.P.C., the
complainant would be left with no choice but to approach the
learned Magistrate invoking Section 200 of the Cr.P.C. or the
107
Special Court. Here the Police is yet to come into picture, as the
concerned Court would not have referred the matter for
investigation under Section 156(3) of the Cr.P.C. or Section 175(3)
of the BNSS. The police would come into picture only after referring
the matter for investigation. If the matter is referred for
investigation, the jurisdictional Police or to whom the reference is
made, would have no choice but to register the crime and once the
crime is registered, investigation has to commence. Section 17A, in
these circumstances, would be rendered redundant. Therefore, it is
necessary that whoever complains against a public servant by
registering a private complaint, it is his burden to seek approval
from the hands of the Competent Authority before the matter is
referred under Section 156(3) of the Cr.P.C. or Section 175 of the
BNSS, failing which the protective filter to a public servant would
have no meaning. It is the aforesaid concept that led this Court to
pass an order in DR. ASHOK V. v. STATE. It is for this reason the
complainant would approach the Competent Authority, in the case
at hand the Governor seeking approval under Section 17A of the
Act so that the private complaint would be referred for
investigation. Therefore, no fault can be found with the complainant
108
approaching the Governor/Competent Authority seeking approval
prior to any reference being made by the concerned Court.
30. This Court, in DR. ASHOK V. v. STATE3 has held as
follows:
“In the light of Section 17A creating a protective filter for
vexatious and frivolous prosecution and complaints to pass muster
to the rigors of Section 17A, I am of the considered view that it
must be observed with complete strictness bearing in mind public
interest, and protection available to such officers against whom
offences are alleged, failing which many a time it would result in a
vexatious prosecution. This cannot however, be considered as a
protective shield for the guilty, but a safeguard for the innocent.
Therefore, its observance becomes mandatory … … ……
…..What would unmistakably emerge is, forum be it any;
proceedings be it any; if offences punishable under the
Prevention of Corruption Act, 1988 / 2018 is alleged,
approval under Section 17A of the Prevention of Corruption
Act for registration of the crime and investigation is
mandatory, except in circumstances which do not require
such approval. The case at hand involves registration of a
private complaint invoking Section 200 of the Cr.P.C. It is
not registered before the police wing of the Investigating
Agency, but before the concerned Court and the concerned
Court refers the matter for investigation, which results in
immediate registration of a FIR. The offences alleged are an
amalgam of offences punishable under the Prevention of
Corruption Act, 1988 and the IPC. This Court has come
across several cases where private complaints are preferred
by the complainants where, they do not approach the
Investigating Agency like the Karnataka Lokayukta, but
choose an alternate route of knocking at the doors of the
Magistrate or the Sessions Judge. At that stage, what the
Magistrate/Sessions Judge would do, is refer the matter3
Criminal Petition No.531 of 2022 decided on 4th July 2023
109under Section 156 (3) for investigation. Once the matter is
referred for investigation, the Police/Lokayukta would have
no choice but to register a crime. What happens in this
process is the protective filter for vexatious, frivolous or
malicious prosecution against the public servants created by
the Parliament by the amendment in the year 2018 bringing
in Section 17A to the Act is rendered illusory. Therefore,
such complaints, which do not accompany with prior
approval under Section 17A with the private complaint or
before referring the matter for investigation, should not be
entertained by the Magistrate/Sessions Judge, as the case
would be.
14. The case at hand forms a classic illustration of misuse
and abuse of law by the 2nd respondent/ complainant. If the 2nd
respondent had preferred a complaint before the Karnataka
Lokayukta, the complaint would have been forwarded to the
competent authority seeking permission under Section 17A to
register a crime and crime would have been then registered only
after prior approval from the competent authority. Invoking Section
200 of the Cr.P.C., the complainants or complainant in the case at
hand are seeking to circumvent the rigor of Section 17A of the Act.
If this practice is permitted, it would only open gates for frivolous
and vexatious litigation by the complainants.
15. In the light of the aforesaid analysis and the unfolding of
issues, it becomes necessary to direct the learned Sessions
Judges/Special Court who would entertain complaints against public
servants filed by private persons alleging offences punishable under
the provisions of the Prevention of Corruption Act, 1988 even if it is
an amalgam not to entertain such complaints if they do not comply
with the following:
(i) The complaint should narrate that the
complainant has made his efforts to register a
crime before the Karnataka Lokayukta and no
action is taken by the police on the complaint.
Mere statement in the complaint would not
suffice but documentary evidence to
demonstrate such fact should be appended to
the private complaint.
110
(ii) The private complaint should also append prior
approval granted by the competent authority to
register a private complaint, akin to a prior
approval for an FIR to be registered by the
Investigating Agency as obtaining under Section
17A of the Act. This would become a prerequisite
to the concerned Court to refer the matter for
investigation under Section 156(3) of the Cr.P.C.
(iii) The aforesaid direction (ii) would be applicable
only if the offences alleged would be the ones
punishable under the Prevention of Corruption
Act or the allegation would be an amalgam of
offences both under the Prevention of Corruption
Act and the Indian Penal Code. This direction at
(ii) will not be applicable if the alleged offences
are only of the Indian Penal Code.
(Emphasis supplied)
These directions become necessary in the light of the fact that once
the matter is referred for investigation the Police will have no choice
but to register the crime. Therefore, such approval being appended
to the private complaint is sine qua non for maintainability of the
complaint, except in cases concerning disproportionate assets. Such
complaints shall bear scrutiny at the hands of the Magistrate or the
Sessions Judge as the case would be, for compliance with the
aforesaid directions. The private complaint shall also be accompanied
by an affidavit of the complainant, not a verifying affidavit, but an
affidavit as obtaining under the Oaths Act, 1969. It is only then the
learned Sessions Judge can entertain a private complaint against
public servants.”
(Emphasis supplied)
31. The aforesaid were the directions issued by this Court in
ASHOK.V. supra. Pursuant to the said directions, the High Court
has issued a circular to all the concerned Court, for implementation
111
of the said directions. In the light of the preceding analysis, I
answer issue No.2 holding that approval under Section 17A of the
PC Act is mandatory to be obtained, in the teeth of the obtaining
facts, qua Issue No.3, I hold that it is not necessary for the police
officer to seek approval from the hands of the Competent Authority,
in a private complaint. It is the complainant, whomsoever it is,
should discharge the duty of seeking approval from the hands of
the Competent Authority, a caveat, only in a private complaint
registered under Section 200 of the Cr.P.C. or under Section 223 of
the BNSS.
Issue Nos.4 & 5:
(4) Whether the order of the Governor suffers from want of
application of mind?
&
(5) 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?
Since both the issues are intertwined, they are considered together.
112
PROCEEDINGS BEFORE THE GOVERNOR:
32. As observed hereinabove, the complainant/3rd
respondent approaches the jurisdictional Police, no action is
taken for 7 days, approached the Commissioner, no action is
taken, then he seeks to knock at the doors of the Governor and
simultaneously files a private complaint before the Special Court
invoking Section 200 of the Cr.P.C. In terms of law laid down by
this Court in ASHOK supra and the circular issued by this Court,
the 3rd respondent submits a petition before Governor on 26-07-
2024 seeking approval to prosecute the petitioner. The petition
submitted by the 3rd respondent is quoted hereinabove. What
happens in the aftermath is what is required to be considered.
On receipt of the petition from the 3rd respondent, on 26-07-
2024 what action is taken is borne out from the records. The
proceedings of the day are as follows:
“File No.GS 40 ADM 2024
Subject: Sanction for prosecution of Sri Siddaramaiah,
Hon’ble Chief Minister of Karnataka.
Reference: Petition submitted 1) Sri T.J.Abraham dated 26-07-
2024.
113
01. Kindly peruse the petition submitted by Sri T.J.
Abraham dated 26-07-2024 placed in the file.
02. Wherein, the petitioner has requested for sanction
for offences under Section 7, 9, 11, 12 & 15 of t he
Prevention of Corruption Act, 1988 and Sections59, 61, 62,
201, 227, 228, 229, 239, 314, 316(b), 318(1)(2)(3), 319,
322, 324, 324(1)(2)(3), 335, 336, 338 & 340 of Bharatiya
Nyaya Sanhita, 2023 and other applicable provisions of law,
in the interest of enforcing probity in life and service of Public
Servants and upholding the law of land.
03. Further, he has submitted an addendum requesting
Not to shield the corrupt and brought to the notice that the
Sanctioning Authority has to only see, whether a prima facie
case for commission of offence is made out or not, and that
the allegation scan be proved beyond reasonable doubt only
after appreciation of evidence by the trial Court at the
conclusion of the trial. In support of the above, he has
submitted a circular issued by the Hon’ble High Court of
Karnataka on 23-09-2023 vide No.R(J) No.188/2023 and
Office order No.31/05/05 issued by the Central Vigilance
Commission on 21-05-2005.
04 On account of grave charges being presented by the
petitioner against the sitting Chief Minister and
Hon’ble Governor being the Appointing Authority and
in the background of the circular of the High Court and
the office order of the CVC, the file may kindly be
placed before the Hon’ble Governor for further orders.
For perusal and orders. Sd/- 26/07
(O5) W.S.) – on training.
(O6) Special Secretary)
Please peruse preparas. The complaint and addendum
submitted by Shri T.J. Abraham may be perused in the
file. He has requested sanction of prosecution against
the sitting Chief Minister Sri Siddaramaiah under
114various provisions quoted in para-2 n/f. With this fact,
the file is submitted for further orders.
Sd/- (R.Prabhushankar)
(07) Hon'ble Governor]
(08) I have heard Sri T.J.Abraham in person and gone
through the petition and supporting documents
submitted by him. Prima facie, I am of the view that
there might be irregularities and misuse of power.
Hece, issue show cause notice to Sri Siddaramaiah,
Chief Minister calling explanation within 7 days.
Sd/- (Thaawarchand Gehlot)
Sanction for prosecution
(08) As per the order of the Hon’ble Governor, draft copy of the
letter is placed in the file for kind perusal and approval.
Sd/- 26/07
(09) (W.S) - On training.
(10) Special Secretary Sd/- 26/07/2024
(11) Hon'ble Governor
Sd/-26-07-2024.
(12) As per the above approval, fair copies are submitted for kind
signature.
Sd/- 26-07-2024
(13) Hon'ble Governor Sd/- 26-07-2024
(Emphasis supplied)
Noticing that the allegations were grave and on hearing the 3rd
respondent and having gone through the petition and the
supporting documents, the Governor was of the prima facie view
that there may be irregularities and misuse of power. Therefore,
directs issuance of show cause notice to the petitioner calling for
explanation within 7 days from 26-07-2024. The show cause notice
resulted in two replies – one submitted by the petitioner and the
115
other by the Cabinet, which is communicated by the Chief
Secretary. On 1-08-2024 the Council of Ministers resolved to advice
the Governor to withdraw the notice issued to the petitioner and
reject the petition seeking sanction so filed by the 3rd respondent.
The Cabinet was presided over by Sri D.K. Shivakumar, Deputy
Chief Minister of the State of Karnataka as he was nominated to do
so by the Chief Minister. The preamble reads as follows:
“Show cause notice issued by the Hon’ble Governor of
Karnataka to the Chief Minister to respond within 7 days as
to why sanction for prosecution should ot be granted as
requested by one Shri T.J. Abraham in his application dated
26-07-2024 – reg.
CABINET DECISION
The Cabinet meeting was presided over by Shri D.K.
Shivakumar, Deputy Chief Minister and the Minister for
Bengaluru Development and Water Resources, as he was
nominated to do so by the Chief Minister vide his note dated
27-07-2024, under Rule 28(1) of the Karnataka Government
(Transaction of Business) Rules, 1977, in view of the conflict
of interest. The Cabinet perused the cabinet note, the show
cause notice dated 26-07-2024 issued by the Hon’ble
Governor to the Chief Minister, the petition filed by Shri
T.J.Abraham before the Hon’ble Governor on 26-07-2024,
along with the annexure and the legal opinion given by the
learned Advocate General, along with the list of case laws.
Thereafter the Cabinet discussed the matter in detail. The
Secretary, Urban Development Department briefed the
Cabinet about the facts of the case based on the records
available with the Department. The following issues were
discussed more specifically.”
116
The petitioner does not participate in the deliberations. Proceedings
of the Council of Ministers headed by the Deputy Chief Minister,
results in a detailed narration. What was ultimately deduced by the
Cabinet, is as follows:
“The cabinet/council of ministers, after having threadbare
discussed the issue of issuance of show cause notice to the
Hon’ble Chief Minister, Government of Karnataka, dated 26-
07-2024, by the Hon’ble Governor of Karnataka on taking
note of the entire factual matrix as well as the well settled
legal position and for the reasons herein mentioned,
unanimously resolved to advise the Hon’ble Governor as
follows:
i. The Hon’ble Governor ought to have, under the
present set of facts and circumstances, acted only on
the aid and advise of the council of ministers and not
in his discretion.
ii. The Hon’ble Governor while proceeding to issue the show
cause notice has failed to consider the material available on
record. The Governor ought to have taken into consideration
the reply submitted by the Chief Secretary dated 26-07-
2024, received by him at around 6.30 p.m. in person on the
same day. It is to be noted that the Chief Secretary in his
reply has, inter alia, highlighted that direction contained in
Governor’s letter dated 15-07-2024 was already acted upon
by way of constitution of a Judicial Commission of Enquiry
under the Chairmanship of Justice P.N.Desai, vide
Government order of 14.07.2024. The issuance of show
cause notice, without consideration of these and all other
relevant material available on the record, suffers from total
non-application of mind.
iii. The Hon’ble Governor has failed to take note of the fact that
the application for sanction dated 26.07.2024 suffers from
serious legal infirmities and was not maintainable on a
reading of the provision is of Section 17A, 19 of the
117Prevention of Corruption Act, 1988 and Section 218 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 along with settled
legal position, as envisaged under the judgments referred to
in the cabinet note. An application for previous approval
under Section 17A of the Prevention of Corruption Act, 1988
can be made only by Police Officer and not private person.
iv. The Hon’ble Governor failed to take note of the fact that the
application for sanction was also premature since the
applicant had filed a complaint to the Lokayukta Police on
18-07-2024 and thereafter had also not followed the
mandatory procedure as laid down by the Hon’ble Supreme
Court in Priyanka Srivastava in (2015) 6 SCC 287 and Lalitha
Kumari (2014) 2 SCC 1.
v. The Hon’ble Governor failed to take note of the fact that the
entire allegations made by the applicant do not reveal any
offence punishable under the provisions of the Prevention of
Corruption Act, 1988 or the BNSS 2023.
vi. The Hon’ble Governor failed to take note of the fact
that T.J. Abraham comes with criminal antecedents
having criminal cases of blackmail and extortion
registered against him and his conduct in misusing the
public interest jurisdiction has also been frowned upon
by the Hon’ble Supreme Court, levyig costs on him. His
acts are motivated and lacks bona fides and suffers
from factual and legal mala fides.
vii. The Hon’ble Governor in issuing the show cause notice has
acted in undue haste, throwing to wind all procedural
requirements. The fact that the Governor has proceeded to
issue the notice on the very same day as he received the
petition and on a petition by a person with criminal
antecedents and without examining the records, relevant
material as well as the reply of the Chief Secretary dated 26-
07-2024,added to the fact that several applications, such as
the proposal for prior approval under Section 17Aof the
Prevention of Corruption Act, 1988 against Smt. Shashikala
Jolle, former Minister, dated 9.12.2021, the proposal dated
26-02-2024 against Shri Murugesh Nirani, former Minister,
and the application for sanction under Section 19 of the
Prevention of Corruption Act, dated 13-05-2024 against Shri
Janardhana Reddy, MLA and former Minister, before him are
118long pending., is therefore an act that suffers from legal
mala fides as laid down by the Hon’ble Supreme Court in a
catena of judgments including the ones referred to supra.
viii. A reading of the show cause notice, more so the finding by
the Governor that “on perusal of the request, it is seen that
the allegations against you are of serious nature and prima
facie seem plausible” leads to an undeniable conclusion that
there is pre-judging of the issue, disregarding the report of
the Chief Secretary dated 26-07-2023.
ix. The entire sequence of events and the admitted facts and
circumstances based on the available records lead to an
unequivocal conclusion that there is gross misuse of the
constitutional office of the Governor and a concerted effort is
being to destabilize a lawfully elected majority government in
Karnataka for political considerations.
Therefore, under Article 163 of the Constitution, the Council
of Ministers, for all the aforesaid facts and reasons, strongly
advises the Hon’ble Governor to withdraw the notice dated 26-07-
2024 issued by him to the Hon’ble Chief Minister, based on the
petition and addendum dated 26-07-2024, filed by one T.J.
Abraham, and to proceed forthwith to reject the said application by
denying prior approval and sanction as requested by the petitioner
Abraham.
Sd/- (D.K.Shivakumar)
Deputy Chief Minister
1-08-2024.”
(Emphasis supplied)
On 3-08-2024, the petitioner also submits his reply. The reply of
the petitioner refers to the cabinet decision of 1-08-2024. The
preamble of the reply reads as follows:
"SIDDARAMAIAH VIDHANA SOUDHA,
119
CHIEF MINISTER BENGALURU-560 001
Date: 3-08-2024.
D.O.Letter No.UDD/248/MUD/2024(E)
Dear Sir,
1. With reference to the show cause notice bearing No.GS 40
ADM 2024, dated 26-07-2024, issued to and addressed to
me, I would like to bring to your notice as follows:-
2. The notice was received by my office at around 3.00 p.m. on
27-07-2024. The notice was accompanied with a copy of the
petition dated 26-07-2024 and all annexures filed by one Sri
T.J. Abraham, seeking sanction for prosecution against me,
under Section 17A and 19 of the Prevention of Corruption
Act, 1988 and Section 218 of BNSS (Section 197 Cr.P.C.), to
proceed against me for the offences punishable under
Sections 7, 9, 11, 12 and 15 of the Prevention of Corruption
Act, 1988 and Sections 59, 61, 62, 201, 227, 228, 229, 239,
314, 316(5), 318(1), 318(2), 318(3), 319, 322, 324, 324(1),
324(2), 324(3), 335, 336, 338 and Section 340 of the
Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as
BNS).
3. On perusal of the ‘show cause notice’ along with the enclosed
petition of one Shri T.J. Abraham and all the annexed
documents, keeping in mind the mandate of Article 163 of
the Constitution and underlying constitutional principles of a
parliamentary form of democracy, I thought it fit to place the
matter before the council of ministers to take a decision in
the matter. Since the issue relates to me, I, recused myself
from the meeting and in terms of rule 28 of the Transaction
of Business Rules nominated Sri D.K. Shivakumar, Deputy
Chief Minister to chair the meeting. Accordingly, the Urban
Development Department placed the matter before the
Council of Ministers with all records, opinion of Advocate
General and Cabinet Note. The Council of Ministers met on 1-
08-2024, and after detailed discussion for the reasons
mentioned therein resolved to advice you as hereunder:
“The Council of Ministers advise the Hon’ble Governor to
withdraw the notice dated 26-07-2024, issued to the Hon’ble
120Chief Minister based on the petition and addendum dated 26-
07-2024, filed by one T.J. Abraham and proceed to forthwith
reject the said application for sanction”.
The decision of the Council of Ministers and the entire file
was placed before me for my information, by the Urban
Development Department since I had recommended to place
the matter before the Council of Ministers. I have gone
through the entire records as well as the detailed decision of
the Cabinet.
4. I would to categorically establish, for your kind perusal and
judicious action, as to why the notice issued by you is grossly
illegal, unconstitutional, patently lacking in jurisdiction,
suffers from total non-application of mind and ultra vires the
provisions of Section 17A, 19 Prevention of Corruption Act
and Section 218 BNSS.
5. That, being the competent authority to grant sanction under
the provisions of the Prevention of Corruption Act, 1988,
insofar as the Ministers and the Chief Minister is concerned,
the fundamental question that would arise is whether the
Governor in such matters would totally bypass the mandate
of Article 163 of Constitution of India and the various
judgments of the Hon’ble High Courts and the Hon’ble
Supreme Court of India. Is the Hon’ble Governor
jurisdictionally competent to directly receive application is for
sanctions in the Raj Bhavan and without ensuring suitable
enquiry including examination of official records available
with the concerned department, proceed further on such
application or decide such application. The fact remains,
that the application filed by Sri T.J. Abraham was
received by you on 26-07-2024 and, within few hours
of receipt of such application you have proceeded to
issue me with the show cause notice in question. It is
rather ironical that a constitutional office required to
discharge its functions in the manner provided under
the Constitution, has chosen to, iin extreme urgency,
proceed in the matter, bypassing all known
constitutional requirements and procedures in this
context, please take note of the following:”
121
The reminder portion of the reply is verbatim similar to what the
Cabinet decision was. The crux of the reply contains from paras
128 onwards and it reads as follows:
“128. It is necessary to also point out that apart from all these
legal infirmities in the manner and the issuance of the show
cause notice, the entire action suffers from legal mala fides.
In light of all this, it is my view as well that –
i. You ought to have under the present set of facts and
circumstances acted only on the aid and advise of the
council of ministers and not in his discretion.
ii. You, while proceeding to issue the show cause
notice, have failed to apply his mind to the facts
of the case and not considered the material
available on record. The Governor ought to have
taken in to consideration the reply submitted by
the Chief Secretary dated 26.07.2024, received
by him at 7.00 p.m. on the same day. The
issuance of show cause notice without
consideration of the relevant material available
on record suffers from total non-application of
mind.
iii. You have failed to take note of the fact that the
application for sanction dated 26-07-2024, suffers
from serious legal infirmities and was not maintainable
on a reading of the provisions of Section 17A, 19 of
the Prevention of Corruption Act, 1988 and Section
218 of the BNS 2023 along with settled legal position
as envisaged from the judgments referred to in the
cabinet note. An application for previous approval
under Section 17A of the Prevention of Corruption Act,
1988, can be made only by police officer and not
anyone else.
iv. You have failed to take note of the fact that the
application for sanction was also premature since the
122applicant had filed a complaint to the Lokayukta Police
on 18-07-2024 and thereafter had also mot followed
the mandatory procedure as laid down by the Hon’ble
Supreme Court in Priyanka Srivastava in (2015) 6 SCC
287 and Lalitha Kumari (2014) 2 SCC 1.
v. You have failed to take note of the fact that the entire
allegations made by the applicant does not reveal any
offence punishable under the provisions of the
Prevention of Corruption Act, 1988 or the BNS 2023.
vi. You have Governor failed to take note of the fact
that T.J. Abraham comes with criminal
antecedents having criminal case of blackmail
and extortion registered against him and his
conduct in misusing the public interest
jurisdiction has also been frowned upon by the
Hon’ble Supreme Court, levying `25 lakh as costs
on him. His acts are politically motivated and
lacks bona fides and suffers from factual and
legal mala fides.
vii. You, in issuing the show cause notice, have acted in
undue haste, throwing to wind all procedural
requirements. The fact that the Governor has
proceeded to issue the notice on the very same day as
he received the petition and on a petition by a person
with criminal antecedents and without examining the
records, relevant material as well as the reply of the
Chief Secretary dated 26-07-2024, added to the fact
that several applications for sanction before him are
long pending, such as proposal for prior approval u/s
17A of the Prevention of Corruption Act, 1988, dated
9.12.2021 against one Shashikala Jolle, former
Minister and another proposal dated 26.02.2024
against Murgesh Nirani, former Minister and a
permission for sanction under Section 19 of the
Prevention of Corruption Act, 1988, dated 13-05-2024
against Janardhana Reddy, Member of Legislative
Assembly and Former Minister. Therefore, the issuance
of the show cause notice, is an act that suffers from
legal mala fides as laid down by the Hon’ble Supreme
123Court in a catena of judgments including the ones
referred to supra.
viii. The entire sequence of events and the admitted facts
and circumstances based on the available records lead
to an unequivocal conclusion that a concerted
attempted is being made to destabilize the lawfully
elected majority Government in Karnataka for political
consideration.
130. In a democracy those entrusted with constitutional
authority ought to exercise the same in accordance
with law. Upon consideration of the ‘notice’ I am
constrained to point out that the same has been issued
in a hurried manner and I am sure that if the
allegations in the complaint are looked into with due
consideration for the facts, the show cause notice
would not have been issued, as there is no material for
grant of sanction.
131. I, therefore, request you to peruse my reply, as well as
the advice rendered by the Cabinet, vide its resolution
dated 1-08-2024, which I presume has been sent to
you by the Chief Secretary, and withdraw the notice to
me and deny prior approval and sanction sought by
the petitioner by rejecting his application.
Warm regards,
Yours sincerely,
Sd/-
(SIDDARAMAIAH)”
(Emphasis supplied)
Both the Cabinet decision or the resolution and the reply of the
petitioner are placed before the Governor. This happens on
6-08-2024. On 6-08-2024 when the reply was received, the file
notings are as follows:
124
“14. Kindly peruse the letter dated 3-08-2024 received from Sri
Siddaramaiah, Hon’ble Chief Minister and letter dated 1-08-
2024 received from Chief Secretary to Government placed in
the file.
15. The Chief Secretary has submitted the Cabinet decision
dated 1-08-2024 along with enclosures. The Cabinet
note is of 91 pages long with relevant copies of the
judgments and legal opinion in reply to the show
cause notice dated 26-07-2024 issued to Hon’ble Chief
Minister (Received at 10-00 p.m. on 1.08.2024 in this
secretariat).
16. Further, Hon’ble Chief Minister has submitted his reply to the
show cause notice dated 26-07-2024 along with legal opinion
and relevant records which runs through 60+ odd pages.
(Received at 3.00 p.m. on 04-08-2024).
17. The State Cabinet for the facts and reasons mentioned
in the Cabinet decision has strongly advised the
Hon’ble Governor to withdraw the notice dated 26-07-
2024 issued to the Hon’ble Chief Minister based on the
petition and addendum dated 26-07-2024, filed by one
T.J. Abraham, and to proceed forthwith to reject the
said application by denying prior approval and
sanction as requested by the petitioner Abraham.
18. The Hon’ble Chief Minister in his reply has requested
to peruse his reply, as well as the advice rendered by
the Cabinet, vide its resolution dated 1-08-2024, and
to withdraw the notice issued to him and to deny prior
approval and sanction sought by the petitioner by
rejecting his application.
19. With the above details and along with records submitted, the
file is placed before the Hon’ble for kind perusal and orders.
Sd/- (R.Prabhushankar)
Special Secretary to Governor
6-08-2024
20. Hon’ble Governor]
125Put up along with comparative statements of
petitions, Chief Minister reply and cabinet
decision.
Sd/- 8-08-2024.”
(Emphasis supplied)
It appears that the Governor perused the file, directs putting of
comparative statements of the objections – Chief Minister’s reply
and the Cabinet decision. This is complied with and placed before
the Governor on 14-08-2024. The notings made on 14-08-2024 in
the file read as follows:
“21. As directed at para-20, comparative statement of
petitions received, from (1) Sri T.J.Abraham, (2) Sri
Snehamayi Krishna and (3) Sri Pradeepkumar S.P and
Chief Minister’s reply and Cabinet decision are placed
in the file for kind perusal of the Hon’ble.
Sd/- 14-08-2024
22. Hon’ble Governor]
Perused the file, discussed the issues, hence re-submit
the file along with notes/analysis points as dictated, based
on the comparative statement and available documents and
petitioins.
Sd/- 14-08-2024
(23) Spl.Secy] Sd/- 14-08-2024
(24) US (A) Sd/- 14-08-2024."
On 16-08-2024 the Governor peruses the entire papers and then
passes the order, which reads as follows:
126
“25. Prepara’s may kindly be perused. The petitions received
from:
1. Sri T.J.Abraham dated 26-07-2024 (page Nos: 01-
240) & clarification dated 29-07-2024 (page No: 247-
275) and petition with additional documentation daed
06-08-2024 (page Nos. 694-824).
2. Petition from Sri Pradeep Kumar S.P. dated
14.08.2024 (page Nos. 686-1150), and
3. Petition from Sri Snehamayi Krishna dated 05.07.2024
(page Nos.826-866)Requesting grant of sanction for prosecution in respect of
irregularities conducted and corrupt practices adopted by
Shri Siddaramaiah, Hon’ble Chief Minister of Karnataka.
4. the reply to the show cause notice dated 3.08.2024
along with the annexures (page Nos. 443-693),
5. the opinion of Ld.Advocate General and the resolution
of Council of Ministers dated 1-08-2024 placed in file
at pages 276-442 may kindly be perused.
and also, the petitions from various persons both requesting
expediting and opposing the proposal seeking sanction for
prosecution is placed below the file
26. As directed, the file along with the above details, documents
and comparative statements, dictated notes by Hon’ble, is
placed before the Hon’ble for further necessary orders.
Sd/- (R.Prabhushankar)
Special Secretary to Governor
16-08-2024
Hon’ble Governor.
27. Petitions received from Sri T.J. Abraham dated
26.07.2024 (page Nos. 01-240) & clarification dated
29-07-2024 (page nos. 247-275) and petition with
additional documentation dated 06-08-2024 (page
nos.694-824), petition from Sri Pradeep Kumar S.P.
dated 14-08-2024(page Nos. 686-1150), and petition
127
from Snehamayi Krishna dated 5-07-2024 (page nos.
826-866) requesting grant of sanction for prosecution
in respect of irregularities conducted and corrupt
practices adopted by Shri Siddaramaiah, Hon’ble Chief
Minister of Karnataka concerning allotment of
alternative sites by Mysore Urban Development
Authority (“MUDA”) under various sections of PC, Act,
1988 and BNSS, 2023 has been perused.
28. In view of the allegations and on prima facie perusal
of the petitions for grant of sanction for prosecution
and materials in support of the allegations, a show
cause notice dated 26-07-2024 along with the copy of
the petition by T.J. Abraham and materials in support
of the allegations was issued to Sri Siddaramaiah,
Hon’ble Chief Minister of Karnataka. The reply to the
show cause notice dated 3-08-2024 along with the
annexures was received at the office of His Excellency
the Governor of Karnataka on 4.08.2024.
29. It appears from the materials annexed to the reply to
the show cause notice that vide note dated 27.07.2024
Sri Siddaramaiah, Hon’ble Chief Minister of Karnataka
requested the Chief Secretary to place the show cause
notice along with the copy of the petition and the
materials in support of the allegations before the
Council of Ministers for further consideration and
examination. The Chief Secretary on 31-07-2024 took
the opinion of Ld. Advocate General and the Council of
Ministers vide resolution dated 1-08-2024 concluded
as follows:
“Therefore, under Article 163 of the Constitution,
the council of Ministers, for all the aforesaid
facts and reasons, strongly advises the Hon’ble
Governor to withdraw the notice dated 26-07-
2024, issued by him to the Hon’ble Chief
Minister, based on the petition and addendum
dated 26-07-2024, filed by one T.J. Abraham,
and to proceed forthwith to reject the said
application by denying prior approval and
sanction as requested by the petitioner
Abraham”.
128
30. It is pertinent to note that that the Council of Ministers in
reaching the aforesaid decision vide meeting dated 1-08-
2024 considered and relied upon the following assertions:
30.1 The Hon’ble Governor ought to have, under the present set
of facts and circumstances, aced only on the aid and advice
fo the council of ministers and not in his discretion.
30.2 The Hon’ble Governor while proceeding to issue the show
cause notice has failed to consider the material available on
record. The Governor ought to have taken into consideration
the reply submitted by the Chief Secretary dated 26-07-
2024, received by him at around 6.30 p.m. in person on the
same day. It is to be noted that the Chief Secretary in his
reply ha, inter alia, highlighted that direction contained in
Governor’s letter dated 15-07-2024 was already acted upon
by way of constitution of a Judicial Commission of enquiry
under the Chairmanship of Justice P.N. Desai, vide
Government Order of 14.07.2024. The issuance of show
cause notice, without consideration of these and all other
relevant material available on the record, suffers from total
non-application of mind.
30.3 The Hon’ble Governor has failed to take note of the fact that
the application for sanction dated 26.07.2024 suffers from
serious legal infirmities and was not maintainable on a
reading of the provision is of Section 17A, 19 of the
Prevention of Corruption Act, 1988 and Section 218 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 along with settled
legal position, as envisaged under the judgments referred to
in the cabinet note. An application for previous approval
under Section 17A of the Prevention of Corruption Act, 1988
can be made only by Police Officer and not private person.
30.4 The Hon’ble Governor failed to take note of the fact that the
entire allegations made by the applicant do not reveal any
offence punishable under the provisions of the Prevention of
Corruption Act, 1988 or the BNSS 2023.
30.5 A reading of the show cause notice, more so the finding by
the Governor that “on perusal of the request, it is seen that
the allegations against you are of serious nature and prima
129
facie seem plausible” leads to an undeniable conclusion that
there is pre-judging of the issue, disregarding the report of
the Chief Secretary dated 26-07-2023.
31. In view of the averments made in the aforementioned
petitions seeking grant of sanction for prosecution and
the materials in support of the same, the subsequent
issuance of show cause notice dated 26-07-2024, reply
to the show cause notice by Shri Siddaramaiah,
Hon’ble Chief Minister of Karnataka dated 3-08-2024,
legal opinion of the Ld. Advocate General dated 31-07-
2024 and the decision of the Council of Ministers dated
1-08-2024, I am of the opinion, that, in exercise of my
powers under Article 163(1) of the Constitution of
India considering aforesaid materials placed before
me and the facts and circumstances of the present
matter, as a matter of propriety, I shall exercise my
discretion by independently examining the aforesaid
materials for following reasons:
31.1 It is seen from the resolution of Council of Minister
that the conclusion has been arrived at by the Council
of Ministers by non-consideration of relevant facts and
materials. For instance, the Council of Ministers has
taken into considerations that absence of ‘possession
notification’ and/or a mahzar taking possession was
mandatory. However, the Revenue Transfer Certificate
as provided under Annexure-A-5 of the petition by T.J.
Abraham clearly stated that the possession of the
alleged land (3 acres and 16 guntas) was with MUDA.
Further, the fact that the alleged land was developed
by MUDA and the same was allotted to private
beneficiaries and subsequently registration of the
same was also completed. These aforesaid aspects
have not been examined and considered by the Council
of Ministers.
31.2 The Chief Minister is the head of the Council of
Ministers. The Council of Ministers is normally required
to act fairly and in a bona fide manner. However, the
Council of Ministers is appointed on the
recommendation of the Chief Minister, it is but natural
that the stance of the Council of Ministers is in support
130
of the Chief Minister. Hence, in such extraordinary
circumstances, it is hard to ascertain that the Council
of Ministers have acted fairly and in a bona fide
manner.
31.3 The Governor under Article 163 of the Constitution of
India is required to act under the aid and advice of the
Council of Ministers.. However, an exception may
arise when consideration is being done for grant of
sanction for prosecution of the Chief Minister and the
decision of Council of Ministers is affected by the
apparent bias. As regards the application of doctrine of
aid and advise is concerned, this has been conclusively
settled in the State of Maharashtra v. R.S. Naik AIR
1982 SC 1249 that sanction to prosecute the Chief
Minister is the exclusive function of the Governor to be
exercised by him in his discretion followed by the
decision in Dr. J.Jayalalitha v. Dr. Channa Reddy
(1995) 2 MLJ 187, wherein it was further amplified
that it is erroneous to say that the view of the
Supreme Court was based on a concession made by
counsel and a perusal of the relevant part of the
judgment shows that the Court has expressed its
opinion that such concession was rightly made.
31.4 In the present matter, the allegations and the
materials in support of the allegations would prima
facie indicate that the said land was given to SC
person by due course of law. The records of the said
land was transferred from the father to childrens and
again from childrens to father, this mystery was not
considered by the State Cabinet. When the notification
for land acquisition issued and the de-notification
order was issued, Sri Siddaramaiah was the Member of
Legislative Assembly from Chamundeshwari
Constituency as well as Member of Mysuru Urban
Development Authority, and further, this land was
purchased by the brother-in-law of Sri Siddaramaiah,
wherein, the seller was from the constituency of
Chamundeshwari, and later on after getting the lnd
converted in to the residential purpose gifted it to the
wife of Sri Siddaramaiah, who became the owner of
the property and the application for allocation of
alternative sites come to be moved on the basis of
131
relinquishment of agriculture land. On the basis of this
application MUDA passed a resolution pursuant to the
amendment to allot alternative sites. It has been
specifically averred that the Rule was specifically
amended from 40:60 to 50:50 to aid this transaction
when Sri Siddaramaiah was the Chief Minister.
Further, the petition seeking grant of sanction for
prosecution and the materials provided clearly indicate
that Sri Yateendra, son of Sri Siddaramaiah
participated in MUDA meeting which resulted in
allotment of alternative site in very prima layout called
Vijayanagar. These facts were placed before the
Council of Ministers. The aforesaid brief facts when co-
related with the material in support of grant of
sanction clearly establish that there is apparent bias in
the decision taken by the Council of Ministers in favour
of Sri Siddaramaiah. Due to the apparent bias, the
present matter requires my independent application of
mind to the petitions seeking grant of sanction for
prosecution and the materials in support of the same.
31.5 It is seen from the decision taken by the Council of Ministers
that a committee under the chairmanship of Shri
Venkatachalapathy, IAS was constituted to look into the
present matter. However, the Government upon considering
the facts of the present matter as reported in the
media/newspapers appointed a high-level single member
inquiry committee under the ‘Commission of Inquiry Act
1952’ . It appears from the terms of reference of the high-
level single member inquiry committee that there are serious
allegation involving illegal allotment of alternative sites,
illegal allotment of land and irregularities in allocation of
land. Further, the constituting of a committee under an IAS
officer and immediately constituting one more committee
under a retired Judge of the High Court and the
Governments own acceptance that there is a potential big
ticket scam in the allotment of sites by MUDA does not
inspire much confidence. It is well settled legal principle
that the person against who, allegations are made,
should not be empowered to decide the course of
action. Even after such grave allegations being
involved in the present matter and the fact that the
materials prima facie support the allegations,
132
therefore, the decision taken by the Council of
Ministers is irrational as even after the appointment of
high-level single member inquiry committee on such
serious allegation the council of Ministers do not
consider the entire material in support of the
allegation.
31.6 The subject of binding of the advice of the Council of
Ministers for Governor and discretionary power of the
Governor during special circumstances is well
discussed and decided in the case of Madhya Pradesh
Police Establishment v. State of Madhya Pradesh,
(2004) 8 SCC p.788 at pages 802, 805, the five Judges
bench of Supreme Court has held that “If on these
facts and circumstances, the Governor cannot act in
his own discretion there would be a complete break-
down of rule of law inasmuch as it would then be open
for Governments to refuse sanction in spite of
overwhelming material showing that a prima facie
case is made out. If, in cases where prima facie is
clearly made out, sanction to prosecute high
functionaries is refused or withheld, democracy itself
will be at stake. It would then lead to a situation
where people in power may break the law with
impunity safe ini the knowledge they will not be
prosecuted as the requisite sanction will not be
granted.
31.7 On the point raised by the Council of Ministers that an
application for previous approval under Section 17A of the
Prevention of Corruption Act, 1988, can be made only by
Police Officer and not private person, Section 17A of
Prevention of Corruption Act, 11988 provides that no enquiry
or inquiry or investigation shall be conducted by a police
officer into any offence alleged to have been committed by a
public servant under the PC Act without prior approval from
appropriate authority. However, either it is said that private
person cannot request for the prior approval from the
competent authority, nor only the Investigating Agency will
seek the sanction from the Competent Authority. The only
thing is to understand that the Police will not inquire without
prior sanction. It is important that Police should start the
investigation process only after getting the sanction from the
133
Competent Authority, it is immaterial who does the effort to
get the sanction. The decision of the Hon’ble High Court of
Karnataka in Criminal Petition No.531 of 2022 in Dr. Ashok V
v. The state by Lokayuktha Karnataka and the various high
Courts, the High Court of Karnataka has issued guidelines to
be followed in the cases related to prosecution of public
servants for the alleged offences during the discharge of
duties vide circular dated 23-09-2023. This circular stipulates
the procedure and pre-requisites for registering the cases of
prosecution against the public servants. Point No.(ii) of the
circular reads as “The private complaint should also append
prior approval granted by the competent authority to register
a private complaint, akin to a prior approval for an FIR to be
registered by the Investigating Agency as obtaining under
Section 17A of the Act. This would become a prerequisite to
the concerned court to refer the matter for investigation
under Section 156(3) of the Cr. Prevention of Corruption”.
Hence,, the above circular of the Hon’ble Court makes it
compulsory that the previous sanction is necessary to file a
private complaint in the Court of Law by private persons.
31.8. In view of the aforesaid it emerges that the present
situation amounts to peril to democratic principles and
therefore, requires independent application of mind
and my subjective satisfaction and objective
assessment of the facts and materials provided.
31.9 Since the sanction is sought against the Chief Minister
himself, the surrounding circumstances of placing the
show cause notice dated 26-07-2024 before the
Cabinet and the decision of the Cabinet advising me to
withdraw the notice, would not inspire confidence to
act on such advice of the Cabinet.
31.10 Upon perusal of the petition along with the materials
in support of the allegations in the petitions and
subsequent reply of Sri Siddaramaiah and the advice
of the State Cabinet along with the legal opinion, it
seems to be that there are two versions in relation to
the same set of facts. It is very necessary that a
neutral, objective and non-partisan investigation
should be conducted, I am prima facie satisfied that
134
the allegations and the supporting materials disclose
commission of offences.
31.11 In view of the above facts and circumstances, I am
satisfied that sanction can be accorded against the
Chief Minister Shri Siddaramaiah on the allegations of
having committed the offences as mentioned in the
petitions of Sri T.J.Abraham, Sri Pradeep Kumar S.P.
and Sri Snehamayi Krishna.
32. Hence, I hereby accord sanction against Chief Minister
Sri Siddaramaiah, under Section 17A of the Prevention
of Corruption Act, 1988 and Section 218 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 for the
commission of the alleged offences as mentioned in
the petitions.
Sd/- (Thaawarchand Gehlot)
16-08-2024.”
(Emphasis supplied)
The aforesaid decision of the Governor is communicated to the
Chief Secretary, Government of Karnataka on 17-08-2024. The
communication encloses the decision of the Competent Authority.
The decision that is communicated reads as follows:
“Decision of the competent authority under Section 17A of
Prevention of Corruption Act, 1988 and218 of Bharatiya
Nagarik Suraksha Sanhita, 2023.
01. Petition from Sri T.J.Abraham seeking grant of sanction for
prosecution of Shri Siddaramaiah, Hon’ble Chief Minister of
Karnataka for commission of offences under Sections 7, 9,
11, 12 and 15 of the Prevention of Corruption Act, 1988 (“PC
Act”) ad Sections 59, 61, 62, 201, 227, 228, 229, 239, 314
316(5), 318(1), 318(2), 318(3), 319, 322, 324, 324(1),
324(2), 324(3), 335, 336, 338 and 340 of the Bharatiya
135Nyaya Sanhita (“BNS”. The said petition seeks grant of
sanction for investigation under Section 17A of the PC Act
and grant of sanction for prosecution under Section 218 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) and
Section 19 of the PC Act. The petitioner has also annexed 29
documents in support of the allegations.
02. Two more petitions from Sri Pradeep Kumar S.P., and from
Sri Snehamayi Krihna, Social Activist, have been received at
my office in respect of the same allegations.
03. Upon perusal of the petitions and the materials in support of
the allegations in the petitions, I had issued Show Cause
Notice dated 26-07-2024 to Shri Siddaramaiah to show
cause as to why permission for prosecution should not be
granted. Upon receipt of the said Show Cause Notice dated
26-07-2024, the Chief Minister, Shri Siddaramaiah vide reply
dated 3-08-2024 denied the allegations as made against him
in the petition dated 26-07-2024. My office has received the
resolution of the Cabinet dated 1-08-2024 on 1-08-2024. My
office has also received the reply of Shri Siddaramaiah dated
3.08.2024, denying the allegations along with certain
documents on 4-07-2024.
04. It is seen from the decision taken by the Council of Ministers
that a committee under the chairmanship of Shri
Venkatachalapathy, IAS was constituted to look into the
present matter. However, the Government upon considering
the facts of the present matter as reported in the
media/newspapers appointed a high-level single member
inquiry committee under the ‘Commission of Inquiry Act,
1952’. It appears from the terms of reference of the high-
level single member inquiry committee that there are serious
allegation involving illegal allotment of alternative sites,
illegal allotment of land and irregularities in allocation of
land. Further, the constituting of a committee under an IAS
officer and immediately constituting one more committee
under a retired Judge of the High Court and the
Governments own acceptance that there is a potential big
ticket scam in the allotment of sites by MUDA does not
inspire much confidence. It is well settled legal principle that
the person against who, allegations are made, should not be
empowered to decide the course of action. Even after such
136grave allegations being involved in the present matter and
the fact that the materials prima facie supports the
allegations, therefore, the decision taken by the Council of
Ministers is irrational.
05. The operative part of the Resolution of the Cabinet dated
1-08-2024 reads as follows:
“Therefore, under Article 163 of the Constitution, the
Council of Ministers, for all the aforesaid facts and
reasons, strongly advises the Hon’ble Governor to
withdraw the notice dated 26-07-2024, issued by him
to the Hon’ble Chief Minister, based on the petition
and addendum dated 26-07-2024, filed by one T.J.
Abraham and to proceed forthwith to reject the said
application by denying prior approval and sanction as
requested by the petitioner Ahraham.”
06. I have considered the decision of the Cabinet dated 1-08-
2024 and the file in relation to the issue at hand. It is noticed
from the said file that Shri Siddaramaiah had asked the Chief
Secretary to convene a meeting of the Cabinet and to place
the show cause notice dated 26-07-2024 and all other
materials before the Cabinet. Accordingly, the Cabinet
meeting was convened on 1-08-2024, wherein the show
cause notice dated 26-07-2024 and other materials were
discussed and the aforesaid Resolution dated 1-08-2024
came to be passed. I have also taken note of the fact that
the said Cabinet meeting was not presided over by Shri
Siddaramaiah the Chief Minister.
07. In the present case, the petitions have been
filedseeking grant of sanction against Shri
Siddaramaiah. The resolution dated 1-08-2024 of the
Cabinet has been passed by the Cabinet colleague of
Shri Siddaramaiah who have been appointed on his
advice. In view of the above and considering the fact
that the petitions have been filed seeking sanction for
investigation and prosecution against Shri
Siddaramaiah, Chief Minister, I have independently
examined the petitions and documents submitted in
support of the same.
137
08. Since the sanction is sought against the Chief Minister
himself, the surrounding circumstances of placing the
show cause notice dated 26-07-2024 before the Cabinet
and the decision of the Cabinet advising me to withdraw
the notice, would not inspire confidence to act on such
advice of the Cabinet.
09. The subject of binding of the advice of the Council of
Ministers for Governor and discretionary power of the
Governor during special circumstances is well discussed
and decided in the case of Madhya Pradesh Police
Establishment v. State of Madhya Pradesh, (2004)8 SCC
p.788 at pages 802, 805, the five Judges Bench of
Supreme has held that “If on these facts and
circumstances, the Governor cannot act in his own
discretion there would be a complete break- down of
Rule of law inasmuch as it would then be open for
Governments to refuse sanction in spite of
overwhelming material showing that a prima facie case
is made out. If, in cases where prima facie is clearly
made out, sanction to prosecute high functionaries is
refused or withheld, democracy itself will be at stake. It
would then lead to a situation where people in power
may break the law with impunity safe in the knowledge
they will not be prosecuted as the requisite sanction
will not be granted.”
10. Upon perusal of the petition along with the materials In
support of the allegations in the petitions and subsequent
reply of Sri Siddaramaiah and the advise of the State Cabinet
along with the legal opinion, it seems to me that there are two
versions in relation to the same set of facts. It is very
necessary that a neutral, objective and non-partisan
investigation should be conducted. I am prima facie satisfied
that the allegations and the supporting materials disclose
commission of offence.
11. In view of the above facts and circumstances, I am satisfied
that sanction can be accorded against Chief Minister Shri
Siddaramaiah on the allegations of having committed the
offences as mentioned in the petitions of Sri T.J.Abraham, Sri
Pradeep Kumar S.P. and Sri Snehamayi Krishna.
138
12. Hence, I hereby accord sanction against Chief Minister
Sri Siddaramaiah under Section 17A of the Prevention of
Corruption Act, 1988 and Section 218 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 for the commission of the alleged
offences as mentioned in the petitions.
Sd/- (Thaawarchand Gehlot)
16-08-2024″
(Emphasis supplied)
This brings the petitioner to this Court.
THE CONTENTIONS OF THE PETITIONER ON THE
PROCEEDINGS OF THE GOVERNOR:
33. The learned senior counsel appearing for the petitioner
would raise 5 fold submissions against the order of the Governor:
(i) The Governor ought not to have rejected the Cabinet
decision as he is bound by the aid and advice of the
Council of Ministers under Article 163 of the
Constitution;
(ii) The Governor has presumed apparent bias of the
Cabinet to exercise independent discretion. This is
contrary to law;
(iii) The Governor refers to a decision of the Apex Court in
the case of M.P. SPECIAL POLICE ESTABLISHMENT v.
STATE OF M.P. – (2004) 8 SCC 788 which is
subsequently distinguished in NABAM REBIA & BAMANG
FELIX v. DEPUTY SPEAKER – (2016) 8 SCC 1;
(iv) The order of the Governor suffers from blatant non-
application of mind;
139
(v) The order should be tested on what is communicated to
the petitioner and not on what the notings in the file are
to arrive at a conclusion whether the Governor has
applied his mind before according approval as obtaining
under Section 17A;
I deem it appropriate to unfold the said folds.
34. Article 163 of the Constitution reads as follows:
“163. Council of Ministers to aid and advise
Governor.–(1) There shall be a Council of Ministers with
the Chief Minister at the head to aid and advise the
Governor in the exercise of his functions, except in so far
as he is by or under this Constitution required to exercise
his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not
a matter as respects which the Governor is by or under this
Constitution required to act in his discretion, the decision of the
Governor in his discretion shall be final, and the validity of
anything done by the Governor shall not be called in question on
the ground that he ought or ought not to have acted in his
discretion.
(3) The question whether any, and if so what, advice was
tendered by Ministers to the Governor shall not be inquired into
in any court.”
Article 163 deals with Council of Ministers to aid and advice the
Governor. It reads that there shall be a Council of Ministers with the
Chief Minister at the head to aid and advice the Governor in
exercise of his functions except insofar as he is required to exercise
140
his functions or any of them in his discretion. Article 164 of the
Constitution reads as follows:
“164. Other provisions as to Ministers.–(1) The
Chief Minister shall be appointed by the Governor and the
other Ministers shall be appointed by the Governor on the
advice of the Chief Minister, and the Ministers shall hold
office during the pleasure of the Governor:
Provided that in the States of Chhattisgarh, Jharkhand,
Madhya Pradesh and Odisha, there shall be a Minister in charge
of tribal welfare who may in addition be in charge of the welfare
of the Scheduled Castes and backward classes or any other
work.
(1-A) The total number of Ministers, including the Chief
Minister, in the Council of Ministers in a State shall not exceed
fifteen per cent of the total number of members of the
Legislative Assembly of that State:
Provided that the number of Ministers, including the Chief
Minister, in a State shall not be less than twelve:
Provided further that where the total number of Ministers,
including the Chief Minister, in the Council of Ministers in any
State at the commencement of the Constitution (Ninety-first
Amendment) Act, 2003 exceeds the said fifteen per cent or the
number specified in the first proviso, as the case may be, then,
the total number of Ministers in that State shall be brought in
conformity with the provisions of this clause within six months
from such date as the President may by public notification
appoint.
(1-B) A member of the Legislative Assembly of a State or
either House of the Legislature of a State having Legislative
Council belonging to any political party who is disqualified for
being a member of that House under Paragraph 2 of the Tenth
Schedule shall also be disqualified to be appointed as a Minister
under clause (1) for duration of the period commencing from
the date of his disqualification till the date on which the term of
his office as such member would expire or where he contests
141any election to the Legislative Assembly of a State or either
House of the Legislature of a State having Legislative Council, as
the case may be, before the expiry of such period, till the date
on which he is declared elected, whichever is earlier.
(2) The Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor
shall administer to him the oaths of office and of secrecy
according to the forms set out for the purpose in the Third
Schedule.
(4) A Minister who for any period of six consecutive
months is not a member of the Legislature of the State shall at
the expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such
as the Legislature of the State may from time to time by law
determine and, until the Legislature of the State so determines,
shall be as specified in the Second Schedule.”
(Emphasis supplied)
Article 164 deals with the other provisions as to Ministers. The Chief
Minister will be appointed by the Governor and the other Ministers
shall be appointed by the Governor on the advice of the Chief
Minister. A question arose before the Apex court with regard to
granting of sanction for prosecution of Ministers. Whether the
Governor should act on the aid of the Council of Ministers or can
take his independent decision in the matter. The Apex Court in M.P.
SPECIAL POLICE ESTABLISHMENT supra holds as follows:
“…. …. …
142
8. The question for consideration is whether a
Governor can act in his discretion and against the aid and
advice of the Council of Ministers in a matter of grant of
sanction for prosecution of Ministers for offences under
the Prevention of Corruption Act and/or under the Penal
Code, 1860.
…. …. …
12. Mr Sorabjee relies on the case of Samsher Singh
v. State of Punjab [(1974) 2 SCC 831 : 1974 SCC (L&S)
550] . A seven-Judge Bench of this Court, inter alia,
considered whether the Governor could act by personally
applying his mind and/or whether, under all
circumstances, he must act only on the aid and advice of
the Council of Ministers. It was inter alia held as follows:
(SCC pp. 848-49, paras 54-56)
“54. The provisions of the Constitution which
expressly require the Governor to exercise his powers in his
discretion are contained in articles to which reference has
been made. To illustrate, Article 239(2) states that where a
Governor is appointed an administrator of an adjoining
Union Territory he shall exercise his functions as such
administrator independently of his Council of Ministers. The
other articles which speak of the discretion of the Governor
are paragraphs 9(2) and 18(3) of the Sixth Schedule and
Articles 371-A(1)(b), 371-A(1)(d) and 371-A(2)(b) and 371-
A(2)(f). The discretion conferred on the Governor means
that as the constitutional or formal head of the State the
power is vested in him. In this connection, reference may
be made to Article 356 which states that the Governor can
send a report to the President that a situation has arisen in
which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution. Again
Article 200requires the Governor to reserve for
consideration any Bill which in his opinion if it became law,
would so derogate from the powers of the High Court as to
endanger the position which the High Court is designed to
fill under the Constitution.
55. In making a report under Article 356 the
Governor will be justified in exercising his discretion even
against the aid and advice of his Council of Ministers. The
reason is that the failure of the constitutional machinery
143
may be because of the conduct of the Council of Ministers.
This discretionary power is given to the Governor to enable
him to report to the President who, however, must act on
the advice of his Council of Ministers in all matters. In this
context Article 163(2) is explicable that the decision of the
Governor in his discretion shall be final and the validity shall
not be called in question. The action taken by the President
on such a report is a different matter. The President acts on
the advice of his Council of Ministers. In all other matters
where the Governor acts in his discretion he will act in
harmony with his Council of Ministers. The Constitution does
not aim at providing a parallel administration within the
State by allowing the Governor to go against the advice of
the Council of Ministers.
56. Similarly Article 200 indicates another instance
where the Governor may act irrespective of any advice from
the Council of Ministers. In such matters where the
Governor is to exercise his discretion he must discharge his
duties to the best of his judgment. The Governor is required
to pursue such courses which are not detrimental to the
State.”
The law, however, was declared in the following terms:
(SCC p. 885, para 154)
“154. We declare the law of this branch of our
Constitution to be that the President and Governor,
custodians of all executive and other powers under various
articles shall, by virtue of these provisions, exercise their
formal constitutional powers only upon and in accordance
with the advice of their Ministers save in a few well-known
exceptional situations. Without being dogmatic or
exhaustive, these situations relate to (a) the choice of Prime
Minister (Chief Minister), restricted though this choice is by
the paramount consideration that he should command a
majority in the House; (b) the dismissal of a Government
which has lost its majority in the House, but refuses to quit
office; (c) the dissolution of the House where an appeal to
the country is necessitous, although in this area the head of
State should avoid getting involved in politics and must be
advised by his Prime Minister (Chief Minister) who will
eventually take the responsibility for the step. We do not
examine in detail the constitutional proprieties in these
predicaments except to utter the caution that even here the
action must be compelled by the peril to democracy and the
144appeal to the House or to the country must become
blatantly obligatory. We have no doubt that de Smith’s
statement (Constitutional and Administrative Law — by S.A.
de Smith — Penguin Books on Foundations of Law)
regarding royal assent holds good for the President and
Governor in India:
‘Refusal of the royal assent on the ground that
the Monarch strongly disapproved of a Bill or that it
was intensely controversial would nevertheless be
unconstitutional. The only circumstances in which the
withholding of the royal assent might be justifiable
would be if the Government itself were to advise such
a course — a highly improbable contingency — or
possibly if it was notorious that a Bill had been passed
in disregard to mandatory procedural requirements;
but since the Government in the latter situation would
be of the opinion that the deviation would not affect
the validity of the measure once it had been assented
to, prudence would suggest the giving of assent.’ ”
Thus, as rightly pointed out by Mr Sorabjee, a seven-
Judge Bench of this Court has already held that the normal rule
is that the Governor acts on the aid and advice of the Council of
Ministers and not independently or contrary to it. But there are
exceptions under which the Governor can act in his own
discretion. Some of the exceptions are as set out hereinabove.
It is, however, clarified that the exceptions mentioned in
the judgment are not exhaustive. It is also recognised
that the concept of the Governor acting in his discretion
or exercising independent judgment is not alien to the
Constitution. It is recognised that there may be situations
where by reason of peril to democracy or democratic
principles, an action may be compelled which from its
nature is not amenable to Ministerial advice. Such a
situation may be where bias is inherent and/or manifest
in the advice of the Council of Ministers.
…. …. …
16. In the case of A.K. Kraipak v. Union of India [(1969)
2 SCC 262] the question was whether a selection made by the
Selection Board could be upheld. It was noticed that one of the
candidates for selection had become a member of the Selection
Board. A Constitution Bench of this Court considered the
145question of bias in such situations. This Court held as follows:
(SCC pp. 270-71, paras 15-16)
“15. It is unfortunate that Naqishbund was appointed
as one of the members of the Selection Board. It is true
that ordinarily the Chief Conservator of Forests in a State
should be considered as the most appropriate person to be
in the Selection Board. He must be expected to know his
officers thoroughly, their weaknesses as well as their
strength. His opinion as regards their suitability for selection
to the all-India service is entitled to great weight. But then
under the circumstances it was improper to have included
Naqishbund as a member of the Selection Board. He was
one of the persons to be considered for selection. It is
against all canons of justice to make a man judge in his own
cause. It is true that he did not participate in the
deliberations of the committee when his name was
considered. But then the very fact that he was a member of
the Selection Board must have had its own impact on the
decision of the Selection Board. Further admittedly he
participated in the deliberations of the Selection Board when
the claims of his rivals particularly that of Basu was
considered. He was also party to the preparation of the list
of selected candidates in order of preference. At every stage
of his participation in the deliberations of the Selection
Board there was a conflict between his interest and duty.
Under those circumstances it is difficult to believe that he
could have been impartial. The real question is not whether
he was biased. It is difficult to prove the state of mind of a
person. Therefore what we have to see is whether there is
reasonable ground for believing that he was likely to have
been biased. We agree with the learned Attorney General
that a mere suspicion of bias is not sufficient. There must
be a reasonable likelihood of bias. In deciding the question
of bias we have to take into consideration human
probabilities and ordinary course of human conduct. It was
in the interest of Naqishbund to keep out his rivals in order
to secure his position from further challenge. Naturally he
was also interested in safeguarding his position while
preparing the list of selected candidates.
16. The members of the Selection Board other than
Naqishbund, each one of them separately, have filed
affidavits in this Court swearing that Naqishbund in no
manner influenced their decision in making the selections.
In a group deliberation each member of the group is bound
146
to influence the others, more so, if the member concerned
is a person with special knowledge. His bias is likely to
operate in a subtle manner. It is no wonder that the other
members of the Selection Board are unaware of the extent
to which his opinion influenced their conclusions. We are
unable to accept the contention that in adjudging the
suitability of the candidates the members of the Board did
not have any mutual discussion. It is not as if the records
spoke of themselves. We are unable to believe that the
members of Selection Board functioned like computers. At
this stage it may also be noted that at the time the
selections were made, the members of the Selection Board
other than Naqishbund were not likely to have known that
Basu had appealed against his supersession and that his
appeal was pending before the State Government.
Therefore there was no occasion for them to distrust the
opinion expressed by Naqishbund. Hence the Board in
making the selections must necessarily have given weight
to the opinion expressed by Naqishbund.”
17. On the basis of the ratio in this case Mr
Sorabjee rightly contends that bias is likely to operate in
a subtle manner. Sometimes members may not even be
aware of the extent to which their opinion gets
influenced.
…. …. …
19. Article 163 has been extracted above.
Undoubtedly, in a matter of grant of sanction to
prosecute, the Governor is normally required to act on aid
and advice of the Council of Ministers and not in his
discretion. However, an exception may arise whilst
considering grant of sanction to prosecute a Chief
Minister or a Minister where as a matter of propriety the
Governor may have to act in his own discretion. Similar
would be the situation if the Council of Ministers disables
itself or disentitles itself.
…. …. …
23. Mr Tankha is not right when he submits that the
Governor would be sitting in appeal over the decision of
the Council of Ministers. However, as stated above,
147
unless a situation arises as a result whereof the Council
of Ministers disables or disentitles itself, the Governor in
such matters may not have any role to play. Taking a cue
from Antulay [Ed.: See R.S. Nayak v. A.R. Antulay, (1984) 2
SCC 183. Other connected Antulay cases are reported at (1984)
2 SCC 500; (1984) 3 SCC 86; (1986) 2 SCC 716; 1986 Supp
SCC 510; (1988) 2 SCC 602] , it is possible to contend that a
Council of Ministers may not take a fair and impartial decision
when their Chief Minister or other members of the Council face
prosecution. But the doctrine of “apparent bias”, however, may
not be applicable in a case where a collective decision is
required to be taken under a statute in relation to former
Ministers. In a meeting of the Council of Ministers, each member
has his own say. There may be different views or opinions. But
in a democracy the opinion of the majority would prevail.
…. …. …
32. If, on these facts and circumstances, the
Governor cannot act in his own discretion there would be
a complete breakdown of the rule of law inasmuch as it
would then be open for Governments to refuse sanction
in spite of overwhelming material showing that a prima
facie case is made out. If, in cases where a prima facie
case is clearly made out, sanction to prosecute high
functionaries is refused or withheld, democracy itself will
be at stake. It would then lead to a situation where
people in power may break the law with impunity safe in
the knowledge that they will not be prosecuted as the
requisite sanction will not be granted.
33. Mr Tankha also pressed into play the doctrine of
necessity to show that in such cases of necessity it is the
Council of Ministers which has to take the decision. In support of
this submission he relied upon the cases of J. Mohapatra and
Co. v. State of Orissa [(1984) 4 SCC 103] , Institute of
Chartered Accountants v. L.K. Ratna [(1986) 4 SCC 537 :
(1986) 1 ATC 714] , Charan Lal Sahu v. Union of India [(1990)
1 SCC 613] , Badrinath v. Govt. of T.N. [(2000) 8 SCC 395 :
2001 SCC (L&S) 13] , Election Commission of India v. Dr.
Subramaniam Swamy [(1996) 4 SCC 104] , Ramdas Shrinivas
Nayak [(1982) 2 SCC 463 : 1982 SCC (Cri) 478] and State of
148M.P. v. Dr. Yashwant Trimbak [(1996) 2 SCC 305 : 1996 SCC
(L&S) 510 : (1996) 33 ATC 208]. In our view, the doctrine of
necessity has no application to the facts of this case.
Certainly, the Council of Ministers has to first consider
grant of sanction. We also presume that a high authority
like the Council of Ministers will normally act in a bona
fide manner, fairly, honestly and in accordance with law.
However, on those rare occasions where on facts the bias
becomes apparent and/or the decision of the Council of
Ministers is shown to be irrational and based on non-
consideration of relevant factors, the Governor would be right,
on the facts of that case, to act in his own discretion and grant
sanction.”
(Emphasis supplied)
The Constitution Bench of the Apex Court considers this very issue
and holds that normally the Governor is required to act on the aid
and advice of the Council of Ministers, but if it is a matter of
sanction to prosecute, it may carve out an exception whilst
considering the grant of prosecution of Chief Minister or a Minister
whether as a matter of propriety the Governor may have to act on
his own discretion. Similar would be the situation if the Council of
Ministers disable itself or disentitles itself. The Apex Court also
considers what would be apparent bias, though the plea of apparent
bias is held to be an exception to the general rule.
149
35. The learned counsel appearing for the petitioner has
strenuously contended that a 9 Judge Bench in the case of NABAM
REBIA supra has distinguished the said judgment, alas, it has not.
The Apex Court in the case of NABAM REBIA has held as follows:
“155. We may, therefore, summarise our conclusions as
under:
155.1. Firstly, the measure of discretionary power of the
Governor, is limited to the scope postulated therefor, under Article
163(1).
155.2. Secondly, under Article 163(1) the discretionary
power of the Governor extends to situations, wherein a
constitutional provision expressly requires the Governor to act in
his own discretion.
155.3. Thirdly, the Governor can additionally discharge
functions in his own discretion, where such intent emerges from a
legitimate interpretation of the provision concerned, and the same
cannot be construed otherwise.
155.4. Fourthly, in situations where this Court has declared
that the Governor should exercise the particular function at his own
and without any aid or advice because of the impermissibility of the
other alternative, by reason of conflict of interest.
155.5. Fifthly, the submission advanced on behalf of the
respondents, that the exercise of discretion under Article 163(2) is
final and beyond the scope of judicial review cannot be accepted.
Firstly, because we have rejected the submission advanced by the
respondents, that the scope and extent of discretion vested with
the Governor has to be ascertained from Article 163(2), on the
basis whereof the submission was canvassed. And secondly, any
150
discretion exercised beyond the Governor’s jurisdictional authority,
would certainly be subject to judicial review.
155.6. Sixthly, in view of the conclusion drawn at fifthly
above [para 155.5], the judgments rendered in Mahabir Prasad
Sharma case [Mahabir Prasad Sharma v. Prafulla Chandra Ghose,
(1968) 72 CWN 328 : 1968 SCC OnLine Cal 3] , and Pratapsingh
Raojirao Rane case [Pratapsingh Raojirao Rane v. Governor of Goa,
AIR 1999 Bom 53 : 1998 SCC OnLine Bom 351] , by the High
Courts of Calcutta and Bombay, respectively, do not lay down the
correct legal position. The constitutional position declared therein,
with reference to Article 163(2), is accordingly hereby set aside.
... ... ... Conclusions
361. Under Article 163(1) of the Constitution, the
Governor is bound by the advice of his Council of Ministers.
There are only three exceptions [“except insofar as”] to
this:
(i) The Governor may, in the exercise of his functions, act
in his discretion as conferred by the Constitution;
(ii) The Governor may, in the exercise of his functions, act
in his discretion as conferred under the Constitution;
and
(iii) The Governor may, in the exercise of his functions, act
in his individual judgment in instances specified by the
Constitution.
362. The development of constitutional law in India
and some rather peculiar and extraordinary situations have
led to the evolution of a distinct category of functions, in
addition to those postulated or imagined by the Constitution
and identified above. These are functions in which the
Governor acts by the Constitution and of constitutional
necessity in view of the peculiar and extraordinary situation
such as that which arose in M.P. Special Police
151
Establishment [M.P. Special Police Establishment v. State of
M.P., (2004) 8 SCC 788 : 2005 SCC (Cri) 1] and as arise in
situations relating to Article 356 of the Constitution or in
choosing a person to be the leader of the Legislative
Assembly and the Chief Minister of the State by proving his
majority in the Legislative Assembly.”
(Emphasis supplied)
Nowhere the Apex Court in NABAM REBIA has distinguished the
judgment in the case of M.P.SPECIAL POLICE ESTABLISHMENT.
In fact is it more than once discussed and reiterated in the afore-
quoted paragraph-paragraph 362 of NABAM REBIA. The learned
senior counsel for the petitioner has taken this Court through the
judgment in SAMSHER SINGH v. STATE OF PUNJAB – (1974) 2
SCC 831 and the judgment in the case of STATE OF
MAHARASHTRA v. RAMDAS SHRINIVAS NAIK – (1982) 2 SCC
463. There can be no qualm about the principles laid down
therein. They were dealing with the role of the Governor in certain
circumstances and not the circumstance which has emanated in the
case at hand. Noticing the judgment of the Apex Court in M.P.
SPECIAL POLICE ESTABLISHMENT’s case supra what would
unmistakably emerge is that in certain situation the Governor has
152
to take an independent decision exercising his independent
discretion for the reason that it could be any kind of bias.
36. Bias has different hues and forms. They are depicted in
various ways. Unconscious bias and apparent bias are two facets of
bias. Apparent bias is judged upon what would a common citizen
think of a particular action. In the case at hand, the entire sheet
anchor of the submission of the learned senior counsel is that the
Governor should not have declined to accept the Cabinet decision or
the resolution of the Council of Ministers as the petitioner 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, I find no fault in the discretion exercised by the Governor, on
153
the foundation of law, as laid down by the Apex Court in the case of
M.P. SPECIAL POLICE ESTABLISHMENT’s case.
37. It becomes apposite to refer to the judgment of the Apex
Court wherein the Apex Court has delineated the concept of bias or
likelihood of bias. In the case of S. PARTHASARATHI v. STATE
OF ANDHRA PRADESH4, it is held as follows:
“14. The test of likelihood of bias which has been applied
in a number of cases is based on the “reasonable apprehension”
of a reasonable man fully cognizant of the facts. The courts
have quashed decisions on the strength of the reasonable
suspicion of the party aggrieved without having made any
finding that a real likelihood of bias in fact existed
(see R. v. Huggins [(1895) 1 QB 563] ; R. v. Sussex, JJ., ex. p.
McCarthy [(1924) 1 KB 256] ; Cottle v. Cottle [(1939) 2 All ER
535] ; R. v. Abingdon, JJ. ex. p. Cousins [(1964) 108 SJ 840].)
But in R. v. Camborne, JJ. ex. p Pearce [(1955) 1 QB 41 at 51]
the Court, after a review of the relevant cases held that
real likelihood of bias was the proper test and that a real
likelihood of bias had to be made to appear not only from
the materials in fact ascertained by the party
complaining, but from such further facts as he might
readily have ascertained and easily verified in the course
of his inquiries.
15. The question then is: whether a real likelihood
of bias existed is to be determined on the probabilities to
be inferred from the circumstances by court objectively,
or, upon the basis of the impressions that might
reasonably be left on the minds of the party aggrieved or
the public at large.
4
(1974) 3 SCC 459
154
16. The tests of “real likelihood” and “reasonable
suspicion” are really inconsistent with each other. We
think that the reviewing authority must make a
determination on the basis of the whole evidence before
it, whether a reasonable man would in the circumstances
infer that there is real likelihood of bias. The Court must
look at the impression which other people have. This
follows from the principle that justice must not only be
done but seen to be done. If right minded persons would
think that there is real likelihood of bias on the part of an
inquiring officer, he must not conduct the enquiry;
nevertheless, there must be a real likelihood of bias.
Surmise or conjecture would not be enough. There must
exist circumstances from which reasonable men would
think it probable or likely that the inquiring officer will be
prejudiced against the delinquent. The Court will not
inquire whether he was really prejudiced. If a reasonable
man would think on the basis of the existing
circumstances that he is likely to be prejudiced, that is
sufficient to quash the decision [see per Lord Denning, H.R.
in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [(1968) 3
WLR 694 at 707] ] We should not, however, be understood to
deny that the Court might with greater propriety apply the
“‘reasonable suspicion” test in criminal or in proceedings
analogous to criminal proceedings.”
(Emphasis supplied)
The Apex Court holds that the likelihood of bias which has been
applied in number of cases is based upon reasonable apprehension
of a reasonable man, fully cogzinent of the facts. The Apex Court
holds that the question whether real likelihood of bias existed is to
be determined on the probabilities to be inferred from the
circumstance. If the rightminded person would think that there is
155
real likelihood of bias it would be enough to annul the decision. A
little later the Apex Court in the case of RANJIT THAKUR v.
UNION OF INDIA5 has held as follows:
“15. The second limb of the contention is as to the effect
of the alleged bias on the part of Respondent 4. The test of
real likelihood of bias is whether a reasonable person, in
possession of relevant information, would have thought
that bias was likely and is whether Respondent 4 was likely to
be disposed to decide the matter only in a particular way.
… … …
17. As to the tests of the likelihood of bias what is
relevant is the reasonableness of the apprehension in
that regard in the mind of the party. The proper approach
for the Judge is not to look at his own mind and ask
himself, however, honestly, “Am I biased?”; but to look at
the mind of the party before him.”
(Emphasis supplied)
Considered on the touchstone of the principles of bias, as laid down
by the Apex Court and on the perusal of the preamble of the
Cabinet note supra what would unmistakably emerge it that the
decision of the Cabinet – 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
5
(1987) 4 SCC 611
156
appropriate decision to independently assess the matter, exercise
his independent discretion and pass the order. I find no fault with
the discretion exercised by the Governor acting on the Aid and
advice of the Council of Ministers is normal imder Article 163 and
exceptionally the Governor need not be bound by it – one such
exception is the sanction/approval against the Chief Minister.
38. Whether the order of the Governor suffers from non-
application of mind. The order that is communicated to the
petitioner is quoted supra. Complete proceedings in the file
maintained in the Secretariat of the Governor are also quoted
supra. The Secretary of the Governor has communicated the
decision of the Governor which thus contains all the material though
excerpts of the decision. The decision runs into several pages. I
have perused the entire file; the documents that are in the file run
into 1200 pages. The comparative chart of the complaint, replies
and the analysis are in great elaboration. This Court is not testing
the order passed by the Disciplinary Authority or an Officer of the
State. It is testing the order passed by the high functionary. The
high functionary in the case on hand is the Governor. Though the
157
order that is communicated does not suffer from any want of
application of mind, since elaborate submissions are made with
regard to the order of the Governor not being reasoned at all, it
becomes apposite to notice the judgment of the Apex Court in the
case of UNION OF INDIA v. E.G. NAMBUDRI6 wherein it is held
as follows:
“6. Entries made in the character roll and confidential
record of a government servant are confidential and those do
not by themselves affect any right of the government servant,
but those entries assume importance and play vital role in the
matter relating to confirmation, crossing of efficiency bar,
promotion and retention in service. Once an adverse report is
recorded, the principles of natural justice require the reporting
authority to communicate the same to the government servant
to enable him to improve his work and conduct and also to
explain the circumstances leading to the report. Such an
opportunity is not an empty formality, its object, partially, being
to enable the superior authorities to decide on a consideration of
the explanation offered by the person concerned, whether the
adverse report is justified. The superior authority competent to
decide the representation is required to consider the explanation
offered by the government servant before taking a decision in
the matter. Any adverse report which is not communicated to
the government servant, or if he is denied the opportunity of
making representation to the superior authority, cannot be
considered against him. See: Gurdial Singh Fijji v. State of
Punjab [(1979) 2 SCC 368 : 1979 SCC (L&S) 197 : (1979) 3
SCR 518]. In the circumstances it is necessary that the
authority must consider the explanation offered by the
government servant and to decide the same in a fair and
just manner. The question then arises whether in
considering and deciding the representation against
adverse report, the authorities are duty bound to record6
(1991) 3 SCC 38
158reasons, or to communicate the same to the person
concerned. Ordinarily, courts and tribunals, adjudicating
rights of parties, are required to act judicially and to
record reasons. Where an administrative authority is
required to act judicially it is also under an obligation to
record reasons. But every administrative authority is not
under any legal obligation to record reasons for its
decision, although, it is always desirable to record
reasons to avoid any suspicion. Where a statute requires
an authority though acting administratively to record
reasons, it is mandatory for the authority to pass
speaking orders and in the absence of reasons the order
would be rendered illegal. But in the absence of any
statutory or administrative requirement to record
reasons, the order of the administrative authority is not
rendered illegal for absence of reasons. If any challenge
is made to the validity of an order on the ground of it
being arbitrary or mala fide, it is always open to the
authority concerned to place reasons before the court
which may have persuaded it to pass the orders. Such
reasons must already exist on records as it is not
permissible to the authority to support the order by
reasons not contained in the records. Reasons are not
necessary to be communicated to the government
servant. If the statutory rules require communication of
reasons, the same must be communicated but in the
absence of any such provision absence of communication
of reasons do not affect the validity of the order.
… … …
10. There is no dispute that there is no rule or
administrative order for recording reasons in rejecting a
representation. In the absence of any statutory rule or statutory
instructions requiring the competent authority to record reasons
in rejecting a representation made by a government servant
against the adverse entries the competent authority is not under
any obligation to record reasons. But the competent authority
has no licence to act arbitrarily, he must act in a fair and just
manner. He is required to consider the questions raised by the
government servant and examine the same, in the light of the
comments made by the officer awarding the adverse entries and
the officer countersigning the same. If the representation is
rejected after its consideration in a fair and just manner,
159the order of rejection would not be rendered illegal
merely on the ground of absence of reasons. In the
absence of any statutory or administrative provision
requiring the competent authority to record reasons or to
communicate reasons, no exception can be taken to the
order rejecting representation merely on the ground of
absence of reasons. No order of an administrative
authority communicating its decision is rendered illegal
on the ground of absence of reasons ex facie and it is not
open to the court to interfere with such orders merely on
the ground of absence of any reasons. However, it does
not mean that the administrative authority is at liberty to
pass orders without there being any reasons for the
same. In governmental functioning before any order is
issued the matter is generally considered at various
levels and the reasons and opinions are contained in the
notes on the file. The reasons contained in the file enable
the competent authority to formulate its opinion. If the
order as communicated to the government servant
rejecting the representation does not contain any
reasons, the order cannot be held to be bad in law. If
such an order is challenged in a court of law it is always
open to the competent authority to place the reasons
before the court which may have led to the rejection of
the representation. It is always open to an administrative
authority to produce evidence aliunde before the court to
justify its action.”
(Emphasis supplied)
The Apex Court observes that perusal of the file is a permissible
mode of examination by the constitutional courts in judicial review,
to arrive at a conclusion as to whether actual reasons behind the
order are found or not. As quoted hereinabove, the order that is
communicated though is not bald, laconic or cryptic, as is alleged,
160
the file contains elaborate reasons. The gist of these reasons is also
quoted hereinabove. Therefore, it is not a case where there is no
reason, in the file, or even in the order. There are elaborate
reasons in the order, and there is abundant reasoning in the file.
Therefore, it does fall within the test of E.G. NAMBUDRI’s case
supra. Painstaking submissions are made that the order of the
Governor does not have semblance of reasoning. If what is quoted
hereinabove is noticed ‘it is not semblance, but abundance of
reasoning’. The Governor is not acting on any material of
investigation, to direct prosecution against the petitioner, it is at the
threshold as to whether approval should be granted under Section
17A of the Act. Approval is only for the purpose of beginning of
investigation, enquiry or inquiry. In the considered view of this
Court, it is not a stage where any **gallivant would become necessary
by the Competent Authority by going deep into the facts of the
case.
39. Placing reliance upon the judgment of the Apex Court in
the case of MOHINDER SINGH GILL V. CHIEF ELECTION
**Corrected vide Chamber order dated 24.09.2024.
161
COMMISSIONER7 strenous contentions are advanced by the
learned senior counsel for the petitoner that reasons that are
absent in the order cannot be supplemented by reasons in the
statement of objections. Que is drawn from paragraph 8 of the
aforesaid judgment of the Apex Court, wherein the Apex Court has
held as follows:
“8. The second equally relevant matter is that when
a statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise. Otherwise, an
order bad in the beginning may, by the time it comes to
court on account of a challenge, get validated by
additional grounds later brought out. We may here draw
attention to the observations of Bose, J. in Gordhandas
Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji,
1951 SCC 1088 : AIR 1952 SC 16] :
“Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of what he
meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have
public effect and are intended to affect the actings and conduct
of those to whom they are addressed and must be construed
objectively with reference to the language used in the order
itself.”
Orders are not like old wine becoming better as they grow
older.”
(Emphasis supplied)
7
(1978) 1 SCC 405
162
There can be no qualm about the principles laid down therein. It is
no doubt true that reasons cannot be supplied by way of statement
of objections. That would be a situation where there are no reasons
even in the file. Therefore, the said judgment would not become
applicable to the facts of the case. Copious reasons are found in
the file and even in the impugned order. I have no hesitation to
hold that it does bear application of mind. Therefore, the
submission of the learned senior counsel for the petitioner qua
application of mind would tumble down like a pack of cards. Issue
Nos.4 and 5 are accordingly answered.
Issue No.6:
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?
40. It is submitted that decision was taken in undue haste as
the 3rd respondent submits his petition on 26-06-2024; on the
same day proceedings are drawn and show cause notice is issued.
Therefore, it is in undue haste and this undue haste would vitiate
the proceedings. This submission is again noted only to be rejected
163
as the decision taken in undue haste would not vitiated the decision
unless the decision suffers from non-application of mind. The
complainant is heard, petition and the documents produced are
perused and a show cause notice is issued. What else is required in
law is ununderstandable. The allegations in the complaint were,
according to the Governor, grave. Therefore, immediate action was
taken in issuing the show cause notice. This cannot be imagined to
result in vitiating the entire order itself. It is apposite to refer to
the judgment of the Apex Court in this regard in the case of
B.P.L.LIMITED v. S.P. GURURAJA8 wherein it is held as follows:
“34. Undue haste also is a matter which by itself
would not have been a ground for exercise of the power
of judicial review unless it is held to be mala fide. What is
necessary in such matters is not the time taken for
allotment but the manner in which the action had been
taken. The court, it is trite, is not concerned with the
merit of the decision but the decision-making process. In
the absence of any finding that any legal malice was
committed, the impugned allotment of land could not
have been interfered with. What was only necessary to be
seen was as to whether there had been fair play in action.
35. The question as to whether any undue haste has
been shown in taking an administrative decision is essentially a
question of fact. The State had developed a policy of single-
window system with a view to get rid of red tapism generally
prevailing in the bureaucracy. A decision which has been
taken after due deliberations and upon due application of8
(2003) 8 SCC 567
164mind cannot be held to be suffering from malice in law on
the ground that there had been undue haste on the part
of the State and the Board. (See Bangalore Medical
Trust v. B.S. Muddappa [(1991) 4 SCC 54] and Pfizer
Ltd. v. Mazdoor Congress [(1996) 5 SCC 609 : 1996 SCC
(L&S) 1286].)”
(Emphasis supplied)
The Apex Court holds that undue haste is a matter which by itself
would not have been a ground for exercise of judicial review unless
it is mala fide. The decision taken after due deliberation and
application of mind if it is taken in undue haste would not vitiate the
proceedings. Therefore, the contention that it is in undue haste is
also repelled, as the gubernatorial act of issuing show cause notice
on the same day, has not vitiated the proceedings. The issue is
accordingly answered.
41. A feeble attempt is made by the learned senior counsel
for the petitioner that the Governor refers to two other petitions,
but no show cause notices were issued on those two petitions.
Those petitions are of respondents 4 and 5. The Governor though
in three lines of a particular paragraph observes that there are
petitions of other petitioners also; he does not deliberate upon the
contents of those petitions and it is no law that prior to grant of an
165
approval under Section 17A the person against whom the approval
is sought should be heard in the matter. If natural justice is
stretched to the extent of hearing the person against whom a
complaint is registered prior to registration of the crime it would be
stretching it to an unimaginable extent. If the submission of the
learned senior counsel for the petitioner is to be accepted, every
person against whom approval is sought, a notice will have to be
issued to the person against whom such approval is sought under
Section 17A of the act. It is akin to hearing an accused before
registering the FIR. This is not the purpose of law. Merely because
the Governor has in the case at hand issues a show cause notice
only to seek a reply from the hands of the petitioner or the Cabinet,
it does not mean that it must comply with the principles of natural
justice. The Governor has issued a notice to elicit reply only on the
allegations that were found in enormity in the file. Therefore, the
bleak plea of failure of principles of natural justice is also sans
countenance. **Reference being made to the judgment of the
Apex Court in the case of THE CHAIRMAN, BOARD OF MINING
**Corrected vide Chamber order dated 24.09.2024.
166
EXAMINATION AND CHIEF INSPECTOR OF MINES V. RAMJEE9
wherein the Apex Court has held as follows:
“13. The last violation regarded as a lethal objection is
that the Board did not enquire of the respondent, independently
of the one done by the Regional Inspector. Assuming it to be
necessary, here the respondent has, in the form of an appeal
against the report of the Regional Inspector, sent his
explanation to the Chairman of the Board. He has thus been
heard and compliance with Regulation 26, in the circumstances,
is complete. Natural justice is no unruly horse, no lurking
landmine, nor a judicial cure-all. If fairness is shown by
the decision-maker to the man proceeded against, the
form, features and the fundamentals of such essential
processual propriety being conditioned by the facts and
circumstances of each situation, no breach of natural
justice can be complained of. Unnatural expansion of
natural justice, without reference to the administrative
realities and other factors of a given case, can be
exasperating. We can neither be finical nor fanatical but
should be flexible yet firm in this jurisdiction. No man shall be
hit below the belt — that is the conscience of the matter.”
(Emphasis supplied)
The Apex Court holds that natural justice is no unruly horse, no
lurking land mine nor a judicial cure-all. It cannot be stretched to
an unnatural extent. If the submission of the learned senior
counsel for the petitoner is accepted, it would undoubtedly be
stretching natural justice to an unnatural extent, as prior to
9
(1977)2 SCC 256
167
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. Therefore, the multi-pronged attack on the order of
the Governor, on the aforesaid contention/s, does not hold water,
as none of the submissions of the learned senior counsel for the
petitioner against the order of the Governor qua the approval under
Section 17A are acceptable.
Issue No.7:
Whether reference to Section 218 of BNSS in the
impugned order vitiates the entire order?
42. What was sought before the Governor in the petition filed
by the 3rd respondent was in fact approval under Section 17A of the
Act. Though the petition was worded sanction, it was in fact not a
sanction, but an approval under Section 17A of the Act. The
operative portion of the order of the Governor is indicative of the
fact that both approval and sanction under Section 218 are granted.
The crime is yet to be registered and investigated into. Therefore,
168
granting of sanction under Section 218 of BNSS would not arise at
this juncture as investigation itself is yet to take place. The learned
Solicitor General has admitted that observation or grant of sanction
under Section 218 of BNSS at this juncture was erroneous. The
order could be considered only as an order under Section 17A of the
Act. Therefore, no submissions are made qua Section 218 of BNSS
by any of the counsel representing the parties. It is, therefore, I
deem it appropriate to restrict and read the order only as an
approval under Section 17A of the Act and not an order for grant of
sanction under Section 218 of BNSS. The issue is answered
accordingly.
Issue No.8:
Whether prima facie role of the petitioner is
established?
THE NUCLEUS OF THE CONUNDRUM – Alleged role of the
petitionerAnswer to this issue would be a sequel to what is answered qua
issue No.1.
169
– Timeline of power:
43. The petitioner has been in political life spanning over 40
years. He comes to the helm of affairs, for the first time, when he
becomes the Deputy Chief Minister, in the State of Karnataka and
holds the said post for three years between 1996 and 1999, being
an MLA from Chamundeswari Constituency, in whose precincts
MUDA functions. After 1999, the petitioner was not a law maker, as
he had lost the elections. He swings back, as a law maker and again
becomes a Deputy Chief Minister during 2004-2005. He continued
to be a Member of the Legislative Assembly upto 2013. In 2013, he
becomes the Chief Minister of the State of Karnataka and continued
to be the Chief Minister, upto 2018. From 2018 to 2023, he
continues to be a law maker, as also the Leader of Opposition. From
2023, he is again the Chief Minister of the State. This is the tenure
of the petitioner. The tenure of the son of the petitioner is also
necessary to be noticed. The son of the petitioner Dr. S. Yathindra,
was an MLA of Varuna constituency between 2018 and 2023, under
whose precincts as well, the MUDA comes. Therefore, the
170
allegations against the family are built up by the respondents
between 1996 to 2023.
44. The genesis of the problem, to iterate, what is quoted
hereinabove and as vehemently submitted by the learned counsel
appearing for the respondents, dates back to 1992 when the
subject land – 3 acres 16 guntas existing in Kesare grama became
subject matter of acquisition for the purpose of development of
Devanur Badavane scheme. The preliminary notification issued in
the year 1992 contained the said land. The final notification was
issued in the year 1997 including the subject land. Thereafter,
award amount is determined and amount of award is deposited in
the civil Court.
45. Devaraju submits a representation contending that he is
dependant on the land and has no other income and therefore, the
land be dropped from acquisition. MUDA recommends for dropping
of the land and Government issues notification accordingly.
Devaraju at the time when he submits the representation, is said to
be working as a Teacher, in the Department of Public Instructions.
171
Therefore, it was on a false pretext that Devaraju sought de-
notification of the land and the land is de-notified. The de-
notification itself is contrary to law, as the land is de-notified after
the deposit of the award in the civil Court. Notwithstanding this,
the land is de-notified owing to falsehood of Devaraju. Devaraju
could not have claimed the land being son of the original owner, as
he has already relinquished his rights over the land in favour of his
brother Mylarappa. Mylarappa does not apply for de-notification. It
is Devaraju who applies. Nonetheless the land is de-notified.
Notwithstanding de-notification, MUDA shows the land as one
acquired, forms sites, in the aforesaid Devanur Badavane and also
distributes the sites. Even after distribution of sites, on forming
layout, to the allottees, Devaraju sells the land in favour
K.B. Mallikarjunaswamy, brother of the wife of the petitioner and
brother-in-law of the petitioner. It is surprising how he buys the
subject land in which MUDA had already formed the layout. It is
here, the family of the petitioner comes into the story.
46. The brother-in-law of the petitioner applies for conversion
of the land from agriculture to residential. The Revenue Inspector,
172
the Tahsildar and the Deputy Commissioner visit the spot and
prepare reports that there is not development in the land and it is
entitled for conversion from agriculture to residential purposes. The
land is converted. The allegation is, that the land in which sites had
already been formed and distributed to the allottees could not have
been converted from agriculture to residential purpose. It cannot
but be prima facie construed that the reports were prepared by the
Revenue Inspector, Tahsildar or the Deputy Commissioner sitting in
the respective chambers. After conversion comes the gift in the
year 2010 in favour of the wife of the petitioner. The petitioner was
in power, has been in power, from 2004 till date. In 2010, a gift
deed is executed by the brother of the wife of the petitioner in
favour of his wife.
47. The petitioner then in 2013 becomes the Chief Minister.
On becoming the Chief Minister, the wife of the petitioner submits
representation to MUDA contending that MUDA had already
acquired and formed sites in her lands in 2001 itself and, therefore,
she is entitled to compensation or compensatory sites in the ratio of
50:50. The application/representation dated 23.06.2014 submitted
173
by the wife of the petitioner, during which time the petitioner was
the Chief Minister. After the representation a communication is sent
by the Secretary, Urban Development Department to all
Commissioners of Urban Development Department to identify the
development made without acquisition and make them eligible for
compensatory sites in the ratio of 50:50 in terms of the Rules. This
is communicated to the wife of the petitioner. By that time, 50:50
ratio compensatory sites had not yet been notified and the rule that
was existing, when the representation was made or
communications were sent, was 60:40. The Rule then comes to be
amended in the year 2015. Resolutions were passed by MUDA in
2017 and thereafter, upon the representation/s submitted by the
wife of the petitioner claiming compensatory sites. During the
deliberation of MUDA, wherein MUDA resolves to grant sites at
50:50 ration, the son of the petitioner participated as a part of the
deliberations, as he was the MLA of a constitutency under which
MUDA functioned.
48. The submission is that the son of the petitioner was a
silent spectator in the deliberations and did not utter a word. This
174
submission, to say the least, is preposterous. It can hardly be
justified that a law maker, son of the former Chief Minister and the
present leader of the opposition, would be a silent spectator in the
deliberations. Nonetheless, the beneficiary of the deliberations is his
mother, the wife of the petitioner. After the resolution, the wife of
the petitioner was asked to execute a relinquishment deed. The
relinquishment deed is executed by the wife of the petitioner. The
allotment letter is issued in favour of the wife of the petitioner. One
such allotment letter is dated 05-01-2022.
49. What is discernible from the allotment letter is the land
that is relinquished is in Kesare grama. The sites that are allotted
in favour of the wife of the petitioner are in Vijayanagar III Stage
‘G, block, in the heart of Mysore City. Kesare grama is said to be
15 Kms. away from the Mysore city. If compensatory sites had to
be granted, it could be either in the very land or in adjacent lands
of Kesere grama or any layout that is subsequently formed by
MUDA and not in a layout that had already been formed in the year
1991, as Vijaynagar, III stage was a layout that was formed
175
wayback in the year 1991, or at best prior to Devanuru Badavane.
It exists in the upscale area of the City of Mysore.
50. The sale deed is executed by MUDA of 14 sites. It now
becomes necessary to notice one of the sale deeds. The sale deed
12-01-2022 reads as follows:
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ಾರಣ ಂದ ಅಥVಾ ಅದ ಾ9) ಗು pಾದ ನಷ ಗಳ ಮತು. ಉಂŠಾದ Lಾ ಯ Kರುದ ಖ ೕ 0ಾರ 8ೆ
ನಷ ಭc [ಾ? ೊಡಲು Lೊ7ೆ8ಾರ ಾ)ರುFಾ. ೆ.’ಈ ಕ”ಯಪತ”ವ$ ೖಸೂರು ನಗ ಾ ವೃ !ಾ”# ಾರ (ಭೂ>ಯನು/ ಸ,ಇ†ೆ»Rಂದ
ಟು ೊಡುವ$ದ ಾ9) ¥”ೕFಾNಹ0ಾಯಕ (ೕಜ1ೆ) ಯಮಗಳ 1991ರST # ಷ ಪ?@ರುವ
ಬ ಂಧಗಳ ಮತು. ಷರತು.ಗ<8ೆ ಒಳಪG ರುತ.0ೆ
0ೆ. ಮತು. ಸದ ಬ ಂಧಗಳ ಮತು. ಷರತು.ಗಳ .
PÀæಯಪತ”ದ
ಯಪತ”ದ ಒಂದು eಾಗVಾ)ರುವ$ದು ಎಂದು eಾKಸತಕ9ದುC.ಅನುಸೂ˜
ೖಸೂರು ನಗರದ Kಜಯನಗರ 31ೇ ಹಂತ ‘?’ JಾT- ಬ6ಾವ7ೆಯSTರುವ 332 1ೇ
ಸಂrೆfಯST Lೊಂ ರುವ ಅಳFೆ ಪhವ ಂದ ಪwjಮ ೆ9 12.00 >ೕಟ ಉತ.ರ ಂದ ದPಣ ೆ9 18.00
>ೕಟ ಅಳFೆಯ ಒಟು 216.00 ಚದರ >ೕಟ ಗಳ ಈ Vೇಶನದ †ೆಕು9ಬಂ ಈ ಮುಂ ನಂc0ೆ
ಎಂದ ೆ:-
ಪhವ ೆ9 : Vೇಶನ ಸಂrೆf 333 ಪwjಮ ೆ9 : Vೇಶನ ಸಂrೆf 331
ಉತ.ರ ೆ9 : ರ ೆ. ದPಣ ೆ9 : Vೇಶನ ಸಂrೆf. 328 & 327ಇದ ೆ9 ಾPpಾ) [ಾ ಾಟ8ಾರರು ೕZೆ ಸೂ˜@ರುವ ವಷ , cಂಗಳ ಮತು.
1ಾಂಕದಂದು ಈ ಕ”ಯಪತ”ದST ತನ/ ಮು0ೆ” ಮತು. ಸ^ಯನು/ Lಾ_ರುFಾ. ೆ.
177
ಾP0ಾರರು:
¸À»/-
¸À»/-
¸À»/-
«±ÉõÀ vÀºÀ¹Ã¯ÁÝgÀgÀÄ,
ೖಸೂರು ನಗ ಾ ವೃ !ಾ”# ಾರ
ೖಸೂರು.”
What is perceptible from the sale deed is, that it is executed in
terms of the incentive scheme rules, namely Mysore Urban
Development Authorities (Incentive Scheme for Voluntary
Surrender of Land) Rules, 1991. A perusal at the said Rules would
indicate that a citizen who relinquishes the property in MUDA would
be entitled to 2 sites measuring 40×60′ which would amount to
4,800 sq.ft. for relinquishing more than 3 acres. It shocks the
conscience of the Court as to how much is given to the petitioner as
against 4,800 sq.ft., it is 38,284 sq.ft. 2 sites become 14 sites.
The wife of the petitioner is now the proud owner of 14 sites worth
`56/- crores.
51. How and why the Rule was bent in favour of the family of
the Chief Minister is what is required to be investigated into. If this
178
does not require investigation, I fail to understand what other case
can merit investigation, as the beneficiary is the family of the
petitioner and the benefit is by leaps and bounds, it is in fact a
windfall. 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.
52. The issue now would be whether there is any act of the
petitioner that would pin him down not for sanction for prosecution
but for investigation. The learned Solicitor General of India has
submitted that there is an allegation. The allegation is required to
be investigated into. The allegations are as afore-narrated. The
learned counsel Sri K.G. Raghavan would submit that there is
needle of suspicion with regard to the role of the petitioner, it needs
investigation. The learned counsel Sri Ranganatha Reddy appearing
179
for the 3rd respondent has also vehemently projected that fraud is
played by the family of the petitioner as non-existent land is now
projected to be loss of land and `55/- crores worth compensatory
sites are granted. The learned senior counsel Smt. Lakshmi Iyengar
contends that but for the wife of the petitioner being an applicant
the files would not have moved so fast and compensatory sites are
granted in the heart of the city when relinquishment of land is 15
kms. away from Mysore city.
53. All the aforesaid allegations, in the considered view of the
Court, would require investigation in the least, for the reason that if
the petitioner was not in the seat of power, helm of affairs, the
benefit with such magnitude would not have flown. It has highterto
never flown to any common man, nor can it, in future flow. It is
unheard of for a common man to get these benefits in such quick
succession bending the rule from time to time. Therefore, the
petitioner may not have put his signature, made a recommendation
or taken a decision, for bringing him into the offence against him
under the Act, but the beneficiary is not a stranger. The beneficiary
of these acts is the wife of the petitioner. It is the open
180
proclamation which is in public domain by the petitioner himself
that if MUDA gives him `62 crores, he would give back the property.
Therefore, merely because the wife of the petitioner has indulged in
all these acts, legal or illegal, the petitioner 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.
54. It now becomes germane to notice the provisions under
which approval is sought. They are under Sections 7, 9, 11, 12 and
15 of the Act. They read as follows:-
“7. Offence relating to public servant being
bribed.–Any public servant who,–
(a) obtains or accepts or attempts to obtain from any person,
an undue advantage, with the intention to perform or
cause performance of public duty improperly or
dishonestly or to forbear or cause forbearance to perform
such duty either by himself or by another public servant;
or
(b) obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the improper
or dishonest performance of a public duty or for
forbearing to perform such duty either by himself or
another public servant; or
181
(c) performs or induces another public servant to perform
improperly or dishonestly a public duty or to forbear
performance of such duty in anticipation of or in
consequence of accepting an undue advantage from any
person,
shall be punishable with imprisonment for a term which shall not
be less than three years but which may extend to seven years
and shall also be liable to fine.
Explanation 1.–For the purpose of this section, the
obtaining, accepting, or the attempting to obtain an undue
advantage shall itself constitute an offence even if the
performance of a public duty by public servant, is not or has not
been improper.
Illustration.–A public servant, ‘S’ asks a person, ‘P’ to
give him an amount of five thousand rupees to process his
routine ration card application on time. ‘S’ is guilty of an offence
under this section.
Explanation 2.–For the purpose of this section,–
(i) the expressions “obtains” or “accepts” or “attempts to
obtain” shall cover cases where a person being a public
servant, obtains or “accepts” or attempts to obtain, any
undue advantage for himself or for another person, by
abusing his position as a public servant or by using his
personal influence over another public servant; or by any
other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public
servant obtains or accepts, or attempts to obtain the
undue advantage directly or through a third party.
… … …
9. Offence relating to bribing a public servant by a
commercial organisation.–(1) Where an offence under this
Act has been committed by a commercial organisation, such
organisation shall be punishable with fine, if any person
associated with such commercial organisation gives or promises
to give any undue advantage to a public servant intending–
182
(a) to obtain or retain business for such commercial
organisation; or
(b) to obtain or retain an advantage in the conduct of
business for such commercial organisation:
Provided that it shall be a defence for the commercial
organisation to prove that it had in place adequate procedures
in compliance of such guidelines as may be prescribed to
prevent persons associated with it from undertaking such
conduct.
(2) For the purposes of this section, a person is said to
give or promise to give any undue advantage to a public
servant, if he is alleged to have committed the offence under
Section 8, whether or not such person has been prosecuted for
such offence.
(3) For the purposes of Section 8 and this section,–
(a) “commercial organisation” means–
(i) a body which is incorporated in India and which
carries on a business, whether in India or outside
India;
(ii) any other body which is incorporated outside India
and which carries on a business, or part of a
business, in any part of India;
(iii) a partnership firm or any association of persons
formed in India and which carries on a business
whether in India or outside India; or
(iv) any other partnership or association of persons
which is formed outside India and which carries on
a business, or part of a business, in any part of
India;
(b) “business” includes a trade or profession or providing
service;
183
(c) a person is said to be associated with the commercial
organisation, if such person performs services for or on
behalf of the commercial organisation irrespective of any
promise to give or giving of any undue advantage which
constitutes an offence under sub-section (1).
Explanation 1.–The capacity in which the person
performs services for or on behalf of the commercial
organisation shall not matter irrespective of whether such
person is employee or agent or subsidiary of such commercial
organisation.
Explanation 2.–Whether or not the person is a person
who performs services for or on behalf of the commercial
organisation is to be determined by reference to all the relevant
circumstances and not merely by reference to the nature of the
relationship between such person and the commercial
organisation.
Explanation 3.–If the person is an employee of the
commercial organisation, it shall be presumed unless the
contrary is proved that such person is a person who has
performed services for or on behalf of the commercial
organisation.
(4) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), the offence under
Sections 7-A, 8 and this section shall be cognizable.
(5) The Central Government shall, in consultation with
the concerned stakeholders including departments and with a
view to preventing persons associated with commercial
organisations from bribing any person, being a public servant,
prescribe such guidelines as may be considered necessary which
can be put in place for compliance by such organisations.
… … …
11. Public servant obtaining 11[undue advantage],
without consideration from person concerned in
proceeding or business transacted by such public
servant.–Whoever, being a public servant, accepts or
obtains or attempts to obtain for himself, or for any other
person, any undue advantage without consideration, or for a
184
consideration which he knows to be inadequate, from any
person whom he knows to have been, or to be, or to be likely to
be concerned in any proceeding or business transacted or about
to be transacted by such public servant, or having any
connection with the official functions or public duty of himself or
of any public servant to whom he is subordinate, or from any
person whom he knows to be interested in or related to the
person so concerned, shall be punishable with imprisonment for
a term which shall be not less than six months but which may
extend to five years and shall also be liable to fine.
“12. Punishment for abetment of offences.–Whoever
abets any offence punishable under this Act, whether or not that
offence is committed in consequence of that abetment, shall be
punishable with imprisonment for a term which shall be not less
than three years, but which may extend to seven years and
shall also be liable to fine.
15. Punishment for attempt.–Whoever attempts to
commit an offence referred to in 20[clause (a)] of sub-section
(1) of Section 13 shall be punishable with imprisonment for a
term 21[which shall not be less than two years but which may
extend to five years] and with fine.”
Section 7 deals with offence relating to public servant being bribed.
Section 9 deals with offence relating to bribing of public servant by
a commercial organization. Section 11 deals with a public servant
obtaining undue advantage without consideration from a person
concerned in a proceeding or a business transaction by the public
servant. Section 12 deals in abetment of offence. Section 15 deals
with punishment for all the aforesaid. Section 7 is the soul of the
allegation. Clause (c) of Section 7 has two explanations. The first
185
explanation deals with obtaining, accepting or attempt to obtain
undue advantage shall itself constitute an offence even if the
performance of a public duty by public servant, is not or has not
been improper. Explanation-2 deals with expression to obtain or
accept or attempt to obtain shall cover cases where a person being
a public servant attempts to obtain any undue advantage for
himself or for any other person by abusing his position as a public
servant or using his personal influence over another public servant
or by any other corrupt or illegal means. The explanations are very
clear. Even if the act of the public servant is not improper or cannot
be held to be illegal, if any undue advantage is obtained for himself
or for any other person by abusing his position as a public servant,
he would attract the wrath of the section. The words ‘for himself or
any other person’ found in the explanation is imperative. All the
facts narrated hereinabove would touch on the ingredients of these
allegations as prima facie, the family of the petitioner obtained
undue advantage. ‘Undue advantage’ I deem it appropriate to use
for the reason that relinquishment of land happens *15 kms. away
but compensatory land spring within the heart of Mysore city. This
is enough circumstance for undue influence by a public servant to
*Corrected vide chamber order dated 24.09.2024
186
benefit his own family. For usage of undue influence there need not
be any recommendation or any order being passed by a public
servant. The petitioner, is undoubtedly, behind the smoke screen
for every benefit that has flown to the wife of the petitioner. If the
benefit had flown to a stranger outside the family, the petitioner
could not have been alleged of any offence. The benefit in fact has
flown to the family and the benefit is to the family prima facie due
to the power of the petitioner. Not a single instance is shown
where a person who has relinquished land in Kesare Grama, has
been granted compensatory land in the upscale area of Mysore City.
It is no doubt true that it is not only in the case of the petitioner
that compensatory land by way of sites is granted. But it is only in
the case of the wife of the petitioner that it is granted in Vijaynagar,
III Stage.
55. What is further surprising is, the moment benefit is flown
to the hands of the wife of the petitioner proceedings begin to
withdraw the Rule of grant of compensatory land in the ratio of
50:50. A direction is issued by the Urban Development department
187
on 14-03-2023 to stop allocation of compensatory sites. This reads
as follows:
“ಕ1ಾ ಟಕ ಸ ಾ ರ
¸ÀASÉå: £ÀCE 71 ªÉÄÊC¥Áæ 2023(E) ಕ1ಾ ಟಕ ಸ ಾ ರದ ಸ˜Vಾಲಯ
K ಾಸ ೌಧ
Jೆಂಗಳ•ರು, 1ಾಂಕ:14.03.2023
ಇವ ಂದ:-
ಸ ಾ ರದ ಾಯ ದw ,
ನಗ ಾ ವೃ ಇZಾrೆ.
K ಾಸ ೌಧ, Jೆಂಗಳ•ರು.
ಇವ 8ೆ:
ಆಯುಕ.ರು,
ೖಸೂರು ನಗ ಾ ವೃ !ಾ”# ಾರ,
ೖಸೂರು.
[ಾನf ೆ,
Kಷಯ: ೖಸೂರು ನಗ ಾ ವೃ !ಾ"# ಾರದST KKಧ ಸeೆಗಳSTನ KಷಯಗಳST
ಬದS Vೇಶನಗಳನು/ ಮಂಜೂರು [ಾಡಲು !ಾ"# ಾರವ$
cೕ[ಾ @ರುವ$ದು/ಕ"ಮವ^@ರುವ ಬ8ೆm. .
*****
ೕಲ9ಂಡ Kಷಯ ೆ9 ಸಂಬಂ#@ದಂFೆ, ೖಸೂರು ನಗ ಾ ವೃ !ಾ"# ಾರವ$ 1ಾಂಕ 10-
05-2019 ªÀÄvÀÄÛ 1ಾಂಕ: 20-05-2019, 1ಾಂಕ 14-09-2020, 1ಾಂಕ 06-11-2020, 1ಾಂಕ 27-
08-2021, 1ಾಂಕ:22-06-2022 ರ !ಾ”# ಾರದ ಸeೆಗಳ KKಧ KಷಯಗಳST ಬದS Vೇಶನಗಳನು/
ಮಂಜೂರು [ಾಡಲು !ಾ”# ಾರವ$ cೕ[ಾ @ರುತ.0ೆ/ಕ”ಮವ^@ರುತ.0ೆ Lಾಗೂ !ಾ”# ಾರದ ಸದ
ಸeೆಗಳST [ಾತ”ವಲT0ೇ Lೆ˜jನ ಎZಾT ಸeೆಗಳಲೂT ಇ0ೇ ೕc ಣ ಯಗಳನು/ ೈ8ೊಂ?ರುವ$ದು
ಸ ಾ ರದ ಗಮನ ೆ9 ಬಂ ರುತ.0ೆ.
188
ಕ1ಾ ಟಕ ನಗ ಾ ವೃ !ಾ”# ಾರ ( Vೇಶನಗಳ ಹಂ˜ ೆ) ಯಮಗಳ , 1991ರ ಯಮ
16 ರST ಬದS Vೇಶನಗಳನು/ ಹಂ˜ ೆ [ಾಡಲು ಅವ ಾಶ ಕSœಸZಾ)0ೆ. ಆದ ೆ !ಾ”# ಾರವ$ ಸದ
ಯಮ ೆ9 ವfc ಕ.Vಾ) ಹಲVಾರು ಪ”ಕರಣಗಳST !ಾ”# ಾರ Lಾಗೂ ಆಯುಕ.ರು, ೕಲ9ಂಡ ಯಮ
16(1)ರ ಅವ ಾಶಗಳನು/ ಉಲTಂ¦@ ಬದS Vೇಶನ ಮಂಜೂರು [ಾಡುವ ಬ8ೆm, ಕ”ಮವ^@ರುವ$ದು
ಕಂಡು ಬಂ ರುತ.0ೆ.
ಹಲVಾರು ಪ”ಕರಣಗಳST ಭೂ [ಾSಕ 8ೆ ಪ Lಾರ ೕ?ಲTVೆಂದು ಬದSpಾ) ಅ ವೃ
Lೊಂ ದ –ಾ8ೆಯST JೆZೆ Jಾಳ ವ ಆ@.ಗಳನು/ ಹಂ˜ ೆ [ಾಡುc.ರುವ$ದು Lಾಗೂ nೇ.50:50ರ
ಅನು!ಾತವನು/ ಅನುಸ @ರುವ$ದು ಕಂಡು ಬಂ ದುC, pಾವ ಯಮಗಳ? ಕ”ಮ ೈ8ೊಳ=Zಾ)0ೆ ಎಂಬ
Kವರಗಳನು/ ಸeೆಯ Kಷಯಗಳ GಪœOಗಳST ಉZೆTೕb@ರುವ$ ಲT. ತುಂಡು ಭೂ> ಹಂ˜ ೆ, ಭೂ
ಪ LಾರVಾ) ಬದS –ಾಗ ೕ?ರುವ ಪ”ಕರಣಗಳST ಾBC ಮತು. ಯಮಗ<8ೆ ವfc ಕ.Vಾ) ಕ”ಮ
ೈ8ೊಂಡST !ಾ”# ಾರPÉÌ, ಆÂ ಕ ನಷ ಉಂŠಾಗುವ ಸಂಭವ ಇರುತ.0ೆ. Lಾ8ಾ) ^ಂ ನ ಪ”ಕರಣಗ<8ೆ
!ಾ”# ಾರVೇ ಜVಾJಾC pಾ)ರುತ.0ೆ.
ತುಂಡು ಭೂ> ಹಂ˜ ೆ, ಭೂ ಪ LಾರVಾ) –ಾಗ ೕಡುವ ಕು ತು [ಾಗ ಸೂ˜
ತpಾ ಸುವ$ದು ಅವಶfಕFೆ ಇರುತ.0ೆ. ಸದ [ಾಗ ಸೂ˜ಯು ತpಾ ಸುವವ ೆಗೂ ಇಂತಹ
ಪ”ಕರಣಗಳST pಾವ$0ೇ ಣ ಯಗಳನು/ ೈ8ೊಳ=ದಂFೆ ತಮ8ೆ c<ಸಲು 0ೇ wಸಲœnÖ0ೆCೕ1ೆ.
ತಮ; ನಂಬುUÉAiÀÄ
¸À»/- 14.03.2023
(¸Àwñï PÀ¨Ár)
ಸ ಾ ರದ ಅ#ೕನ ಾಯ ದw
(ಅ ವೃ !ಾ”# ಾರ ಮತು. ನ.(ೕ. ¸ÉÃ)
ನಗ ಾ ವೃ ಇZಾrೆ”
The Urban Development department issues directions to the
Commissioner, MUDA to stop allocation of compensatory sites till
guidelines are formulated. As an icing on the cake, on 27-10-2023
when the petitioner is again the Chief Minister, the Government
withdraw the resolution of MUDA, which was for grant of
189compensatory land at 50:50 ratio, in which the son of thepetitoner
had participated. The Government Order dated 27-10-2023 reads
as follows:
“ಕ1ಾ ಟಕ ಸ ಾ ರದ ನಡವ<ಗಳ
Kಷಯ: ೖಸೂರು ನಗ ಾ ವೃ !ಾ”# ಾರದ 1ಾಂಕ 14.09.2020ರ ಸeಾ
ನಡವ<ಯ Kಷಯ ಸಂrೆf:18ರST ೈ8ೊಂ?ರುವ ಣ ಯವನು/
ರದುC8ೊ<ಸುವ ಬ8ೆm.
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ೖನ!ಾ”/ಸeೆ1/176/2020-21: 1ಾಂಕ :17.10.2020..
2. ‡ZಾT# ಾ , ೖಸೂರು ‡ZೆT ರವ 8ೆ ಬ ೆಯZಾದ ಪತ” ಸಂrೆf:ನಅಇ
296 ೖಅ!ಾ” 2021 1ಾಂಕ: 18.06.2021, 18.03.2022
3. ‡ZಾT# ಾ , ೖಸೂರು ‡ZೆT ರವ 8ೆ ಬ ೆಯZಾದ ಅ ೆ ಸ ಾ ಪತ”
ಸಂrೆf:ನಅಇ 296 ೖಅ!ಾ” 2021 1ಾಂಕ: 22.09.2022 ªÀÄvÀÄÛ
03.03.2023
ಪ” ಾ.ವ1ೆ:
ೕZೆ ಓದZಾದ ಕ”ಮ ಸಂrೆf(1)ರ ಪತ”ದST ಆಯುಕ.ರು, ೖಸೂರು ನಗ ಾ ವೃ
!ಾ”# ಾರ, ೖಸೂರು ರವರು, ೖಸೂರು ನಗ ಾ ವೃ !ಾ”# ಾರದ 1ಾಂಕ 14.09.2020ರ
ಸeೆಯ ನಡವ<ಯನು/ ಸ ಾ ರದ ಅನು•ೕದ1ೆ8ೆ ಸST@ರುFಾ. ೆ.
ಸದ ಸeೆಯ Kಷಯ ಸಂrೆf:18ರST !ಾ”# ಾರದ ಬ6ಾವ7ೆ ಮತು. ಇತ ೆ . ಉ0ೆCೕಶಗ<8ೆ
ಭೂ ಾ,#ೕನ ಪ”_”B ಪhಣ 8ೊ<ಸ0ೇ, ಪ Lಾರ ೕಡ0ೇ ಜ>ೕನನು/ ಉಪ(ೕ)@ದ
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190
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(ಅ ವೃ !ಾ”# ಾರ ಮತು. ನ(ೕ ೇ)
ನಗ ಾ ವೃ ಇZಾrೆ.”
It is sought to be withdrawn on the ground that while so resolving,
the opinion of the Deputy Commissioner or his report is not
191forthcoming. Therefore, if the grant of sites, as compensatory to
usage was under the resolution, is itself withdrawn to be contrary to
law, what happens to the 14 sites that is granted on the basis of an
illegal resolution, is a matter that requires investigation.
56. 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 petitioner. Judged from these spectrums and analyzed
from the aforesaid premises, the irresistible conclusion is, an
investigation becomes necessary. The issue is answered
accordingly.
57. There are plethora or glut of judgments relied on by the
learned senior counsel for the petitioner, the learned Solicitor
General of India, the learned senior counsel representing the
respondents and the learned Advocate General. All of them run into
192volumes. Most of them overlap, but all of them would become
inapplicable to the facts of the case at hand, except the ones that
are referred to in the course of the order. They are all rendered in
different fact circumstances that were obtaining before the Apex
Court or this Court in those cases. There can be no qualm about
the principles laid down therein. In that light, considering every
judgment and making them part of this order would only bulk the
judgment. Therefore, those judgments are not quoted in the order,
for them to be observed to be not applicable to the facts of the case
on hand. The judgments which the learned counsel for the
petitioner and the respondents contended to be their sheet anchor
have been noted and considered. None of the armoury that sprang
from the arsenal of the learned senior counsel for the petitioner did
lend any assistance, that would lead to quashment of the order
impugned.
58. Much is spoken about the criminal antecedents of the 3rd
respondent, while all that has been contended are contrary to
records. The submission of criminal antecedents of the 3rd
respondent cannot and can never mask the real issue that he has
193brought before the Governor. Even otherwise, all the allegations
are absolutely unfounded and deliberate mudslinging upon the 3rd
respondent. I deem it appropriate to observe that, whistleblowers
would sometimes face such allegations, particularly when they blow
the whistle of corruption.
58. On the last day of the conclusion of the submissions,
certain contentions are advanced with regard to discriminatory
treatment at the hands of the Governor. Quoting an illustration of
another law maker Smt. SHASHIKALA JOLLE whose approval under
Section 17A is rejected and two of their approvals pending are sent
back to the State, to swing back to the original submission of
violation of Article 14 in the act of the Governor. The case of
Smt. SHASHIKALA JOLLE is not before this Court to consider as to
why approval under Sectiion 17A is denied in that case and it is
granted in this case. This case has been decided or a decision in
the case at hand is arrived at, on the material available before the
Court.
194
SUMMARY OF FINDINGS:
i. The complainants were justified in registering the
complaint or seeking approval at the hands of the
Governor.
ii. The approval under Section 17A of the PC Act is
mandatory in the fact situation.
iii. Section 17A 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.
iv. 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 of India,
but can take independent decision in exceptional
circumstances and the present case is one such
exception.
195
v. No fault can be found in the action of the Governor
exercising independent discretion to pass the impugned
order.
vi. 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.
vii. The Gubernatorial order nowhere suffers from want of
application of mind. It is not a case of not even a
semblance of application of mind, by the Governor, but
abundance of application of mind.
viii. Grant of an opportunity of hearing prior to approval
under Section 17A is not mandatory. If the authority
chooses to do so, it is open to it.
196
ix. The decision of the Governor of alleged hottest haste
has not vitiated the order.
x. The order is read to be restrictive to an approval under
Section 17A of the Act and not an order granting
Sanction 218 of BNSS.
xi. 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.
Before I say omega, I deem it appropriate to quote what
BENJAMIN DISRAELI had to say:
“I repeat… that all power is a trust – that we are
accountable for its exercise – that, from the people,
and for the people, all springs, and all must exist”.
197
59. For the praefatus reasons, the petition lacking in merit,
would necessarily meet its dismissal, and is accordingly dismissed.
Interim order of any kind subsisting today, shall stand
dissolved.
The applications, if any, stand disposed as unnecessary.
Sd/-
(M. NAGAPRASANNA)
JUDGE
bkp
CT:SS