In a relief to Karnataka Chief Minister B S Yediyurappa and former minister for industries Murugesh Nirani, the Supreme Court Wednesday protected them from arrest in a case pertaining to alleged forgery over withdrawal of approval for a parcel of land in the state.
The top court however refused to stay the January 5 order of Karnataka high court, by which it had allowed restoration of the criminal complaint against the Yediyurappa.
"You (Yediyurappa) are a sitting Chief Minister. Who can issue arrest warrant against you," the top court observed.
A bench of Chief Justice Bobde and Justices AS Bopanna and V Ramasubramanian, which issued notices to complainants, one A Alam Pasha and others, in the case agreed to examine the pleas of Yediyurappa and Nirani challenging the order of the high court restoring the complaint.
'Issue notice. There shall be stay of arrest in the meantime,' the bench said in its order.
Senior advocate Mukul Rohatgi, appearing for Yediyurappa, said the appeal raises a legal question whether a court can proceed under the provisions of Prevention of Corruption Act against a public servant without prior sanction on the ground that he had demitted the office, which he had allegedly used for commission of offence .
He sought stay of the High Court order or the proceedings before the trial court saying that process will start after the high court's verdict.
Rohatgi said that Yediyurappa will be arrested pursuant to the arrest warrant issued by the trial court.
"You are a sitting chief minister. Who can issue arrest warrant against you. Moreover, against the chief minister, they issue letter of request and not warrant," the bench said.
The top court also issued similar order on the plea of Nirani.
In his appeal, Yediyurappa said, 'That one of the questions of law that arises in the present Special Leave Petition pertains to whether a court can proceed under the provisions of the Prevention of Corruption Act, against a public servant without prior sanction, on the ground that he has allegedly demitted the office which he was alleged to have abused, in view of the amended provisions of section 19 of the PC Act.'
He said that being aggrieved by the impugned final judgment of January 5, he has filed the appeal as it had 'erroneously' allowed the petition filed by Pasha/complainant under section 482 Code of Criminal Procedure and thereby set aside the well-reasoned order of August 26, 2016, passed by the Special Judge whereby the complaint was dismissed for want of requisite prior sanction.
'However, by virtue of the impugned judgment, the high court erroneously set aside the order only on the ground that the petitioner had demitted the office which had allegedly been abused by him at the time of commission of offence and therefore no sanction was necessary to be obtained,' the appeal said.
It said that the same is contrary to the settled law laid down by this court in a catena of judgments as well as the provisions of the amended PC Act.
Yediyurappa said that action of Pasha/complainant in waiting for him to demit office before submitting the complaint is a complete abuse of the process of law and by permitting the complainant to adopt the device to circumvent the statutory protection afforded to a public servant, the high court has rendered the protection illusory.
On January 5, the Karnataka high court had partly allowed a petition by Pasha and accordingly set aside the August 26, 2016 order of additional city civil and sessions judge related to three of the four accused, including Yediyurappa, dismissing the complaint against them.
The case under Indian Penal Code and Prevention of Corruption Act related to alleged criminal conspiracy and forgery of documents purported to have been issued by Pasha in 2012 when Yediyurappa was the chief minister in his first term.
Besides Yediyurappa, Nirani, former principal secretary V P Baligar and former managing director of Karnataka Udyog Mitra Shivaswamy K are the other accused.
They have been accused by the Pasha of committing forgery of documents purported to have been issued by her seeking to withdraw the approval granted for allotment of 26 acres of land at Devanahalli Industrial Area in Bengaluru Rural District.
Initially, the lower court had in 2013 dismissed a complaint filed by her on ground that sanction to prosecute the accused had not been obtained.
She filed a fresh complaint in 2014 after Yediyurappa demitted office, but it was also dismissed by the lower court on August 26, 2016 on the same ground, though giving liberty to approach the court after getting prior sanction from competent authority.
Pasha had submitted that since the respondents were no longer in office, sanction for their prosecution was not necessary.
The high court concurred with her submission and ruled that the quashing of the earlier complaint for want of sanction would not act as a bar to maintain the latest complaint filed in 2014 after the respondents demitted office.
The high court, however, upheld the lower court order in respect of Baligar, the third respondent, as the government did not grant sanction to prosecute him.
It directed the complaint to be restored in file and said that the same shall be proceeded with in accordance with law.