Bengaluru: The Karnataka High Court on Wednesday allowed Deputy Chief Minister D K Shivakumar to withdraw the appeal filed by him challenging a single judge’s order refusing to quash a government sanction to the CBI to prosecute him in a disproportionate assets (DA) case.
The previous BJP government had granted sanction to the CBI to prosecute Shivakumar, also State Congress president, following which an FIR was lodged against him and an investigation undertaken on alleged charges of disproportionate assets.
Senior advocate Abhishek Singhvi who appeared on video conference arguing for Shivakumar said that since the sanction that is under challenge has been withdrawn by the government, the issue has become infructuous, and therefore, he has instructions to withdraw it.
The current Karnataka cabinet headed by Chief Minister Siddaramaiah on November 23, held that the previous BJP government’s move to give consent to the CBI to investigate the DA case against Shivakumar was not in accordance with law and decided to withdraw the sanction. Subsequently, a Government Order was issued in this regard.
The Bench of Chief Justice Prasanna B Varale and Justice Krishna S Dixit allowed Shivakumar’s counsels to file a memo withdrawing the appeal, and taking it on record disposed of the appeal as withdrawn.
“It is stated in the memo that in light of the Government Order dated 28-11-23, the writ petition has been rendered infructuous and thereby the writ petition and writ appeal may be allowed to be withdrawn,” the HC recorded.
“As the appellant himself has filed a memo seeking withdrawal of the petition as well as the appeal, the permission is granted, (and) the appeal is disposed of as withdrawn,” the court ordered.
The HC, however, did not observe anything about what happened to the FIR that had been filed subsequent to the sanction and the partially completed investigation.
The CBI counsel submitted that the question be kept open. The HC said that it was not recording anything on that issue.
Recording the CBI’s opposition to the memo, the HC recorded, “The counsel for the CBI opposes the memo as after the sanction granted by the government the FIR came to be lodged and the investigation was set up in motion for investigation which is partly concluded.
“He vehemently submits that the state government ought not to have withdrawn the consent and such a course is not sustainable. In our opinion, we are unable to accept this submission for the simple reason for up-till now there is no challenge to the government’s subsequent decision,” the court said.
BJP leader and MLA Basanagouda Patil Yatnal had filed an intervening application challenging the withdrawal of the sanction by the state government. The HC also rejected the same.
“At the cost of repetition we state that there is no such challenge raised before this court, (and) as such this court cannot accept the submission, for the CBI and the applicant,” the court said.
Based on the Income Tax Department’s search operations in Shivakumar’s home and offices in 2017, the Enforcement Directorate started its own probe against him. Based on the ED investigation, the CBI sought sanction from the state government to file a FIR against him.
The state government had given the sanction on September 25, 2019. The CBI had filed an FIR against him on October 3, 2020.
Shivakumar had challenged the sanction before a single judge bench, which was rejected. He then approached the division bench, which had stayed the single judge’s order.
The CBI had filed an application for vacation of this stay. It also approached the Supreme Court which directed the HC to hear the application filed by the CBI seeking a vacation of stay preferably within two weeks.
Before the Division Bench’s hearing on Wednesday (today), the state government withdrew the sanction on Tuesday through a Government Order.
Shivakumar’s counsel, Singhvi, in his arguments earlier submitted that “The practical issue is very simple. The Writ is filed challenging a sanction. Today the sanction under challenge is withdrawn. Somebody will challenge some will not (the sanction) but that is not of concern today. It (Appeal) is infructuous. It is liable to be allowed to be withdrawn.”
Another senior counsel, Kapil Sibal, who appeared for the State government argued that “At the moment we have withdrawn consent. If the CBI thinks they have jurisdiction, they can continue. If they want to challenge it they are welcome to. But the statute does not give them power. If they think they have the power, they are welcome to challenge it (Statute). As far as I am concerned, they have no jurisdiction.”
The counsel for the CBI argued that “Whether they can overcome the order of the single judge is the question.” He further argued: “Whether such an order (withdrawing consent) could be passed after an FIR is filed and an investigation is going on”.
The CBI’s advocate also argued that as per a Supreme Court order, withdrawing consent to the CBI is “Prospective in nature and an investigation already underway have to be completed.”
The Bench, however, said that the order to withdraw the sanction has to be challenged for it to dwell on it. “If the order of the government is unsustainable, somebody can challenge it.”
The HC said that it cannot expand the scope of the appeal to decide on whether the withdrawal of the sanction is good or bad in law.
“It is not in our domain to ask the CBI why this order is not challenged,” the court said.
