Bengaluru: In consequence to Congress-led Karnataka government withdrawing consent for CBI probe against Deputy Chief Minister DK Shivakumar in a graft case, the Karnataka High Court on Wednesday permitted him to withdraw an appeal in this regard.
The Court gave this ruling, observing that the writ plea was infructuous since the Karnataka government withdrew the sanction given to CBI to conduct investigation into Shivakumar’s graft case.
However, the Court clarified that the Karnataka cabinet’s decision to withdraw the consent can be challenged.
“We have only closed Shivakumar’s appeal and that it has not foreclosed the right of anyone else to challenge the state’s withdrawal of consent for the CBI probe,” it said.
The HC Division Bench comprising Karnataka Chief Justice PB Varale and Justice Krishna S Dixit, raised concerns over the rule of continuity of governance following the withdrawal of consent in the aftermath of a new government assuming office.
“We accept there is a rule of continuity of the government. If one policy is accepted by the government, it is possible that there will be change in the government. There may be A party holding power, and B party may come to power later.. But if this change (in policy) is effected every time, will it not affect the rule of the continuity of governance?” CJ Varale asked.
The CBI’s case against Shivakumar concerns irregularities in mining and real estate activities.
Making his submissions before the bench, CBI Counsel P Prasanna Kumar stated that he had no objection to the withdrawal of Shivakumar’s appeal or even the withdrawal of consent, as the law would take its own course and that the CBI would act according to law.
Kumar, however, questioned whether the CBI probe itself could be halted at the present stage. He contended that once consent has been given, and the probe has commenced, any withdrawal of consent is “non-est” or of no consequence.
In this regard, the CBI Counsel also relied on the Supreme Court’s ruling in Kazi Lhendup Dorji vs CBI, although the state replied that the said judgement involved distinct facts.
Making submissions on behalf of BJP MLA Basanagouda Patil Yatnal, who filed an intervention application to oppose the State’s decision to withdraw consent, his Counsel Venkatesh Dalaway argued, “My opposition is to the consent order, which is tailor-made to scuttle the investigation … The state acting like this is a serious concern. The appellant (Shivakumar) is not an ordinary man.”
To which, the Court replied if at all the state’s decision has to be challenged, it should be done in independent proceedings.
The Court added that it may also not be comfortable with how the CBI consent was withdrawn because of a change in the political regime. It may have a different opinion outside the Court on the larger issue but it cannot go beyond what the law says, the bench opined.
“The things that are happening may not be that pleasant to us also. But law does not depend on what the judge is feeling or comfortable, etc. We have to do things according to law,” Justice Dixit explained.
Appearing for Shivakumar, Senior Advocate AM Singhvi asserted the aspect of whether the State’s decision should be challenged is not one to be considered at the present stage.
Since the State’s sanction for a CBI probe no longer existed, Shivakumar’s appeal was now infructuous and should be allowed to be withdrawn, he contended.
Appearing for the Karnataka government, Senior Advocate Kapil Sibal weighed in by underscoring that Shivakumar, being the dominus litis (master of the case), was entitled to decide whether or not the appeal should be withdrawn.
In a lighter vein, Senior Advocate Sibal also noted both the initiation and the closure of a CBI probe are often politically motivated.
“If I may be permitted to say, with your lordships’ vast experience, and my somewhat limited experience in politics, we know when matters, how they are referred to CBI, why and when they are withdrawn. There are two sides to the coin – one side need not be clean, the other need also not be clean,” Sibal said.
The Court proceeded to allow Shivakumar to withdraw his appeal.
“We are not asking why the State is acting like this, it is not in our domain,” the bench added orally, in response to a submission by Yatnal.
The Enforcement Directorate (ED) had initially filed a case against Shivakumar under the Prevention of Money Laundering Act, in connection with which he was arrested on September 3, 2019.
However, he was later released on bail following an order from the Delhi High Court, which was confirmed by the Supreme Court.
Meanwhile, on September 9 2019, relying on the ED’s letter, the then BJP government allowed the CBI to conduct an investigation into the matter as well.
Recently, the Congress-led government (which came into power in Karnataka in 2023) announced that it was withdrawing the earlier consent given to the CBI in the matter.
