Basavaraj Shivappa Muttagi vs State of Karnataka and another.
Writ Petition 51012 of 2019 and connected matters decided on 16 October 2021
Justice B. Veerappa and Justice N.S. Sanjay Gowda
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/413053/1/WP51012-19-16-10-2021.pdf
2.This is a classic case where the political parties and the Police authorities have tried to misuse their power to bury the truth in respect of an unnatural death of one Yogishgouda goudar.
- These writ petitions are filed by the accused persons stated supra under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, praying for a writ in the nature of certiorari to quash the Government Order dated 6.9.2019 made in HD 48 PCB 2016 as per Annexure-A, according sanction to the Central Bureau of Investigation (‘CBI’ for short), under Section – 6 of Delhi Special Police Establishment Act, 1946, to conduct further investigation with respect to Crime No.135/2016, registered with the Dharwad Sub-Urban Police Station, Dharwad for the offence punishable under Section 302 of IPC and writ in the nature of certiorari to quash the FIR dated 24.6.2019
- In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these writ petitions are:
i) Whether the petitioners – Accused Nos.1,5,15,16 and 21, in these writ petitions have made out a case to quash the impugned Government Order bearing No.HD 48 PCB 2016, Bengaluru, dated 6.9.2019, by which sanction has been accorded to the Central Bureau of Investigation, under Section (6) of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No.135/2016 under Section 302 of IPC
ii) Whether the Investigating Officer of the 2nd respondent/CBI is empowered to proceed with the investigation, in view of the interim order passed by the Hon’ble Supreme Court dated 20.2.2020 in SLP (Criminal) No.1348/2020 (from 20.2.2000 to 11.8.2021) staying the operation of the order passed by the learned Single Judge of this Court dated 21.11.2019 made in W.P. No.51012/2019, in the peculiar facts and circumstances of the present case ?
- Considering the entire material on record and taking into consideration the opinion expressed by the learned Advocate General of Government of Karnataka and considering the provisions of Sections 156 and 173(8) of Criminal Procedure Code, Government was satisfied that the further investigation of Crime No.135/2016 of IPC of Dharwad Sub-Urban Police Station, Dharwad was needed to be handed over to CBI, in order to meet the ends of justice. Accordingly, by the impugned Government Order dated 6.9.2019, sanction has been accorded to the CBI, under Section 6 of Delhi Special Police Establishment Act, 1946 for further investigation of Crime No.135/2016 of Dharwad Sub-Urban Police Station, Dharwad. The same was issued by order and in the name of the Governor of Karnataka after applying its mind and taking into consideration the peculiar facts and circumstances of the present case. Accordingly, the FIR came to be registered on 24.9.2019 as per Annexure-B. In these writ petitions, the petitioners have sought for writ in the nature of certiorari for quashing the Government Order dated 6.9.2019 and the FIR dated 24.9.2019.
94.It is high time for the judiciary to protect the fundamental rights of the citizens of this country to ensure justice must not only be done but must be seen to be done and majesty of rule of law is to be upheld and it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed. This Court being the protector of the civil liberties of the citizens, has not only power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by part III in general and Article 21 of the Constitution in particular, zealously and vigilantly.
- Keeping in mind the aforesaid principles, it is relevant to consider at this stage whether the State Government is justified in entrusting the matter to the CBI in pursuance of the impugned Government Order dated 6.9.2019, in view of the representation made by the kith and kin of the deceased. A careful perusal of the records which culminated into passing of the impugned Government Order dated 6.9.2019 clearly indicates that the State Government was aware of the fact that the complainant had earlier approached this Court requesting to hand over the case to the CBI and this Court has dismissed the said writ petition. After considering the entire material on record, the State Government was of the opinion that the matter has to be entrusted to the CBI for further investigation, which is an independent authority and there is no bar for the State Government to exercise its sovereign power to entrust the matter to the CBI
- The material on record depicts that the Public Prosecutor, who was in-charge of the crime was changed during trial. The material also revealed that during the course of further investigation by CBI, it has come to light that some of the Police officials including previous Investigating Officer are also found to be involved in the case, were found to have taken gratification to scuttle the investigation and they have been arrayed as Accused Nos.19 and 20.
- Admittedly, in the present case the State Government by the impugned Government Order has granted its consent and accordingly, the Central Government also ordered for the extension of the provisions of the DSPE Act by issuing a notification. Therefore, the order passed by the State Government entrusting the matter to CBI for further investigation, is in accordance with law.
- In the present case, the allegations made in the first information report, prima facie constitute cognizable offence and make out a case against the accused persons. After investigation, the Investigating Officer of the 2nd respondent/CBI filed supplementary charge sheets and the competent Court took cognizance of the supplementary charge sheets and the matter is committed to the court of Sessions. The accused persons have not made out an express legal bar engrafted in any of the provisions of the Code to the institution and continuance of the proceedings in Crime No.135/2016. The accused persons have also not made out that a criminal proceeding is manifestly attended with mala fide and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.. It is not in dispute that separation of powers is a part of the basic structure of the Constitution, the “ordinary” executive power of the State Government under Section 6 and ‘extraordinary judicial power’ of the constitutional courts are mutually exclusive and are not interdependent and there is no particular form to give consent under Section 6 of Delhi Special Police Establishment Act
- The parameters for exercise of both the distinct powers of Government and Courts are naturally different and it is always possible and permissible, that even after the constitutional court declines to exercise its extraordinary judicial power holding that the case does not involve circumstances which are rare or exceptional, the State Government can exercise its ordinary executive powers under section 6 of the Delhi Special Police Establishment Act, 1946 in granting consent and the Central Government can, thereafter exercise its power by accepting the investigation entrusted to it by the State Government.
- It is well settled that the accused/petitioners ares not entitled to say what agency investigates him. The investigation by CBI is permissible even after filing of charge sheet by the local police
- In the light of the law laid down by the Hon’ble Supreme Court in the aforesaid judgments, the contention of learned counsel for the petitioners that the impugned Government Order issued by the State Government for re-investigation, cannot be accepted and infact the impugned Government Order has been issued for ‘further investigation’ only.
- It is relevant to quote the words from the case of JENNISON -vs- BAKER reported in 1972(1) All.ER.997, wherein it is held that:
“the law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope”
- It is well settled that the trial should not be victim centric, forgetting the valuable rights available to the accused, but, when the relevant material becomes available in accordance with law before the trial Court, the accused cannot be heard to say that the same cannot be looked into for a fair trial. The administering criminal justice is a two-end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. Therefore, it becomes clear that a fair trial envisages production of all relevant material before the trial Court for discovering the truth of the matter. It is not as if the petitioners/accused persons would be put to any prejudice if two supplementary charge sheets and the additional documents are examined by the Sessions Court in the present case and the witnesses relevant to such documents are permitted to be examined.
- It is well settled that, if a prima facie case is made out, disclosing the ingredients of the offences as alleged against the accused, the Court cannot quash the criminal proceedings as admittedly in the present case, when the trial is half way charge sheets are filed by impleading the new accused persons, cognizance of the offences already taken by the competent Court and now the matter is being posted for further trial.
Writ Petitions are dismissed
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