Karnataka High Court
Sri B S Yeddyurappa vs State By The Central Bureau Of ... on 21 June, 2012
Author: Subhash B.Adi
Bench: Subhash B. Adi
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE SUBHASH B. ADI
CRIMINAL PETITION NO.3027/2012
C/w
CRIMINAL PETITION NO.3028/2012
IN CRL.P. 3027/20 12
BETWEEN:
SRI. B. S. YEDDYURAPPA.
S/0. LATE SRI. SIDDALINGAPPA.
AGED ABOUT 68 YEARS,
MEMBER OF KARNATAKA LEGISLATIVE
ASSEMBLY,
R/A. NO.1, RACE COURSE ROAD,
BANGALORE -560001. ... PETITIONER
(By SRI. C. V. NAGESH, SENIOR COUNSEL ADV. FOR
SRI. PRABHULING K. NAVADGI AND
SRI. SIDDARTH H. M.. ADVS.)
AND:
STATE BY THE CENTRAL BUREAU
OF INVESTIGATION.
BAN GALO RE,
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR FOR CBI CASES.
CITY CIVIL COURT COMPLEX,
BANGALORE. RESPONDENT
...
(By SRI. ASHOK BHAN, SR. COUNSEL. ADV. FOR
SRI. C. H. JADHAV. ADV.)
2
THIS CRIMINAL PETTTION IS FILED UNDER SECTION
438 CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN THE EVENT OF HIS ARREST IN RC. NO.08(A)/2012
OF' CBI/ACB, BANGALORE. WHICH IS REGD.. FOR THE
OFFENCE P/U/S 120-B R/W 409 AND 420 IPC AND 7, 13(2)
R/W 13(1) (c) & (d) OF THE PREVENTION OF CORRUPTION
ACT. 1988 AND 9 R/W 4 OF THE KARNATAKA LAND
(RESTRICTION ON TRANSFER) ACT. 1991.
IN CRL.P. 3028/2012
BETWEEN:
1. SRI. B. Y. VIJAYENDRA.
S/O. SRI. B. S. YEDDYURAPPA,
AGED ABOUT 37 YEARS,
R/O. MYTHR1', 7TH CROSS, 2ND BLOCK,
3RD STAGE. VINOBHANAGAR,
SHIMOGA.
2. SRI. B. Y. RAGHAVENDRA,
S/O. SRI. B. S. YEDDYURAPPA,
AGED ABOUT 40 YEARS,
R/O. MYTHRI', 7Th CROSS, 2ND BLOCK,
3RD STAGE, VINOBHANAGAR,
SHIMOGA.
3. SRI. R. N. SOHANKUMAR,
5/0. SRI. R. D. NATRAJ,
AGED ABOUT 42 YEARS,
RIO. NO.21 (OLD NO,2914/E),
MAGADI CHORD ROAD.
HAMPI NAGAR.
VIJAYANAGAR 2ND STAGE,
BANGALORE. ... PETITIONERS
(By Sri. PRABHULING K. NAVADGI, SRI. H. M.
SIDDARTH, AND SRI. I. S. ANTIN, ADVS. A/W
SRI. ASHOK HARNAHALLI, SR. COUNSEL
FOR PETITIONERS 1 AND 2 AND SRI. JAYAKUMAR S.
PATIL. SR. COUNSEL FOR PETITONER 3)-
3
AND:
STATE BY ThE CENTRAL BUREAU OF INVESTIGATION,
BANGALORE,
REPRESENTED BY TIlE
SPECIAL PUBLIC PROSECUTOR FOR CBI CASES,
CITY CIVIL COURT COMPLEX,
BAN GALORE.
RESPONDENT
(By Sri, C. H. JADHAV, ADV. A/W
SRI. ASHOK BHAN, SR. COUNSEL, ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
438 CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN THE EVENT OF HIS ARREST IN RC. NO.08(A)/2012
OF CBI/ACB, BANGALORE, WHICH IS REGD.. FOR THE
OFFENCE P/U/S 120-B R/W 409 AND 420 IPC AND 7, 13(2)
R/W 13(1) (c) & (d) OF ThE PREVENTION OF CORRUPTION
ACT, 1988 AND 9 R/W 4 OF THE KARNATAKA LAND
(RESTRICTION ON TRANSFER) ACT, 1991.
THESE PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners in both the petitions are accused No.1 and accused No.2 to 4 respectively, they have sought for anticipatory bail, apprehending arrest in Crime No.RcNo,8(A)/20 12 CBI/ACB/BLR/20 12, registered on 15/5/2012 by CBI police for offence punishable under Section 7, 13(2) read with 13(1) and (d) of Prevention of Corruption Act, 1988 read with Section 409 and 420 of IPC 4 and further read with Section 4 and 9 of Karnataka Land (Restriction on Transfer) Act, 1991.
The brief background leading to the filing of the FIR.. is as under:
2. On 9th September 2002, a Central Empowered Committee (for short. CEC). was constituted by the Apex Court in the matter of T.N. GODAVARMAN Vs. UNION OF INDIA AND OTHERS (W.P.(C) No.202/1995) to examine and monitor the various activities infringing the laws protecting the environment and also the preventive or punitive steps that may be required to be taken to protect the environment.
3. In 2011 a public interest litigation was filed in WP (Civil) No.562/2011, against large scale illegal mining activities involving politicians and corporate bodies. In the said Writ Petition an l.A. was file for direction for extending the scope of investigation by the CBI.. relating to illegal mining and other allied activities, which the politicians and major Corporate groups, including M/s. Jindal Group and M/s. Adanis were indulging in. within the State of Karnataka. The C.E.C which had made preliminary enquiry 5 had submitted its report dated 20th April 2012 and 27th April 2012, inter alia recommending for investigation by the independent agency. The CEC recommendation reads as under:
"Taking into consideration the massive illegalities and illegal mining, which have been found to have taken place in Karnataka and the allegations made against the Jindal Group as being recipient of large quantities of illegally mined material and undue favour being shown to them in respect of the mining lease of M/s.MML, it is recommended that a detailed investigation may be directed to be carried out in the matter by an independent investigating agency such as the Central Bureau of Investigation (CBI) and to take follow up action. This agency may be asked to delve into the matter in depth and in a time bound manner. This agency may also be directed to investigate into other similar cases. If any. of land de-notified from acquisition by the Bangalore Development Authority and the illegalities / irregularities / procedural lapses, if any, and to take follow up action."
4. After examining the issues raised in the l.A., and on the basis of the CEC report. the Apex Court identified four issues. Among the four issues, issue No. 1. which is relevant for this case reads as under:
(i) The alleged serious illegalities / irregularities and undue favour in respect of (a) the land purchased by the close relatives of the then Chief Minister, Karnataka for 0.40 Core in the year 2006 and subsequently sold to M/s.
LM 6 South West Mining Limited in the year 2010 for Rs.20.00 crores and (b) donation of Rs,20.00 crore received by Prerna Education Society from MIs. South West Mining Limited,
5. Since some of the investigation and enquiry were pending before the jurisdictional courts. The Apex Court examining the provisions of criminal procedure code, found that, even if the charge sheet is tiled before the competent court, the said court can order for further investigation, under Section 173(8) of CRPC Apex court found that an Comprehensive investigation is necessary by Special agency as it may not be possible for a person in private complaint to probe in to the matter.
6. Accordingly both in the interest of state as well as the intevenors it was found that the investigation by specialized agency be permitted to in investigate the matter, the relevant portion of the order reads as under:
"The direction of further investigation is based upon documents and facts brought to light by the CEC as a result of examination conducted in the course of its primary function relating to inquiry into environmental violations and illegal mining activity. If the proceedings are permitted to continue and finally investigations reveal that a case, which requires to be tried in accordance with law exists, then the interveners would have L w 7 to face proceedings all over again. So, it is in their own Interest that the specialized agency is permitted to investigate and bring out the true facts before the Court of competent jurisdiction."
7. SInce the pendency of the proceedings In similar matter may create conflict in enquiry and investigation and to enable the C.B.I. conduct comprehensive InvestIgation, It stayed the proceeding on similar allegation pending before the courts and Investigation agencies till further orders of the Apex Court. Accordingly. the CBI was directed conduct comprehensive investigation and submit its report to the court of competent jurisdiction with a copy of the Report to be placed on the tUe of the Apex Court within three months. Further, the Apex Court directed all the parties, the Government of the States of Andhra Pradesh, Karnatflsi and all other Government Departments of that and/or any other State. to fully co-operate and provide required information to CBI.
8. In view of the direction by the Apex court, the CBI based on the recommendation of CEC registered the F.I.R for the offences punishable under Section 120-B read with Sections 409 and 420 of IPC., and SectIons 7, 13(2) read I 8 with Section 13(1)(c) and (d) of the Prevention of Corruptio n Act, 1988. and under Section 9 read with 4 of the Karnataka Land (Restriction on Transfer) Act. 1991.
9. Since the CBI registered the FIR for cognizable offences, the accused apprehending their arrest, moved the Special Judge for CBI for anticipatory bail. The learn ed Special Judge considering the contentions on both the side rejected the applications of the accused for grant of anticipatory bail. Hence the petitioners have moved this court. for grant of anticipatory bail in the above mentione d crime.
10. Heard Sri C.V. Nagesh, Sri Ashok Harnahahili, Sri Jayakumar S. Patil, Senior Counsels and Sri A.S. Antin, learned senior counsel for the petitioners and Sri Ashok Bhan, learned senior counsel and Special Public Prosecuto r for the CBI.
11. Sri C.V. Nagesh. learned counsel appearing for petitioner in CrI.P. No.3027/20 12 submitted that, at this stage the material that available is the accusation mad e in 14 9 the FIR. The said accusations by themselves do not constitute an oliènce Accused are presumed to be innocent till the guilt is proved. The arrest of the accused to be made on the bases of nature and gravity of the offence. The registration for FIR may give a ,right to arrest hut such power should used considering various circumstances the nature and gravity of the offence if the allegation in the complaint does not make out any offence in such a case, the arrest of an accused would only amount punitive and is a punishment in the name of detention.
12. Further, the accused are all respectable persons in society. Al is a former Chief Minister, A2 is member of parliament and is also son of Al. There is no chance fleeing the justice, nor there any chance of tempering the evidence of the projection. They will all fully co-operate with the investigation.
13. He. further submitted that the very same accused against whom very similar allegation were made in private complainant P.C.R.No.2/201 1, this court has granted anticipatory bail by considering the anture and gravity of the 10 offence. Now on the basis of very same allegation the CBI Is Investigation, except the change of the Investigating agency all other things remain the same.
14. He further, submitted that, the very same accusations were made In the said private complaint ified for the offences punishable under Sections 120-B read with Sections 420, 463, 465, 468, 471 of IPC., read with Sections 13(1)(d), 13(1)(e) and 13(2) of the Prevention of Corruptio n Act, 1988 and Sections 3 and 4 of the Karnataka Land (Restriction on 'fransfer) Act, 1991. Though the Sections alleged In the FIR registered by CBI and the prIvate complaint may differ to some extent but, the accusations made In both the cases remain the same.
15. In both the cases It alleged that the Bangalore Development Authority (for short, 'BDA] published a notification on 03.02.2003 under SectIon 17 of the Bangalore Development Authority Act, 1976, Inter alia proposing to acquire vast extent of land Including 1.12 Acre of land In Sy. No.55/2 In Rachenahalli Village, Bangalore East Talu k, which Is the subject matter of Investigation In the 11 present case. On 23.02.2004, final notification under Section 19(1) of the BDA Act was published. After the final notification was published, the owner of the land bearing S.No.55/2 executed two separate sale deeds dated 22.03.2006 and 21.04.2006 in favour of Vijayendra, RN. Sohan Kumar and B.Y. Raghavendra respectively to the extent of 0-20 guntas each. After the sale deeds were executed, The owners had executed. General power of attorney was executed in favour of one S.N. Krishnaiah Shetty, who on behalf of the owner had submitted a representation dated 13.09.2008 before the Commissioner, BDA., seeking dc-notification of the land from the purview of the acquisition, in respect of the sold to the accused No. 2 to
4. The B.D.A. considering the said representation recommended to State Government, that the award has not been passed and the possession of the land is also not taken and informed that there is no impediment to de notify the said land from the purview of the acquisition. The government issued the denotification dated 3-11-2008. At time of the issue of denotification the accused No.1 was Chief Minister and the recommendation of B.D.A was not placed before the denotification committee. Thus the Al has abused 12 his power. The transfer of agricultural land is violative Section 4 and 9 of the Karnataka Land (Prohibition of Transfer) Act. It was further alleged that, even after sale of the land to accused No.2 to 4 the application for denotification was made on behalf of the vendor Gowramma and another.
16. Learned counsel submitted that identical allegation are made in present FIR also. There is no change in the allegation in the FIR registered by the CBI. In both the complaint it its alleged that the accused has abused his office for his own personal benefit. As such, there is a serious irregularity, illegality and abuse of public office for the benefit of the close relatives. The transfer of agricultural land is in violation of Section 4 of the Karnataka Land (Restriction on Transfer) Act, 1991, which prohibits the sale of the land notified under Section 19 of the BDA Act.
17. Learned counsel further submitted that, when the private complaint was filed in P.C.R. No.2/2011, these accused apprehending the arrest had approched this court for anticipatory bail. This court considering the nature and 13 the gravity of the allegations and considering that the case involves mainly documentary evidence and the accused are not likely to flee from justice, granted the anticipatory bail in Cr1. P. No.5844/2011 connected with Crl.P. Nos.5845, 5847 and 5848 of 2011, by order dated 16.11.2011. When these accused were granted with the anticipatory bail on the very same accusation and offences. only because the very matter is now being investigated by the CBI the accusation does not change the gravity of the offence also does not change. Hence there is justifiable reason to deny the grant of anticipatory bail.
18. Learned counsel referred to the second accusation pertaining to the donation made by JSW Steel Limited in favour of M/s. Prerna Educational Institution and submitted that the said allegation are made on the bases of the chapter 22 of lokayukta report, for the very allegation His Excellency Governor of Karnataka had accorded sanction for prosecution and based on the same an FIR was also registered. However, the accused No.1 had filed a Writ petition in No.44071/2011 before this court. 14
19. The DMsIon Bench of this court by order dated 7.3.2012. quashed the said part of lokayukta report, quashed the sanction of the Governor and also quashed the FIR registered In pursuance of the same. Even the CEC In Its recommendation has reiled on the lokayuktha report and the documents supporting the said report. The HR registered by the CBI Is also based on the lokavuktha report. When the very report Is quashed, the accusation made In the FIR becomes without any basis. as the source of Information Itself Is quashed. Further even the FIR on the basis of the Lokayukta report Is also quashed.
20. Learned counsel, further submitted that the Apex Court has refereed two Issues for Investigation, and In respect of the first Issue relating to the denotlficauon this court on Identical allegation has granted the anticipatory ball, and In respect of the second Issue the FIR of the CBI Is mainly based on the lokayukta report, and not only the said lokayukta report Is quashed but the FIR registered on the basis of the said lokayukta has been quashed. In view of the same, the foundation for the FIR Is doubtful.
<1 15 2 1. He further submitted that there is no reason for the CBI to take the accused in to custody. Even otherwise also the evidence is in the nature of documents. As such the denial of anticipatory bail amounts to punishment by way of detention. To Support his contentions, he relied upon the judgemeni of the Apex Court in the matter of SIDDHARAM SATLINGAPPA MHETRE Vs. STATE OF MAHARASHTRA AND OTHERS (2011(1) SCC 694).
22. Sri Ashok Harnahalli, learned senior counsel appearing for the petitioners in Crl.P. No.3028/2008 submitted that the FIR is registered for the offence punishable under Section 7 of the Prevention of Corruption Act. 1988 (hereinafter referred to as the PC Act) but the accusations made in the FIR.. do not constitute an offence punishable under Section 7 of the PC Act. He submitted that there is no discharge of public duty as a public servant in the public office. The allegation in the complaint by themselves do not constitute any offence. Even to attract the provisions of Ssection 13(1)(c) and (d) there must be demand and acceptance to do official favour. The allegation that the 16 amount received by way of sale consideration and the donation from MIs JSW Steel Ltd., that Itself Is not offence In any law. Receipt of higher sale consideration, or the Institution which has got exemption under Section 80 of Income Tax Act receiving the donation does not attract any of the provisions of P.C. Act.
23. Further the allegation Is that the accused have committed criminal breach of mist. To constitute the offence punishable under Section 409 of IPC, there must be entrustment of property. and the acccused must be trustee. In the entire complaint there Is no allegation of entrustment of the property nor the accused Is a trustee. The elected representatIve does not become a trustee of the state. He only discharges functions under the Business Allocation rules.
24. Insofar as the offence punishable under Section 420 of IPC. In the complaint there Is no allegation of cheating. Even In CEC report, there Is no allegation of cheating. The complaint med by the C.B.I. Is only reproduction of the CEC recommendation. The allegation In CEC report and the 17 compliant is that the Al has abused power and position in de notifying the land from the acquisition.
25. If there is illegality in de notifying the land, it may not by itself constitute an offence. Further it is not only land denotified, but several other lands were denotified. not only during the office of the accused No.1 but by many other predecessors in the said office. Total extent land acquired was 3370. However what is actually required is only 2750 acres. The allegation is that the accused got the land purchased for 40 lakhs and got the same denotified and further got it converted for non agricultural use and sold the same for Rs.20 crores. If the denotification is found to be valid and has been done on par with similarly other persons and if it is sold for higher price, these allegation will not constitute an offence unless it is linked to abuse of the office by the accused No.1 to favour the accused No.2 to 4 his kins. But there is no allegation in the CEC report as to how the accused No.1 has misused his office. As per procedure under land acquisition Act, if the possession of the land acquired is not taken, such land can be denotified. In this case, the B.D.A, acquiring body has stated that, no award 0 18 has been passed and possession has not been taken. Prima- fade, there is no ifiegality.
I
26. Learned Senior counsel referred to Section 13(1)(d) of the PC Act, which requires that a public servant, If he, by abusing his position as a publlc servant, obtains for himself or for any other person any valuable thing or pecunlazy advantage. In the Instant case, transfer of land or receipt of donation do not constitute any offence under the PC Act, and there Is no allegation as to how the accused No.1 has mis used his office. C.E.C report or the complaint does not specify any Instances of misuse of the office by the accused No.1. He has not granted mining lease. In fact he has stopped the export and Issue of mining leases. Except alleging that there Is link between receipt of the sale consideration In the sale transaction between the accused No.2 to 4 and MIs JSW Ltd., and receipt of the donation with the receipt of large quantity of mineral by the MIs JSW Steel Ltd., Prima fade there Is no material. Even reading of entire allegation In the CEC report and' the complaint Prima Fade the allegation themself do not make not any offence. There 19 must be prima facie allegation, If the allegation Prima Faeie are only suspicion of abuse of power by the accused No.1. the arrest of the accused is violative of personal liberty guaranteed under Article 21 of the Constitution.
27. Learned Senior Counsel relied on the decision of the Apex Court in the matter of COMMON CAUSE, A REGISTERED SOCIETY Vs. UNION OF INDIA AND OTHERS (1999 (6) SCC 667) at page 748 to submit that, there must be an entrustment of a property to attract the provisions of Section 405 of IPC. He has relied upon the decision of the Apex Court in the matter of R. SAl BUARATHI Vs. J. JAYALALITHA AND OTHERS (2004(2) SCC 9) at para 53 and submitted that representative of the people is not an trustee of the Government. He further referred to another decision in the matter of HARMANPREET SINGH AHLUWALIA AND OTHERS Vs. STATE OF PUNJAB AND OTHERS ( 2009 (7) SCC 712) at head note (B).
28. He further submitted that though the order granting anticipatory bail in PCR No.2/2011 may not be binding but if the allegation in both the complaints are 20 considered, the allegation in bot h the complaint are identical, if the accused on the bases of the identical allegation had been granted with the anticip atory bail, then there is no reason to deny the said benefit in this case. As for as fair investigation is concern same can be protected by imposing necessary conditions to ensure the cooperation of the accused for fair investigation.
29. He further submitted that, from the allegation in the complaint, there is no jus tifiable reason to take the accused into custody for the pur pose of investigation, which otherwise also can be clone wit hout the custody of the accused.
30. On the other hand, Sri Ashok Bhan. Special Public Prosecutor submitted tha t, the Supreme Court based on the CEC report, has directed the CBI to conduct a comprehensive investigation to find out the linkage between the payments received by the accused from the JSW Steel Ltd. Accused No.1 was a Chief Minister, and under Article 163 of the Constitution, he tak es oath office as per Schedule III to the Constitution, as such one who violate his oath office 21 has no right to seek protection under the constitution. The economic offence is worst then the murde r, such persons are not entitle for any protection. Learned special Public Prosecutor relied on the decision of the High Court of Delhi in the matter of MUKESH JAIN Vs. CBI., in Bail application No.2179/2009 disposed of on 21.12.2009 and submitted that the entire community is aggrieved in case of economic offence, the economic offenders are ruin ing the economy of the State and they have to be brought to book. If such offences are allowed continue, then the faith of public in system will be shaken. He has also relied on the judgement of Apex Court in the matter of GUDIKANTI NARASIMHULU AND OTHERS Vs. PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH (1978 AIR 429), whe rein it is observed as under:
The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable, even han ded and geared to the goals of community good and State necessity spelt out in Article 19. Inde ed, the considerations I have set out as crit eria are germane to the constitutional propositio n I have deduced. Reasonablenss postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpos e but 22 for the hi-focal interests of justice-to the individual involved and Society affected.
He further relied on another decision of the Apex Court in the matter of RASHMI REKHA THATOI AND ANOTHER Vs. STATE OF ORISSA AND OTHERS in Cr!. A. No.750/2012 disposed of on 04.05.2012 and submitted that, the personal liberty is not an absolute abstract concept. Individual liberty is a very significant aspect of human existence but it has to be guided and governed by law. Liberty is to be sustained and achieved when it sought to be taken away by permissible legal parameters. A Court of law is required to be guided by the defined jurisdiction and not deal with matters being in the realm of sympathy or fancy.
31. Learned Special Prosecutor submitted that the CEC., in its recommendation has observed that the agency should be asked to probe into the matter in depth and in a time bound manner, investigating agency has to have access to all the information and that is possible only under the custodial interrogation of the accused. During the course of investigation, the accused were summoned. however, they had not co-operated with the investigation as they gave 23 evasive reply during their interrogation and as such. the custodial interrogation of the accused is necessary. He further submitted that all the agencies have to act according to the directions of the Apex Court in view of Article 144 of the Constitution.
32. He further submitted that, the accused must prima facie point out that the allegations in the complaint are false to seek for anticipatory bail.
33. In the light of above submission, the point that arises for consideration is:
"Whether the accused could be granted with the anticipatory ball?"
34. The entire case is based on the points referred by the Apex Court for investigation, which reads as under:
"1. (i) The alleged serious illegalities / irregularities and undue favour in respect of:
(a) the land purchased by the close relatives of the then Chief Minister. Karnataka for 0.40 Core in the year 2006 and subsequently sold to M/s. South West Mining Limited in the year 2010 for Rs.20.00 crores and
(b) donation of Rs.20.00 crore received by Prerna Education Society from M/s. South West Mining Limited.24
These are the two issues, which have been referred by the Apex Court to the CBI for the purpos e of investigation. The point one relate to purchase and sale of land. What was purchased for Rs.40 lakhs was sold for Rs.20 Crores within four years of the purchase.
35. The purchase of land at lower price and sale at higher price by itself may not constitu te any offence in law.
But what is sought to be alleged is as to whether it has any linkage to the illegal mining activities.
36. Similarly, the second issue is as to the receipt of donation of Rs. 10 Croes by Prerana Edu cational Institution in which the accused are trustees. The rece ipt of donation also will not constitute any offence. But, wha t is alleged is as to whether there is any connection betw een the donation and the mining lease.
37. Based on the reference. the CBI has registered the FIR. The allegation in the complai nt are:
/ 25 that the accused No. 1 was Deputy Chief Minister when the accused Nos.2 to 4 pur chased the land to the extent of I acre:
that even after the land was sold to the accused Nos.2 to 4, the application for dc-
notification of land was made on behalf of the vendor;
that the accused No.1 was in office as Chief Minister when the land was dc-not ified, hence he has abused power and position to favour his kith and kin;
that the transfer of land after the final notification under Section 19 of BDA Act is violative of provisions of Section 4 of the Karnataka Land (Prohibition of Transfer) Act, 1991 and is punishable with pun ishment upto 3 years or fine:
that the sale of land after it was converted to non-agricultural (residential) use to M/s. J.S.W. Ltd. for Rs.20 Crores is to favour M/s. J.S.W. to sell the iron ore and for grant of mining lease;
that the payment of donatio n of Rs. 10 Crores from M/s.J.S.W.Ltd. in favour of Prerana 26 Educational Institution in which the accused are trustees, when the profit of M/s. J.S.W.Ltd. was only 5 Crores and odd only.
38. Before considering the merits of the case let me consider the law on this point. The Five Judges Bench of Apex Court had considered the scope and ambit of grant of anticipatory bail in the matter of GURBAKSH SINGH SIBBU Vs. STATE OF PUNJAB ((1980) 2 SCC 565). The said decision is followed and considered in a decision reported in (2011)1 SCC 604 in the matter of SIDHARAM SATLINGAPPA MEHTRE Vs. STATE OF MAHARASHTRA AND OTHERS.
39. In SIDHARAM STALINGAPPA MEHTREs case the Apex Court considered the scope and object of the provisions of Section 438 of Cr.P.C. (referred supra) at para 14 observed as under: -
"14. It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in CrPC. was to recognize the importance of personal liberty and freedom in a free and democratic country. When 7 M 27 we carefully analyze this section. the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service he age-old principle that an individual is presumed to be innocent till he is found guilty by the court."
The aspect of personal liberty was also considered by the Apex Court inter alia observing as under:
36. All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why '1iberty is called the very quintessence of a civilized existence.
xxx
54. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the 28 State hut an essential requirement of any civilized Society.
The Aptx Court. while considering the objecs of Article 21 of the CoiistituUori has observed as under:
"6I. The object of Article 21 is to prevent eII(roa(lnIIcnt upon personal liberty in any ilcinner. Article 21 is repository of all human rights essential for a person or a citizen. A fruitful and meaningful life presupposes full of c1inity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, a cl if possible to non-citizens. While invoking the pr visions of Articlc 21. and by referring to the oI quoted statement of Joseph Addision, "Better 1o die ten thousand deaths than wound my honour". the Apex court in Khedat Mazdoor Chetana Sangath v. State of MP. and Others (1 J94) 6 5CC 260 posed to itself a question "If dignity oi honour vanishes what remains of life?"
This is the significance of the Right to Life and N sonal Liberty guaranteed under the C nstiiiition of Indhi in its third part."
R'rsonal liberty is a very precious fundamental right 1 ii should he curtailed only when it becomes 29 imperative ac (ording to the peculiar facts and circumstances of the ease. i nooubt cdlv. personal liberty guaranteed under Article 21 in hiprer III of the Constitution is very important fundan iental right. However, all fundamental rights are not absolute. They are all subject to reasonable restrictions. The accuseb in criminal case ihr the offence committed, cannot claim liberty a- an absolute fundamental right.
4 1. In order to invoke the provisions of Section 438 of Cr.P.C. a wise exercise of judicial power inevitably take care of the evil consequences. which are likely to flow out of its intemp rate lNv. Eve kind of judicial discretion, whatever may be the nature of tile matter in regard to which it is required to he exercised. has to be used with due care and caution
42. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. To consider personal liberty as against interest of the Society, the Apex Cour has stated certain parameters, which are required to be eonsiderecl while exercising judicial discretion 30 in the matter uf rant of anticipatory bail at para 112, in SIDHARAM'S case (supra) which reads thus:
"The following factors and parameters can be taken into consideration while dealing with the ant icipatorv bail:
I. '[he nature and gravity of the accusation and the exact role of the accused must be properly emprehended before arrest is made:
ii. The anteeedents of the applicant including he fact. as to whether the accused has previously undergone imprisonment on ('onVlcti( cii by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee lromjusiire:
hr. The possibility of the accused's likelihoc 1 .0 repera. similar or the other offences;
v. Where the accusations have been made only with the object of injuring or humiliating the applicant arrest in him or her:31
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern:
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment. humiliation and unjustified detention of the accused:
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of 32 genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events. the accused is entitled to an order of baiL"
Similarly, the Constitutional Bench of the Apex Court in GURBAKSH SINGH VS. STATE OF PUNJAB (AIR 1980 SC 1632), has observed at Para No.3 1 as under:
"In regard to anticipatory hail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made. On the other hand, if it appears likely considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides: and, equally, that 33 anticipatory bail must he granted if there is no fear that the applicant will abscond."
43. In the light of the principles stated in the decision of SIDHARAM's case, let me consider the case of the prosecution. To consider the nature and the gravity of the accusation and the exact role played by the accused, it is necessary to consider the complaint.
44. The complaint filed by the CBI for registration of FIR is based on the CEC recommendation. The complaint discloses that, the land measuring 1. 12 Acre of land in Sy. No.55/2 of Rachenahalli Village was one of the lands proposed to be acquired under the preliminary notification dated 3.2.2003 was issued under Section 17 of the BDA Act. The final notification under Section 19(1) of the Act was issued on 23.02.2004. The first sale deed in respect of 20 guntas out of the 1.12 Acre of land was executed by the General power attorney holder of the owner of the said land on 22.03.2006 in favour of Vijayendra and R.N. Sohan Kumar the accused Nos.3 and 4. The second sale deed in respect of another 20 guntas of land was executed on 21.04.2006 in 34 favour of B.Y. Raghavendra the accused No.2. After the sale, the General Power of Attorney holder of the land owners made an representation to the BDA on 13.09.2008 for de notification of the land to the extent of 1 Acre purchased under the said two sale deeds. BDA recommended for de notification stating that, the award In respect of the land has not been passed and possession of the said land has also not been taken by the BDA. as such there was no Impediment for dc-notification of the said land. When accused No.1 was In office as a Chief Minister to favour his kith and kin he, without placing the matter before Dc-notification Committee has approved the said land for dc-notification. Thereafter, on 03.11.2008, the said land was deleted from the acquisition.
45. As far as the deletion of land from land acquisition Is concerned, In ordinary course, if possession of the land was not taken, under Section 48 of the Land Acquisition Act, 1894, power Is conferred on the State Government to dc-notify the land. The accusation In the FIR Is that the accused No.1 was the Deputy Chief Minister of Karnataka when his two sons and son-In-law referred to above purchased the above said 01 Acre of agricultural land 35 and was the Chief Minister when he decided to be dc-notified the land from acquisition. permitted for conversion from agriculture to non-agriculture (residential) purpose and the sale of the very same land to M/s. South West Mining Limite d for Rs.20 crores, Thus, it is alleged that Section 3 of the Karnataka Land (Restriction on Transfer) Act. 1991 prohibits sale etc. of the lands acquired by the Government under the Land Acquisition Act, 1894, or any other law providing for acquisition of land for a public purpose.
46. The next allegation is the violation of the provisions of Section 79-A( 1) of the Karnataka Land Reform s Act, 1961, which provides that no person who or a family or a joint family which has an assured annual income of not less than Rs.2 lakhs from sources other than agricultural land shall be entitled to acquire any land (agricultural). The said land. being agricultural laud in the year 2006, was purc hased in violation of the provisions of Section 79-A(1) and is liable to be transferred to the State Government as provided under Section 79-A(5) of the Karnataka Land Reforms Act. 36
47, As far as allegation of violation of Section 79-A(1) Karnataka Land Reforms Act is concerned, it does not constitute any offence except the land is liable to be transferred to the Government. as a consequence of violation.
48. The further accusation is that the then Chief Minister of Karnataka took the decision for dc-notification of the said land by bypassing the examination of proposal by Dc-Notification Committee and its considered views. The said procedural lapse, is very critical particularly considering that the actual beneficiaries of the decision were the close relatives of the then Chief Minister and who were able to make windfall profit.
49. The further accusation is that the senior officers of the State Government have apparently preferred to remain as silent spectators and appear to have given a complete go by to the implementation of the relevant Acts, procedure and also appear to have completely ignored public interest.
50. The further accusation is that the subsequent sale of the said land to M/s. South West Mining Limited 37 prima facie involve serious violations of the relevant Acts and procedural lapses and prima facie misuse of office by the then Chief Minister of Karnataka thereby, enabling his close relatives to make windfall profits and raises grave issues relating to undue favour, ethics and morality.
51. The further accusation is that M/s. Jindal Group is recipient of large quantities of illegally mined material and undue favour was shown by accused No.1 to them in respect of the mining lease of M/s. MML.
52. The accusation in respect of second issue pertaining to donation of Rs.20 crore received by Prerna Education Society from M/s. South West Mining Limited is that, during the year 2OO9-2O1O, the net profit (after tax) of the said Company was only Rs.5.73 crores. Details of the other donations made by the said Company or by the other Jindal Group Companies to any other Trust / Society not owned, managed or controlled by the Jindal Group, shows that M/s. JSW Steel Limited had received large quantities of illegal mineral and alleged undue favour shown to it in 38 respect of the extraction / supply of iron ore by / to it from the mining lease of MIs. MML.
53. No doubt, the further investigation is required to find out any link between the supply of mining material and the consideration amount paid in the sale deed.
54. What is sought to be investigated is the linkage between the receipt of sale consideration and the receipt of large quantity of minerals by Mis JSW Steel Ltd., Similarly linkage between the receipt of donation of Rs. 10 Crores from MIs JSW Steel Ltd., and the undue favour if any shown by the accused No.1.
55. C.B.I. has to Investigate linkage with the any Illegal mining lease.
56. No doubt economic offence touching the natural wealth is serious offence. and no guilty should remain un punished. AT the same time the person is deemed to be innocent till his is proved to be guilty. If the material reveal that the grave offence is committed. the accused may not be If.
39entitle for discretionary relief of bail. It is in context the gravity and the nature of offence and exact role played by the accused becomes relevent.
57. Learned Special Public Prosecutor for C.B.I, had submitted that the accused being chief minister has violated the oath of his office and not entitle for protection under constitution. Only on the bases of allegation in the FIR, one can not come to the conclusion that the accused has committed an offence. The allegation must Prima-fade constitute an offence, and must be supported by materials. At this stage it is only allegation, based on suspicion. In the entire complaint not one instance favouralism is shown. However only allegation are made.
58. The Second limb of argument of the Special Public Prosecutor was, that the accused must show that the allegation in the complaint are false.
59. In GURUBAKSH SING'S case at Para 31, the Apex court has held that, the accused need not show the malafides in the complaint for seeking bail. Bail application 40 has to be decided on the bases of facts and circumstances of each case.
60. The allegation in the complaint forms two par ts;
(1) relating to purchase of land, de-notification conversion and sale at higher price, in viola tion of Section 3 of Karnataka Land (Prohibition of Transfer) Act, 1991 and Section 79A of the Karnataka Land Reforms Act.
As far as violation of Section 3 of Karnataka Land (Prohibition of Transfer) Act, 1991 is concerne d, it is punishable with imprisonment upto 3 years or fine.
And violation of 79A of Karnataka Land Refo rms Act is concerned, it does not constitute any offence, hut it may result in transfer of land to the State as a consequence.
(a) The other allegation is the abuse of power and position as Deputy Chief Minister and Chie f Minister in the matter of dc-notification.
<-7 41
61. In regard to the dc-notification, certain facts have been placed before this Court viz.
(1) The BI)A had proposed to acquire total extent of land measuring 3339 acres.
(2) However, several landowners had approached this Court against the acquisition proceedings. (3) That the Division Bench of this Court in WA No.2624/2005 and several other connection matter, by its order dated 25.11.2005 had permitted certain class of owners to apply for deletion of their lands from the acciuisition proceedings. The relevant portion of the order reads as under:
"(I) All the petitioners, who are the land owners, who are seeking dropping of the acquisition proceedings in so far as their respective lands are concerned, on the ground that : (a) their lands are situated within green belt area : (b) they are totally built up; (c) properties wherein there are buildings constructed by charitable, educational and/or religious institutions (d) nursery lands: (e) who have set-up factories (f) their lands are similar to the lands which are adjoining their lands but not notified for acquisition at all, are permitted to make appropriate application to the authorities 42 seeking such exclusion and exemption and producing documents to substantiate their contention within one month from the date of this order"
(4) That out of total land proposed for acquisition was measuring 3339 acres, ultimately the BDA could acquire only 2750 acres.
(5) That nearly 589 acres of land was deleted from the purview of the acquisition.
(6) 1 acre land is also de--notified in pursuance of an application filed in 2006 by the GPA for the owners. Now it is for the CBI to find out as to the exten t of abuse of power by accused No.1 when several land s appears to have been de-notified before he assumed his office or the land in question is also one similar fallin g in the category of class of lands which were perm itted to seek for deletion from acquisition as per the orde rs of this Court.
62. The allegation that the accused have committed the offence punishable under Section 409 and 420 of IPC is concern, the learned senior counsel for the petitioner 43 contended that there is no entrustrnent of property nor the accused No. us a trustee to attract provisions of Section 409 of IPC,
63. The Apex Court in common cause case reported in (1999)6 S.C.C. page 667 has observed at Para 159:
"These observations indicate that the Court was of the opinion that a person on being elected by the people and on becoming a Minister holds a sacred trust on behalf of the people. This, we may venture to say. is a philosophical concept and reflects the image of virtue in its highest conceivable perfection. This philosophy cannot be employed for determination of the offence of "Criminal breach of trust" which is defined in the Indian Penal Code. Whether the offence of "Criminal breach of trust" has been committed by a person has to be determined strictly on the basis of the definition of the offence set out in the Penal Code to which we would advert a little later.
64. Further, the Minister exercises his function under the allocation of rules of the business of the State, such functions do not create trust nor the minister become the trustee of the State.
44
65. The observation of the Apex Court at Para 163 reads as under:
'Election to the State Legislature or the House of the People are held under the constitution on the basis of adult suffrage. On being elected as a Member of Parliament. the petitioner was inducted as Minister of State. The Department of Petroleum and Natural Gas was allocated to him. Under the allocation of business rules, made by the President of India. the distribution of Petroleum products, inter alia, came to be allocated to the petitioner. This allocation of business under the constitution is done for smooth and better administration and for more convenient transaction of business of the Government of India. In this way, neither a trust", as ordinarily understood or as defined under the Trust Act, was created in favour of the petitioner nor did he become a "trustee" in that sense.
66. To attract the provisions of Section 409 of IPC, there must he trust, and trust must be entrusted with the property.
67. In this case the land proposed to be acquired was denotified on the basis of an application, under Section 48 of Land acquisition Act. Government has a power to denotify the land from acquisition if the possession of the land is not 45 taken. Even the exercise of power is illegal that by itself may not attract the provision of the section 409 of IPC. The property belonging to someone must have been entrusted to the accused, that entrustment creates trust. Prima-fttcie no such allegation of entrustment of property. The Apex Court in Common case has considered this aspect. as to what is entrustment of property at Para 168 and 170 which reads as under:
168:
"A trust contemplated by Section 405 would arise only when there is an entrustment of property of dominion over property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The entrustrnent of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of confidence reposed and accepted by the owner. This is what has been laid in State of Gujarat Vs. Jaswantlal Nathalal. In Rashmi Kumar Vs. Mahesh Kumar Bhada the essential ingredients for establishing the offence of Criminal breach of trust, as defined in Section 405, have been spelt out as follows: (SCC pp.406-07. para 13) "(i) entrusting any person with any dominion over property:
(ii) the person entrusted dishonestly misappropriating or of that property or wilfully suffering any other person so to do in trust is to be discharged, or of any legal contract made touching the discharge of such trust."46
170:
"The expressions "entrusted with property" and "with any dominion over property" used in Section 405 came to be considered by this Court in CBI Vs. Duncans agro Industries Ltd., and the view earlier expressed was reiterated. It was held that the expression "entrusted" has wide and different implication in different contexts and the expression "trust" has been used to denote various kinds of relationships like trustee and beneficiary. bailor an d bailee, master and servant, pledger and piedgee."
Prima-facia reading of the CEC recommendation and the allegation in the complaint there is no allegation of entrustment of property in favour of the accused. Further the land acquired under the land Acquisition Act vest in the state only when the possession is taken.
68. In so for as offence punishable under section 420 of IPC. Prima-facia no where it is alleged that the accused have cheated.
69. Further against the very accused, similar allegations were made in PCR No.2/2011. In which this court considering the gravity and the nature of accusation has granted anticipatory bail.
47
70. For the purpose of appreciation, relevant portion of allegation in the private complaint is referred to as under:
2, The complainant respectfully submits that after the issuance of Preliminary Notification dated 03.02.2003, Sri. S. N. Krishnaiah Setty (A--
5), the then Member of Legislative Assembly got registered a General Power of Attorney executed in his favour on 26.04.2003 in respect of 26 guntas of land in Sy No.55/2 belonging to Smt. Gowramma and another and on the same day got another Power of Attorney executed in his favour in respect of another 26 guntas in Sy.No.55/2 belonging to Mr. Panduranga and others. The complainant most respectfully submits that, after initiating the acquisition proceedings, as early as on 03.02.2003, the 5t11 accused in his capacity as a Public Servant had ventured to act in total violation and contravention of Sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act, 1991.
3. The 5th accused had ventured to register a Sale Deed on 22.03.2006 in favour of A-2 () and A-40, which has been registered as Document No. 1343/06--07 in the Sub Registrar Office at K. R. Puram, Bangalore of land belonging to Smt. 48 Gowramma and Smt. Leelavathi admeasuring 20 guntas in Sy.No.55/2, Rachenahalli Village for a sale consideration of Rs .20,00,000/ - (Rupees Twenty Lakhs only). Again on 2 1.04.2006 the 5th accused had ventured to register a Sale Deed on 21.04.2006 in favour of A-3 which has been registered as Document No.2401/06-07 in the Sub Registrar Office at K. R. Puram, Bangalore of land belonging to Mr. Panduranga and others in Sy. No.55/2, Rachenahalli Village admeasuring 20 guntas in Sv. No.55/2, for a sale consideration of Rs.20,00,000/- (Rupees Twenty Lakhs only).
4. That by the above said overt acts committed by A2 to AS not only violated the Provisions of Karnataka Land (Restriction & Transfer) Act, 1991 but A2 to A4 have also unlawfully become owners of 1 acre of land in Sy.No.55/2 of Rachenahalli Village which was already acquired by the Bangalore Development Authorities. It is a mystery as to how the erstwhile land owners have chosen to make as application on 13.09.2008 through their General Power of Attorney holder Mr. S. N. Krishnaiah Shetty (A-5) when he had already executed the Deed of Sale in favour of A-2 to A-4 as early as 22.03.2006 and 21.04.2006 as evident from Annexure -- "4 and 5".
49
5. In order to circumvent the procedure that the dc-notification can only be applied by the actual land owners. the fact of sale has been totally suppressed by A5 to the authorities, in order to induce the authorities by deceitful fraudulent and dishonest means so as to obtain an order of dc-notification to the kith and kin of Al. It is also in the knowledge of Al that the land in question was purchased by his kith and kin who are none other than A2 to A4. Thereby these overt acts of the accused would categorically come under the provisions of Section 415 and 420 of the IPC.
6. On 13.09.2008 the office of the Deputy Commissioner (Land Acquisition) Bangalore Development Authority forwarded a letter to the Principal Secretary to the Government, Urban Development Department stating that they are in receipt of the representation and on examination of record it is found that that Preliminary and Final Notifications have been issued as on 23.02.2004 but the award has not been passed and these facts are being brought to the notice of the Government for perusal.
7. However, since the Joint Secretary to the Chief Minister had sent a note to immediately 50 place the file before the Chief Minister for his perusal and orders, This is evident from the noting of the Under Secretary dated 18.10.2008. On the strength of the said note, the Joint Secretary and the Principal Secretary have submitted the file to the chief Minister with the Principal's Secretary's note that "Paras 1 to 4 for perusal. Para 4 for orders". Thus Al being aware of the purchase of the lands by A2 to A4 in order to favour them has bypassed the established procedure for dc-notification of lands.
8. After the order was passed by the Chief Minister, granting an order of dc-notification a Gazette Notification has been issued vide No. UDD/374/MNX/2008 dated 03.11.2008 de notiliing of land in Sy.No.55/2 of Rachenahalli Village measuring an extent of 1 Acre 12 Guntas in favour of Smt. Gowramma and Mr. Panduranga.
9. Bangalore development Authority and who had prepared the Draft Award in respect of the said land pertaining to the formation of Arkavathy Layout had converted the land from Agricultural status to non-agricultural Residential purpose within a period of 10 days in post haste in an unprecedented manner without even verifying the bona fides as to how the 'I. 51 appilcants are entitled for such type of conversion. The conversion order passed by the Special Deputy Commissioner.
10. The complainant respectfully submits that after conversion of land from Agricultural to Non Agricultural Residential purpose A2 to A4 sold their respective shares in the property of 1 acre in favour of M/s. South West Mining Ltd., for a sale consideration of Rs.20 Crores (Rupees Twenty Crores only) as seen from the two registered sale deeds bearing document Nos.5315/10-11 and 5316/10-11 dated 22.11.2010 in the Officer of the Sub Registrar, Banasavadi, Bangalore.
11. It would be pertinent to note that the accused persons entered into a criminal conspiracy during the year 2003 to 2010 and in furtherance of the same purchased the lands which were under acquisition by violating Sections 3 and 4 of the Karnataka Land (Restriction and Ttansfer) Act, 1991 resultIng in invoking the provisions of Section 9 of the said Act, and by the above said overt acts they had attracted the provisions of the SectIon 415 of the IPC and committed offence under section 420 of the IPC and fabricated records such as applications (Annexure-6) for dc-notification of 52 the lands for which they were no longer the owners of the said land and used the said applications fraudulently and dishonestly as genuine documents even though it was within their knowledge that they were no longer the owners of the said lands, thereby committed offence under section 471 of the IPC. The accused Al, A3 and A5 who are public servants during the period of conspiracy had committed the overt acts of criminal misconduct since they had committed various offences so as to attract the provisions of section 13(1)(d) of the Prevention of Corruption Act, 1988.
71. This court in Crl.p nO.5844/2011 after considering the allegation in the said complaint has passed the order granting the anticipatory bail. The accused who were subjected to the criminal proceeding on the bases of very similar obligation were granted with the anticipatory bail.
72. The changed circumstance in this case is that on the bases of CEC recommendation the C.B.l. has been asked to make further investigations. Except the change in the investigating agency, the allegation remains the same.
('j 53
73. From the above, prima fade it shows that, not only land involved in this case is deleted from acquisition. but large extent of lands were deleted from the preview of acquisition.
74. This Court in 2005 itself had permitted certain class of owners to apply for deletion of the lands from acquisition if they come under the parameters stated in its orders.
75. Further these accused had the benefit of the anticipatory bail order in a complainant of similar nature.
76. This Court while granting the order of anticipatory bail has observed that the entire matters involves the documentary evidence, and the anticipatory bail could be granted.
77. As far as the second issue is concerned, the CEC.. in its recommendation, has relied upon the Karnataka Lokayuktha report datd 27t11 July 2011. 54
78. Receipt of 10 Crore by way of donation by Prerna Education Society M/s J.S.W,Ltcl. is concerned, the CEC has relied on the report of the lokayukta dated 27th July 2011. The relevant portion of the CEC recommendation at Para 16 reads as under:
"After considering that a number of allegations, with supporting documents, have been made in the report dated 27tl July 2011 of Karnataka Lokayukta regarding the M/s JSW Steel Limited having received large quantities of illegal mineral and alleged undue favour shown to it in respect of extraction/supply of iron ore by/to it from the mining lease of M/s MML, it is recommended that this Hon'ble court may consider directions the investigating agency such as C.B.L to also look into linkage, if any between the above said donation of Rs. 10 Crores made by M/s South West mining Limited and alleged receipt of illegal minaral by M/s JSW Steel Limited and the alleged favour shown to it in respect of the mining lease of M/s MML."
79. The C.B.I. in its complaint also relies on the CEC recommendations at Para 4 of the complaint. There is no independent material as far as this issue is concern, it is based on the Karnataka Lokayukta Report. The CEC recommendation and the complaint both are based on the Karnataka Lokayukta Report dated 27 July 2011.
A' 55
80. However as far as Lokayukt a Report is concern along with the this criminal petition the petitioners hav e produced the copy of the ord er of the division bench of this court in WP No.4407/2011 dec ided on 7.3.2012, where in the accused No.1 had challenged the chapter 22 of the Karna taka Lokayukta report dated 27t1 July 2011, the sanction gra nted by the His Excellency Gover nor of Karnataka to prosecute the accused No.1 and the FIR registered in persuance the said sanction. This court has allowed the Writ petition and has quashed the chapter 22 of Karnataka Lokayukta Report dated 27th July 2011, sanctio n of the Governor and the FIR registered thereon, which rea ds as under:
'Writ. Petition is allowed.
The complaint dated 22.8.2011 (at Annex ure-A); FIR registered in Crime No.36/2011 for the offences under Sections 7. 8, 9 and 13(l)(d ) read with Section 13(2) of the Prevention of Corruption Act, 1988 (at Annexure-Al) on the file of respondent No.3;
the Order of Sanction dated 2.8.2011 (at Annexure-B) on the file of respondent No.4 and the relevant portion of the Re port at Chapter-XXII of the Karnataka Lokayukt a dated 27.7.2011 (at Annexure-C) on the file of the Karnataka Lokayukta are quashed."
CEC in its recommendation does not refers to any particu lar instance of receipt of large quantity of mineral and all eged undue favour shown by acc used No.1 to M/s JSW Ste el Ltd., 56 In turn it only suspects of linkage between the receipt of donation of Rs. 10 Crores and receipt of large quantity of the illegal mineral, for which it. recommends for investigation by C.B.I. to find out linkage if any.
81. There is no definite allegation of linkage nor any instances of favour shown by the accused No. 1 to M/s JSW Steel is alleged.
82. The learned Senior Counsel for the petitioner has submitted the lease to M/s.MML was granted in 2003 and sale of minaral to M/s JSW Steel Ltd., was a cabinet decision.
83. Though C.B.I. makes preliminary enquiry before registering the FIR, however the C.B.I. in its complaint also prima fade does not refer to any instance of favourism shown by the accused No.1. Allegation are based on the suspicious that the Accused No.1 might have. May be the Apex Court considering the various cases pending has directed the CBI to make comprehensive investigation, which will also help the entrepreneur, who are accused in the FIR. 57
84. There is no allegation in the CEC report and the C.B.I. complaint as to the exact role played by the accused No.1, but it is suspected that he might have shown undue favour, however, it is the matter for further investigation.
85. The Division Bench of this court has quashed the Lokavukta report and FIR registered on the basis of the same. however, it is not necessary to consider the effect of the quashing said FIR. But fact remains that the FIR registered on the basis of similar allegation has been quashed.
86. From the above Prima-facie it clear that, in respect of denotification and receipt of sale consideration from M/s JSW Steel Ltd.. this court had granted the anticipatory bail.
87. In respect of the second issue relating to receipt of donation of Rs. 10 Crores by Prerana Education institution form JSW Steel Ltd., This Court has quashed the Lokayukta Report sanction and FIR and very same report is relied by the CEC as well as the C.B.I. 58
88. Further when the accused had the benefit of orders by this court on similar allegation, just because different agency is investigating the matter, it may not be proper to deny the relief. C.B.I. has not contended that, the accused will flee from justice nor it is contended that the accused would tamper the prosecution evidence.
89. No antecedents are pointed out, however the only reason assigned for custodial interrogation is that the accused are not co-operating with the investigation, on the ground that the accused had given evagisive reply during the investigation. Except this no other reason is stated for custodial interrogation.
90. In turn, it is not in dispute that the C.B.I. registered the FIR on 15.5.2012 for more then one month from the date of registration of FIR the CBI has been conducting the investigation with out custody of the accused.
91. Investigation is to collection of evidence, the C.B.I. has to search for the evidence. The accused is not expected to reply the question in the manner the C.B.I. want, 59 nor accused could he compelled to admit. This goes contrary to the principles of fair investigation. And that can not be ground to seek for custody of the accused.
92. May be it is in this context, the Apex Court in its order of reference of investigation to C.B.I. has only directed all the parties to co-operated with investigation and furnish the information. Though by registration of FIR for cognizable offence, the investigating agency gets the power to arrest, that does not mean one must he arrested, object should not be that the accused having been arrested, such arrest only cause injury and humiliation. Even the Apex Court while referring the matter for investigation to C.B.I. has observed with "We direct all the parties, the Government of the States of Andhra Pradesh, Karnataka and all other government Departments of that and/or any other State, to fully cooperate and provide required information to CBI."
93. While considering the applications for grant of anticipatory bail, the court must balance between the personal liberty with societal interest. In this regard, it is 60 useful to refer to the decision reported in SIDHARAM's case. which reads "86. According to the report of National Police Commission. when the power of arrest is grossly abused and clearly violates the personal liberty of the people. as enshrined Lander Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest Vis-à-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court.'
94. Considering the above circumstances and the nature and gravity of the offence, the interest of fair investigation can be protected by imposing certain conditions.
95. There is no allegation of tempering of evidence of the prosecution. In fact the private complaint is registered much earlier to the C.B.I. registering the FIR and the accused has the benefit of the anticipatory bail, and there is allegation of tempering of the evidence.
61
96. It is not in dispute that, during the pendency of this matter, the CBI had summoned the accused for investigation, and the accused had appeared before the CBI and have been interrogated. It is also not in dispute that, without the custody of the accused for more than one month, investigation is conducted.
97. This Court While granting anticipatory bail in Crl.p No. 5844/2011 has observed as under:
"The allegations are based on documents available with the 1st respondent. The petitioners have been granted bail in PCR Nos.3/20 11 and 4/2011. The petitioner in CrLP. Nos.5844/2011 and 5845/2011 was the Chief Minister and the letitioner No.2 in Crl.P. No.5847/2011 is a Member of Parliament. The other petitioners are Directors of M/s. Davalagiri Property Developers Pvt. Ltd. They cannot flee away from justice. Apprehension, if any, regarding tampering of witnesses or evidence can be taken care of by imposing certain conditions."
Order of this court affirms that the allegations are based on documentary evidence and accused will not flee from justice and tamper the evidence.
62
98. Further the constitutional bench in the case of GURUBAKSH SING has observed that:
"If the accused are not likely to flee from justice and if there are no antecedents of the accused, not likely to commit similar offence, there custodial interogation results in injuly and humilities."
99. The accused No.1 was a Chief Minister if he is co operating with the investigation and without the arrest also the fair investigation is possible.
100. Even the Apex Court in SIDHARAM'S case also has observed as under:
"In cases where the Court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided."
101. Further the interest of the investigation agency can be well protected by imposing certain condition. This will 63 not only protect the personal liberty of the accused but also protect the societal interest.
102. The custody is sought only on the bases of allegation and if allegation are doubt fulithe custody of the accused could be avoided. As observed in SIDHARAM'S case (supra) "x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to he considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
103. Considering the entire case from point of parameters stated by the Apex Court in SIDHARAM'S case, I find that these accused could be granted the anticipatory bail.
104. All the observation made in this order are made only for the purpose of considering the bail application not to be treated as expressing any opinion on merit.
105. In the light of the above discussion, I find that the petitioners - accused could be granted anticipatory bail • 64 subject to stringent conditions, so that it would not affect the ongoing Investigation.
Accordingly, the petitions are allowed. In the event of arrest of the petitioners by the CBI Police in Crime RC.No.8(A)/2012-CBI/ACB/BLR/2012, the Police shall Interrogate them and after interrogation, the petitioners shall be released on ball subject to the following conditions:
I) Petitioners shall execute personal bond for a sum of Rs.2,00,000/- (Rupees two lakhs) each with two sureties eachfor the likesum to the satisfaction of theJurisdictional Police;
10 PetitIoners shall not leave Bangalore without the prior permission from the CBI, till the Investigation Is completed as the Investigation Is time bound Investigation.
Iii) Petitioners shall not tamper with the • prosecution witnesses or alter any evidence. 65 it') Petitioners shall cooperate with the investigation and shall appear bef ore the C.B.LPolice regularly as and when they are required for investigation.
In the event of the petitioners commit ting any default. it is open to (he CBL, to seek cancellation of anticipatory bail.
Sd,' tJDGL T sma