Karnataka High Court
Sri. Sunil Kumar Sharma vs The State Of Karnataka on 10 December, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.151/2020 (GM-RES)
BETWEEN:
SRI SUNIL KUMAR SHARMA
AGED ABOUT 43 YEARS,
S/O LAE D.P.SHARMA,
NO.3, PAROKUNJ, 7TH CROSS,
OPP.KARTHIK NETRALAYA,
BANGALORE 560 050. ... PETITIONER
(BY SRI.KIRAN S.JAVALI, ADVOCATE
A/W SRI.MOHAMMED MUJASSIN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF LAW,
THROUGH ITS PRINCIPAL SECRETARY,
VIDHANA SOUDHA,
BANGALORE 560 001.
2. THE INCOME TAX DEPARTMENT,
BY ITS DEPUTY DIRECTOR OF INCOME TAX (INV.)
UNIT 3(1), C.R.BUILDING (ANNEXE),
QUEEN'S ROAD, BANGALORE 560 001.
3. THE REGISTRAR GENERAL,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BANGALORE. ... RESPONDENTS
(BY SMT K.P.YASHODHA, HCGP FOR R1,
SRI.S.V.RAJU, ADDITIONAL SOLICITOR GENERAL
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A/W SRI.JEEVAN J, NEERALGI, ADVOCATE FOR R2,
SRI.PRASHANTH MURTHY S.G, ADVOCATE
FOR SRI.S.SRIRANGA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED GOVERNMENT ORDER NO.LAW10LCE 2018 DATED
08.02.2018 ISSUED BY RESPONDENT NO.1 VIDE ANNEX-A
AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THE
COURT MADE THE FOLLOWING:
ORDER
Though this matter is listed for hearing on IA.2/2020 for vacating the interim order of stay granted by this Court, yet, with the consent of the learned counsel appearing for the parties, main matter is taken up for final disposal.
2. Petitioner has challenged the Notification/Government Order No LAW 10 LCE 2018 (Annexure-A), whereby a Special Court has been constituted to try the cases involving MPs and MLAs, on the ground that the constitution of said court is contrary 3 to the directions issued in Writ Petition (Civil) No.536/2011.
3. The specific ground urged by the petitioner in para 17 of the petition reads as under:
"In this regard the Petitioner submits that the Respondent No.1 has wrongly exercised the power to establish a special court for the trial of offences committed by MPs and MLAs order 01.11.2017 in Writ Petition (Civil) No.699/2016 and directions vide order dated 01.11.2017 were issued to only produce the status report in compliance of order dated 10.03.2014 passed in Writ Petition (Civil) No.536/2011. Hence, the exercise of power by Respondent No.1 to issue impugned government order has been issued based on assumption and presumptions and without authority of law."
4. A reading of Annexure-A clearly indicates that the said notification/Government Order is issued pursuant to the order dated 14.12.2017 passed by the Hon'ble Supreme Court in Writ Petition (Civil) No.699/2016. The relevant portion of the order reads as under:
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"Insofar as issues 4 and 5 outlined in the order dated 1.11.2017 are concerned i.e. setting up of Special courts, a scheme, though, rudimentary at this stage, has been placed before the Court the essence of which is that based on certain calculations and perspectives with regard to the time that would be taken to dispose of the 1581/1571 cases presently pending against the elected MPs/MLAs, the Union of India proposes to set up 12 Fast Track Courts combining several State(s) in respect of which jurisdiction will be exercised by one Special Court. The aforesaid Scheme has been planned as a tentative measure and it is stated at para 9 of the Additional Affidavit of the Union of India that once the further information is collected in respect of queries 1, 2 and 3, the Scheme may be suitably modified."
5. In the said order, the Union was also directed to earmark the required expenditure for setting up of 12 Courts and immediately after allocation was made, the State Governments in consultation with the High Courts were directed to set up Fast Track Courts (12 in all) to ensure that said Courts start functioning from 1.3.2018. Therefore, the very basis of the challenge placed by the petitioner being contrary to the order of the Hon'ble 5 Supreme Court, the writ petition is liable to be dismissed solely on that score.
6. In the course of arguments the learned counsel for petitioner has referred to the order dated 4.12.2018 passed by the Hon'ble Supreme Court in the above proceedings and pointed out that the Hon'ble Supreme Court has observed that "instead of designating one Sessions Court and Magisterial Court in each District we request each High Court to assign/allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as each High Court may consider proper, fit and expedient."
7. Based on this observation, the learned counsel would submit that the intention of the Hon'ble Supreme Court was to constitute as many as Magisterial Courts as well as Sessions Courts for trial of cases involving the former and sitting legislators, therefore, a direction be issued to the State Government to constitute the 6 Magisterial Court as Special Court to try the cases involving former and sitting legislators.
8. This prayer, in my view, is beyond the scope of the petition and contrary to the directions of the Hon'ble Supreme Court. The various orders issued by the Hon'ble Supreme Court from time to time disclose that the monitoring of the Special Courts is seized by the Hon'ble Supreme Court. Under the said circumstance, if any further direction is required for the purpose of constitution of any additional court, it is always open for the petitioner or any other person to seek appropriate direction from the Hon'ble Supreme Court. Petitioner cannot seek such a direction from this Court on the guise of challenging the Order issued by the State Government constituting the Special Courts pursuant to the direction issued by the Hon'ble Supreme Court. As a result, the petition is liable to be dismissed.
9. The learned Additional Solicitor General for respondent No.2 made his submission based on the 7 powers of the High Court to constitute the Special Courts under Section 407 of Cr.PC and Article 227 of the Constitution of India and has relied on the following decisions of the Hon'ble Supreme Court;
1. KAMLESH KUMAR AND OTHERS vs. STATE OF JHARKHAND AND OTHERS, (2013) 15 SCC 460 (paras 17, 21 & 30).
2. ASIAN RESURFACING OF ROAD AGENCY vs. CENTRAL BUREAU OF INVESTIGATION, (2018) 16 SCC 299 (paras 30, 34 & 37),
3. STATE (THROUGH CENTRAL BUREAU OF INVESTIGATION) vs. KALYAN SINGH & ORS., (2017) 7 SCC 444 (para 28),
4. P.C.GULATI vs. LAJJA RAM, AIR (1966) SC 595 (para 25),
5. BALBIR vs. STATE OF HARYANA, (2000) 1 SCC 285 (para 11),
5. STATE OF ANDHRA PRADESH vs. CHEEMALAPATHI GANESWARA RAO, AIR (1963) SC 1850 (para 25).
10. However, as the learned counsel for the petitioner has confined his submissions only on the 8 power of respondent No.1 to establish the Special Court in terms of the direction dated 1.11.2017, these issues are not answered.
The petition is dismissed. Consequently, the pending IAs stand disposed of.
Sd/-
JUDGE nd