Karnataka High Court
Sri H D Kumaraswamy vs State Of Karnataka on 8 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL PETITION No.1983/2012
BETWEEN:
Sri.H.D.Kumaraswamy,
S/o Sri.H.D.Devegowda,
Aged about 53 years,
Former Chief Minster and
Present Member of Parliament,
Residing at No.286, 3rd Main Road,
3rd Phase, J.P.Nagar,
Bangalore-560 078. ....Petitioner
(By M/s. Hashmath Pasha & Associates , Advocates)
A N D:
State of Karnataka,
By Lokayukta Police,
Bangalore City,
M.S.Building,
Bangalore.
(Represented by Learned
Public Prosecutor of Lokayukta) ...Respondent
(By Smt.Gayathri, Advocate)
This Criminal Petition is filed under Section 438
Cr.P.C. praying to release the petitioner on anticipatory
bail in the event of his arrest in Crime No.2/2012 of
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Lokayukta Police, Bangalore City, for the offences
punishable under Sections 120-B, 406, 420, 463, 465,
468 and 471 of IPC and Sections 13 (1) (d), 13 (1) (e)
and 13 (2) of Prevention of Corruption Act and Sections
3 and 4 of Karnataka Land (Restriction of Transfer) Act
read with Section 34 of IPC, which is on the basis of
referred order passed under Section 156 (3) of the Code
of Criminal Procedure in PCR No.30/2011 on the file of
the Hon'ble Special Court for Prevention of Corruption
Act, Bangalore City.
Reserved on : 31.05.2012
Pronounced on : 08.06.2012
This Criminal Petition having been heard and
reserved for orders, coming on for pronouncement of
order this day, the Court made the following:
ORDER
This petition is filed under Section 438 of Cr.P.C. seeking relief of anticipatory bail.
2) Petitioner, the former Chief Minister of the State of Karnataka, apprehending his arrest in connection with the case in Crime No. 2/2012 of Lokayuktha Police, Bangalore City, registered for the offences punishable under Sections 13(1)(d), 13(1)(e) r/w. 13(2) of Prevention of Corruption Act (for short, 'PC Act') and Sections 406, 420, 463, 465, 468, 471, 120-B 3 of IPC and Sections 3 & 4 of the Karnataka Land (Restriction of Transfer) Act (for short, 'KL(RT) Act'), has presented this petition seeking relief of anticipatory bail.
3) One M.S. Mahadevaswamy, resident of Santhemaranahalli in Chamarajanagar Taluk and
District, claiming to be an agriculturist and also social worker, interested in corruption free/nepotism free society, on the basis of certain documents said to have been secured by him from the public offices under the Right to Information Act, presented a private complaint under Section 200 of Cr.P.C., before the Special Court constituted under P.C. Act for Bangalore Urban District alleging the aforesaid offences against this petitioner arraigned as Accused No.1 and also 3 others.
4) In brief, the allegations made in the complaint are that one A.V. Ravi Prakash and A.V. Sriram, sons of Dr. A Venkatram, arraigned as Accused Nos.3 & 4 in the complaint, were the erstwhile kathedars 4 of the land bearing survey No.87/4B of Thanisandra Village, K.R. Puram Hobli, Bangalore East Taluk, measuring 3 acres 8 guntas. The Government of Karnataka, way-back in the year 2003 formulated a scheme known as Arkavathi Lay-out for formation of residential sites and for the implementation of the said scheme, several lands in and around Thanisandra and neighbouring villages were notified for acquisition under Preliminary Notification dated 03.02.2003 and Final Notification dated 23.02.2004. The land bearing Survey No.87/4B of Thanisandra Village owned by Accused Nos. 3 & 4 was also one of the lands which were subject of the acquisition. Accused Nos. 3 & 4 filed their objections to the preliminary notification and sought for dropping of the land from acquisition. However, their objections were not accepted and final declaration was issued and later award came to be passed. Thereafter, by serving notices as required under Sections-11 & 12 of the Land Acquisition Act ( for 5 short, 'LA Act') on Accused Nos. 3 & 4, possession of the aforesaid land and other lands were taken by the officials of the Bangalore Development Authority (for short, 'BDA' ) on 10.11.2004 under mahazar and was handed over to the Engineering Division for forming the residential layout. Thereafter, the lay-out was formed, applications for allotment of sites by the needy citizens were called for by the BDA and after scrutiny of the applications, the sites were allotted to various eligible applicants. Out of land in Survey No. 87/4B, 57 sites were formed and out of those 57 sites, 44 sites were allotted to different persons and lease-cum-sale agreements were executed in their favour and the same were registered in the offence of the jurisdictional Sub- Registrar in the months of August and September, 2006 and February and March, 2007. The allottees were also put-in possession of the sites allotted. Accused No.2, who was a Cabinet Minister in the Government headed by Accused No.1 appears to have given a representation 6 on 12.04.2007 to Accused No.1, recommending de- notification of the land bearing Survey No. 87/4B, though there was no representation from the kathedars before the competent authority, Accused No.1 on receipt of such representation from Accused No.2, directed the secretarial staff to process the same and put-up records. A report from the BDA was secured, which indicated that the possession of the land has been taken over and handed over to Engineering Division for formation of sites, but however, notification under Section 16 (2) of the LA Act has not been issued. Though the Urban Development Department ordered for placing of the file before De-notification Committee, Accused No.1 by directing the files to be placed before him, ordered de- notification of the aforesaid land by his order dated 24.09.2007 though the file had not been placed before the De-notification Committee. Pursuant to such order passed by Accused No.1, a notification was issued and published in the Official Gazette. It is further alleged in 7 the complaint that Accused No.1 with the aid and assistance of other accused persons with an intention and common mind to achieve the goal and also to share benefits, has illegally de-notified the land, though much prior to the date, the possession of the land had been taken over, sites had been formed and allotted to various persons. It is further alleged in the complaint that the act of de-notifying the land in question was for their (Accuseds') pecuniary and personal gain and for unjust enrichment. Accused No.1 being a person placed in the highest administrative post as Chief Minister of Government of Karnataka, Accused No.2 being a cabinet rank minister in the cabinet headed by Accused No.1, which are offices of trust and having taken oath, have misused the trust in order to fulfill their personal goal with the aid and assistance of Accused Nos. 3 & 4. Thus, the acts committed by Accused No.1 is a clear act of criminal breach of trust and by ordering de-notification of the land in question, which had vested in the State. 8 Accused No.1 has caused loss to the State Ex-chequer to the tune of several crores of rupees and also has caused loss to the BDA, which had spent substantial amount for formation of sites in the land in question. Therefore, the complainant sought for taking cognizance of the offences alleged and to deal with the accused persons in accordance with law.
5) Learned Special Judge, before whom the complaint was presented, by an order dated 02.01.2012 referred the complaint to the Superintendent of Police, Lokayuktha, Bangalore Urban District, under Section 156(3) of Cr.P.C. for investigation and to submit a report. Pursuant to such reference, Lokayuktha Police, Bangalore City, registered the case in Crime No.2/2012 for the aforesaid offences and took-up investigation.
6) According to the petitioner, on 09.04.2012, he received a written notice from the Investigating Officer calling upon him to appear before him and to give 9 explanation to the charges levelled against him and on receipt of said notice, the petitioner apprehending his arrest by Lokayuktha Police in connection with the aforesaid case registered for the non-bailable offences, presented this petition under Section 438 of Cr.P.C., seeking relief of anticipatory bail. It was later reported that after completing investigation, the Investigating Officer has filed charge sheet under Section 173(2) of Cr.P.C. for offences punishable under Sections 13(1)(d), 13(1)(e) r/w. 13(2) of PC Act and Sections 406, 402, 463, 465, 468, 471 and 120B of IPC and Sections 3 & 4 of KL(RT) Act r/w. 34 of IPC before the Special Court against this petitioner and three others.
7) The petition is opposed by the Respondent- Lokayuktha Police inter alia contending that at this stage there are reasonable grounds to believe that the petitioner is guilty of the aforesaid offences and having regard to the nature and gravity of offences alleged, the petitioner is not entitled for the relief of anticipatory bail. 10 Therefore, the respondent sought for dismissal of the petition.
8) After hearing both sides, this Court on 20.04.2012 granted interim anticipatory bail directing the respondent-Lokayuktha Police to release the petitioner on bail in the event of his arrest in connection with the aforesaid case, subject to conditions contained therein.
9) At the hearing of petitioner, de-facto complainant represented through his counsel, sought to implead himself as party-respondent to this petition and sought permission to address argument. Without going into the question as to whether or not, the de-facto complainant has a right in law to participate in the proceedings of this nature and in the interest of justice, the counsel representing the de-facto complainant was permitted to address arguments supplementing the 11 arguments of learned counsel appearing for the Respondent-Lokayuktha.
10) I have heard Sri. Hashmath Pasha, learned counsel appearing for the petitioner and Smt. Gayathri, learned counsel appearing for the Respondent- Lokayuktha. I have perused the records made available.
11) Before considering the merits of the petition, it is necessary to note that after filing of the charge sheet by the Investigating Officer before the Special Judge, the learned Special Judge on 21.4.2012 took cognizance of the offences alleged and ordered issue on of summons to the petitioner and other accused persons. It is reported before this Court that though the petitioner arraigned as Accused No.1 did not appear before the learned Special Judge on the first date of hearing and sought exemption, later, he appeared before the learned Special Judge on 31.05.2012 and executed self-bond and furnished one 12 surety as per the terms of the interim anticipatory bail order dated 20.01.2012 granted by this Court.
12) Learned counsel for the petitioner submitted as under:-
Perusal of the materials available on record, at this stage, does not prima facie establish that the petitioner is guilty of any of the offences alleged; that the perusal of the office note before the order of de- notification passed by this petitioner, would clearly indicate that the request for de-notification was pending for couple of months and the petitioner as Chief Minister, before exercising his discretionary power under Section 48 of the LA Act, directed verification of the records and putting-up a report and since it was reported that the notification as required by Section 16(2) of the LA Act, which is a conclusive proof as to the taking of possession of the land acquired has not been issued, led the petitioner to come to the conclusion that the possession of the land has not been taken, as such, 13 the power under Section 48 of the LA Act could be exercised and consequently in exercise of that power, the petitioner has passed an order de-notifying the land in question. This being an order passed in the administrative jurisdiction of Chief Minister, in the absence of any evidence to indicate that such exercise of power was for the extraneous consideration or was for pecuniary advantages, it cannot be said that the petitioner is guilty of any of the offences alleged. From the materials on record it is clear that, the fact of allotment of sites to various persons and execution of lease-cum-sale agreements had been suppressed and the petitioner appears to have been mislead by the officials concerned, therefore, no mala fide can be attributed to the petitioner in passing the order of de- notification; that there are no reasonable grounds to believe that the order of de-notification came to be passed as a consideration for any pecuniary advantage, therefore, at this stage, there are no reasonable grounds 14 to believe that petitioner is guilty of any of the offences punishable under P.C. Act or Indian Penal Code as alleged in the charge sheet.; that filing of the charge sheet and the Special Court taking cognizance of the offences alleged, has not taken away the jurisdiction of this Court for exercising power under Section 438 of Cr.P.C.; The petitioner has reasonable apprehension of his arrest in connection with the case now registered, pursuant to the charge sheet filed by the Investigating Officer and therefore, his personal liberty is required to be protected. It is his further submission that the fact of the petitioner appearing before the learned Special Judge pursuant to the summons issued by him and his execution of the self-bond with one surety pursuant to the interim anticipatory bail granted by this Court, has not in any way rendered the prayer made in this petition infructuous, since the apprehension of his arrest still continues and in the event of refusal to grant anticipatory bail, there is every likelihood of the Special 15 Court directing the custody of the petitioner. It is his further submission that, since the investigation is already over and the charge sheet has been filed before the jurisdictional Court, the custodial interrogation of the petitioner is not warranted and having regard to the facts and circumstances of the case and the nature of the allegations against this petitioner and since the petitioner is no more in power, there is no chance of this petitioner tampering with any evidences nor he could threaten the witnesses, since all the material witnesses are officials working in the Government. He further contended that the petitioner has been falsely implicated in the case in the light of the political ill-will and since the petitioner is a former Chief Minister of the State and now is a Sitting Member of the Parliament, in the event of his arrest, he would be subjected to great ignominy and humiliation and therefore, the petitioner is entitled for the relief of anticipatory bail and the petitioner would 16 undertake to abide by all the conditions that may be imposed by this Court.
13) On the other hand, Smt. Gayathri, learned counsel for the respondent-Lokayuktha contended that there is no basis for the apprehension on the part of the petitioner about his arrest, since during the entire period of investigation, there was no attempt made by the Investigating Officer to arrest the petitioner and there was no intention on the part of the Investigating Officer to arrest the petitioner, as is evident from the very written notice issued by the Investigating Officer to the petitioner to appear before him to give explanation and subsequently, upon completion of the investigation, charge sheet has been laid and the learned Special Judge after taking cognizance of the offences has merely ordered issue of summons and not warrant, therefore, there is absolutely no basis for the apprehension of the petitioner that he is likely to be arrested. She further contended that since the petitioner has already appeared 17 before the learned Special Judge and thereby subjected himself to the jurisdiction of the Court, this petition has become infructuous and therefore, it is liable to be dismissed. It is her further contention that, perusal of the materials available on record prima facie would indicate that there was a conspiracy between the petitioner and other accused persons and in furtherance of the said conspiracy and with a view to make unlawful enrichment, the petitioner ordered de-notification of the land in question, though it was reported that the possession of the land has already been taken and sites have been formed. According to the learned counsel, this act on the part of the petitioner was for an extraneous consideration to make unlawful gain and it also amounts to criminal breach of trust on the part of the public servant, who was entrusted with the duty of protecting the property belonged to the State. She further contended that the very notings in the file would indicate that the petitioner proceeded to pass order de- 18
notifying the land by bye-passing the placing of the file before the De-notification Committee though officials of the concerned department recommended placing of the file before the De-notification Committee, and the file was placed before the petitioner as per his direction and the petitioner without getting the opinion of the information to the De-notification Committee, proceeded to pass orders and from this, it is prima facie clear that the act has been committed with a mala fide intention of divesting the right of the State which had become the owner of the property pursuant to the acquisition and thereby caused great loss to the State and this has also resulted in affecting the rights of the third parties, namely, the allottees of the sites formed in the land. According to the learned counsel, at this stage, there are reasonable grounds to believe that the petitioner is guilty of the offences punishable under P.C. Act and IPC, therefore, having regard to the nature and gravity of the offences alleged, the petitioner is not entitled for the 19 relief of anticipatory bail. It is also her contention that the petitioner is likely to tamper the evidences and also threaten the witnesses and thereby hamper the trial of the case. Therefore, she sought for dismissal of the petition.
14) Sri. Palakshaiah, representing the de-facto complainant, in addition to supporting the contention of Smt. Gayathri, learned counsel for the Respondent- Lokayuktha, contended that the de-facto complainant being a spirited public person, has no personal interest and he has merely tried to bring before the Court the misdeeds committed by the petitioner as Chief Minister of the State and the materials on record prima facie indicate that the de-notification order passed by the petitioner is pursuant to the conspiracy hatched by the accused persons and it was for an extraneous consideration, as such, the petitioner is not entitled for the relief of anticipatory bail.
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15) In the light of the above, the points that arise for my consideration are,-
i) Whether the petition has become
infructuous; and
ii) Whether the petitioner is entitled for the relief of anticipatory bail.
16) As noticed supra, on completion of the investigation, the Investigating Officer has filed charge sheet against this petitioner and other accused persons for the aforesaid offences. The learned Special Judge has taken cognizance of the offences alleged therein. It is also reported that pursuant to the summons issued, the petitioner has appeared before the learned Special Judge, executed self-bond and furnished surety as per the interim anticipatory bail granted by this Court. Under these circumstances, it was contended that the prayer sought in this petition has become infructuous. I do not see any force in this contention. Merely because subsequent to filing of the petition under Section 438 of Cr.P.C., the Investigating Officer has filed 21 charge sheet and the jurisdictional Court has taken cognizance of the offences alleged therein, the petition filed for the relief of anticipatory bail does not become infructuous nor it precludes the court from granting relief.
17) In the case of BHARAT CHAUDHARY VS.
STATE OF BIHAR reported in (2003) 8 SCC 77, the Apex Court has held that, 'mere fact of taking cognizance or filing of charge sheet, is not by itself a bar against grant of anticipatory bail'. The relevant observations are found in Para-7 of the judgment, which reads as under:-
"From the perusal of this part of Section 438 of Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and 22 detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e., the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of Cr.P.C. even when cognizance is taken or a charge-sheet is filed provided 23 the facts of the case require the court to do so".
(underlining is by me)
18) In the case of VENKATACHALAIAH AND OTHERS VS. STATE OF KARNATAKA BY KADUGODI POLICE, BANGALORE, reported in ILR 2003 KAR 3985, this Court has held that, the apprehension of the applicant becomes certain that he would be arrested once a charge sheet is filed or warrant is issued by the Magistrate. Therefore, filing of a charge sheet and issuance of warrant are certainly the grounds which make the person not only to believe that he would be arrested, but also he can move the Courts under Section 438(1) Cr.P.C. Therefore, for the aforesaid reasons, it is clear that filing of the charge sheet and the jurisdictional Court taking cognizance thereon are no grounds to hold that the Court has no power to grant the relief of anticipatory bail. No doubt, the learned Special Judge after taking cognizance of the 24 offences alleged in the charge sheet, directed issue of summons to the petitioner and other accused persons and not warrant. It is necessary to note here that the order taking cognizance and issuing summons came to be passed on 21.04.2012, while this Court had granted interim anticipatory bail on the previous day, namely on 20.04.2012. Pursuant to the order of interim anticipatory bail granted by this Court, the petitioner has executed self-bond and also furnished surety, which has been accepted by the learned Special Judge. Even in a case where the jurisdictional Court orders issue of summons in respect of bailable or non-bailable offences, the accused persons, upon appearing before the Court pursuant to such summons, will have to seek bail, if he is already not on bail. Even at that stage, the jurisdictional Court has to decide whether the accused persons are entitled to bail or not, and if prayer for bail is rejected, such person could be taken to custody. Therefore, mere appearance of the petitioner before the 25 learned Special Judge pursuant to the summons issued and execution of the self-bond as well as furnishing of surety as per the terms of interim anticipatory bail, in my opinion, has not rendered the prayer sought in this petition infructuous.
19) As per Section 438 of Cr.P.C., if any person has reason to believe that he would be arrested on accusation of having committed non-bailable offence, he may seek for the relief of anticipatory bail.
20) The Constitutional Bench of the Apex Court in the case of GURBAKSH SINGH SIBBIA VS. STATE OF PUNJAB [1980 SCC (CRI) 465] has held that, mere 'fear' on the part of the applicant that he may be arrested, cannot be a ground for granting anticipatory bail. It is further held that the expression 'reason to believe' occurring in Section 438 Cr.P.C shows that the belief that the applicant may be so arrested must be founded on reasonable grounds and mere 'fear' is not 26 'belief '; for that reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him and in pursuance of which, he may be arrested and the ground on which the belief of the applicant is based that he may be arrested for non- bailable offence, must be capable of being examined by the Court objectively.
21) In the case on hand, admittedly, the petitioner has been arraigned as an accused alleging commission of non-bailable offences. Of course, during investigation, which started on the basis of the reference made by the Special Judge, it appears there was no attempt on the part of the Investigating Officer to apprehend and arrest the petitioner. Investigation is now over and the charge sheet has been filed and the learned Special Judge has taken cognizance. The petitioner has appeared before the jurisdictional Court and as per the interim anticipatory bail granted by this 27 Court, has executed self bond and has furnished surety. But for the interim anticipatory bail order granted by this court, on his appearance, the petitioner ought to have moved for bail before the Special Judge and in the event of rejection of the prayer, there was every possibility of the Court ordering custody of the petitioner. Even now, if the relief in this petition is not granted and in the event of the Special Judge refusing to grant bail, the petitioner is likely to be arrested and remanded to custody. In Gurbaksh Singh Sibbia's case (supra), it has been ruled that, if an application for anticipatory bail is made to the High Court or the Court of Sessions, it must apply its own mind to the question and decide whether a case has been made out for granting such relief and it cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arise. Therefore, the apprehension of the petitioner that he is likely to be arrested is well-founded, as such, this Court 28 is required to consider as to whether the petitioner is entitled for the relief of anticipatory bail
22) In a recent decision in the case of Siddaharam Satlingappa Mhetre Vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 694, the Hon'ble Supreme Court, following the law laid down by the Constitutional Bench of the Apex Court in Gurbaksh Singh (supra), has set-out the factors and parameters that have to be taken into consideration while dealing with the anticipatory bail in Para-112, as under.
i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a 29 court in respect of any cognizable offence;
iii) The possibility of the applicant to flee from justice;
iv) The possibility of the accused's
likelihood to repeat similar or the
other offences.
v) Where the accusations have been
made only with the object of injuring
or humiliating the applicant by
arresting him or her.
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 accused is implicated with the help of Sections 30 34 and 149 of the Indian Penal Code, 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 genuineness that shall have to be considered in the matter of grant of bail and in the event of there 31 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.
Keeping the aforesaid principles in mind, let me consider the prayer of the petitioner in this petition.
23) Admittedly the petitioner was the Chief Minister of Karnataka from 03.02.2006 to 09.02.2007. It is also not in dispute that the land bearing Survey No.87/4B of Thanisandra Village, measuring 3 acres 8 guntas, of which Accused Nos. 3 & 4 were khathedars, was also notified for acquisition for formation of Arkavathi lay-out by BDA. The petitioner by order dated 27.09.2007 ordered de-notification of the aforesaid land in exercise of power under Section 48 of the LA Act.
24) As noticed supra, the accusation against this petitioner is that the said de-notification order came to be passed by the petitioner in furtherance of a 32 conspiracy hatched by all the accused persons for their unlawful enrichment and the petitioner has also gained pecuniary advantage for passing the said order. The evidence collected by the Investigating Officer and produced along with the charge sheet, copies of which are made available before this Court, of course prima facie would indicate that much prior to the order of de- notification, BDA had allotted sites said to have been formed in the aforesaid land to 44 persons and also had executed lease-cum-sale agreement in favour of the allottees and those documents had been registered in the office of the jurisdictional Sub-Registrar. However, perusal of the correspondences between BDA and Urban Development Department of the Government would prima facie indicate that the fact of formation and allotment of the sites to various applicants and execution of the lease-cum-sale agreements in their favour had not been reported. The report from the land acquisition department of BDA was only to the effect 33 that the possession of the land has been handed over to Engineering Division, but the notification under Section 16(2) of the LA Act has not been issued. As per Section 16(2) of the LA Act, as amended by the Karnataka State, the notification issued regarding taking possession of the land acquired, would be a conclusive proof of taking possession. The order passed by the petitioner would prima facie indicate that since the notification under Section 16(2) of the LA Act has not been issued, land has been de-notified from acquisition. Of course, the notings in the file, copies of which are made available would indicate that there was a recommendation to place file before the De-notification Committee. However, without placing the file before the De- notification Committee, the file was placed before the Chief Minister, who passed the orders.
25) At this stage, I am of the considered opinion that, the materials on record does not prima facie indicate any conspiracy as alleged and the order of de- 34 notification has been passed pursuant to such conspiracy. The materials on record at this stage also do not prima facie indicate that the order was passed for extraneous consideration nor the materials prima facie indicate that the petitioner had obtained any pecuniary advantage. Therefore, at this stage, I find no reasonable grounds to believe that the petitioner is guilty of any of the offences under the PC Act or under the IPC. Since, as on the date of taking cognizance, the petitioner was not a public servant, obtaining sanction for prosecution of the petitioner for the offences under PC Act is not required. However, in respect of the offences alleged under IPC, even in respect of the Former Public Servant, sanction as required under Section 197 of Cr.P.C. is necessary. As could be seen from the accusation made against this petitioner, prime facie, the alleged acts have been done in exercise of his power as Chief Minister. Therefore, prima facie sanction as required by Section 197 of Cr.P.C. to 35 prosecute him for the offences under IPC is necessary. Perusal of the charge sheet papers does not indicate any such sanction obtained from the competent authority.
26) It is fairly well settled that, keeping an accused person in custody pending trial of a case is not as a measure of punishment, but it is only to see that his presence during the trial is secured easily and to prevent likelihood of tampering of evidences or threatening or inducement of the witnesses in any manner. If there is no likelihood of accused fleeing away from justice and his presence before the court during the trial is assured, and there is no likelihood of tampering of evidences in any manner, the detention of such accused person in custody, would not be warranted.
27) In Gurbaksh Sing Sibbia's case referred to supra, which is followed in Mhetre's case, the constitution bench of the Apex Court has held that it is 36 not proper to hold that in serious cases like economic offences involving blatant corruption at the higher rungs of executive and political power the discretion under Section 438 of the Code should not be exercised and at that stage it is not possible for the court to assess blatantness of Corruption. It is further held there in that, it is also not possible to hold that anticipatory bail cannot be granted unless it is alleged and shown that the proposed accusations are mala fide. In the case on hand the question as to whether there was any conspiracy among the accused and in furtherance of such conspiracy, the order of de-notification was passed and whether the petitioner has gained any pecuniary advantage for the same, are all required to be established at the trial, and those aspects cannot be assessed at this stage.
28) The petitioner is presently a Sitting member of the parliament. He belongs to a political party, which is not in power in the state. The entire evidence against 37 the petitioner is based on documents which have been seized and produced before the jurisdictional Court. Therefore, there is no chance of petitioner tampering with evidences. Having regard to the post which the petitioner held earlier and he being a sitting member of the Parliament, there is no likelihood of his fleeing away from justice. In view of the fact that the investigation is already over and charge sheet has been filed before the jurisdictional Court, the presence of the petitioner is not required for any custodial interrogation. The criminal law was set on motion about four years after the alleged misdeeds and the accused ceased to be the Chief Minister. The materials on record would prima facie indicate that the de-facto complainant belonged to a rival political party. Therefore, the argument that the complaint is politically motivated, cannot be rejected as baseless.
29) In the light of the above discussion, I am of the considered opinion that the interim anticipatory bail 38 granted to the petitioner deserves to be made absolute. It is necessary to note here that in Mhetre's case (supra) the Apex Court has held that the order of anticipatory bail if granted should ordinarily be in force till the conclusion of the trial unless it is recalled for justifiable reasons.
30) Hence, the petition is allowed. The interim anticipatory bail granted by this Court on 20.04.2012 is made absolute subject to the self-bond already executed and surety already produced before and accepted by the jurisdictional Court and also subject to other conditions imposed therein.
SD/-
JUDGE KGR*