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Judgment
L. Narayana Swamy, J.—These two petitions are "filed by the petitioners in both the petitions seeking anticipatory bail in PCR No. 9/2011 pending on the file of the 23rd Additional City Civil & Sessions Judge. Bangalore, now registered as CC No. 155/2011.
Since the petitions arise out of the same case, both the petitions are considered together and disposed of by this common order.
A private complaint is filed by the first respondent making the following two allegations against the petitioner in Criminal Petition No. 4924/2011:
(i) The petitioner as the Chief Minister of Karnataka has passed an order dated 4.10.2007 making bulk allotment of 80 acres 13 guntas of land in favour of M/s. Vishwabharathi House Building Cooperative Society Limited,
(ii) The petitioner as Chief Minister of Karnataka has put pressure on the Commissioner, Mines and Geology Department, Government of Karnataka to issue permit within two hours in favour of one Sri Vinod Goel, the licence holder on behalf of M/s. Janthakal Enterprises.
The allegations made in the complaint as against the petitioner in Criminal Petition No. 4925/2011 is that she has abetted commission of offence by the petitioner in Criminal Petition No. 4924/2011 which is an offence u/s 12 of the Prevention of Corruption Act.
Thus the case came to be registered for offence punishable u/s 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act against petitioner in Criminal Petition No. 4924/2011 and u/s 12 of the said Act as against Petitioner in Criminal Petition No. 4925/2011.
The Special Court under Chapter 2 of Prevention of Corruption Act by the order dated 28.2.2011 registered the case and by order dated 8.8.2011 took cognizance and issued summons to the petitioners.
The learned counsel for the petitioners submitted the complaint averments do not constitute the offence alleged. The very registration of the case suffers in view of the fact that sworn statement of the complainant, is not fully recorded and before taking cognizance, there is no enquiry or investigation by the court below as to the prima facie case.
On 28.2.2011 the case was posted for sworn statement of the complainant and was adjourned to 9.3.2011. On that day. the statement of the complainant was recorded in part and deferred at the request of the counsel and adjourned to 17.3.2011 and on the said date, the complainant was absent and thereafter the matter was adjourned to 23.3.2011. On 23.3.2011 further statement was recorded and deferred at the request to 1.4.2011. On 1.4.2011 further statement was '' recorded and again deferred to 8.4.2011. Without completion of the sworn statement, by the order dated 8.8.2011 the Special Court took cognizance and ordered to issue summons to the petitioners. Therefore, it is submitted that when sworn statement itself is not complete, the substance of the sworn statement was not available for the purpose of taking cognizance and issuing summons. No witness who has knowledge of the case has been examined. The complainant has no personal knowledge about the case. The learned counsel further submitted that the petitioner in Criminal Petition No. 4924/2011 was the Chief Minister between
3.2.2006 & 8.10.2007. The order dated 4.10.2007 came to be passed only in compliance of the orders passed by this Court. Earlier resolution dated 21.7.1999 passed by the Bangalore Development Authority was rejected by the very petitioner. The said rejection was challenged in W P No. 13917/2006 and connected writ petition No. 12236/2006 and this Court by the order dated 29.11.2006 directed the respondent Bangalore Development Authority to consider the representation of the petitioners and third respondent in 12 weeks from the date of the order. The said period of 12 weeks was further extended. In the light of the directions issued, the B.D.A considered the representation of the society and passed Resolution dated 19.4.2007. The same was forwarded to the Government and accordingly the petitioner in Criminal Petition No. 4924/2011 passed an order dated 4.10.2007 approving the resolution. Therefore, the learned counsel submitted that there is no misuse of public office and illegal gratification cannot even be inferred in the case. The learned counsel submits that the allegation that the petitioner in Criminal Petition No. 4924/2011 misused his office in passing the order on 4.10.2007 approving the B D A resolution for bulk allotment in consideration of the allotment of site No. 702 measuring 110'' x 150'' on 15.4.2006 in favour of his wife is baseless. The petitioner in Criminal Petition No. 4925/2011 became member quite earlier to his husband became Chief Minister, she has paid the consideration on different dates and in the usual course the site was allotted to her. However, the same was canceled by registered sale deed on 1.6.2006, which was registered on 2.6.2006. All the deposits made by her were refunded and receipts are also produced. The entire proceedings initiated in the year 1973 by the Vishwabharathi House Building Cooperative Society Ltd., and the resolutions passed by the B.D.A. and the directions issued in the writ, petitions referred above are all the materials which prove that the petitioner in Criminal Petition No. 4924/2011 has not committed any offence of abusing his office. After the order dated 4.10.2007 the writ petitions referred above dismissed as having become infructuous by the orders dated
11.10.2007 in W P No. 12236/2006 and order dated 6.3.2008 in respect of other connected petitions. Nobody has challenged the said order including the complainant. The learned counsel submitted that the complaint itself should have been dismissed since the orders are passed in compliance of the direction issued by this Court.
The learned counsel for the petitioners further submits in respect of allegation relating to favour shown to M/s. Janthakal Enterprises, that Mining Lease was granted in favour of Mr. Rahavendra Rao in ML No.593 on 6.9.1965 for a period of 20 years. The said lease was transferred in favour of M/s. Janthakal Enterprises vide Government Order No. CI. 240 EMO 69 dated 10.7.1969. Subsequently in pursuance of mineral Manganese has also been sanctioned to this lease vide M L No. 993. One year before expiry of the lease, M/s. Janthakal Enterprises made an application for renewal. The same came to be rejected. Against the said order, a review petition was filed before the Government of India and the Government of India by the order No. 194/89 dated
27.4.1989 set aside the rejection order and directed for fresh consideration by providing opportunity to the applicant under Rule 26(1) of M C Rules, 1960. M/s. Janthakal Enterprises filed W P No. 25827/95 and another W P No. 29169/96 wherein directions were issued to the respondents, Mines and Geology Department to reconsider. As per the said directions and also based on the fact that M/s. Janthakal Enterprises has complied the requirements of provisions of law, renewal was made. The permission which was given on 27.8.2007 to lift 1 lakh M T of low grade Iron Ore and Manganese is as per the direction and order of the Government of India vide its letter No. J-110.15/19/2007-IA. II(M) dated 27.8.2007. Therefore, the said permission cannot be termed as violation of provisions of law putting pressure to make unfair profit. The learned counsel submits that the petitioners under the circumstances are entitled for the benefit u/s 438
The learned counsel for the first respondent submits that the petitioner in Criminal Petition No. 4924/201 i has committed an offence in granting licence to Iron Ore Company and the Commissioner''s son has taken Rs. 40 lakhs which was transferred to his account and the complainant has stated in Para 13 of his complaint about the instance as to how the office is misused and pressurized the officials to pass wrongful orders. It is submitted that there is no imminent apprehension of arrest of the petitioners and therefore the petitions are premature. On a complaint made by the first respondent a case has been registered and cognizance has been taken and to give opportunity to the petitioners, summons has been ordered. As it is held in Konhimozhi case only to provide an opportunity the summons are issued and instead of using the said opportunity, the petitioners have preferred these petitions which is nothing but to circumvent the judicial process. The petitioners are quite influential persons and if anticipatory bail is granted, there are possibilities of tampering the documents and influencing the witnesses. The petitioners are to appear before the Special Court and if they so apprehend, they can file application u/s 439 Cr P C. Though the other accused appeared before the Court, they were not arrested, Hence the learned counsel for the first respondent; submits to dismiss the petitions.
The learned counsel for the second respondent Lokayuktha has filed statement of objections. It is submitted that, they have not: been issued any directions to investigate. The complaint has been directly filed before the Special Court and cognizance has been taken. Hence their role is very limited.
The petitioner in Criminal Petition No. 4925/2011 who is wife of petitioner in Criminal Petition No. 4924/2011 it is alleged against her that she has participated in illegal gratification by abetting the offence which attracts provisions of Section 12 of Prevention of Corruption Act. From the materials available on record, it is seen that she was the member of the society on 6.1.2005 and made an application for allotment of site, which was allotted on 15.4.2006, The resolution of the B D A for bulk allotment passed on 21.7.1999 was rejected by the petitioner in Criminal Petition No. 4924/2011 on 4.4.2006. ft is alleged that the allotment made in favour of his wife was the reason for approving the resolution of the BDA by the order dated 4.10.2007.
I have gone through the various proceedings initiated before this Court in W P No. 11973/1983, W A No. 13681/1991, S L P No. 27818/1995, W P No. 13917/2006 and W P No. 12236/2005. In all these writ proceedings, the case of the Housing Society as well as its members has been considered and directed the Government and B D A to reconsider the process for bulk allotment. When these proceedings and directions in the writ petitions were pending, that may be the reason to pass the order dated 4.10.2007. But the accusation made against the petitioner cannot be ruled out since he himself had rejected the resolution of the B
DA dated 21.7.1999 on 4.4.2006. In between, the site was allotted on 15.4.2006. That might be the reason for reconsidering the matter and passing the order dated 4.10.2007. But while accusations have been made, they are to be examined on the entire consideration of the matter as to the previous proceedings. In order to substantiate that petitioner in Criminal Petition No. 4925/2011 has committed the offence, at present there are no sufficient materials. Even then both the petitioners are answerable.
la so far as accusation relating to M/s. Janthakal Enterprises it is alleged that, the Commissioner was heavily pressurized to pass a favourable order. In respect of this accusation, it could be seen that ML No. 593 and ML No. 993 were granted and earlier it was granted for 20 years which expired on 5.7.1985 and one year before its expiry, an application was made for renewal by M/s. Janthakal Enterprises. The renewal was rejected by the State Government by the order dated 14.3.1986. Against, the said order M/s. Janthakal Enterprises preferred revision petition before the Government of India and by the order dated 27.4.1989 the Government of India set aside the order dated 14.3.1986 and it was directed for fresh consideration. The renewal application was not considered. Then W P No. 25827/95 came to be filed which came to be disposed of to consider the renewal under Rule 24-A of the MC Rules 1960 within three months. The Government by its order dated 30.9.1996 rejected the renewal application. The same was challenged in W P No. 29169/1996. The said writ petition came to be disposed of on 30.7.1997 to pass fresh order after hearing the petitioner. By that time 20 years had elapsed. Hence M/s. Janthakal Enterprises filed renewal application on 12.7.2005. As on that date, the petitioner in Criminal Petition No. 4924/2011 was not the Chief Minister. From the proceedings for consideration of renewal application there is a reference dated 11.9.2007 that "there is a tremendous pressure from the Hon''ble Chief Minister''s office as well as the Chief Minister spoke to me regarding issue of working permission which is not at all possible in the absence of various clearances. Environment Clearance from the Ministry of Environment and Forest, Government of India." The Government of India by its order dated 27.8.2007 has given permission to lift 1 lakh M T low grade Iron Ore. Further it is referred by the Commissioner that. Hon''ble Chief Minister has given ultimatum that permission should be given within two hours without loss of time. As a result, Deputy Director of Chitradurga was directed to allow lessee to lift old stocks as already it is permitted by Government, of India on 27.8.2007. This order has been passed by the Government of India. It is alleged that the petitioner as a Chief Minister put heavy pressure to make a favour. It is noticed that there was an effort by M/s. Janthakal Enterprises since from 1985 itself. There were internal correspondences between the State Government and the Central Government. The review power has been exercised by the Government: of India under M M R D Act and two writ petitions were filed and directions were issued to the Government to reconsider after providing opportunity. In the meanwhile Government; of India notification dated 27.8.2007 came permitting M/s. Janthakal Enterprises to lift 1 lakh M T of old stock dumped Iron ore. In the background of these correspondences and directions of the Courts, the petitioner might have directed to pass the said order. I put a self-restraint from proceeding further since there is reference that the petitioner has put unfair and heavy pressure on the Commissioner and also about Rs. 40 lakhs has been paid to the son of the Commissioner which all has to be gone into in the trial. At this stage what can be gathered is that in view of the directions and the orders passed, direction was given to pass the order within a particular time. That itself cannot be a ground to deny the benefit of Section 438 Cr P C.
In respect of notification in favour of Vishwabharathi House Building Cooperative Society, as already it is referred, there were number of writ petitions where directions were issued and also resolution passed by the B D A was earlier rejected and the orders passed by the Supreme Court. All the documents referred are public documents available for everybody. There is no much scope for tampering with the documents and influencing the witnesses.
In the circumstances I am of the view that the petitioners are entitled for anticipatory bail.
In the result. these petitions are allowed. The petitioners are granted anticipatory bail. In the event of arrest of the petitioners in PCR No. 9/2011 now registered as Special Case No. 155/2011 on the file of XXIII Additional sessions Judge & Special Judge for Prevention of Corruption Act, Bangalore, they shall be released on bail on their executing personal bond for Rs. 50,000/- each along with one surety for like sum to the satisfaction of the officer arresting them. The petitioners shall not tamper with the prosecution evidence and influence the witnesses. The petitioners shall appear before the Court on all the dates of hearing.