Challenge on withdrawal of sanction to prosecute D K Shivakumar referred to CJ for larger bench

Bengaluru: A single-judge-bench of the Karnataka High Court on Friday referred the petition challenging the withdrawal of the sanction given to the Central Bureau of Investigation (CBI) to investigate a case against D K Shivakumar to the High Court Chief Justice for placing before a larger bench of his choice.

“I am afraid because of the enormity of the questions, in deciding the enormity of such a large issue, I think Division Bench is required,” Justice Krishna S Dixit said and then ordered, “Having heard the learned counsel for petitioners and learned Advocate General for the State, I am of a considered opinion that the paper be placed before the Hon’ble Chief Justice for consideration at the bench and strength of his choice.”

Two separate petitions filed by BJP leader and MLA Basanagouda Patil Yatnal and the CBI came up before the single judge bench on Friday.

Yatnal’s petition was filed earlier and the court had questioned the validity of his petition and how he could be considered an affected party in the criminal proceedings. Yatnal’s counsel submitted to the court that any private citizen has locus standi to challenge a cabinet decision of the government which has stifled criminal prosecution. The court observed that it was a unique case. “This is a first of its kind case in the state. It is a virgin case in the state,” it said while observing that similar cases have happened in other states.

The court said that the question is whether the decision taken by the previous government (giving sanction) is binding on the government which is elected subsequently.

The HC also said that since the CBI has also filed a challenge to the withdrawal of the consent, the validity of the petition filed by Yatnal also has to be considered.

CBI counsel Prasanna Kumar submitted that the Lokayukta has been handed over the investigation by the state and it has filed an FIR. The CBI sought the records of this new investigation and asked that the investigation be handed over to it. The HC issued notices to the respondent state and Lokayukta.

The HC also directed that until the final hearing of the petitions, the Lokayukta should not proceed in the case.

The counsel for the CBI argued that in a similar situation, the Supreme Court had taken the view that once a state government has accorded consent for a probe, it cannot be withdrawn with retrospective effect. “Therefore, the investigation at the hands of CBI should go on to the final product,” it was submitted.

Considering the enormity of the issue, the single judge referred it to the chief justice for a larger bench.

Based on the Income Tax Department raids and Enforcement Directorate’s probe, the CBI had sought sanction from the state government to file an FIR against D K Shivakumar which was granted on September 25, 2019. Following a change in power after the May assembly elections, the new government, in which D K Shivakumar is deputy chief minister, withdrew the sanction on November 28, 2023.

Challenging the November 28 order of the government withdrawing consent, Yatnal approached the HC alleging that it is illegal. The CBI has also approached the HC challenging the withdrawal of consent.