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2008 DIGILAW 758 (KAR)

Akhila Karnataka Police Maha Sangha (R), Bangalore v. B. S. Yediyurappa & Others

2008-12-08

B.S.PATIL, P.D.DINAKARAN

body2008
Judgment :- P.D. Dinakaran, C.J. The petitioner is a society registered under the provisions of the Karnataka Societies Registration Act, 1960. The petitioner has filed the above public interest litigation bringing to the notice of this Court that the Bharatiya Janata Party Government led by the 1st respondent herein viz., B.S. Yediyurappa, Hon’ble Chief Minister of Karnataka during the election campaign promising to provide a corruption free, clean governance. But, unfortunately, according to the petitioner, 18 of the legislators have criminal records and on that ground the petitioner seeks a writ of mandamus to scrutinise the reply of the respondents and take cognizance thereof to direct CBI inquiry into the allegations against the respondents 5 to 22. They have further sought for a direction to the 2nd respondent-State Election Commission to place before this Hon’ble Court the affidavits of the respondents 5 to 22 filed by them at the time of filing of their nominations for contesting the elections for Karnataka State Legislative Assembly held in May 2008. They have also prayed for a direction to the 3rd respondent to secure and place before this Hon’ble Court the records of the pending criminal cases against the respondents 5 to 22. 2.1 The petitioner while seeking the above reliefs strongly placed reliance on the decision of the Apex Court in the case of Secretary, Minor Irrigation and Rural Engineering Services, Uttar Pradesh and Others Vs Sahngoo Ram Arya and Another AIR 2002 SC 2225 : (2002) 5 SCC 521 . But in the said case, the Apex Court has in clear terms demarcated the power of the High Court under Article 226 of the Constitution of India, while referring any matters for the enquiry by the CBI as hereunder: “5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by the CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by the CBI. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by the CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause, a Registered Society v Union of India and Others, AIR 1999 SC 2979 . This Court in the said judgment at paragraph 174 of the report has held thus: (SCC p. 750, para 174) "174. The other direction, namely, the direction to CBI to investigate `any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of ‘LIFE’ and `LIBERTY’ guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of `LIFE' has been explained in a manner which has infused `LIFE' into the letters of Articles 21". 6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the Police or CBI to find out whether he has committed any offence or is living as a law abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of "ifs" and "buts" and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause". (emphasis supplied) 2.2 We therefore, without any slightest doubt, hold that it may not be appropriate for this Court to grant the relief as prayed for as no material is placed before us for our prima facie satisfaction to refer the matter to the CBI. 2.3 That apart, it is settled law that the Courts should not interfere at the stage of notice, in a field of activity reserved for the police and the executive. The Court should not ordinarily interfere with an order in the matters which are pending before either the police or executive or the Criminal Courts, because the scheme of the law is that the investigation which is entrusted to the police is not ordinarily subject to the supervisory powers of this Court under Article 226 or 227 of the Constitution of India. Even though the Court has power to give notice pending the investigation only if the requirement of law is not being complied with or investigation is not being conducted properly and promptly (vide State of West Bengal and Others v Sampat Lal and Others AIR 1985 SC 195 : (1985) 1 SCC 317 : 1985 Cri.L.J. 516 (SC): 1985 SCC (Cri.) 62 and State of West Bengal v Sudhir Dey and Another AIR 1985 SC 735 : (1985) 1 SCC 340 : 1985 SCC (Cri.) 85: 1985 Cri. L.J. 920 (SC) 2.4 Time and again the Apex Court has observed that the High Court should be extremely reluctant in interfering with such matters of investigation which would otherwise hamper or slow down the investigation. Therefore, power of this Court under Article 226 of the Constitution of India can be invoked only sparingly for giving direction to the CBI to investigate into any such matters. Therefore, power of this Court under Article 226 of the Constitution of India can be invoked only sparingly for giving direction to the CBI to investigate into any such matters. Broadly speaking the Courts will examine the action of the State only if they pertain to the public law domain and refrain from examining them if they do not pertain to public law domain. But in the instant case, even according to the petitioner, the criminal cases referred to by them are still pending before the police or executive for investigation and the petitioner had not placed the relevant material relating to such cases for our consideration to bring them within the public domain. But on the other hand, it is clear that the grievance of the petitioner and the relief sought for is based on the political promises made on behalf of the Bharatiya Janata Party during the election campaign on the political platforms. The disputes of political nature, in our considered opinion cannot be resolved under Articles 226 and 227 of the Constitution of India as this Court is not expected to enter into any such political thicket. Nor the claim of the petitioner is based on any statutory right or provisions of law, which is an essential ingredient to be complied with for seeking a writ of mandamus. For all these reasons the writ petition fails and is therefore dismissed.