Bengaluru, Sep 8 The Karnataka High Court has found fault with a sessions court for directing an inquiry instead of following the statutory procedure for considering investigation into allegations of corruption and misuse of public office involving the Siddartha Vihar Trust, of which Congress president Mallikarjun Kharge, his son and Karnataka Home Minister Priyank Kharge and his relatives are trustees.
Justice M Nagaprasanna, while partly allowing a petition challenging the August 11 order of the LXXXI Additional City Civil and Sessions Judge, Bengaluru, said the court should have allowed the complainant to rectify a defective affidavit and thereafter proceeded under Section 175 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
"The complainant could have been directed to cure the defect and place a properly verified affidavit before the Court. Procedure is undoubtedly the handmaid of justice; it cannot be permitted to become its hangman," the High Court said in a recent order which came into public domain on Tuesday.
It held that the defect in the affidavit was capable of being cured and should not have resulted in the proceedings being diverted altogether to an inquiry under Section 223 of the BNSS.
"I, therefore, deem it appropriate to set aside the operative portion of the impugned order insofar as it directs an enquiry under Section 223 of the BNSS. The concerned Court shall afford an opportunity to the complainant to cure the defect in the affidavit and thereafter proceed with the complaint strictly in accordance with the procedure obtaining under," the Bench maintained.
The court, however, made it clear that it had not expressed any opinion on the merits of the allegations and that it was for the sessions court to decide whether the complaint ultimately warranted a reference for investigation after following the prescribed procedure.
The case arose from a private complaint filed by Vijayraghava Marathe, president of Lanchamukta Karnataka Vedike, alleging large-scale irregularities in the allotment of civic amenity sites by the Bangalore Development Authority (BDA) to Siddartha Vihar Trust. The complaint sought investigation under Section 175(3) of the BNSS.
According to the complaint as recorded in the sessions court order, the Trust was originally constituted in 1994 with Mallikarjun Kharge, who is the opposition leader in the Rajya Sabha, among its five trustees.
A supplementary trust deed in 2010 added Radhabai M Kharge, his two sons Rahul Kharge and Priyank Kharge as trustees.
The complaint alleged that the Trust, despite having objectives extending to the public irrespective of caste, creed or religion, applied for a BDA civic amenity site under the Scheduled Caste category.
It further alleged that the Trust obtained a 50 per cent concession in lease amount and subsequently an alternative site, with the complainant alleging misuse of influence and connivance with BDA officials.
The sessions court had examined the Trust deeds and other records and noted that it was a charitable and secular organisation.
It also recorded that BDA had allotted an 8,125 sq metre (about two acres) civic amenity site and subsequently approved a 50 per cent lease concession before allotting an alternative 8,002 sq metre site at the upmarket BTM fourth Stage.
The sessions court declined to order investigation under Section 175(3), citing deficiencies in the affidavit accompanying the complaint, and instead directed an inquiry under Section 223 of the BNSS.
The High Court said the allegations concerned matters that could not reasonably be established by a private complainant alone, including who processed the applications, the basis for treating the Trust as eligible under the Scheduled Caste category, official file notings and whether there was any nexus between trustees and public servants.
"The truth cannot be permitted to become a casualty at the altar of an imperfect verification clause," the court said.
It set aside the portion of the August 11 order directing an inquiry under Section 223 and remitted the matter to the sessions court to give the complainant an opportunity to cure the affidavit defect and thereafter proceed under Section 175 of the BNSS, including applicable safeguards.
The High Court also noted that allegations of corruption involving public servants require particular care, as evidence may lie in official files, correspondence, proposal movements and committee decisions rather than in the possession of the complainant.
