There may be a legal fight between the state and the central investigating agency

Bengaluru: The state cabinet’s decision to withdraw the disproportionate assets (DA) case being investigated by the CBI against Deputy Chief Minister DK Shivakumar may lead to a legal battle between the state and the central investigating agency.
The CBI is likely to object to the Cabinet decision as it has almost completed the investigation. The Cabinet decided to withdraw the case saying that the approval given to the CBI by the Yediyurappa government in 2019 was “not in accordance with law”. The CM (Yediyurappa) had given only “verbal” instructions without taking the opinion of the Advocate General (AG). According to Law and Parliamentary Affairs Minister HK Patil, who played an important role in the cabinet decision, the permission of the Assembly Speaker was not even taken.

“The court may accept or reject the Cabinet decision as the case progresses. “The CBI may seek time to file the chargesheet after completing the investigation and hearing the accused,” a senior MLA said. He said, if CBI is allowed to proceed with its investigation, Shivakumar will have to get relief from the court only. Shivkumar’s appeal to quash the proceedings against him will be heard in the High Court on November 29.

Senior High Court lawyer HV Manjunath said the cabinet’s decision was timely as the CBI has not yet filed a charge sheet against Shivakumar. This may help Shivakumar as the trial may drag on for a long time.

‘Speaker’s approval is not required to prosecute MLA’

Continued from Page 3 Manjunath said, “We will have to wait and see whether this matter will be sub-judice or a direction will be given not to interfere in it as the trial is going on.” Senior advocate Shivraj BN said that this will not become a sub judice matter in the court as it is an administrative decision of the government and there will be no interference in it.

Senior advocate Brijesh Kalappa said, “Improper or illegal grant of sanction under Section 197 of the CrPC can render any prosecution futile and the fact that the Speaker has not given his sanction is void.”

Disputing this, former Law and Parliamentary Affairs Minister JC Madhuswamy said that the Speaker’s permission is not required to prosecute an MLA, except to arrest him during the session. “It is unheard of that Speaker’s permission is required and I was not aware whether the AG’s opinion was taken or not. But the AG would have given his opinion directly to the CM as he comes under him,” he said.

“We did not initiate the case but only gave approval to the CBI,” he said. The government was not a party,” he said.

On the Cabinet’s decision to withdraw the case, he said that once the prosecution begins, it is the discretion of the court to accept or reject it. However, he pointed out that there are instances of cases against individuals by the Cabinet being dismissed by the courts and cited the August 2021 Supreme Court direction that no cases against MLAs and MPs will be withdrawn without the permission of the higher courts . He said that the government has no power in this regard.

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