Single Judge Court allowed appellants to unconditionally withdraw their writ appeal and original writ petition. The withdrawal was granted after the State Government withdrew its sanction for CBI investigation, making the litigation moot.
Stay and withdrawal of both the Writ Appeal No. 646 of 2023 and the Writ Petition No. 10479 of 2020.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:43090-DB WA No. 646 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 646 OF 2023 (GM-RES)
BETWEEN:
Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA
SRI. D. K. SHIVAKUMAR S/O S K KEMPEGOWDA, AGED ABOUT 61 YEARS, R/AT NO. 252, 18TH CROSS, SADSHIVA NAGAR, BENGALURU 560 080. …APPELLANT (BY SRI. DR ABHISHEK MANU SINGHVI., SENIOR ADVOCATE AND SRI. UDAYA HOLLA., SENIOR ADVOCATE FOR SRI. M S RAJENDRA., ADVOCATE)
…APPELLANT
AND:
NC: 2023:KHC:43090-DB WA No. 646 of 2023
NO. 36, BELLARY ROAD, GANGANAGAR, BENGALURU 560 032. REPRESENTED BY ITS SUPERINTENDENT OF POLICE
…RESPONDENTS
SRI BASANAGOUDA R PATIL (YATNAL) S/O RAMANAGOUDA B PATIL AGED ABOUT 59 YEARS OCC: MLA, VIJAYAPURA CONSTITUENCY R/AT OLD IB, STATION ROAD VIJAYAPURA – 586 101, KARNATAKA
… INTERVENING APPLICANT
(BY SRI.KAPIL SIBAL.,SENIOR ADVOCATE AND SRI. SHASHI KIRAN SHETTY., ADVOCATE GENERAL A/W SRI. ISMAIL ZABIULLA., AAG A/W MS. NILOUFER AKBAR., AGA FOR R1 & R2; SRI. P PRASANNA KUMAR., ADVOCATE FOR R-3; SRI. VENKATESH P DALWAI., ADVOCATE FOR APPLICANT INTERVENER)
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR THE RECORDS OF THE CASE IN WP No. 10479/2020 AND FURTHER BE PLEASED TO SET ASIDE THE ORDER DATED 20.04.2023 PASSED BY THE LEARNED SINGLE JUDGE AND FURTHER BE PLEASED TO ALLOW THE WRIT PETITION W.P. No. 10479/2020 IN ITS ENTIRETY BY QUASHING THE GOVERNMENT ORDER BEARING No. E-HD/40/COD/2019, BENGALURU, DATED 25.09.2019 ISSUED BY THE SECOND RESPONDENT HEREIN, WHICH HAS BEEN PRODUCED AS ANNEXURE K TO THE WRIT PETITION W.P. No 10479/2020 AND GRANT SUCH OTHER AND FURTHER RELIEFS AS ARE JUST.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING, THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGEMENT
This intra-court appeal seeks to call in question a learned Single Judge’s order dated 20.04.2023 whereby Appellant’s W.P.No.10479/2020 (GM-RES) challenging the Sanction Order dated 25.09.2019 issued by the 2nd respondent herein for CBI investigation has been negatived.
“Heard learned counsel for the parties.
The impugned order being interim in nature, we are not inclined to interfere with the same, more, particularly when the petitioner – CBI
has already filed an application for vacation of the stay granted in the impugned order passed by the High Court, before the High Court.
However, it is requested that the High Court may hear and dispose of the application filed by the CBI seeking vacation of stay and the appeal pending before it as expeditiously as possible and preferably within two weeks. The special leave petition stands disposed of accordingly.
All pending applications are disposed of.”
Advocate General Mr.Shashi Kiran Shetty, both appearing for Respondent Nos.1 & 2 have filed a Memo dated 29.11.2023 along with a copy of the Government Order No.HD4COD 2023, Bengaluru, dated 28.11.2023. This short Memo has the following text:
“The Respondent prays leave of this Court to produce copy of the Government Order dated 28.11.2023 vide GO No.HD4COD 2023, withdrawing the consent given under Section 6 of the Delhi Special police Establishment Act, 1946. Wherefore, it is prayed that this Hon’ble Court may be pleased to take the same on record, in the interests of justice and equity.”
The conclusive portion of the Government Order dated 29.11.2023 reads as under:
“Thus, in view of the aforesaid circumstances, the Government of Karnataka hereby withdraws the Government Order No.E-HD/40/COD/2019 dated 25.09.2019.”
Mr.Sibal & Mr.Shetty submit that by the above Government order, the State Government has withdrawn its earlier Order No.E-HD/40/COD/2019 dated 25.09.2019 whereby sanction/consent was accorded u/s 6 of the Delhi Special Police Establishment Act, 1946 for the CBI inquiry/investigation against the Appellant herein.
“In the Light of the Government Order dated 28.11.2023, prayer in the writ petition has been rendered infructuous and hence the Writ Petition and Writ Appeal may be permitted to be withdrawn.”
It bears name & signature of learned counsel on record appearing for the Appellant. Dr.Singhvi & Mr.Holla submit that both the Writ Appeal and Writ Petition be permitted to be withdrawn in view of the recent development in the matter i.e., the Government Order dated 28.11.2023 whereby the sanction/consent for CBI inquiry/ investigation accorded earlier, has now been withdrawn and as a logical consequence thereof, the said inquiry/investigation stands interdicted.
FIR having been registered against the Appellant, the investigation is more than half way through. They also oppose the request for withdrawal of the Writ Petition. They do not much resist the prayer for withdrawal of the
Writ Appeal, as such. Lastly, they contend that the Government Order dated 28.11.2023 being a nullity, even if the request of the Appellant is conceded to by the Court, the CBI should be permitted to go ahead with the inquiry/investigation. In support of their submission, they heavily bank upon the Apex Court decision in KAZI
LHENDUP DORJI vs. CENTRAL BUREAU OF INVESTIGATION AND OTHERS, 1994 Supp (2) SCC
116 .
seek adjudication of his complaint against the order of lower court/authority, on merits. He can, however forgo such right, if he so desires. What the Apex Court said in MYSORE URBAN DEVELOPMENT AUTHORITY vs. K.M.CHIKKATHAYAMMA, (2018) 17 SCC 508 assumes relevance in this case. At para 26, it is observed as under:
“If, for some reasons, there are two rival groups in a juristic entity, one prays for withdrawal and the other insisting for hearing the appeal then it is the duty of the court to first resolve this issue in the light of the relevant provisions of law and then proceed to decide the appeal accordingly. Similarly, when such prayer is made at the instance of the respondent and is opposed by the appellant, the same has to be dealt with strictly in accordance with law by the appellate court.”
The reverse of the fact matrix, in a sense, is the fulcrum of
the case at our hands, today. The appellant wants to withdraw the appeal along with the writ petition, whereas the respondents resist the same. The legal position relating to withdrawal of suits is succinctly stated in
K.S.BHOOPATHY vs. KOKILA, (2000) 5 SCC 458 at para
12 as under:
“12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.”
(b) The challenge of the Appellant to the grant of sanction/consent for CBI inquiry/investigation has been negatived by the learned Single Judge by the order impugned in the Appeal. It has long been settled that an Appeal is a continuation of the original proceeding and therefore both the Appeal and the original proceeding can be withdrawn with the leave of court unconditionally. Right to litigate ordinarily includes the right to withdraw litigation subject to all just exceptions into which the
argued case of the CBI & Intervener is not shown to fit. Order XXIII Rule 1 of Code of Civil Procedure, 1908 grants such a right to the litigant. Where the request for withdrawal is conditional such as with liberty to re-litigate on the same cause of action, court has discretion in the matter. Rule 39 of the Writ Proceedings Rules, 1977 have broadly adopted the provisions of CPC. The same reads as under:
“ Application of the High Court of Karnataka Rules, etc.- The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958, and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 and/or Article 227 and writ appeals in respect of matters for which no specific provision is made in these rules.”
Therefore right to withdraw the writ appeal along with the
original proceeding i.e., Writ Petition, that too
unconditionally, cannot be justifiably be objected to. After all the Appellant being the dominus litis has the
proragative to prosecute or put an end to the proceeding, be it appellate or original. Had the request for withdrawal being conditional, arguably different factors would have entered the fray of consideration.
(c) The vehement submission of learned CBI counsel and the advocate appearing for the Intervener that even if leave to withdraw the Appeal is to be accorded, the Appellant cannot be permitted to withdraw the Writ Petition since it has already culminated into an order adverse him and favourable to the CBI, does not merit acceptance and the reason for this is not far to seek: the Government vide order dated 25.09.2019 had granted sanction for CBI inquiry/investigation and Appellant’s challenge to the same in the Writ Petition was negatived by the learned Single Judge, is true. However, the very substratum on which learned Single Judge’s order now put in Appeal having withered away by virtue of rescinding of the consent/sanction vide Government Order dated 28.11.2023, denying leave to withdraw the very Writ Petition itself would be unjust and arbitrary, to say the
least. This is consistent with the established legal position
that an appeal is a continuation of the original proceeding and therefore the right to withdraw appeal includes the right to withdraw original proceeding. The Apex Court in
ANURAG MITTAL vs SHAILY MISHRA MITTAL, 2018
SCC OnLine SC 1136 at para 19 has observed as under:
“Order 23 Rule 1(1) CPC gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that Order 23 Rule 1 CPC is applicable to appeals as well and the appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it…”
(d) The vehement submission of learned advocates
appearing for the CBI and the Intervener that the very Government Order dated 28.11.2023 itself is non est and therefore the court need not take cognizance of the same, does not much impresses us. The order dated 28.11.2023 whereby the sanction/consent for CBI inquiry/investigation has been withdrawn, has not been put in challenge before us; that being the position we are unable to undertake its
critical examination. Ordinarily, even a non est order of
the kind, if at all it is, simply cannot be brushed aside, when no formal challenge is laid thereto. This view gains support from the Apex Court decision in STATE OF
PUNJAB AND OTHERS VS. GURDEV SINGH AND ASHOK KUMAR, AIR 1992 SC 111 wherein paragraphs
5, 6 & 7 read as under:
"5. In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to 'the Court with a grievance that their dismissal from service was no dismissal in law.' According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
6. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a
competent body or Court. In Smith v. East Elloe Rural District Council, 1956 AC 736 at p.769 Lord Radcliffe observed:
“An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
7. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:
"The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."(Ibid p.352).”
CBI and the Intervener on KAJI LHENDUP DORJI supra
also does not come in support of their submission. It
cannot be much disputed that the said decision broadly lays down the law that the sanction/consent once accorded for CBI investigation cannot be subsequently withdrawn. Paragraph 16 of the said decision has the following observations:
“16. Coming to the contention urged by Shri Jethmalani on merits it may be mentioned that Section 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation. … Therefore, even if we proceed on the basis that Section 21 of the General Clauses Act is applicable to an order passed under Section 6 of the Act, an order revoking an order giving consent under Section 6 of the Act can have only prospective operation and would not affect matters in which action has been initiated prior to the issuance of the order of revocation. The impugned notification dated 7-1-1987, has to be construed in this light. If thus construed it would mean that investigation which was commenced by CBI prior to withdrawal of consent under the impugned notification dated 7-1-1987, had to be completed and it was not affected by the said withdrawal of consent. In other words, the CBI was competent to complete the investigation in the cases registered by it against Respondent 4 and other persons and submit the report under Section 173 CrPC in the competent court. On that view of the matter, it is not necessary to go into the
question whether the provisions of Section 21 of the General Clauses Act can be invoked in relation to consent given under Section 6 of the Act.”
However, learned Senior Advocate Mr. Sibal appearing for the Respondents 1 & 2 is right in submitting that the above observations were made and the order withdrawing sanction/consent for CBI investigation was set at naught, because the said order was put in challenge. This factual position emerges from the very first paragraph of the said decision. Although Mr. Sibal insisted that we observe about non-applicability of the said ratio, we abstain from saying anything more. We note that our Constitution recognizes the rule of continuity of the government, regardless of one political party replacing the other in the seat of power, vowing to periodic elections. That being said, we observe that the validity and efficacy of the subject FIR is kept miles away from our consideration, the appeal itself being withdrawn. More is not necessary to specify…
NC: 2023:KHC:43090-DB WA No. 646 of 2023
In the above circumstances, the leave having been
accorded as prayed for, both the Writ Appeal and Writ Petition are disposed off, as having been withdrawn. Costs made easy.
Sd/CHIEF JUSTICE
Sd/JUDGE
Bsv
List No.: 1 Sl No.: 8
2 issues framed by the court
Whether leave should be granted to withdraw the writ appeal and writ petition after the subject matter (CBI sanction) was withdrawn by the government.
Whether a subsequent withdrawal of CBI sanction by the State government renders continued adjudication of the appeal unjust and arbitrary.
Colour shows how this judgement treated each authority
Kazi Lhendup Dorji vs. CBI and OthersExplained¶101
KAZI LHENDUP DORJI vs. CENTRAL BUREAU OF INVESTIGATION AND OTHERS, 1994 Supp (2) SCC 116 · Who else cites this
Mysore Urban Development Authority vs. K.M. ChikkathayammaReferred¶57
MYSORE URBAN DEVELOPMENT AUTHORITY vs. K.M.CHIKKATHAYAMMA, (2018) 17 SCC 508 · Who else cites this
K.S. Bhoopathy vs. KokilaReferred¶61
K.S.BHOOPATHY vs. KOKILA, (2000) 5 SCC 458 · Who else cites this
Anurag Mittal vs. Shaily Mishra MittalReferred¶80
ANURAG MITTAL vs SHAILY MISHRA MITTAL, 2018 SCC OnLine SC 1136 · Who else cites this
State of Punjab vs. Gurdev Singh and Ashok KumarReferred¶87
STATE OF PUNJAB AND OTHERS VS. GURDEV SINGH AND ASHOK KUMAR, AIR 1992 SC 111 · Who else cites this
3 provisions across 3 enactments
D. K. Shivakumar
State of Karnataka
Under Secretary to Government Home Department
Central Bureau of Investigation
Basanagouda R Patil
Prasanna B. Varale
Krishna S Dixit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
