Karnataka High Court Allows Private Complaint Against Mallikarjun Kharge Family Trust Over 'Illegal' BDA Land Allotment To Proceed
The Karnataka High Court has recently held that a defective affidavit accompanying a private complaint is a curable defect, and the same cannot be used as grounds to abandon the statutory procedure under Section 175 of the Bhartiya Nagarik Suraksha Sanhita (BNSS) and opt for a complaint enquiry under Section 223 BNSS instead. [2026 LiveLaw (Kar) 337]The single judge bench of Justice...
The Karnataka High Court has recently held that a defective affidavit accompanying a private complaint is a curable defect, and the same cannot be used as grounds to abandon the statutory procedure under Section 175 of the Bhartiya Nagarik Suraksha Sanhita (BNSS) and opt for a complaint enquiry under Section 223 BNSS instead. [2026 LiveLaw (Kar) 337]
The single judge bench of Justice M Nagaprasanna was adjudicating a challenge to a trial court order refusing further investigation into allegations of irregularities in BDA (Bengaluru Development Authority) land allotment involving the trust of senior Congress leader Mallikarjun Kharge and his family.
“…The concerned Court, instead of permitting such rectification[curing defects of affidavit] and thereafter traversing the statutory route ordained under Section 175 of the BNSS, allowed itself to be arrested by the technical infirmity in the affidavit and diverted the proceeding altogether to an enquiry under Section 223 of the BNSS. Such an approach places procedure on a pedestal above purpose…. The requirement of an affidavit is undoubtedly a statutory safeguard and must be scrupulously complied with before any substantive order directing investigation is made; but a safeguard intended to ensure responsibility in invocation of the criminal process cannot be converted into a stumbling block, which extinguishes that very process even before the stage for its invocation arrives.”, the court noted by relying on the precedents in N. Vijayalakshmi v. State of Karnataka (2025) and Arul Gerald Prakash v. State of Tamil Nadu(2025) which has held that defects in filing affidavits in itself can be cured.
For context, the President of Lanchamukta Karnataka Vedike organisation had preferred a private complaint alleging irregularities in the allotment of a civic amenity site to Siddhartha Vihar Trust, of which Mallikarjun Kharge (previous Union Minister and the current Leader of Opposition in Rajya Sabha) and his family members are trustees.
“The allegations may ultimately prove true; they may equally prove unfounded…What cannot be countenanced is that allegations which, by their very nature, require investigation should remain uninvestigated merely because an affidavit accompanying the complaint suffered from a defect capable of cure. The truth cannot be permitted to become a casualty at the altar of an imperfect verification clause”, the High Court said in the order.
“…There is a world of difference between non-compliance incapable of cure and a procedural defect capable of rectification. 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 court noted further.
It was alleged by the petitioner in the complaint before the trial court that the Trust falsely portrayed itself as a SC/ST managed institution, and hence secured a civic amenity site under SC quota at Banashankari 6th Stage. Consequently, the Trust allegedly obtained 50 per cent concession in lease amount despite the original character of the Trust. According to the allegations, the Trust secured an alternative site valued at Rs 130 crores (allegedly much more valuable than the primary site) at BTM 4th Stage, and continued to retain the land despite no construction for three years.
Aggrieved by the aforesaid factual circumstances, the Vedike President approached the jurisdictional police, Lokayukta's SP and the Governor seeking sanction under Section 17A of the Prevention of Corruption Act, 1988. Later, he was forced to file a private complaint seeking investigation under Section 175(3) of BNSS due to no response from the authorities.
The trial court held that the complainant's affidavit did not contain verification as required under Section 333(2) of BNSS, and therefore, it could not be proceeded under Section 175(3). The court ordered that examination of complainant himself and court enquiry was required under Section 223 of BNSS.
After perusing the trial court records, the single judge bench of High Court initially noted as below:
“…The concerned Court itself notices that the documents placed before it disclose that the Trust is a charitable and secular Trust and that the concession and alternative allotment had, in fact, followed…”
The High Court, after hearing both sides, opined that there is a clear distinction between Sections 175(3) and 223 of BNSS, and both can't be substituted for one another.
“…Section 223 of the BNSS operates in the realm of taking cognizance upon a complaint and examination of the complainant and witnesses. Section 175(3) of the BNSS, on the other hand, enables the Court to set the investigative machinery in motion where the nature of the allegations demands collection of material which the complainant cannot reasonably be expected to produce… The allegations are not of a private squabble dressed in criminal colours…. They concern alleged acts of corruption, misuse of public office, conferment of an undue advantage and manipulation of the process of allotment of valuable public property…”,the court emphasised.
The complainant alone would be unable to decipher the partuculars of the allegations levelled by him, the court added by opining that specific questions around the issue at hand can only be answered by the a thorough investigation.
“The real question is, whether what he does not and cannot know, without the aid of investigation, can ever be unearthed through an enquiry under Section 223 of the BNSS. …Who processed the application? On what basis was the Trust treated as falling within the Scheduled Caste category? What were the notings in the official file? Who recommended the concession? Whether there was any meeting of minds between the trustees and public servants... these are all matters lying beyond the reach of a private complainant.. Their excavation is the province of investigation, not merely of an enquiry by the Court”.
Hence the impugned order was obliterated in terms of directing an enquiry under Section 223 of BNSS. The High Court has now remitted the matter back to the trial court with a direction to proceed under Section 175 of BNSS after affording opportunity to cure the defect in affidavit.
“…If the law declared by the Apex Court and reiterated by the High Court of Madras is that even complete non-filing of an affidavit is a defect capable of cure, the sequitur becomes irresistible..”, the court clarified.
Case Title: Sri Vijayaraghava Marathe v. Shri Mallikarjun Kharge & Ors.
Case No: Criminal Petition No.12406/2026
Citation: 2026 LiveLaw (Kar) 337