29, Jun 2021 | CJP Team
CJP is assisting filmmaker and poet Kavitha Lankesh, sister of slain journalist Gauri Lankesh move Supreme Court against an order by the Karnataka High Court dropping charges under Karnataka Control of Organised Crime Act (KCOCA) against accused Mohan Nayak. The accused has used the Karnataka HC order to apply for bail in the case.
Mohan Nayak is a close associate of Amol Kale and Rajesh Bangera, two men who are key accused in planning and committing the assassination of Gauri Lankesh, one of India’s foremost voices of dissent against religious extremists and a fearless journalist.
Gauri Lankesh holds a very special place in our hearts. CJP’s commitment to human rights–based journalism is our tribute to one of India’s bravest women. To support CJP’s quest to deliver hard-hitting stories about people’s struggles and resilience in face of oppression and divisive politics, Donate Now.
Brief background of the case
Gauri Lankesh was snatched away from friends, family and her fellow journalists when she was gunned down outside her home in Rajarajeshwari Nagar in Bangalore on September 5, 2017. Her killers, all affiliated to different right-wing extremist organisations, wanted to silence her for her secular views and her stand against hardline groups that spread communal hate.
Amol Kale, a former Hindu Janjagruti Samiti convener, allegedly hired killer Parshuram Waghmare. Waghamare was allegedly a member of the Sri Ram Sene. Kale took him to an isolated spot in Khanapur, Belgaum to practice using an air pistol. Waghmare allegedly did a recce of Lankesh’s house in Rajarajeshwari Nagar in July 2017. On September 5, he and another back-up gunman Ganesh Miskin arrived outside Lankesh’s house on a black motorcycle. Waghmare fired four times at Lankesh and the duo fled the scene.
FIR and Chargesheets
The said incident came under the jurisdiction of Rajarajeshwari Nagar police station of Bangalore City and on the same day an FIR was registered under Sections 302, 120(B), 114, 118, 109, 201, 203, 204, 35 of I.P.C. and Sections 25(1), 25(1B), 27(1) of the Indian Arms Act, 1959 and Sessions 3(1)(i), 3(2), 3(3) and 3(4) of the COCA Act, 2000 (Order No.C.R.M./01/158/BC/2017-18 dated 06-09-2017 of the D.G. and I.G.P.) as Crime No. 221/2017. Gauri Lankesh’s sister, Kavitha Lankesh is the first informant in the case.
The Karnataka Special Investigation Team (SIT) began probing the case. According to the Karnataka SIT, the plot to kill Lankesh was hatched a year before the assassination. Two chargesheets were filed in the case. The primary chargesheet was filed against KT Naveen Kumar, a 37-year-old member of the Hindu Yuva Sena on May 30, 2018. On November 23, 2018 the supplementary chargesheet running into 9,235 pages was filed. 18 people have reportedly been named in the chargesheet. These include shooter Parashuram Waghmare, masterminds Amol Kale, Sujith Kumar alias Praveen and Amit Digwekar.
This second chargesheet was significant, not only because it named the Sanatan Sanstha for the first time, but also because it revealed that 26 other rationalists, eminent journalists, educationists and intellectuals who are perceived to be anti-Hindu by the Sanatan Sanstha, were on a hitlist of sorts. These include Siddharth Varadrajan (Editor, The Wire), journalist Antara Dev Sen, JNU professor Chaman Lal, Punjabi playwright Atamjit Singh among others.
Connection with other high-profile assassinations
The attack on Gauri Lankesh cannot be viewed in isolation. She was a journalist and a rationalist who had raised her voice against right-wing Hindutva extremists. Her assassination was along the lines of the cold-blooded murders of MM Kalburgi, Govind Pansare and Narendra Dabholkar.
Three of the accused in the Gauri Lankesh murder case are also linked to the plot to kill anti-superstition activist Narendra Dabholkar. Dabholkar was shot dead on August 20, 2013. The same weapon was used in both crimes according to the Central Bureau of Investigation (CBI). Sachin Andure, one of the alleged shooters of Dabholkar, was arrested by the CBI and has been remanded to judicial custody. Meanwhile, his co-accused Rajesh Bangera and Amit Digvekar have also been remanded to judicial custody. Bangera had allegedly provided weapons training to Andure and Sharad Kalaskar, the two men who allegedly shot Narendra Dabholkar. Meanwhile Digvekar had helped recon Dabholkar’s house and keep tabs on his movement and routine. Digvekar was also a ‘saadhak’ in the Sanatan Sanstha.
How all of this affects the present SLP
The present Special Leave Petition (SLP) has been filed by Kavitha Lankesh with CJP’s assistance before the Supreme Court against a judgement passed by the Karnataka High Court on April 22, 2021 dropping charges against Mohan Nayak, who is a close associate of the aforementioned Amol Kale and Rajesh Bangera.
Lankesh’s SLP before the SC details the nature and extent of his involvement saying that investigations had found that Nayak had been “actively involved in providing shelter to the killers prior to and after committing the offence and has participated in a series of conspiracies, abetting, planning, providing logistics.” This fulfils the condition of being involved in “continuous unlawful activity” which is vital for being charged under relevant sections of the KCOCA. The SLP further states that the police have collected sufficient evidence “to connect him with the case and establish his intimate nexus with the master mind behind the entire event i.e. Accused No.1 Amol Kale and master arms trainer Accused No. 8 Rajesh D. Bangera who are part and parcel of an “organized crime syndicate” from its inception.”
After the SIT concluded its investigation, the Chief Investigating Officer had sought the Bengaluru Commissioner of Police’s permission on August 7, 2018, to invoke section 3 of KCOCA against the accused. This section deals with punishment for persons involved in organised crime. The permission was granted on August 14, 2018.
Explaining how various charges under KCOCA came to be levelled against Nayak (Respondent No.6) , the SLP says, “After completion of the investigation, the ADGP and Commissioner of Police, Bengaluru accorded sanction under Section 24(2) KCOCA. Thereafter, the final report came to be filed on 23.11.2018 before the Special Court at Bengaluru on which cognizance of the offence was taken. Supplementary charge-sheet came to be filed against Respondent No. 6 before the 1st Addl. City Civil and Sessions Court in Spl. CC No. 872/2018 under Sections 302, 120(B), 114, 118, 109, 201, 203, 204, 35 IPC and Sections 25(1) 25(1B) 27(1) of the Arms Act and Sections 3 (1)(I), 3(2), 3(3), 3(4) KCOCA.”
Following this, in 2018 itself, Nayak had moved Karnataka High Court challenging the invocation of KCOCA charges against him, but in February 2019, the HC held that the charges were valid as Nayak was a member of an organised crime syndicate. That’s when Nayak moved HC again asking for quashing of the Bengaluru Police Commissioner’s order dated August 14, 2018 that permitted investigations under KCOCA in the first place. The Karnataka HC by way of an order dated April 22, 2021 quashed the order thus paving the way for KCOCA charges to be dropped against Nayak and this in turn led him to apply for bail.
Why is the SLP challenging the Karnataka HC order?
There are two key points raised in the SLP. Firstly, the SLP points out that the “Hon’ble High Court erred in not examining the scheme of Section 24 KCOCA which states that prior approval ought not to be granted by any officer below the rank of Additional Director General of Police which has been duly complied with in the present case.”
Secondly, the SLP also notes, “The Hon’ble High Court also failed to appreciate the fact that the sanction order under Section 24(2) KCOCA has neither been challenged nor assailed before the Hon’ble High Court. It is pertinent to point out herein that it is only the order under Section 24(1)(a) KCOCA which has been challenged.”
According to section 24 (1) (a), “Notwithstanding anything contained in the Code, no information about the commission of an offence of organized crime under this Act shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police.”
Whereas, according to section 24 (2), “No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of an Additional Director General of Police.” This has not been challenged.
The SLP also brings to light another significant element that appears to have been ignored by the HC. This deals with Sections 2 (1)(d), (e) and (f) of the KCOCA.
According to these sections, “In this Act, unless the context otherwise requires,
(d) “Continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheet have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;
(e) “Organized crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;
(f) “Organized crime syndicate”, means a group of two or more persons who acting either singly or collectively, as a syndicate or gang, indulge in activities of organized crime;”
We have already explained how Nayak’s actions have fulfilled the necessary and sufficient conditions that prove his involvement in “continuing unlawful activity” and being engaged in “organized crime” as part of an “organized crime syndicate”, thus making him a prime candidate to be tried under KCOCA.
The SLP also points out that in the 10 years preceding the assassination of Gauri Lankesh in 2017, Nayak has been associated with two people (Amol Kale and Rajesh Bangera) named in two other chargesheets filed in cases related to the murder of other rationalists. The petition says, “Respective charge-sheets have been filed with respect to the murders of Dr. Narendra Dabolkar in 2013, Govinda Pansare in 2015, Dr. M.M. Kalburgi in 2015 and Conspiracy to murder Prof. Bhagavan in 2018. Accordingly, the condition of at least 2 charge-sheets having been filed against the syndicate in the last 10 years along with cognizance by competent court stands fulfilled and invocation of KCOCA against Respondent No. 6 stands justified.”
The petition points out two key flaws in the impugned judgment saying, “The Hon’ble High Court has failed to appreciate that on a bare perusal of several judgments on the question of invoking provisions of KCOCA, it is revealed that the requirement of one or more charge-sheet relates to unlawful activity of an organized crime syndicate and does not pertain to a particular member of the crime syndicate.” Secondly, “The Hon’ble High Court failed to consider that the scope for interfering with the decision of an administrative authority under Article 226 and 227 of the Constitution of India is limited. A court exercising such writ jurisdiction may only examine whether the authority has considered the relevant material placed before it.”
The petition therefore seeks quashing of the impugned order of the Karnataka HC. The entire SLP may be read here:
On June 29, 2021, a three-judge bench of the Supreme Court of India issued notice in the SLP filed by filmmaker Kavitha Lankesh challenging the removal of provisions of the Karnataka Control Organised Crimes Act (KCOCA) against one of the accused in the assassination case of her slain sister, journalist and human rights defender, Gauri Lankesh. The accused was in the process of applying –and possibly getting bail–in the Karnataka High Court.
Justices Khanwilkar, Dinesh Maheshwari and Anirudha Bose issued notice and posted the case for July 15. Senior counsel Huzefa Ahmadi assisted by Ms Aparna Bhat and Ms Maria Karishma.
Over the past months, accused no 6 Mohan Nayak, had after charges of KCOCA were mysteriously removed from against him by the police, moved the Karnataka High Court for bail. The bail hearing has been heard and is pending in the high court. Orders are expected soon. Following Ms Lankesh’s filing of the SLP and the SC order that states that the accused cannot take benefits until the case is heard, it means effectively he cannot be granted bail until the matter is heard in the Supreme Court.
The order may be read here: