HC glossed over core and tangible facts: SC in Kavitha Lankesh SLP A brief analysis of the SC order that restored KCOCA charges against an accused in the Gauri Lankesh assassination

22, Oct 2021 | CJP Team

In a huge relief for friends and family of Gauri Lankesh, the Supreme Court overturned a Karnataka High Court judgment that had previously dropped organised crime charges under the Karnataka Control of Organised Crime Act (KCOCA) against Mohan Nayak, one of the accused on the assassination of the fearless journalist. Gauri’s sister and filmmaker Kavitha Lankesh had filed a Special Leave Petition (SLP) before the SC with the help of Citizens for Justice and Peace (CJP), challenging the HC order.

Points raised in the SLP

Lankesh’s SLP before the SC detailed the nature and extent of Nayak’s 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.

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The SLP further stated 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.

Therefore, there were 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.”

Supreme Court’s observations

In its judgment passed on October 21, 2021, the SC referred to Section 24 (1) (a) of the KCOCA. As per this section, “Notwithstanding anything contained in the Code, no information about the commission of an offence of organised 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.”

The SC observed, “What is crucial in this provision is the factum of recording of offence of organized crime and not of recording of a crime against an offender as such. Further, the right question to be posed at this stage is: whether prior approval accorded by the competent authority under Section 24(1)(a) is valid? In that, whether there was discernible information about commission of an offence of organized crime by known and unknown persons as being members of the organized crime syndicate? Resultantly, what needed to be enquired into by the appropriate authority (in the present case, Commissioner of Police) is: whether the factum of commission of offence of organized crime by an organized crime syndicate can be culled out from the material placed before him for grant of prior approval? That alone is the question to be enquired into even by the Court at this stage.”

It added, “It is cardinal to observe that only after registration of FIR, investigation for the concerned offence would proceed — in which the details about the specific role and the identity of the persons involved in such offence can be unravelled and referred to in the chargesheet to be filed before the competent Court.”

The court saw merit in the Police Commissioner’s decision to grant permission to register a case under KCOCA and said that at the time the permission was sought, “the Commissioner of Police had focussed only on the factum of information regarding the commission of organized crime by an organized crime syndicate and on being prima facie satisfied about the presence of material on record in that regard, rightly proceeded to accord prior approval for invoking Section 3 of the 2000 Act. The prior approval was not for registering crime against individual offenders as such, but for recording of information regarding commission of an offence of organized crime under the 2000 Act. Therefore, the specific role of the concerned accused is not required to be and is not so mentioned in the stated prior approval. That aspect would be unravelled during the investigation, after registration of offence of organized crime.”

The court therefore observed, “The High Court, thus, examined the matter by applying erroneous scale. The observations made by the High Court in the impugned judgment clearly reveal that it has glossed over the core and tangible facts.” Expressing further disapproval with the HC’s reasoning in the impugned judgment, the SC said, “Notably, the High Court, without analysing the material presented along with chargesheet on the basis of which cognizance has been taken by the competent Court including against the writ petitioner­Mohan Nayak.N, concerning commission of organized crime by the organized crime syndicate of which he is allegedly a member, committed manifest error and exceeded its jurisdiction in quashing the chargesheet filed before the competent Court qua the writ petitioner ­ Mohan Nayak. N regarding offences under Section 3(1)(i), 3(2), 3(3) and 3(4) of the 2000 Act.”

The court therefore ruled, that the appeals were allowed and, “The impugned judgment and order dated 22.04.2021 passed by the High Court is set aside and the writ petition filed by Mohan Nayak.N stands dismissed.”

The entire order may be read here:

Related:

Gauri Lankesh case: SC restores KCOCA charges against Mohan Nayak

Gauri Lankesh case: SC reserves order on plea to keep KCOCA charges against accused

Gauri Lankesh case: SC to decide on keeping KCOCA charges against accused

Gauri Lankesh case: CJP assists sister Kavitha move SC

 

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