'Failure To Take Cognizance Immediately Doesn't Make Detention Illegal" : Karnataka High Court Denies Bail To Accused In Gauri Lankesh Murder Case

Observing that "the appellant cannot take the benefit of delay in taking cognizance in order to claim statutory bail," the Karnataka High Court recently dismissed a petition seeking bail filed by Mohan Nayak who is an accused in the journalist Gauri Lankesh murder case. Justice Sreenivas Harish Kumar, who decided the bail application, observed that mere delay on the part of the Magistrate to take cognizance of the chargesheet filed will not make the detention illegal and statutory bail cannot be claimed on this ground."Failure to take cognizance immediately after filing of charge sheet does not make the detention illegal", the judgment stated. Nayak had filed an appeal under Section 12 of Karnataka Control of Organized Crimes Act, 2000 (KCOCA). It was contended by him that on 18.07.2018, he was arrested. On 14.8.2018, the offence under Section 3 of KCOCA was invoked in the FIR and later on it was transferred to the Special Court. Within 90 days from the date of his remand to custody, an additional charge sheet was not filed against him. But on 23.8.2018, the investigating officer made an application to the Special Court under Section 22(2) of KCOCA seeking extension of time by 90 days to file the charge sheet against the accused persons. The said application was allowed on 29.8.2018. The extended time expired on 27.11.2018 and according to the appellant charge sheet had not been filed till that date. Therefore on 28.11.2018, the appellant made an application under Section 167(2) of Cr.P.C. claiming statutory bail. The Special court dismissed the application by its order dated 7.02.2019 assigning reason that the charge sheet had been filed on 23.11.2018 itself. Aggrieved by the said order, accused No.11 has preferred this appeal. Grounds raised by the appellant: 1: When the appellant was in custody, without any notice to him, the investigating officer sought extension of further 90 days time by making an application on 23.8.2018 for filing the charge sheet in relation to offence under KCOCA and other IPC offences and this application was allowed on 29.8.2018 without hearing the appellant. Since the appellant was not notified, the order dated 29.8.2018 is illegal. 2: As by order dated 22.04.2021 the high court quashed the FIR in relation to offence under KCOCA. Therefore the appellant cannot be charged for the offence under KCOCA. For this reason the charge sheet against the appellant should have been filed before expiry of 90 days from the date of his arrest and remand to the judicial custody. Admittedly there was no charge sheet and hence he would become entitled to statutory bail under Section 167(2) of Cr.P.C. 3: Actually the charge sheet was not filed till 27.11.2018, but in the order sheet there is interpolation of date to show that it was filed on 23.11.2018 itself. The date, 23.11.2018 was deliberately inserted in the order sheet to deprive the appellant of his right to claim statutory bail. 4: Rule 10 of Chapter V of the Karnataka Criminal Rules of Practice states that as soon as a Magistrate receives the charge sheet, he shall put his initials on the same together with the date of its receipt. In the instant case even assuming that the charge sheet was filed on 23.11.2018, the Special Judge did not take cognizance on that day. He took cognizance on 17.12.2018 as can be made out from the order sheet. Therefore the detention of the appellant from the date of filing of charge sheet till 17.12.2018 was illegal. Court findings: Firstly the court dealt with the contention raised by the appellant that there is interpolation of date in the order sheet to give an impression that the charge sheet had been filed before the expiry of 180 days. The court said "It is true that in the office note found in the order sheet, the date 23.11.2018 appears to have been inserted, it cannot be the sole reason for disbelieving the proceedings of the court. Sanctity is attached to the marginal office note and whatever a judge writes in the order sheet. It cannot be so lightly attacked." It added "It is very apparent in the charge sheet itself that the chief investigating officer marked the date 23.11.2018 below his signature. There is another reference to the fact that the office of the court below received the charge sheet on 23.11.2018. This argument is therefore not worthy of acceptance." Then the court took up the contention of the accused that the charge sheet should have been filed within 90 days from the date of remand of the appellant to custody under charges 302 IPC and 25 of the Arms Act, as the charges under KCOCA were dropped by the order of the high court and thus he was entitled to claim bail under section 167(2) Cr.P.C, as according to him, charge sheet had not been filed within 90 days from 19.07.2018, i.e., date of his remand to custody. The...

'Failure To Take Cognizance Immediately Doesn't Make Detention Illegal" : Karnataka High Court Denies Bail To Accused In Gauri Lankesh Murder Case

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