21 Sep 2021 4:30 PM GMT
The Supreme Court on Tuesday reserved its order in a plea filed by filmmaker Kavita Lankesh challenging Karnataka High Court judgement which quashed charges under Karnataka Control of Organised Crimes Act (KCOCA) against accused Mohan Nayak in the Gauri Lankesh murder case.Kavita Lankesh is the sister of Gauri Lankesh, who was shot dead in Bengaluru in 2017.A Bench comprising Justice...
The Supreme Court on Tuesday reserved its order in a plea filed by filmmaker Kavita Lankesh challenging Karnataka High Court judgement which quashed charges under Karnataka Control of Organised Crimes Act (KCOCA) against accused Mohan Nayak in the Gauri Lankesh murder case.
Kavita Lankesh is the sister of Gauri Lankesh, who was shot dead in Bengaluru in 2017.
A Bench comprising Justice AM Khanwilkar, Justice Dinesh Maheshwari and Justice CT Ravikumar reserved the orders after hearing detailed submissions made by Senior Advocate Huzefa Ahmadi, appearing for Kavita Lankesh and Advocate Basava Prabhu S Patil appearing for accused Mohan Nayak.
The Bench also tentatively indicated that it is inclined to set aside the last part of the High Court's impugned order quashing the additional charge sheet filed in relation to offence under KCOCA against the accused Nayak.
The first part of the impugned order quashed the order dated 14.08.2018 passed by Police Commissioner granting approval to invoke Section 3 of the Karnataka Control of Organized Crimes Act, 2000 for investigation against Nayak.
The Bench orally observed that, "We are tentatively indicating that we are inclined to quash last part of the order...for prior approval- even if we uphold the finding of the order, the fact remains that nothing prevents investigating agencies to investigate factum of whether you are member of the syndicate or not and to present chargesheet after collating the material. And if that material is present, then chargesheet can proceed against you as well"
With regard to the present accused Mohan Nayak, the Bench said "So far as you are concerned what has been given to you is a bonus, the chargesheet has also been quashed. We could have understood that High Court was to limit it to only that, in prior approval your name should not have been included. We could have understood that argument and reasoning, but not quashing of the chargesheet against you."
Expressing its disapproval of High Court's order quashing the chargesheet, the Bench said "What was challenged was 14th August, 2018 order granting approval, the chargesheet wasn't challenged. High Court has understood the matter as only a challenge to the approval and allowed it and quashed chargesheet without analysing it."
"At a subsequent stage you can challenge the charge sheet. That's a different matter. Nevertheless, High Court has quashed the charge sheet itself which is incorrect, which in excess of jurisdiction." the Bench told the Counsel appearing for Nayak.
"It's a very serious order to be passed, quashing chargesheet without analysing the chargesheet. Whether his role is mentioned in chargesheet or not, HC has not analysed it!" Justice Khanwilkar remarked.
" The High Court judgement so far quashing of chargesheet is concerned can be said to be assumptive one, straight way after dealing with approval part, High Court has quashed chargesheet. It is not quashed like this sir." Justice Dinesh Maheshwari said.
Submissions on Behalf Of Petitioner:
Senior Advocate Huzefa Ahmadi for petitioner submitted before the Court that the short question that arises for consideration before the Court is with regard to the approval that was granted under Section 24(1) to invoke provision of KCOCA Act and cognisance taken thereon and the chargesheet filed.
He added that the High Court has taken a view that Act is not applicable in so far as the accused is concerned, but the Court was in error in coming to conclusion that KCOCA wasn't applicable at all.
Mr Ahmadi apprised the Court that the role imputed to the accused Mohan Nayak is that on basis of instructions of the accused Amol Kale, he took a house on rent in guise of running an acupressure clinic when the house was meant to accommodate members of syndicate and the accused harboured the actual assailant before and after the murder of Gauri Lankesh.
Mr Ahmadi said " The High Court takes the view that even if the syndicate has committed other offences unless there are more than two cases which are pending against each of the two accused the provisions of KCOCA can't be against them. I submit that the view is not correct because according to provisions of the act, emphasis is laid upon the syndicate. The fact that all persons of that syndicate may or not be involved in earlier offence is completely immaterial. What is material is involvement of syndicate in two earlier offences."
"So suppose a particular accused comes in at a later stage, even though its his first offence, the fact that he is part of the syndicate is enough to implicate him." Mr Ahmadi said.
"This is syndicate on what basis you are saying that." Bench said.
"That is the sum and substance of the allegations in the chargesheet." Mr Ahmadi said.
Elaborating on the definition of "Organised Crimes" under the KCOCA act, Mr Ahmadi submitted that organised crime mean any continuing unlawful activity by an individual singly or jointly either as a member of an organised crime syndicate or on behalf of any such syndicate by use of violence of threat of violence or intimidation or coercion with object of gaining pecuniary benefits.
"What's essential is all the activities which are referred to in ultimate chargesheet or FIR should either be as a member of organised crime syndicate or on behalf of the syndicate." the Bench said.
"There are certain decisions where court had taken a view that syndicate was part of offence b and c, and an offence d is committed, the mere fact that another person involved in offence D wasn't involved in previous offences doesn't extricate him. This person is accused of harbouring. " Ahmad said.
He further stated that continuing unlawful activity under section 2(d) 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.
He added that according to Section 3 talks about conspiring or attempting to commit or advocates, abet or knowingly facilitate the commission of an organized crime or any act preparatory to organized crime.
Mr Ahmadi submitted that there is a common ground that there is a syndicate involved, the allegation against Nayak is one categoric of harbouring and if he is involved in harbouring 3(3) is attracted whether he is or is not a member of the syndicate.
Referring to Section 3(3) of the Act, he stated that any person who harbors or conceals or attempts to harbor or conceal, any member of an organized crime syndicate will be punishable with imprisonment for a term not be less than five years but which may extend to imprisonment for life.
Me Ahmadi argued that unfortunately the High Court completely missed section 3 (3), and the entire discussion of the High Court proceeded on basis of 3(4) but sub section 3 was completely ignored.
"Second point is, High Court suggests on interpretation of provisions 2 (d) (e) and (f) read with 3(4) that to attract these provisions, it's necessary that against that particular accused there are a minimum of 2 prior cases. In my submission, that's an erroneous reading of the provisions of the Act, since the act lays emphasis on existence of a syndicate and once that's established its immaterial if another accused is used at a later stage who was not part of earlier offences." He said.
In response to Mr Ahmadi's submission that once there is allegations of harbouring or attempt to harbour section 3(3) is attracted, the Bench stated that "That is not so clear. 3(3) is attracted if there is an organised crime syndicate operating to conduct organised crime. The activity may be a crime but it has to be organised crime and operated by syndicate. The High Court says that to call it as organised crime, there should be continuous unlawful activity and organised crime syndicate. It also states there should be more than one chargesheet. Therefore mere chargesheet is not enough, the chargesheet should refer to activities committed as organised crime."
"Is it the case of the prosecution that they were operating as one unit?" the Bench asked.
"The chargesheet allegations categorically are all these persons are part of a syndicate, this accused is part of last offence and is charged for harbouring." Ahmadi responded
The Bench then said "3(4) and 3(3) operate in different spheres and are not overlapping. In 3(3) you need not be a member of any organised crime yet you can be charged with this offence having concealed, harboured or attempted to do so. And in 3(4) you need to be a member"
"I'm obliged that's my point." Ahmadi said.
"He is not part of any other offence registered against other members, he comes first time for procuring accommodation. So he can only be in 3(4). The approval is in the context of offence committed by the syndicate, approval is not for individual accused. The approval is for registration of FIR, it is not sanction." the Bench opined.
Mr Ahmadi responded saying that it was at the stage of approval that the High Court interfered.
"That is how High Court interfered because approval could not have been granted against him. Approval is granted in terms of offence and not accused." the Bench said.
"The entire discussion of High Court is not relevant in context of 3(3) and if he is involved in offence under 3(3) clearly KCOCA is involved." Ahmadi said.
Submissions On Behalf Of Accused Mohan Nayak:
The Bench told Advocate Basava Prabhu S Patil appearing for accused Mohan Nayak " The point is what you succeeded on. You succeeded on point that prior approval against you is improper. Prior approval is only to satisfy that there exists an organised crime syndicate who is indulging in organised crime. That satisfaction is recorded and FIR is registered. How can that be quashed at your instance? Your role is only limited to supporting them, that is also be itself an offence under 3(3) on which separate prior approval is not required."
" Here is a case where I am sought to be added as an accused after getting approval for invoking KCOCA" Patil said.
"What High Court has done is quash approval, approval is to register FIR not sanction. That stage will come later. First is registration of FIR." the Bench said.
The Bench further asked "Assuming your name is dropped from this prior approval, yet the FIR can be registered for Organised Crime against other members of the syndicate. And if you provided shelter to them, can you not be prosecuted under 3(3)?"
"Unless it satisfies 2(d) they cannot. It can be an offence." Mr Patil said.
"For 3(3) you need not be a member. If there is harbouring you can come under 3(3)" the Bench said.
Mr Patil submitted that "The rules of evidence change the moment KCOCA is invoked. The moment they are invoked they have far reaching ramifications. Therefore threshold bar is what is contemplated under 2 d, e and f. Without crossing threshold bar question of invoking section 3 does not arise. Under IPC it may arise, harbouring is a separate offence."
He added that "While investigating this case if they find i had participated as a conspirator in earlier cases where I have not been made a party, and that fact is brought in this investigation, it shows that in two earlier cases which were chargesheeted i was though not included, but i was party to that, that fact has to come out."
"But that will be a subsequent stage that you can challenge the charge sheet. That's a different matter. Nevertheless High Court has quashed the chargesheet itself which is incorrect, which in excess of jurisdiction." the Bench said
Details of the Special Leave Petition:
The SLP arises out of the murder of journalist Gauri Lankesh outside her home in Bengaluru on 5th September 2017. The plea submits that complaint was lodged under Section 302 of the Indian Penal Code against unknown persons by the Kavita Lankesh and the investigation was entrusted to the SIT, and this investigation clearly indicated that accused persons were involved in an "organized crime syndicate", thereby attracting provisions of KCOCA.
Further investigation found, the plea contends, that Nayak had been actively found providing shelter to the killers, and that he was involved in "continuous unlawful activity" within the meaning of KCOCA. Thereafter, sanction was accorded under Section 24(2) of KCOCA and supplementary chargesheet was also filed.
The plea submits that the investigation undertaken had also revealed that the syndicate, which was led by Amol Kale, had committed other crimes as well, including the murder of Dr. Narendra Dabolkar in 2013 in Pune, murder of Govinda Pansare at Kolhapur, Maharashtra in 2015, murder of Dr. MM Kalburgi in 2015, and conspiracy to murder Prof. Mohan Bhagavan of Mysore in 2018.
However, the impugned order of the Karnataka High Court, delivered on 22 April, 2021, quashed both the order of the Bengaluru Commissioner of Police as well as the supplementary chargesheet. Therefore, charges under KCOCA were dropped against Nayak.
The instant plea submits that the Karnataka High Court has erred in its order by "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".
It further submits that the High Court failed to appreciate the fact that the sanction order under Section 24(2) KCOCA was neither challenged nor assailed, and only order under Section 24(1)(a) had been challenged.
Case Title: Kavitha Lankesh v. State of Karnataka
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