Accused A Facilitator - Supreme Court Orders For Restoration Of Charges Under KCOCA In Gauri Lankesh Murder Case

A three-judge Bench of Justice AM Khanwilkar, Justice Dinesh Maheshwari, and Justice C.T. Ravikumar has held that the High Court had without analyzing the material placed before it ignored the fact that the accused had a nexus with the other accused in the case who is a member of the organized crime syndicate. Further, that the High Court exceeded its jurisdiction in quashing the chargesheet regarding offence under the KCOCO Act.

Appeals were preferred by the Karnataka Government and Kavitha Lankesh, the sister of the deceased Gauri Lankesh against the judgment of the Karnataka High Court which had quashed the chargesheet filed against Mohan Nayak (Private Respondent) under the KCOCO Act.

In this case, Gauri Lankesh, a leading journalist was murdered near her house in Bengaluru. An FIR was registered on a complaint lodged by Kavitha Lankesh for offences under Section 302 IPC and Section 25 of the Arms Act. Thereafter, the investigation of the crime was conducted by the Special Investigation Team.

Chargesheet was filed against the accused and he was arrested. Further investigations revealed that the accused persons were involved in an organized crime syndicate that came under the purview of Section 3 of KCOCA.

Further, to invoke the provisions of Section 3 of KCOCA related to organized crime, the prior approval of the Commissioner of Police was sought by the Chief Investigating Officer upon the receipt of a report from SIT. The approval was accorded by the Commissioner of Police.

All the accused were charged under Sections 302, 120B, 114, 118, 109, 201, 203, 204, and 35 of the IPC. Further charges were also invoked under Sections 25(1), 25(1B), and 27(1) of the Arms Act and Section 3(1)(i), 3(2), 3(3), and 3(4) of the 2000 Act.

The Respondent had contended that he was not engaged in any continuing unlawful activity, the allegations in the chargesheet do not attract the KCOCA, and that his personal liberty under Article 21 was violated by unlawfully invoking Section 24(1)(a) of KCOCA.

The Apex Court while holding that the High Court erred in raising the question as to whether Section 3 of KOCOCA was applicable on Mohan Nayak, observed, "The High Court was not called upon nor has it analysed the entire material collected by the Investigating Agency, which had been made part of the chargesheet filed before the competent Court and in respect of which cognizance is also taken."

The issue which was primarily dealt with by the Court was about the scope of Section 24 of KOCOCA.

The Court noted that,"... 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?".

The Court held, "The purport of this section, upon its textual construct, posits that information regarding commission of an offence of organized crime under the 2000 Act can be recorded by a police officer only upon obtaining prior approval of the police officer not below the rank of the Deputy Inspector General of Police. That is the quintessence for recording of offence of organized crime under the Act by a police officer."

"A priori, the conclusion reached by the High Court in partly allowing the writ petition filed by the writ petitioner Mohan Nayak.N, is manifestly wrong and cannot be countenanced," the Bench opined.

The Court held, "The High Court has clearly exceeded its jurisdiction in quashing the chargesheet filed against the writ petitioner Mohan Nayak.N for offences punishable under Section 3(2), 3(3) and 3(4) of the 2000 Act at this stage [of prior approval under Section 24(1)(a)]."

The Court also held that if the role of the offender is merely that of a facilitator or of an abettor as referred to in Section 3(2), 3(3), 3(4) or 3(5), the requirement of named person being involved in more than two chargesheets registered against him in the past is not relevant.

In the light of these observations, the Court set aside the impugned judgment of the High Court and allowed the appeals.