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

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 court noted that the State has approached the Supreme Court challenging the order of the high court dropping the charges under KCOCA. On June 29, the Supreme Court had stayed the High Court order which quashed the KCOCA charges. The High Court said that it may not be appropriate to consider the argument raised by the appellant on this point as the Supreme Court is seized of the issue.

It said "Until the Supreme Court decides the appeal, the order in the writ petition has the effect of effacing the offence under KCOCA from the FIR since the date of inception as against the appellant, and therefore the offence under Section 302 IPC and Section 25 of the Arms Act remain in FIR. The charge sheet should have been filed within 90 days from the date of remand of the appellant to custody."

It added "Assuming that the appellant would have been entitled to bail in a situation hypothetically pointed by the appellant's counsel, still it may be stated that he rendered himself disentitled to claim bail. In connection with offence under section 302 IPC, he had not filed the application for bail under section 167(2) Cr.P.C., soon after completion of 90 days. Law is that the application from the accused for claiming statutory bail must precede the date of filing the charge sheet."

Next the court took up the contention of the accused about granting extension of time to file the charge sheet. The court noted "The position is clear that whenever the investigator seeks extension of time to file a charge sheet in case the law provides for seeking extension, the accused needs to be notified about the application for extension in order to afford an opportunity to him to oppose the application on any of the grounds available to him."

The court opined "But the appellant cannot lay stress on infraction of this procedure for, if his interest was really affected by extension of time on the application of the investigator, he should have challenged the said order. Rather he kept quiet. It is only in this appeal, this point is raised for the first time."

Considering the argument of the accused about delay in taking cognizance of the charge sheet the court said "Rule 10 (The Karnataka Criminal Rules of Practice) contemplates that the Magistrate has to put his initials on the charge sheet for having received it on a particular date. The rule also speaks about some ministerial work to be attended by the office of the court. Rule 10 does not contemplate taking cognizance on the same day of filing the charge sheet."

It opined "Though generally cognizance has to be taken on the date of filing of charge sheet, sometimes, it may not be possible if the charge sheet is voluminous. In the instant case, as submitted by H.S.Chandramouli (Special Public Prosecutor), the charge sheet consists of 10,000 pages. Unless the charge sheet is verified by the office of the court to ascertain that it is complete and defect free, the Magistrate, or the Special Judge, as the case may be cannot apply his mind to decide as to taking cognizance. In case charge is found to be defective, it has to be returned. These are empirical aspects. The argument of appellant's counsel is too hyper technical, it cannot be accepted at all."

It added "It is true that there are two stages of remand of accused in custody, one under section 167 (1) CrPC and another under section 309 (2) CrPC. Failure to take cognizance immediately after filing of chargesheet does not make the detention illegal."

The court concluded by saying "The foregoing discussion takes me to conclude that the appeal has to fail. Accordingly the appeal is dismissed."

On June 29, the Supreme Court while hearing a special leave petition filed by filmmaker Kavitha Lankesh challenging the judgment of the Karnataka High Court had said "We observe that the bail application filed by respondent No.6 before the High Court be decided without being influenced by the impugned order. For, it is the subject matter of challenge in this special leave petition."

Lankesh, a Bangalore based journalist, was shot dead in front of her residence in Bengaluru on September 5, 2017.

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