Supreme Court Restores KCOCA Charges Against Accused In Gauri Lankesh Murder Case

The Top Court on September 21, 2021 had 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 headed by Justice AM Khanwilkar had 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 a member of the syndicate or not and to present charge-sheet after collating the material. And if that material is present, then charge sheet can proceed against you as well".

Senior Advocate Huzefa Ahmadi for the petitioner submitted before the Court that the short question that arose for consideration before the Court was 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 had taken a view that the Act was not applicable in so far as the accused was concerned, but the Court was in error in coming to the conclusion that KCOCA wasn't applicable at all.

The Bench told Advocate Basava Prabhu S Patil appearing for accused Mohan Nayak "The point is what you succeeded on. You succeeded on the point that prior approval against you is improper. Prior approval is only to satisfy that there exists an organised crime syndicate that is indulging in organised crime. That satisfaction is recorded and an FIR is registered. How can that be quashed at your instance? Your role is only limited to supporting them, that is also 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. He also submitted that the rules of evidence changed the moment KCOCA was 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 the threshold bar, the question of invoking section 3 does not arise. Under IPC it may arise, harbouring is a separate offence," Advocate Patil had added.

The bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and Aniruddha Bose while issuing notice on June 29, 2021 had observed that the bail application should be decided uninfluenced by the impugned judgment.

Background

The SLP arose out of the murder of journalist Gauri Lankesh outside her home in Bengaluru on 5^th September, 2017. The plea submitted 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 contended, 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 had submitted 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 submitted that the Karnataka High Court had 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 submitted 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.

"...the investigation undertaken by Respondent No. 4 has revealed that Respondent No. 6(Mohan Nayak) is part of the syndicate led by Amol Kale which has committed multiple organized crimes apart from the murder of Gauri Lankesh. Respective charge-sheets have been filed with respect to the murders of Dr. Narendra Dabolkar in 2013, Govinda Pansare in 2015, Dr. M.M. Kalburgi in 2015 and Conspiracy to murder Prof. Bhagavan in 2018. Accordingly, the condition of at least 2 charge-sheets having been filed against the syndicate in the last 10 years along with cognizance by competent court stands fulfilled and invocation of KCOCA against Respondent No. 6 stands justified. The Hon'ble High Court has failed to appreciate that on a bare perusal of several judgments on the question of invoking provisions of KCOCA, it is revealed that the requirement of one or more charge-sheet relates to unlawful activity of an organized crime syndicate and does not pertain to a particular member of the crime syndicate"

In light of the above, the appeal had prayed for a stay on the operation of the final judgement and order dated 22 April 2021 passed by the Karnataka High Court.

Case Title: Kavitha Lankesh v. State of Karnataka