Karnataka High Court Dismisses Appeal Filed By 10 Accused Seeking Default Bail In Gauri Lankesh Murder Case

A single judge of Justice K.S.Mudagal while dismissing the appeal filed by prime accused Amole Kale and others said,

"The attack on the impugned order was that the charge sheet was not filed on 23-11-2018, but that was ante-dated. The trial Court rejected the said contentions. The appellants did not seek any administrative action against the Ministerial officer who allegedly interpolated the date 23-11-2018 nor the presiding officer on the ground of judicial impropriety. Under Section 114 of the Indian Evidence Act, 1872 illustration (e) there is presumption that judicial acts or official acts have been regularly performed. Except for scandalising the office staff and the Judge, nothing was done to rebut the said presumption."

Case Background:

In connection with the murder of a Journalist by name Gauri Lankesh, on 29-05-2018 a chargesheet was filed against one Naveen Kumar. On 14-08-2018 the Investigating Officer invoked the provisions of Section 3 of the Karnataka Control of Organised Crime Act, 2000 (hereinafter referred to as 'KCOCA' for short) in the FIR. Therefore, the case was transferred to the Special Court.

On invoking the provisions of Section 3 of the KCOCA, the Investigating Officer filed an application under Section 22 (2)(b) of KCOCA and under Section 167(2) of Cr.P.C. seeking extension of time to file the chargesheet. The application was allowed on 29-8-2018. The extended period for filing of chargesheet expired on 27-11-2018.

On 28-11-2018, the appellants filed applications under Sections 167(2) Cr.P.C. seeking statutory bail on the ground that the charge sheet was not filed within the prescribed time. On that day, the trial Court directing the Registry to verify whether the chargesheet is filed, adjourned the matter to 28-12-2018. The application was opposed by the prosecution. The trial Court by the impugned order rejected the application holding that the chargesheet is filed on 23-11-2018 itself. That is within the prescribed time. Following which the accused approached the high court in appeal.

Petitioners submissions:

Advocate C.V. Srinivas for the petitioners submitted that the chargesheet was not filed on 23-11-2018 and that it is ante-dated. Further it was contended that the preliminary charge sheet was filed on 30-5-2018 and the final charge sheet should have been filed within 90 days. Even the time extended under the order dated 23-8-2018 expired on 27-11-2018. In the registry's note that the chargesheet is filed on 23-11-2018 is not creditworthy as the date 23-11-2018 is interpolated.

It was claimed that the moment the application under Section 167(2) was filed, the Sessions Judge could have secured the chargesheet and examined that instead of adjourning the case to 28-11-2018. That leads to inference that the charge sheet was not filed on 23-11-2018.

Moreover, despite the appellants filing application under Right to Information Act, seeking information of the entries in the Register Nos. I and III of Criminal Rules of Practice, the Information Officer did not furnish the relevant information. That goes to show that on 23-11-2018 the charge sheet was not filed, it was added.

It was contended the chargesheet is purportedly filed on getting the sanction order. The sanction order was purportedly issued on 23-11-2018. It would not have been possible to get the sanction order and include that in the chargesheet and file the chargesheet on the same day as the chargesheet copies run into thousands of pages. Therefore, the impugned order is unsustainable in law.

Prosecution Opposed the plea:

Section 12 of KCOCA provides for an appeal only against an order which is not interlocutory in nature. The order extending time to file the chargesheet, adjourning the matter to 28-12-2018 to verify of the chargesheet is filed are all interlocutory orders and they cannot be questioned in an appeal under Section 12 of KCOCA.

On 23-11-2018 the case was not listed for hearing. Therefore, the filing of the charge sheet was not mentioned in the order sheet. Wild and baseless allegations are made against the Judicial Officer which is condemnable.

The prosecution said that another accused Mohan Naik challenged the very same order before the High Court, which came to be dismissed on merits. Therefore, the same matter cannot be re-agitated in this case. Moreover, Section 207 Cr.P.C. is only directory and not mandatory. It only says that the Magistrate shall without delay furnish the copies to the accused. It does not say that the charge sheet copies shall be furnished within the time prescribed under Section 167(2) of Cr.P.C.

Court findings:

The court on going through section 167 (2) of Criminal Procedure Code noted that if the case involved only offences under IPC and Arms Act, in the ordinary course, the chargesheet should have been filed within 90 days from the date of arrest of the accused, otherwise, they were entitled for grant of bail. Since the provisions of Section 3 of the KCOCA are involved in the matter, Section 22 of the said Act becomes applicable.

Referring to Section 22 of the KCOCA Act the court observed that the Special Court has the power to extend the period of 90 days upto 180 days on the request of the Public Prosecutor.

It added "Though several judgments are relied on by both side relating to Section 167(2) Cr.P.C, the ratio in the said judgments is that, if the chargesheet is not filed within 90 days as contemplated under Section 167(2) of Cr.P.C., the accused is entitled to statutory bail. By virtue of operation of Section 22 of KCOCA, the said time gets extended up to 180 days."

The court also noted that the application under Section 167(2) of Cr.P.C. was made before the trial Court by accused Nos.1 to 8, 11 to 14. The said applications were rejected by the trial Court by common impugned order. Challenging that order, accused No.11 filed an appeal before the High Court on the same grounds. The High Court had then rejected the contention of the accused that the charge sheet was not filed within 180 days and records were manipulated to depict so and dismissed the appeal.

The bench observed, "That order has attained finality. Therefore, it is not open to the appellants to urge the same ground by filing parallel appeal." Following which it held "If the ground that charge sheet was not filed within ninety days fails then nothing survives in this Appeal."

Case Title: Amol Kale v. State of Karnataka

Case No: Criminal Appeal No.537/2019

Citation: 2022 LiveLaw (Kar) 70

Date of Order: 7th Day Of February 2022

Appearance: Advocate C.V.Srinivasa a/w Advocate Amruthesh N P for petitioners.

Special Public Prosecutor Ashok N Naik for respondent

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