Gauri Lankesh murder case: SC restores KCOCA charges against accused, sets aside HC order

New Delhi, Oct 21: The Supreme Court Thursday restored the charges under the Karnataka Control of Organised Crimes Act (KCOCA) against one of the accused in the journalist Gauri Lankesh murder case by setting aside the high court order which had quashed the charge sheet for alleged offences under the stringent law.

A three-judge bench headed by Justice A M Khanwilkar allowed the two separate appeals filed by the state and Kavitha Lankesh, the sister of Gauri Lankesh, who have challenged the April 22 order of the Karnataka High Court. The apex court said the conclusion reached by the high court in partly allowing the plea filed before it by accused Mohan Nayak N was "manifestly wrong" and "cannot be countenanced".

The bench, also comprising Justices Dinesh Maheshwari and C T Ravikumar, noted that the high court had quashed the August 14, 2018 order issued by the Commissioner of Police, Bengaluru City, according to prior approval to invoke offences under section 3 of the KCOCA against the accused. "Further, the high court has clearly exceeded its jurisdiction in quashing the charge sheet 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 bench said in its 29-page judgement.

Lankesh was shot dead on the night of September 5, 2017, from close range near her house in Rajarajeshwari Nagar in Bengaluru. In its verdict, the top court noted that as regards offences punishable under section 3(2), 3(3), 3(4), or 3(5) of the Act, it can proceed against any person "sans such previous offence registered against him, if there is material to indicate that he happens to be a member of the organized crime syndicate who had committed the offences in question and it can be established that there is material about his nexus with the accused who is a member of the organized crime syndicate."

It said the high court has "completely glossed" over the crucial fact that the writ petition was filed before it by the accused only after the sanction was accorded by the competent authority and more so, cognizance was also taken by the competent court of the alleged offence of organized crime, to which there was no challenge. "Taking any view of the matter, therefore, these appeals deserve to be allowed and the impugned judgement and order of the high court needs to be set aside," the bench said.

It said the rejection of the plea filed by the accused would not come in his way in pursuing other remedies as may be available to him and permissible in law. The bench said its judgement is limited to the consideration of the question of whether the prior approval of August 14, 2018, granted by the Commissioner of Police was valid or not and it has held that the same "does not suffer from any infirmity".

It said the high court had opined that in the absence of at least two charge sheets filed against the accused in respect of specified offences and of which cognisance had been taken by the competent court as required to attract the offence of organized crime, he was not engaged in continuing unlawful activity. "Notably, 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 charge sheet filed before the competent court and in respect of which cognizance is also taken," the bench said.

It said the moot question to be answered in these appeals is about the purport of section 24 of the Act which deals with cognisance of and investigation into an offence. The apex court said what is crucial in this provision is the factum of recording of offence of organised crime and not of recording of a crime against an offender as such. It said the approval was not for registering crime against individual offenders as such, but for the recording of information regarding the commission of the offence of organised crime and therefore, the specific role of the concerned accused is not required to be and is not so mentioned in the stated prior approval.
"That aspect would be unravelled during the investigation, after registration of offence of organized crime. The high court, thus, examined the matter by applying an erroneous scale. The observations made by the high court in the impugned judgement clearly reveal that it has glossed over the core and tangible facts," it said. The bench said at the stage of granting prior approval under section 24(1)(a) of the Act, the competent authority is not required to wade through the material placed by investigating agency before him along with the proposal for grant of prior approval to ascertain the specific role of each accused.

"As long as the incidents referred to in earlier crimes are committed by a group of persons and one common individual was involved in all the incidents, the offence under the 2000 Act can be invoked," it said. It said if the role of the offender is merely that of a facilitator or an abettor as referred to in section 3(2), 3(3), 3(4), or 3(5) of the Act, the requirement of named person being involved in more than two charge sheets registered against him in the past is not relevant.

The top court said he can be proceeded under the Act if the material collected by the investigating agency reveals that he had nexus with the accused who is a member of the organised crime syndicate or such nexus is related to the offence like the organized crime.PTI