Supreme Court: In a major development in the Gauri Lankesh murder case, the bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has set aside the Karnataka High Court order wherein it had quashed chargesheet filed against one Mohan Nayak.N regarding offences under Section 3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organised Crimes Act, 2000.
On 05.09.2017 in which Gauri Lankesh, who was a leading journalist, was shot dead by certain unknown assailants near her house at Rajarajeshwari Nagar, Bengaluru.
In absence of at least two chargesheets filed against the writ petitioner Mohan Nayak. N in respect of specified offences and of which cognizance had been taken by the competent Court as required to attract to offence of organized crime, the High Court noticed that he was not engaged in continuing unlawful activity. On this finding, the High Court concluded that Mohan Nayak.N cannot be proceeded further and thus, partly allowed the writ petition by not only quashing the order of the Commissioner of Police, Bengaluru City according approval for invoking Section 3 of the 2000 Act, but also the chargesheet filed against the writ petitioner-Mohan Nayak.N for offences punishable under Section 3(1)(i), 3(2), 3(3) and 3(4) of the 2000 Act.
Finding the said order erroneous, the Supreme Court said that the High Court, without analysing the material presented along with chargesheet on the basis of which cognizance has been taken by the competent Court including against Mohan Nayak. N, concerning commission of organized crime by the organized crime syndicate of which he is allegedly a member, committed manifest error and exceeded its jurisdiction in quashing the chargesheet.
It was further explained that the fact that the Investigating Agency was unable to collect material during investigation against Mohan Nayak.N for offence under Section 3(1) of the 2000 Act, does not mean that the information regarding commission of a crime by him within the meaning of Section 3(2), 3(3) or 3(4) of the 2000 Act cannot be recorded and investigated against him as being a member of the organized crime syndicate and/or having played role of an abettor, being party to the conspiracy to commit organized crime or of being a facilitator, as the case may be. For the latter category of offence, it is not essential that more than two chargesheets have been filed against the person so named, before a competent court within the preceding period of ten years and that court had taken cognizance of such offence. That requirement applies essentially to an offence punishable only under Section 3(1) of the 2000 Act.
As regards offences punishable under Section 3(2), 3(3), 3(4) or 3(5), 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 is important to note that in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, the Supreme Court had held that
“…in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organised crime, if a nexus either with an accused who is a member of an “organised crime syndicate” or with the offence in the nature of an “organised crime” is established that would attract the invocation of Section 3(2) of MCOCA.”
Explaining the law, the Court said that while considering the proposal for grant of prior approval under 25 Section 24(1)(a) of the 2000 Act, what is essential is the satisfaction of the competent authority that the material placed before him does reveal presence of credible information regarding commission of an offence of organized crime by the organized crime syndicate and, therefore, allow invocation of Section 3 of the 2000 Act. As a consequence of which, investigation of that crime can be taken forward by the Investigating Agency and chargesheet can be filed before the concerned Court and upon grant of sanction by the competent authority under Section 24(2), the competent Court can take cognizance of the case.
At the stage of granting prior approval under Section 24(1)(a) of the 2000 Act, therefore, the competent authority is not required to wade through the material placed by the Investigating Agency before him along with the proposal for grant of prior approval to ascertain the specific role of each accused. The competent authority has to focus essentially on the factum whether the information/material reveals the commission of a crime which is an organized crime committed by the organized crime syndicate. In that, the prior approval is qua offence and not the offender as such.
“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.”
The prior sanction under Section 24(2), however, may require enquiry into the specific role of the offender in the commission of organized crime, namely, he himself singly or jointly or as a member of the organized crime syndicate indulged in commission of the stated offences so as to attract the punishment provided under Section 3(1) of the 2000 Act. However, 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.
“Regardless of that, he can be proceeded under the 2000 Act, if the material collected by the Investigating Agency reveals that he had nexus with the accused who is a member of the organized crime syndicate or such nexus is related to the offence in the nature of organized crime. Thus, he need not be a person who had direct role in the commission of an organized crime as such.”
It was, hence, held that the conclusion reached by the High Court in partly allowing the writ petition filed by Mohan Nayak.N, is manifestly wrong and cannot be countenanced.
“In any case, the High Court has completely glossed over the crucial fact that the writ petition was filed only after the sanction was accorded by the competent authority under Section 24(2) and more so cognizance was also taken by the competent Court of the offence of organized crime committed by the members of organized crime syndicate including the writ petitioner — to which there was no challenge. The High Court has not analysed the efficacy of these developments as disentitling the writ petitioner belated relief claimed in respect of prior approval under Section 24(1)(a) of the 2000 Act.”
It was held that the High Court has clearly exceeded its jurisdiction in quashing the chargesheet filed against Mohan Nayak. N for offences punishable under Section 28 3(2), 3(3) and 3(4) of the 2000 Act at this stage [of prior approval under Section 24(1)(a)].
[Kavitha Lankesh v. State of Karnataka, DIARY NO.13309 OF 2021), decided on 21.10.2021]
For appellant: Senior Advocate Huzefa Ahmedi
For State: Advocate V.N. Raghupathy
For Respondent: Senior Advocate Basava Prabhu S. Patil
*Judgment by: Justice AM Khanwilkar