Gauri Lankesh murder: Supreme Court restores KCOCA charges against accused

The Supreme Court on Thursday allowed an appeal against a judgment of the Karnataka High Court which had quashed the charges under the Karnataka Control of Organised Crimes Act, 2000 (KCOCA) against one of the accused in the Gauri Lankesh assassination case, Mohan Nayak (Kavita Lankesh v. State of Karnataka & Ors)..The Bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar restored the charges on an appeal filed by Lankesh's sister, Kavita Lankesh assailing the High Court verdict. The appeal before the Supreme Court had alleged that Nayak was actively involved in providing shelter to Lankesh's killers prior to and after the commission of the offence.The plea stated that the High Court made a mistake by not examining the scheme of Section 24 of the KCOCA, which states that no Special Court shall take cognizance of any offence under the Act without the previous sanction of a police officer not below the rank of Additional Director General of Police. The same was duly complied with in this case, it was pointed out.Senior Advocate Basava Prabhu S Patil, appearing for the accused Mohan Nayak, had argued that his client had no role to play in the actual commission of the crime. Further, if he had to be roped in under the KCOCA, then there is no proof of his membership with the crime syndicate.Karnataka High Court judgmentThe judgment under challenge before the top court was delivered on April 22, 2021, by which the Karnataka High Court had quashed the order of the Bengaluru Commissioner of Police passed in 2018 and the supplementary chargesheet filed thereafter. Offences under Sections 3(1)(i), 3(2), 3(3) and 3(4) of the KCOCA against Nayak were, thereby, dropped.The High Court had noted that in absence of at least two chargesheets filed against Nayak in respect of specified offences and of which cognizance had been taken by the competent court as required to attract the offence of organized crime, he was not engaged in continuing unlawful activity.This itself was based on the definition of 'continuing unlawful activity' under Section 2(1)(d) and 'organised crime' under Section 2(1)(e) of KCOCA. Section 2(1)(d) reads as follows:“Continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheet have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;Section 2(1)(e) states:“Organized crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;.Supreme Court verdict.The Supreme Court in its judgment held that 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) of KCOCA, the requirement of named person being involved in more than two chargesheets registered against him in the past is not relevant.The top court stated that regardless of that, an accused can be proceeded under KCOCA, 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," the judgment said.The requirement of more than two chargesheets is in reference to continuing unlawful activities of the organized crime syndicate and not with respect to individual member, the Court added..The Supreme Court also said that the High Court posed to itself the wrong question which was not relevant at that stage — as to whether Section 3 of the Act applies to Nayak."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 chargesheet filed before the competent Court and in respect of which cognizance is also taken. For the time being for deciding the matter in issue, there is no need to advert to the contents of the chargesheets and the material collated during the investigation by the SIT against each of the accused in respect of which cognizance has already been taken by the competent court," the Supreme Court opined.Instead, the moot question to be answered was about the purport of Section 24 of the KCOCA which lays down conditions for cognizance and investigation into an offence, the top court stated.As per Section 24(1)(a) no information about the commission of an offence of organized crime under KCOCA shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police."The right question to be posed at this stage is whether prior approval accorded by the competent authority under Section 24(1)(a) is valid," the Court emphasised.Hence, what needed to be enquired into by the appropriate authority (in the present case, Commissioner of Police) was whether the factum of commission of offence of organized crime by an organized crime syndicate can be culled out from the material placed before him for grant of prior approval. That alone is the question to be enquired into even by the Court at this stage, the Supreme Court said.In the instant case, the top court said that Commissioner of Police had focussed only on the factum of information regarding the commission of organized crime by an organized crime syndicate and on being prima facie satisfied about the presence of material on record in that regard, rightly proceeded to accord prior approval for invoking Section 3 of the Act."The prior approval was not for registering crime against individual offenders as such, but for recording of information regarding commission of an offence of organized crime under the 2000 Act. 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 judgment held.At the stage of granting prior approval under Section 24(1)(a), 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 Bench reiterated. "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," the Court reaffirmed.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 KCOCA can be invoked, the Court concluded.It, therefore, allowed the appeal and set aside the High Court verdict..Gauri Lankesh murder case: Supreme Court reserves order in plea against dropping of KCOCA charges.[Read Judgment]