SC reserves order on Kavitha Lankesh's plea opposing dropping KCOCA charges against accused

Supreme Court Image Courtesy:gaurilankeshnews.com

On August 16, the Supreme Court Bench of Justices A.M Khanwilkar and Sanjiv Khanna adjourned the matter of Kavitha Lankesh, the sister of slain journalist Gauri Lankesh, challenging an order by the Karnataka High Court dropping charges under Karnataka Control of Organised Crime Act (KCOCA) against Mohan Nayak, one of the accused in the case.

Kavitha Lankesh’s special leave petition before the apex court with CJP’s assistance, was heard today, on September 21 before Justices A.M Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar.

Background of the appeal

Accused Mohan Nayak is a close associate of Amol Kale and Rajesh Bangera, two men who are key accused in planning and committing the assassination of the slain journalist, Gauri Lankesh. Nayak had approached the Karnataka high court for bail on grounds of the ruling dropping the KCOCA charges against him. He had contended that on April 2, 2021, the court had quashed the FIR in relation to offence under KCOCA and therefore he could not be charged for the offence under KCOCA. For this reason, he argued that the chargesheet against him should have been filed before expiry of 90 days from the date of his arrest and remand to judicial custody. Admittedly there was no chargesheet and hence he contended that he should be entitled to statutory bail under Section 167(2) of Cr.PC.

But on July 13, the High Court’s Single-judge Bench of Justice Sreenivas Harish Kumar ruled that Nayak cannot seek bail on the grounds that the Special Investigation Team (SIT) filed a chargesheet against him, only on November 23, 2018, more than 90 days following his arrest on July 19, 2018, since the bail application was moved only after the chargesheet was filed.

Lankesh’s SLP, filed with CJP’s assistance, details the nature and extent of Mohan’s involvement saying that investigations had found that he had been “actively involved in providing shelter to the killers prior to and after committing the offence and has participated in a series of conspiracies, abetting, planning, providing logistics.”

The SLP further reiterated what the investigation agency has revealed, that they have collected sufficient evidence “to connect him with the case and establish his intimate nexus with the mastermind behind the entire event i.e., Accused No.1 Amol Kale and master arms trainer Accused No. 8 Rajesh D. Bangera who are part and parcel of an “organised crime syndicate” from its inception.”

Latest developments

In today’s hearing, Senior counsel Huzefa Ahmadi assisted by advocate Aparna Bhat, appearing for Lankesh, argued that the Karnataka high court erred via its order dated April 22, 2021 dropping charges against Mohan Nayak. He said, “The high court was in error to come to the conclusion that KCOCA was not applicable.” He highlighted the role of the accused Nayak, that on the basis of main accused Amol Kale’s instructions, he took a house on rent in Kumbalgodu under the guise of running an acupuncture clinic, but in reality, the house was meant to accommodate the members of the syndicate. “Even after the commission of the murder of Gauri Lankesh, he (Mohan Nayak) harboured the actual assailants,” said senior counsel Ahmadi.

Ahmadi said that the Karnataka high court has taken the view that even if the syndicate, that includes accused Amol Kale, has committed other offences, unless there are more than two cases pending against each of the accused in the syndicate, the provisions of KCOCA cannot be invoked against them. “I submit that this view is not correct because emphasis is laid upon the syndicate. So, the fact that all person’s part of the syndicate may or may not be involved in other offences earlier is immaterial,” Ahmadi argued. He asserted, “What is important is the involvement of the syndicate in the earlier murder offences of Gauri Lankesh, leftist activist Govind Pansare and Social activist Dr Narendra Dabholkar.”

He referred to section 3(2), 3(3) and 3(4) of the KCOCA that lays down punishment for conspiring or attempting to commit or advocates, abets or knowingly facilitates the commission of an organised crime, or whoever harbours or conceals or attempts to harbour or conceal, any member of an organized crime syndicate.

As far as conspiring under section 3(2) and (3) is considered, senior counsel Ahmadi argued that the requirement of Mohan Nayak being a member of the syndicate or being a part of an organised crime syndicate, is not necessary, as per the provisions. “Anyone who is part of any conspiracy, if he (Mohan) conspired with any member of the syndicate, KCOCA sections will clearly be attracted,” he said.

“Mohan Nayak is specifically involved in harbouring the crime of murder of Gauri Lankesh under section 3(3) of KCOCA, that has been missed by the high court,” argued counsel Huzefa Ahmadi. The chargesheet allegations also indicate the existence of a syndicate and that the accused Mohan was involved in the crime as part of that syndicate.

He contended that the object and scheme of KCOCA make it clear that the purpose is to investigate and punish organised crime, rather than individual criminals associated with the crime.

The accused’s lawyer Advocate Basava Patil argued that the chargesheet does not mention that the accused is linked to the syndicate in any manner. To this, Justice Maheshwari said, “Mr. Patil, suppose there is a gang of some persons and only 4 persons have planned and others attacked on the forefront. Now just because the planners did not come ahead will they not be charged under the law as conspirators, abettors….They will still be seen as members.”

Justice Khanwilkar said, “Even if we uphold the finding of the high court, the fact remains that nothing prevents the investigating agency to find if you are a member of the syndicate and if you are, then you can be proceeded against by the chargesheet. That is the essence.”

The court also opined that the chargesheet against an accused can only be quashed after the evidence is submitted by the investigation agency. In this matter, the Karnataka high court had quashed the additional charge sheet under the KCOCA sections without any material or evidence. Justice Khanwilkar said, “you (accused’s lawyer) can argue lack of evidence. The High court has quashed the chargesheet itself. This is incorrect and this is in excess of the jurisdiction.”

The Bench after hearing the arguments, directed the parties to file written submission within a week, and reserved orders on the matter.

The order may be read here: