KAVITHA LANKESH versus STATE OF KARNATAKA & ORS. on 21 October 2021

[2021] 10 S.C.R. 309

KAVITHA LANKESH

v.

STATE OF KARNATAKA & ORS.

(Criminal Appeal No. 1236 of 2021)

OCTOBER 21, 2021

[A. M. KHANWILKAR, DINESH MAHESHWARI ANDC. T. RAVIKUMAR, JJ.]

Karnataka Control of Organised Crimes Act, 2000: s.24 –Purport of – The purport of s.24 is that information regardingcommission of an offence of organized crime under the 2000 Actcan be recorded by a police officer only upon obtaining priorapproval of the police officer not below the rank of the DeputyInspector General of Police – What is crucial in this provision isthe factum of recording of offence of organized crime and not ofrecording of a crime against an offender as such – Thus, only afterregistration of FIR, investigation for the concerned offence wouldproceed in which the details about the specific role and the identityof the persons involved in such offence can be unravelled andreferred to in the chargesheet to be filed before the competent Court.

Karnataka Control of Organised Crimes Act, 2000: ss.3(1),3(2), 3(3), 3(4) – For offence under ss.3(2), 3(3), 3(4), it is notessential that more than two chargesheets are filed against the personso named, before a competent court within the preceding period often years and that court has taken cognizance of such offence –That requirement applies essentially to an offence punishable onlyunder s.3(1) of the 2000 Act – As regards offences punishable underss.3(2), 3(3), 3(4) or 3(5), it can proceed against any person sanssuch previous offence registered against him, if there is material toindicate that he happens to be a member of the organized crimesyndicate who had committed the offences in question and it can beestablished that there is material about his nexus with the accusedwho is a member of the organized crime syndicate.

Allowing the appeals, the Court

HELD: 1.1 The purport of section 24, upon its textualconstruct, posits that information regarding commission of an Aoffence of organized crime under the 2000 Act can be recordedby a police officer only upon obtaining prior approval of the policeofficer not below the rank of the Deputy Inspector General ofPolice. That is the quintessence for recording of offence oforganized crime under the Act by a police officer. What is crucialin this provision is the factum of recording of offence of organizedBcrime and not of recording of a crime against an offender as such.It is cardinal to observe that only after registration of FIR,investigation for the concerned offence would proceed — in whichthe details about the specific role and the identity of the personsinvolved in such offence can be unravelled and referred to in theCchargesheet to be filed before the competent Court. [Paras 19,20][323-D-F, H; 324-A]

1.2 Concededly, the original FIR registered in the presentcase was for an ordinary crime of murder against unknownpersons. At the relevant time, the material regarding offenceDhaving been committed by an organized crime syndicate was notknown. That information came to the fore only after investigationof the offence by the SIT, as has been mentioned in the reportsubmitted to the Commissioner of Police, Bengaluru City forseeking his prior approval to invoke Section 3 of the 2000 Act.Once again, at this stage, the Commissioner of Police had focussedEonly on the factum of information regarding the commission oforganized crime by an organized crime syndicate and on beingprima facie satisfied about the presence of material on record inthat regard, rightly proceeded to accord prior approval forinvoking Section 3 of the 2000 Act. The prior approval was not Ffor registering crime against individual offenders as such, but forrecording of information regarding commission of an offence oforganized crime under the 2000 Act. Therefore, the specific roleof the concerned accused is not required to be and is not somentioned in the stated prior approval. That aspect would be

unravelled during the investigation, after registration of offenceGof organized crime. Notably, the High Court, without analysingthe material presented along with chargesheet on the basis ofwhich cognizance has been taken by the competent Courtincluding against the writ petitioner-M, concerning commissionof organized crime by the organized crime syndicate of which heH

is allegedly a member, committed manifest error and exceededits jurisdiction in quashing the chargesheet filed before thecompetent Court qua the writ petitioner-M regarding offencesunder Section 3(1)(i), 3(2), 3(3) and 3(4) of the 2000 Act.[Paras 21, 22][324-B-G]

State (NCT of Delhi) v. Brijesh Singh @ Arun Kumar &Anr. (2017) 10 SCC 779 : [2017] 11 SCR 899; State ofMaharashtra & Ors. v. Lalit Somdatta Nagpal & Anr.(2007) 4 SCC 171 : [2007] 2 SCR 473 – distinguished.

2.1 The fact that the Investigating Agency was unable tocollect material during investigation against the writ petitioner-M for offence under Section 3(1) of the 2000 Act, does not meanthat the information regarding commission of a crime by him withinthe meaning of Section 3(2), 3(3) or 3(4) of the 2000 Act cannotbe recorded and investigated against him as being a member ofthe organized crime syndicate and/or having played role of anabettor, being party to the conspiracy to commit organized crimeor of being a facilitator, as the case may be. For the latter categoryof offence, it is not essential that more than two chargesheetshave been filed against the person so named, before a competentcourt within the preceding period of ten years and that court hadtaken cognizance of such offence. That requirement appliesessentially to an offence punishable only under Section 3(1) ofthe 2000 Act. [Para 23][325-D-F]

2.2 As regards offences punishable under Section 3(2), 3(3),3(4) or 3(5), it can proceed against any person sans such previousoffence registered against him, if there is material to indicatethat he happens to be a member of the organized crime syndicatewho had committed the offences in question and it can beestablished that there is material about his nexus with the accusedwho is a member of the organized crime syndicate. [Para 24][325-G; 326-A]

2.3 The High Court in the present case was essentiallyconcerned with the legality of prior approval granted by theCommissioner of Police, Bengaluru City dated 14.08.2018 forinvoking Section 3 of the 2000 Act and thus, to allow recording ofinformation regarding commission of offence of organized crimeunder the 2000 Act and to investigate the same. While considering A

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Athe proposal for grant of prior approval under Section 24(1)(a) ofthe 2000 Act, what is essential is the satisfaction of the competentauthority that the material placed before him does reveal presenceof credible information regarding commission of an offence oforganized crime by the organized crime syndicate and, therefore,allow invocation of Section 3 of the 2000 Act. As a consequenceBof which, investigation of that crime can be taken forward by theInvestigating Agency and chargesheet can be filed before theconcerned Court and upon grant of sanction by the competentauthority under Section 24(2), the competent Court can takecognizance of the case. [Para 25][326-G; 327-A-C]C3.1 At the stage of granting prior approval under Section24(1)(a) of the 2000 Act, therefore, the competent authority isnot required to wade through the material placed by theInvestigating Agency before him along with the proposal for grantof prior approval to ascertain the specific role of each accused.DThe competent authority has to focus essentially on the factumwhether the information/material reveals the commission of acrime which is an organized crime committed by the organizedcrime syndicate. In that, the prior approval is qua offence andnot the offender as such. As long as the incidents referred to inearlier crimes are committed by a group of persons and oneEcommon individual was involved in all the incidents, the offenceunder the 2000 Act can be invoked. [Para 26][327-D-F]

3.2 This Court in Prasad Shrikant Purohit in paragraphs 61and 98 expounded that at the stage of taking cognizance, thecompetent Court takes cognizance of the offence and not theFoffender. This analogy applies even at the stage of grant of priorapproval for invocation of provisions of the 2000 Act. The priorsanction under Section 24(2), however, may require enquiry intothe specific role of the offender in the commission of organizedcrime, namely, he himself singly or jointly or as a member of theGorganized crime syndicate indulged in commission of the statedoffences so as to attract the punishment provided under Section3(1) of the 2000 Act. However, if the role of the offender is merelythat 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 involvedin more than two chargesheets registered against him in the pastH

is not relevant. Regardless of that, he can be proceeded underthe 2000 Act, if the material collected by the Investigating Agencyreveals that he had nexus with the accused who is a member ofthe organized crime syndicate or such nexus is related to theoffence in the nature of organized crime. Thus, he need not be aperson who had direct role in the commission of an organizedcrime as such. [Para 26][327-F-H; 328-A-B]

4. A priori, the conclusion reached by the High Court inpartly allowing the writ petition filed by the writ petitioner-M, ismanifestly wrong and cannot be countenanced. In any case, theHigh Court has completely glossed over the crucial fact that thewrit petition was filed only after the sanction was accorded by thecompetent authority under Section 24(2) and more so cognizancewas also taken by the competent Court of the offence of organizedcrime committed by the members of organized crime syndicateincluding the writ petitioner - to which there was no challenge.The High Court has not analysed the efficacy of thesedevelopments as disentitling the writ petitioner belated reliefclaimed in respect of prior approval under Section 24(1)(a) of the2000 Act. Further, the High Court has clearly exceeded itsjurisdiction in quashing the chargesheet filed against the writpetitioner-M for offences punishable under Section 3(2), 3(3) and3(4) of the 2000 Act at this stage [of prior approval under Section24(1)(a)]. [Para 27][328-C-E]

Ranjitsingh Brahmajeetsing Sharma v. State ofMaharashtra (2005) 5 SCC 294 : [2005] 3 SCR 345– relied on.

Muniraju R. v. State of Karnataka & Ors. CriminalPetition No. 391 of 2019 decided on 05.02.2019 bythe High Court of Karnataka at Bengaluru; Vinod G.Asrani v. State of Maharashtra (2007) 3 SCC 633 :[2007] 2 SCR 1023; John D’Souza v. AssistantCommissioner of Police Manu/MH/0797/2007; PrasadShrikant Purohit v. State of Maharashtra & Anr.(2015) 7 SCC 440 : [2015] 8 SCR 575; GovindSakharam Ubhe v. State of Maharashtra 2009 SCCOnLine Bom 770; Digvijay Saroha v. State 2019 SCCOnLine Del 10324 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1236 of 2021.

From the Judgment and Order dated 22.04.2021 of the High CourtCof Karnataka at Bengaluru in W.P. No. 9717 of 2019 (GM-RES).

With

Criminal Appeal No. 1237 of 2021.

Huzefa Ahmedi, Basava Prabhu S. Patil, Sr. Advs., Ms. AparnaDBhat, V. N. Raghupathy, Md. Apzal Ansari, Shailesh Madiyal, SudhanshuPrakash, Ms. Rakhi M., Vaibhav Sabhrawal, Ms. Sruthi Iyer, Ms. NehaJain, Advs. for the Appearing Parties.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.E

1. These appeals emanate from the judgment and order dated22.04.2021 passed by the High Court of Karnataka at Bengaluru in WritPetition No.9717 of 2019 (GM-RES), whereby the High Court partlyallowed the writ petition and quashed the order bearing No.CRM(1)/KCOCA/01/2018 dated 14.08.2018 issued by the Commissioner of Police,FBengaluru City according prior approval to invoke offences under Section3 of the Karnataka Control of Organised Crimes Act, 2000[1] againstMohan Nayak.N (private respondent herein)[2] being crime registeredwith Rajarajeshwari Nagar Police Station as FIR No.221/2017 dated05.09.2017 and to enquire into the same.

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2. Shorn of unnecessary details, be it noted that the present appealspertain to the incident which had occurred on 05.09.2017 in which one 1 for short, ‘the 2000 Act’

2 Writ Petitioner before the High Court; not named in FIR No.221/2017 and preliminarychargesheet; shown as accused No.8 in the prior approval and as accused No.11 in theHadditional chargesheet.

Gauri Lankesh, who was a leading journalist, was shot dead by certainunknown assailants near her house at Rajarajeshwari Nagar, Bengaluru.Her sister-Kavitha Lankesh (appellant herein) rushed to the spot andafter seeing her sister in a precarious condition, immediately lodged acomplaint with the Rajarajeshwari Nagar Police Station, which came tobe registered for offences punishable under Section 302 of the IPC andSection 25 of the Arms Act, 1959[3] being FIR No.221/2017 dated05.09.2017. The investigation of the crime was thereafter entrusted tothe Special Investigating Team[4] on 06.09.2017.

3. In the course of investigation, a preliminary chargesheet cameto be filed against the concerned accused on 29.05.2018. The crimewas then committed to the City Civil and Sessions Judge as CC No.14578of 2018. The Investigating Officer had sought permission of the Magistrateto file an additional chargesheet under Section 173(8) of the CriminalProcedure Code as the investigation was still underway. The privaterespondent-Mohan Nayak.N came to be arrested on 18.07.2018 inconnection with the stated crime. The further investigation revealed thatthe accused persons in Special CC No.872 of 2018 were involved inorganized crime as a syndicate which attracted the provisions of Section3 of the 2000 Act. The SIT submitted that report to the Chief InvestigatingOfficer, who then sought approval of the Commissioner of Police,Bengaluru City vide proposal dated 07.08.2018, to invoke Section 3 ofthe 2000 Act concerning organized crime.

4. After due consideration of the stated report and the entireinvestigation papers and record of evidence collected by the SIT, theCommissioner of Police, Bengaluru City in exercise of powers underSection 24(1)(a) of the 2000 Act accordedprior approval for invokingSection 3 of the 2000 Act in respect of crime being FIR No.221/2017,vide communication dated 14.08.2018.

5. After completion of the investigation, the Additional DirectorGeneral of Police and Commissioner of Police, Bengaluru City accordedsanction under Section 24(2) of the 2000 Act. The final police reportthen came to be filed on 23.11.2018 before the Special Court at Bengaluru,for offences punishable under Sections 302, 120B, 114, 118, 109, 201,203, 204 and 35 of the IPC. Further charges were also invoked underSections 25(1), 25(1B) and 27(1) of the Arms Act and Section 3(1)(i),3(2), 3(3) and 3(4) of the 2000 Act. The additional chargesheet came to 3 for short, ‘the Arms Act’

4 for short, ‘the SIT’

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Abe filed against named accused Nos.1 to 18 before the Principal CityCivil and Sessions Judge Court (CCH-1) in Special C.C.No.872 of 2018under the stated provisions, in which private respondent-Mohan Nayak.Nwas named as accused. The Court then took cognizance on 17.12.2018.

6. It is only after the cognizance was taken by the competentBCourt, the private respondent-Mohan Nayak.N was advised to file WritPetition No.9717 of 2019 before the High Court on 25.02.2019, for thefollowing reliefs:

“PRAYER

WHEREFORE, the Petitioner above named most respectfullyCprays that this Hon’ble Court may be pleased to;

(a) Issue a writ in the nature of certiorari or any other writ ororder or direction, quashing the order dated: 14.08.2018passed by the third Respondent herein in No.CRM(1)KCOCA/01/2018 thereby passing an order of approvalDunder section 24(1)(a) of the Karnataka Control ofOrganised Crimes Act, 2000 (herein after referred to asKCOCA Act for short) to invoke the section 3 of the saidAct in Crime No.221/2017 registered by the fifth Respondentherein for the offences punishable under section 302, 120B,118, 114 read with section 35 of the Indian Penal Code andEsections 3 and 25 of the Indian Arms Act and also theadditional charge sheet filed by the fourth Respondent hereinagainst the Petitioner in so far as section 3(i), 3(ii), 3(iii)and 3(iv) of the KCOCA Act, which are produced asANNEXURES-A & B respectively; andF

(b) Grant such other and further reliefs as deems fit in thecircumstances of the case in the interest of justice andequity.”

7. The High Court vide impugned judgment noted that it was calledupon to examine whether the impugned order dated 14.08.2018 issuedGby the Commissioner of Police, Bengaluru City in exercise of powerunder Section 24(1)(a) of the 2000 Act according prior approval to invokeSection 3 of the 2000 Act for investigation against concerned accusedincluding writ petitioner-Mohan Nayak.N is legal and valid. In the contextof that relief, the High Court noted the submissions made by the counselHfor the writ petitioner in the following words:

“7. Sri Gautham S. Bharadwaj, learned Counsel for the petitionerchallenges the order Annexure-A granting permission underSection 24(1)(a) of the Act against the petition on the followinggrounds:

(i) The petitioner was not involved in continuing unlawful activityas contemplated in Section 2(1)(d) of the Act;

(ii) The charge sheet allegations do not attract organized crime ascontemplated under Section 2(e) of the Act; &

(iii) By such unlawful invocation of Section 24(1)(a) of the Act,personal liberty of the petitioner is violated, thereby the orderAnnexure-A is violative of Article 21 of the Constitution of India,1950.”

8. The High Court also adverted to the three decisions pressedinto service by the writ petitioner-Mohan Nayak.N, namely, State ofMaharashtra & Ors. vs. Lalit Somdatta Nagpal & Anr.[5], State (NCTof Delhi) vs. Brijesh Singh @ Arun Kumar & Anr.[6]and Muniraju R.vs. State of Karnataka & Ors.[7].

9. The High Court then proceeded to note the objections taken bythe prosecution in the following words:

“9. Sri H.S. Chandramouli, learned Special Public Prosecutoropposes the petition on the following grounds:

(i) There is no dispute that accused Nos.7 and 10 were involvedin two criminal cases each, accused Nos.9, 1 to 4 were involvedin one criminal case each. The said offences were cognizableoffences and the cognizance was taken in those cases;

(ii) If one of the members of the organized crime syndicate isinvolved in more than one case and the charge sheet was filed,Section 2(d) of the Act is attracted. Therefore even if the petitionerwas not involved in other cases, respondent No.3 has rightlyinvoked Section 2(d) of the Act;

(iii) Annexure-A shows that the approval was granted for investigation on due application of mind; 5 (2007) 4 SCC 171

6 (2017) 10 SCC 779

7 Criminal Petition No.391 of 2019 decided on 05.02.2019 by the High Court ofKarnataka at Bengaluru A

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A(iv) After the charge sheet was filed, the trial Court has takencognizance of the offences and the petitioner has not soughtquashing of the charge sheet or the order taking cognizance,therefore challenge to Annexure-A is not maintainable;

(v) The petitioner filed Crl.P.No.8325/2018 seeking bail. In thatBpetition, he raised the same contentions. This Court while passingthe order rejected the said contention and that order has attainedfinality. Therefore it is not open to the petitioner to challengeAnnexure-A on the same grounds;

(vi) The petitioner did not file any application for discharge on theCsame grounds, under such circumstances, Annexure-A is vexatious;&

(vii) The judgments relied upon by learned counsel for the petitionerare not applicable.”

The High Court then adverted to the decisions relied upon by theDprosecution, namely, Vinod G. Asrani vs. State of Maharashtra[8], JohnD’Souza vs. Assistant Commissioner of Police[9], Prasad ShrikantPurohit vs. State of Maharashtra & Anr.[10], Govind Sakharam Ubhevs. State of Maharashtra[11], Digvijay Saroha vs. State[12 ]and K.T.Naveen Kumar @ Naveen vs. State of Karnataka[13].

10. After having noted the rival submissions, the High Court posedEa question to itself whether Section 3 of the 2000 Act applies to the writpetitioner-Mohan Nayak.N?

11. The High Court noted the role of the writ petitioner-MohanNayak.N, as imputed by the prosecution, that he had acted on instructionsof co-accused Amol Kale[14] to take a house on rent in Tagachukuppe,FKumbalgodu in the guise of running an acupressure clinic, which was infact meant to accommodate the members of the syndicate and evenafter commission of murder of Gauri Lankesh, he harboured the actualassailants therein. The High Court then noted the fact that accused Nos.3, 8 (2007) 3 SCC 633G9 Manu/MH/0797/200710 (2015) 7 SCC 44011 2009 SCC OnLine Bom 77012 2019 SCC OnLine Del 10324

13 Crl. P.No.5507/2019 decided on 10.01.2020 by the High Court of Karnataka atBengaluru 14 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as accusedHNo.3 in the prior approval and as accused No.1 in the additional chargesheet.

5, 7 to 9, 11, 13 to 16 were not chargesheeted in any single case forcognizable offences, nor cognizance of such offences had been takenby a competent court against them as required under Section 2(1)(d) ofthe 2000 Act. The High Court then noticing the exposition in LalitSomdatta Nagpal[15], Brijesh Singh[16]and Muniraju R.[17], opined thatin absence of at least two chargesheets filed against the writ petitioner-Mohan Nayak.N in respect of specified offences and of which cognizancehad been taken by the competent Court as required to attract the offenceof organized crime, he was not engaged in continuing unlawful activity.On this finding, the High Court concluded that the writ petitioner-MohanNayak.N cannot be proceeded further and thus, partly allowed the writpetition by not only quashing the order dated 14.08.2018 of theCommissioner of Police, Bengaluru City according approval for invokingSection 3 of the 2000 Act, but also the chargesheet filed against the writpetitioner-Mohan Nayak.N for offences punishable under Section 3(1)(i),3(2), 3(3) and 3(4) of the 2000 Act. As regards the decisions relied uponby the prosecution, the High Court noted that the same were of no availto the prosecution.

12. Being aggrieved, the complainant-Kavitha Lankesh as wellas the State of Karnataka have filed separate appeals before this Courtquestioning the correctness of the view taken by the High Court. Thearguments as canvassed before the High Court have been reiterated byboth sides including reliance has been placed on the reported decisionsreferred hitherto.

13. We have heard Mr. Huzefa Ahmedi, learned Senior Counselappearing for the appellant-Kavitha Lankesh, Mr. V.N. Raghupathy,learned Counsel for the State of Karnataka and Mr. Basava Prabhu S.Patil, learned Senior Counsel appearing for the private respondent.

14. To recapitulate the relevant factual background, be it notedthat FIR under Section 154 of the Criminal Procedure Code wasregistered with Rajarajeshwari Nagar Police Station being Crime No.221/2017 dated 05.09.2017 initially for offences punishable under Section302 of the IPC and Section 25 of the Arms Act at the instance of theappellant-Kavitha Lankesh against unknown persons. Considering thenature of offence, the Government of Karnataka constituted a SIT vide

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Aorder dated 06.09.2017 headed by Mr. B.K. Singh, IPS, IGP, Intelligence,Bengaluru. Mr. M.N. Anucheth, IPS, DCP (West) was nominated asthe Chief Investigating Officer of the SIT. The SIT after taking over theinvestigation submitted preliminary chargesheet dated 29.05.2018 againstaccused K.T. Naveen Kumar @ Naveen[18] before the concerned Courtfor offences punishable under Sections 302, 114, 118, 120B and 35 ofBthe IPC read with Sections 3 and 25 of the Arms Act. The preliminarychargesheet was accompanied with documents and list of witnesses.On the basis of material collected during further investigation, reportdated 07.08.2018 was submitted by the Chief Investigating Officer ofthe SIT to the Commissioner of Police, Bengaluru City for accordingCprior approval for invoking provisions of the 2000 Act in respect of crimealready registered. The Commissioner of Police, Bengaluru City aftergoing through the stated report, entire investigation papers and record ofevidence collected until then, was satisfied that the accused ParshuramWagmore[19], Amith Baddi[20], and Ganesh Miskin[21] were involved in morethan two specified offences in the past through their illegal actions ofDsedition, promoting enmity between two groups of people, incitingcommunal violence, assaulting and injuring public servants, damagingpublic property and causing grave disturbance to public order. TheCommissioner of Police also recorded his satisfaction that K.T. NaveenKumar @ Naveen, Sujith Kumar[22], Amol Kale and Amit Degvekar[23],Ehave jointly committed an offence having punishment of three years ormore within the preceding period of ten years and the chargesheet(s)had been filed against them before the competent Court and cognizancethereof has been taken. He then formed an opinion that these accusedhad jointly conspired to assassinate one Prof. K.S. Bhagawan forexpressing his views which were inimical to that of their ideology. TheyFintended to instil fear in the hearts and minds of those whose views 18 Not named in FIR No.221/2017; shown as accused No.1 in the preliminary chargesheetand in prior approval and as accused No.17 in the additional chargesheet.

19 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as accusedNo.7 in the prior approval and as accused No.2 in the additional chargesheet.G20 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as accusedNo.10 in the prior approval and as accused No.4 in the additional chargesheet.21 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as accusedNo.9 in the prior approval and as accused No.3 in the additional chargesheet.22 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as accusedNo.2 in the prior approval and as accused No.13 in the additional chargesheet.23 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as accusedHNo.4 in the prior approval and as accused No.5 in the additional chargesheet.

were antithesis to their own views and stifle the fundamental right offree speech and expression. The Commissioner of Police was alsoconvinced that the arrested accused Nos.1 to 12 and the abscondingaccused No.5 were active members of an organized crime syndicateand have committed the present offence in furtherance of their organizedcrime activity in order to promote insurgency. The Commissioner ofPolice adverted to the findings in the investigation record revealing thatone Rajesh D. Bangera[24] gave training in arms to various members ofthe syndicate since 2012 at various places in and around Karnataka andMaharashtra. After having taken note of these facts, the Commissionerof Police recorded his satisfaction in the following words:

“Investigation findings have clearly revealed that these membersof the organized crime syndicate were in constant touch with oneanother and actively underwent arms training, arms shootingpractice, crude bomb making and indoctrination. They met,conspired and trained at various places in and around Karnatakaand Maharashtra with the intention of promoting insurgency.Documents seized during the investigation clearly reveal theintention of the accused to assassinate 8 writers/thinkers ofKarnataka and 26 other writers/thinkers from the rest of thecountry.

Documents seized in the course of investigation conductedreveal the plans of how the organized crime syndicate intended tocause grave disturbance to public order during the release of amovie titled ‘Padmaavat’ by attacking films theatres where thesaid movie would have been exhibited by the use of deadlysubstances like petrol bombs, acid etc. and cause bodily harm tothe viewers and economically hurt the film distributors. Thesedocuments further reveal the intention of the syndicate to procureand use RDX, petrol bombs, acids, poisons and other incendiaryand chemical materials.

Investigation findings have prima facie revealed that thesemembers of the organized crime syndicate conspired and murderedMs. Gauri Lankesh to further their cause and to promoteinsurgency.

24 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as accusedNo.11 in the prior approval and as accused No.8 in the additional chargesheet.

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Thus, on perusal and evaluation of the entire materialbrought on record and also taking into consideration the factualcircumstances of the case including the proximity and time gap incommitting the crimes and having applied my mind, I am satisfiedand convinced that the arrested and wanted accused havecommitted the offence as defined in section 2(1) of the KarnatakaControl of Organized Crimes Act, 2000.

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NOW, THEREFORE, in exercise of the powers conferredupon me by Section 24(1)(a) of the said Act, I, T. Suneel Kumar,IPS, Additional Director General of Police and Commissioner ofPolice, Bengaluru City hereby grant/accord my prior approval toinvoke Section 3 of The Karnataka Control of Organized CrimesAct 2000, to Sri M.N. Anucheth, IPS, DCP (Administration),Bengaluru City and Chief Investigating Officer (SpecialInvestigation Team) in the Bengaluru City Rajarajeshwari NagarPolice Station Crime No. 221/217 u/s 302, 120(B), 118, 114 r/w35 of Indian Penal Code and 3, 25 of Indian Arms Act.

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Sri M.N. Anucheth, Chief Investigating Officer, shallscrupulously follow and comply with the provisions of TheKarnataka Control of Organized Crimes Act, 2000.

This order given under my signature and seal today i.e.E14[th] August, 2018.”

15. It is plain that tangible material was placed before theCommissioner regarding information about the commission of anorganized crime by the members of organized crime syndicate, whichwarranted grant of prior approval to invoke Section 3 of the 2000 Act.FThis prior approval was assailed before the High Court by way of writpetition filed much after the appropriate authority had already accordedsanction and the competent court had taken cognizance of that crime on17.12.2018.

16. The High Court opened the judgment by noting that thechallenge is to the order dated 14.08.2018 of the Commissioner of Police,GBengaluru City granting approval to invoke Section 3 of the 2000 Act. Inthe latter part of the judgment, however, it posed a wrong question toitself which was obviously not relevant at this stage — as to whetherSection 3 of the 2000 Act applies to the writ petitioner-Mohan Nayak.N?Notably, the High Court was not called upon nor has it analysed theHentire material collected by the Investigating Agency, which had been made part of the chargesheet filed before the competent Court and inrespect of which cognizance is also taken.

17. For the time being for deciding the matter in issue, there is noneed to advert to the contents of the chargesheets and the materialcollated during the investigation by the SIT against each of the accusedin respect of which cognizance has already been taken by the competentCourt.

18. The moot question to be answered in these appeals is aboutthe purport of Section 24 of the 2000 Act. Section 24(1)(a), which iscrucial for our purpose, reads thus:

“24. Cognizance of and investigation into an offence.-(1)Notwithstanding anything contained in the Code, - (a) No information about the commission of an offence oforganized crime under this Act shall be recorded by a police officerwithout the prior approval of the police officer not below the rankof the Deputy Inspector General of Police;

…...”

19. The purport of this section, upon its textual construct, positsthat information regarding commission of an offence of organized crimeunder the 2000 Act can be recorded by a police officer only upon obtainingprior approval of the police officer not below the rank of the DeputyInspector General of Police. That is the quintessence for recording ofoffence of organized crime under the Act by a police officer.

20. What is crucial in this provision is the factum of recording ofoffence of organized crime and not of recording of a crime against anoffender as such. Further, the right question to be posed at this stage is:whether prior approval accorded by the competent authority under Section24(1)(a) is valid? In that, whether there was discernible information aboutcommission of an offence of organized crime by known and unknownpersons as being members of the organized crime syndicate? Resultantly,what needed to be enquired into by the appropriate authority (in thepresent case, Commissioner of Police) is: whether the factum ofcommission of offence of organized crime by an organized crimesyndicate can be culled out from the material placed before him forgrant of prior approval? That alone is the question to be enquired intoeven by the Court at this stage. It is cardinal to observe that only after A

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Aregistration of FIR, investigation for the concerned offence would proceed— in which the details about the specific role and the identity of thepersons involved in such offence can be unravelled and referred to inthe chargesheet to be filed before the competent Court.

21. Concededly, the original FIR registered in the present caseBwas for an ordinary crime of murder against unknown persons. At therelevant time, the material regarding offence having been committed byan organized crime syndicate was not known. That information came tothe fore only after investigation of the offence by the SIT, as has beenmentioned in the report submitted to the Commissioner of Police,Bengaluru City for seeking his prior approval to invoke Section 3 of theC2000 Act. Once again, at this stage, the Commissioner of Police hadfocussed only on the factum of information regarding the commission oforganized crime by an organized crime syndicate and on being primafacie satisfied about the presence of material on record in that regard,rightly proceeded to accord prior approval for invoking Section 3 of theD2000 Act. The prior approval was not for registering crime againstindividual offenders as such, but for recording of information regardingcommission of an offence of organized crime under the 2000 Act.Therefore, the specific role of the concerned accused is not required tobe and is not so mentioned in the stated prior approval. That aspectwould be unravelled during the investigation, after registration of offenceEof organized crime. The High Court, thus, examined the matter by applyingerroneous scale. The observations made by the High Court in theimpugned judgment clearly reveal that it has glossed over the core andtangible facts.

22. Notably, the High Court, without analysing the materialFpresented along with chargesheet on the basis of which cognizance hasbeen taken by the competent Court including against the writ petitioner-Mohan Nayak.N, concerning commission of organized crime by theorganized crime syndicate of which he is allegedly a member, committedmanifest error and exceeded its jurisdiction in quashing the chargesheetGfiled before the competent Court qua the writ petitioner-Mohan Nayak.Nregarding offences under Section 3(1)(i), 3(2), 3(3) and 3(4) of the 2000Act. The High Court did so being impressed by the exposition of thisCourt in Lalit Somdatta Nagpal[25],in particular paragraph 63 thereof.Indeed, that exposition would have bearing only if the entire material

was to be analysed by the High Court to conclude that the facts do notdisclose justification for application of provisions of the 2000 Act includingqua the writ petitioner-Mohan Nayak.N, provided he was being proceededonly for offence of organized crime punishable under Section 3(1) of the2000 Act. For, the reported decision deals with the argument regardinginvocation of provision analogous to Section 3(1) of the 2000 Act. Be itnoted that requirement of more than two chargesheets is in reference tothe continuing unlawful activities of the organized crime syndicate andnot qua individual member thereof. Reliance was also placed on BrijeshSingh[26]. Even this decision is of no avail to the private respondent-Mohan Nayak.N for the same reason noted whilst distinguishing LalitSomdatta Nagpal[27]. Further, the questions considered in that case, ascan be discerned from paragraph 12 of the reported decision, areregarding jurisdiction of the competent Court to take notice ofchargesheets filed against the accused outside the State. It is not anauthority on the issue under consideration.

23. We may hasten to add that the fact that the InvestigatingAgency was unable to collect material during investigation against thewrit petitioner-Mohan Nayak.N for offence under Section 3(1) of the2000 Act, does not mean that the information regarding commission of acrime by him within the meaning of Section 3(2), 3(3) or 3(4) of the 2000Act cannot be recorded and investigated against him as being a memberof the organized crime syndicate and/or having played role of an abettor,being party to the conspiracy to commit organized crime or of being afacilitator, as the case may be. For the latter category of offence, it isnot essential that more than two chargesheets have been filed againstthe person so named, before a competent court within the precedingperiod of ten years and that court had taken cognizance of such offence.That requirement applies essentially to an offence punishable only underSection 3(1) of the 2000 Act.

24. As regards offences punishable under Section 3(2), 3(3), 3(4)or 3(5), it can proceed against any person sans such previous offenceregistered against him, if there is material to indicate that he happens tobe a member of the organized crime syndicate who had committed theoffences in question and it can be established that there is material abouthis nexus with the accused who is a member of the organized crime 26 supra at Footnote No.6 (paragraph 25)

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Asyndicate. This position is expounded in the case of RanjitsinghBrahmajeetsing Sharma vs. State of Maharashtra[28 ]which has beenquoted with approval in paragraph 85 of the judgment in Prasad ShrikantPurohit[29]. The same reads thus:

“85. A reading of para 31 in Ranjitsing Brahmajeetsing SharmaBcase[30] shows that in order to invoke Mcoca even if a personmay or may not have any direct role to play as regards thecommission of an organised crime, if a nexus either with an accusedwho is a member of an “organised crime syndicate” or with theoffence in the nature of an “organised crime” is established thatwould attract the invocation of Section 3(2) of Mcoca. Therefore,Ceven if one may not have any direct role to play relating to

the commission of an “organised crime”, but when thenexus of such person with an accused who is a member ofthe “organised crime syndicate” or such nexus is relatedto the offence in the nature of “organised crime” isDestablished by showing his involvement with the accusedor the offence in the nature of such “organised crime”, thatby itself would attract the provisions of Mcoca. The saidstatement of law by this Court, therefore, makes the position clearas to in what circumstances Mcoca can be applied in respect of aperson depending upon his involvement in an organised crime inEthe manner set out in the said paragraph. In paras 36 and 37, itwas made further clear that such an analysis to be made toascertain the invocation of Mcoca against a person neednot necessarily go to the extent for holding a person guiltyof such offence and that even a finding to that extent needFnot be recorded. But such findings have to be necessarilyrecorded for the purpose of arriving at an objective finding on thebasis of materials on record only for the limited purpose of grantof bail and not for any other purpose. Such a requirement is,therefore, imminent under Section 21(4)(b) of Mcoca.”

(emphasis supplied)

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25. It is not necessary to multiply authorities in this regard. Sufficeit to observe that the High Court in the present case was essentially 28 (2005) 5 SCC 29429 supra at Footnote No.10H30 supra at Footnote No.28

concerned with the legality of prior approval granted by the Commissionerof Police, Bengaluru City dated 14.08.2018 for invoking Section 3 of the2000 Act and thus, to allow recording of information regardingcommission of offence of organized crime under the 2000 Act and toinvestigate the same. As aforesaid, while considering the proposal forgrant of prior approval under Section 24(1)(a) of the 2000 Act, what isessential is the satisfaction of the competent authority that the materialplaced before him does reveal presence of credible information regardingcommission of an offence of organized crime by the organized crimesyndicate and, therefore, allow invocation of Section 3 of the 2000 Act.As a consequence of which, investigation of that crime can be takenforward by the Investigating Agency and chargesheet can be filed beforethe concerned Court and upon grant of sanction by the competent authorityunder Section 24(2), the competent Court can take cognizance of thecase.

26. At the stage of granting prior approval under Section 24(1)(a)of the 2000 Act, therefore, the competent authority is not required towade through the material placed by the Investigating Agency beforehim along with the proposal for grant of prior approval to ascertain thespecific role of each accused. The competent authority has to focusessentially on the factum whether the information/material reveals thecommission of a crime which is an organized crime committed by theorganized crime syndicate. In that, the prior approval is qua offence andnot the offender as such. As long as the incidents referred to in earliercrimes are committed by a group of persons and one common individualwas involved in all the incidents, the offence under the 2000 Act can beinvoked. This Court in Prasad Shrikant Purohit[31]in paragraphs 61 and

98 expounded that at the stage of taking cognizance, the competentCourt takes cognizance of the offence and not the offender. This analogyapplies even at the stage of grant of prior approval for invocation ofprovisions of the 2000 Act. The prior sanction under Section 24(2),however, may require enquiry into the specific role of the offender in thecommission of organized crime, namely, he himself singly or jointly or asa member of the organized crime syndicate indulged in commission ofthe stated offences so as to attract the punishment provided under Section3(1) of the 2000 Act. However, if the role of the offender is merely thatof a facilitator or of an abettor as referred to in Section 3(2), 3(3), 3(4)

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Aor 3(5), the requirement of named person being involved in more thantwo chargesheets registered against him in the past is not relevant.Regardless of that, he can be proceeded under the 2000 Act, if thematerial collected by the Investigating Agency reveals that he had nexuswith the accused who is a member of the organized crime syndicate orsuch nexus is related to the offence in the nature of organized crime.BThus, he need not be a person who had direct role in the commission ofan organized crime as such.

27. A priori, the conclusion reached by the High Court in partlyallowing the writ petition filed by the writ petitioner-Mohan Nayak.N, ismanifestly wrong and cannot be countenanced. In any case, the HighCCourt has completely glossed over the crucial fact that the writ petitionwas filed only after the sanction was accorded by the competent authorityunder Section 24(2) and more so cognizance was also taken by thecompetent Court of the offence of organized crime committed by themembers of organized crime syndicate including the writ petitioner — toDwhich there was no challenge. The High Court has not analysed theefficacy of these developments as disentitling the writ petitioner belatedrelief claimed in respect of prior approval under Section 24(1)(a) of the2000 Act. Further, the High Court has clearly exceeded its jurisdiction inquashing the chargesheet filed against the writ petitioner-Mohan Nayak.Nfor offences punishable under Section 3(2), 3(3) and 3(4) of the 2000EAct at this stage [of prior approval under Section 24(1)(a)].

28. Taking any view of the matter, therefore, these appeals deserveto be allowed and the impugned judgment and order of the High Courtneeds to be set aside.F29. While parting, we may clarify that rejection of writ petitionfiled by the private respondent-Mohan Nayak.N will not come in hisway in pursuing other remedies as may be available to him and permissiblein law. We may not be understood to have expressed any opinion eitherway on the merits of such remedy. In other words, this judgment islimited to the consideration of question whether prior approval datedG14.08.2018 granted by the Commissioner of Police, Bengaluru City, inconnection with offence registered as Crime No.221/2017, is valid orotherwise. We have held that the same does not suffer from any infirmityincluding qua private respondent-Mohan Nayak.N having noted hisintimate nexus with the brain behind the entire event being none otherHthan Amol Kale and master arms trainer Rajesh D. Bangera who are KAVITHA LANKESH v. STATE OF KARNATAKA & ORS.[A. M. KHANWILKAR, J.]

part and parcel of an organized crime syndicate and committed organizedcrimes as such.

30. In view of the above, the appeals are allowed. The impugnedjudgment and order dated 22.04.2021 passed by the High Court is setaside and the writ petition filed by Mohan Nayak.N stands dismissed.

Pending application(s), if any, stands disposed of.

Devika Gujral

Appeals allowed.

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