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New Delhi: The Supreme Court on Tuesday, September 21, indicated that it is inclined to set aside the last part of the high court’s impugned order quashing the charge sheet against Mohan Nayak, an accused in the murder of journalist Gauri Lankesh, for offences under provisions of the Karnataka Control of Organised Crimes Act.
The apex court observed this while hearing pleas, including the one filed by the journalist’s sister Kavitha Lankesh. Kavitha had challenged the April 22, 2021, order of the high court quashing the August 14, 2018, order of the Police Commissioner granting approval to invoke invoke Section 3 of KCOCA for investigation against Nayak.
Lankesh was shot dead on the night of September 5, 2017, from a close range near her house in Rajarajeshwari Nagar in Bengaluru.
The bench reserved its order on the petitions.
A bench headed by Justice A.M. Khanwilkar told the lawyer appearing for the accused that what has been given to him is “bonus” as the Karnataka high court has also quashed the charge sheet against him for the alleged offences under the KCOCA.
“We could have understood that high court was to limit it to only that in prior approval your name should not have been included. We could have understood that argument and reasoning, but not quashing of the chargesheet against you,” the court said, according to LiveLaw.
The court expressed further disapproval of the high court by stressing that what was “challenged was 14th August 2018 order granting approval, the chargesheet wasn’t challenged.”
“We are tentatively indicating to you that we are inclined to quash the last part of the order. On prior approval, even if we uphold the finding given by the high court, the fact remains that nothing prevents the investigating agency to investigate on the factum of whether you are member of that syndicate or not and to present charge sheet after collating the material in that regard,” the bench, also comprising Justices Dinesh Maheshwari and C.T. Ravikumar, told the counsel appearing for Nayak.
Justice Khanwilkar noted that this was “a very serious order to be passed, quashing chargesheet without analysing the chargesheet.”
“Whether his role is mentioned in chargesheet or not HC has not analysed it!’ the judge remarked.
Kavitha Lankesh’s counsel Huzefa Ahmadi argued on the consideration that Nayak be considered a part of a syndicate committing organised crime.
“The fact that all persons of that syndicate may or not be involved in earlier offence is completely immaterial,” the Ahmadi said.
He added that the high court has erred in coming to the conclusion that KCOCA was not applicable against Nayak. He referred to the role of the accused, as noted in the high court order, and said it is alleged that he had taken a house on rent in the guise of running an acupressure clinic but it was meant to accommodate the members of the syndicate.
“This charge sheet material comes after investigation. At that stage, without there being any offence registered against this particular person how can you level him as member of the organised crime syndicate unless there is some material which was placed before the authority to give prior approval,” the bench asked the state’s counsel.
The state’s counsel said the preliminary charge sheet was filed under the provisions of the Indian Penal Code and the Arms Act and during investigation, the role of accused came to light.
“To be a member of the organised crime syndicate, a person has to be part of continuing unlawful activity of the syndicate,” the bench said.
During the arguments, the counsel appearing for the accused said if the arguments of the prosecution are to be accepted then anyone can be said to be member of the syndicate.
When the counsel termed the law “draconian”, the bench said, “Once the validity of the Act has been upheld, how can you say ‘draconian’?”.
“These laws have their own purpose,” the bench said.
The bench said on the aspect of prior approval, the counsel for the accused may be right but to say that no offence has been registered in the past, so he cannot be proceeded at all, is not correct.
The bench, after hearing the submissions, asked the parties to file their written submissions within a week.
In its order, the high court had said, “If the approval order itself is bad in law, the sanction order, the charge sheet and the approval order so far as the offences under the Act (KCOCA) against the petitioner (Nayak) have no legs to stand.”
(With PTI inputs)