1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2021
(ARISING OUT OF S.L.P. (CRIMINAL) NO._________ OF 2021)
(@ DIARY NO.13309 OF 2021)
KAVITHA LANKESH …APPELLANT
VERSUS
STATE OF KARNATAKA & ORS. …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. OF 2021
(ARISING OUT OF S.L.P. (CRIMINAL) NO. 5387/2021)
J U D G M E N T
A.M. KHANWILKAR, J.
1. These appeals emanate from the judgment and order dated
22.04.2021 passed by the High Court of Karnataka at Bengaluru in
Writ Petition No.9717 of 2019 (GMRES), whereby the High Court
partly allowed the writ petition and quashed the order bearing
2
No.CRM(1)/KCOCA/01/2018 dated 14.08.2018 issued by the
Commissioner of Police, Bengaluru City according prior approval to
invoke offences under Section 3 of the Karnataka Control of
Organised Crimes Act, 20001
against Mohan Nayak.N (private
respondent herein)2
being crime registered with Rajarajeshwari
Nagar Police Station as FIR No.221/2017 dated 05.09.2017 and to
enquire into the same.
2. Shorn of unnecessary details, be it noted that the present
appeals pertain to the incident which had occurred on 05.09.2017
in which one Gauri Lankesh, who was a leading journalist, was
shot dead by certain unknown assailants near her house at
Rajarajeshwari Nagar, Bengaluru. Her sisterKavitha Lankesh
(appellant herein) rushed to the spot and after seeing her sister in
a precarious condition, immediately lodged a complaint with the
Rajarajeshwari Nagar Police Station, which came to be registered
for offences punishable under Section 302 of the IPC and Section
25 of the Arms Act, 19593
being FIR No.221/2017 dated
1 for short, ‘the 2000 Act’
2 Writ Petitioner before the High Court; not named in FIR No.221/2017 and
preliminary chargesheet; shown as accused No.8 in the prior approval and as
accused No.11 in the additional chargesheet.
3 for short, ‘the Arms Act’
3
05.09.2017. The investigation of the crime was thereafter
entrusted to the Special Investigating Team4
on 06.09.2017.
3. In the course of investigation, a preliminary chargesheet came
to be filed against the concerned accused on 29.05.2018. The
crime was then committed to the City Civil and Sessions Judge as
CC No.14578 of 2018. The Investigating Officer had sought
permission of the Magistrate to file an additional chargesheet
under Section 173(8) of the Criminal Procedure Code as the
investigation was still underway. The private respondentMohan
Nayak.N came to be arrested on 18.07.2018 in connection with the
stated crime. The further investigation revealed that the accused
persons in Special CC No.872 of 2018 were involved in organized
crime as a syndicate which attracted the provisions of Section 3 of
the 2000 Act. The SIT submitted that report to the Chief
Investigating Officer, who then sought approval of the
Commissioner of Police, Bengaluru City vide proposal dated
07.08.2018, to invoke Section 3 of the 2000 Act concerning
organized crime.
4 for short, ‘the SIT'
4
4. After due consideration of the stated report and the entire
investigation papers and record of evidence collected by the SIT,
the Commissioner of Police, Bengaluru City in exercise of powers
under Section 24(1)(a) of the 2000 Act accorded prior approval for
invoking Section 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 Director
General of Police and Commissioner of Police, Bengaluru City
accorded sanction under Section 24(2) of the 2000 Act. The final
police report then 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 under Sections 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 be filed against named
accused Nos.1 to 18 before the Principal City Civil and Sessions
Judge Court (CCH1) in Special C.C.No.872 of 2018 under the
stated provisions, in which private respondentMohan Nayak.N was
5
named as accused. The Court then took cognizance on
17.12.2018.
6. It is only after the cognizance was taken by the competent
Court, the private respondentMohan Nayak.N was advised to file
Writ Petition No.9717 of 2019 before the High Court on
25.02.2019, for the following reliefs:
“PRAYER
WHEREFORE, the Petitioner above named most
respectfully prays that this Hon’ble Court may be
pleased to;
(a) Issue a writ in the nature of certiorari or any other
writ or order or direction, quashing the order
dated: 14.08.2018 passed by the third
Respondent herein in No.CRM(1)
KCOCA/01/2018 thereby passing an order of
approval under section 24(1)(a) of the Karnataka
Control of Organised Crimes Act, 2000 (herein
after referred to as KCOCA Act for short) to invoke
the section 3 of the said Act in Crime
No.221/2017 registered by the fifth Respondent
herein for the offences punishable under section
302, 120B, 118, 114 read with section 35 of the
Indian Penal Code and sections 3 and 25 of the
Indian Arms Act and also the additional charge
sheet filed by the fourth Respondent herein
against the Petitioner in so far as section 3(i), 3(ii),
3(iii) and 3(iv) of the KCOCA Act, which are
produced as ANNEXURESA & B respectively; and
(b) Grant such other and further reliefs as deems fit
in the circumstances of the case in the interest of
justice and equity.”
6
7. The High Court vide impugned judgment noted that it was
called upon to examine whether the impugned order dated
14.08.2018 issued by the Commissioner of Police, Bengaluru City
in exercise of power under Section 24(1)(a) of the 2000 Act
according prior approval to invoke Section 3 of the 2000 Act for
investigation against concerned accused including writ petitionerMohan Nayak.N is legal and valid. In the context of that relief, the
High Court noted the submissions made by the counsel for the writ
petitioner in the following words:
“7. Sri Gautham S. Bharadwaj, learned Counsel for
the petitioner challenges the order AnnexureA
granting permission under Section 24(1)(a) of the Act
against the petition on the following grounds:
(i) The petitioner was not involved in continuing
unlawful activity as contemplated in Section 2(1)(d) of
the Act;
(ii) The charge sheet allegations do not attract
organized crime as contemplated 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 order AnnexureA is violative of Article 21
of the Constitution of India, 1950.”
8. The High Court also adverted to the three decisions pressed
into service by the writ petitionerMohan Nayak.N, namely, State
7
of Maharashtra & Ors. vs. Lalit Somdatta Nagpal & Anr.5
,
State (NCT of 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
by the prosecution in the following words:
“9. Sri H.S. Chandramouli, learned Special Public
Prosecutor opposes the petition on the following
grounds:
(i) There is no dispute that accused Nos.7 and 10
were involved in two criminal cases each, accused
Nos.9, 1 to 4 were involved in one criminal case each.
The said offences were cognizable offences and the
cognizance was taken in those cases;
(ii) If one of the members of the organized crime
syndicate is involved in more than one case and the
charge sheet was filed, Section 2(d) of the Act is
attracted. Therefore even if the petitioner was not
involved in other cases, respondent No.3 has rightly
invoked Section 2(d) of the Act;
(iii) AnnexureA shows that the approval was
granted for investigation on due application of mind;
(iv) After the charge sheet was filed, the trial Court
has taken cognizance of the offences and the petitioner
has not sought quashing of the charge sheet or the
order taking cognizance, therefore challenge to
AnnexureA is not maintainable;
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 of
Karnataka at Bengaluru
8
(v) The petitioner filed Crl.P.No.8325/2018 seeking
bail. In that petition, he raised the same contentions.
This Court while passing the order rejected the said
contention and that order has attained finality.
Therefore it is not open to the petitioner to challenge
AnnexureA on the same grounds;
(vi) The petitioner did not file any application for
discharge on the same grounds, under such
circumstances, AnnexureA is vexatious; &
(vii) The judgments relied upon by learned counsel
for the petitioner are not applicable.”
The High Court then adverted to the decisions relied upon by the
prosecution, namely, Vinod G. Asrani vs. State of
Maharashtra8
, John D’Souza vs. Assistant Commissioner of
Police9
, Prasad Shrikant Purohit vs. State of Maharashtra &
Anr.10
, Govind Sakharam Ubhe vs. State of Maharashtra11
,
Digvijay Saroha vs. State12 and K.T. Naveen Kumar @ Naveen
vs. State of Karnataka13
.
8 (2007) 3 SCC 633
9 Manu/MH/0797/2007
10 (2015) 7 SCC 440
11 2009 SCC OnLine Bom 770
12 2019 SCC OnLine Del 10324
13 Crl. P.No.5507/2019 decided on 10.01.2020 by the High Court of Karnataka at
Bengaluru
9
10. After having noted the rival submissions, the High Court
posed a question to itself whether Section 3 of the 2000 Act applies
to the writ petitionerMohan Nayak.N?
11. The High Court noted the role of the writ petitionerMohan
Nayak.N, as imputed by the prosecution, that he had acted on
instructions of coaccused Amol Kale14 to take a house on rent in
Tagachukuppe, Kumbalgodu in the guise of running an
acupressure clinic, which was in fact meant to accommodate the
members of the syndicate and even after commission of murder of
Gauri Lankesh, he harboured the actual assailants therein. The
High Court then noted the fact that accused Nos.3, 5, 7 to 9, 11,
13 to 16 were not chargesheeted in any single case for cognizable
offences, nor cognizance of such offences had been taken by a
competent court against them as required under Section 2(1)(d) of
the 2000 Act. The High Court then noticing the exposition in Lalit
Somdatta Nagpal15
, Brijesh Singh16 and Muniraju R.17
, opined
14 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as
accused No.3 in the prior approval and as accused No.1 in the additional
chargesheet.
15 supra at Footnote No.5
16 supra at Footnote No.6
17 supra at Footnote No.7
10
that in absence of at least two chargesheets filed against the writ
petitionerMohan Nayak.N 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. On this finding, the High
Court concluded that the writ petitionerMohan Nayak.N cannot be
proceeded further and thus, partly allowed the writ petition by not
only quashing the order dated 14.08.2018 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
petitionerMohan 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 upon by the prosecution, the High Court noted that the same
were of no avail to the prosecution.
12. Being aggrieved, the complainantKavitha Lankesh as well as
the State of Karnataka have filed separate appeals before this
Court questioning the correctness of the view taken by the High
Court. The arguments as canvassed before the High Court have
11
been reiterated by both sides including reliance has been placed on
the reported decisions referred hitherto.
13. We have heard Mr. Huzefa Ahmedi, learned Senior Counsel
appearing for the appellantKavitha 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 noted
that FIR under Section 154 of the Criminal Procedure Code was
registered with Rajarajeshwari Nagar Police Station being Crime
No.221/2017 dated 05.09.2017 initially for offences punishable
under Section 302 of the IPC and Section 25 of the Arms Act at the
instance of the appellantKavitha Lankesh against unknown
persons. Considering the nature of offence, the Government of
Karnataka constituted a SIT vide order dated 06.09.2017 headed
by Mr. B.K. Singh, IPS, IGP, Intelligence, Bengaluru. Mr. M.N.
Anucheth, IPS, DCP (West) was nominated as the Chief
Investigating Officer of the SIT. The SIT after taking over the
12
investigation submitted preliminary chargesheet dated 29.05.2018
against accused K.T. Naveen Kumar @ Naveen18 before the
concerned Court for offences punishable under Sections 302, 114,
118, 120B and 35 of the IPC read with Sections 3 and 25 of the
Arms Act. The preliminary chargesheet was accompanied with
documents and list of witnesses. On the basis of material collected
during further investigation, report dated 07.08.2018 was
submitted by the Chief Investigating Officer of the SIT to the
Commissioner of Police, Bengaluru City for according prior
approval for invoking provisions of the 2000 Act in respect of crime
already registered. The Commissioner of Police, Bengaluru City
after going through the stated report, entire investigation papers
and record of evidence collected until then, was satisfied that the
accused Parshuram Wagmore19, Amith Baddi20, and Ganesh
18 Not named in FIR No.221/2017; shown as accused No.1 in the preliminary
chargesheet and 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
accused No.7 in the prior approval and as accused No.2 in the additional
chargesheet.
20 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as
accused No.10 in the prior approval and as accused No.4 in the additional
chargesheet.
13
Miskin21 were involved in more than two specified offences in the
past through their illegal actions of sedition, promoting enmity
between two groups of people, inciting communal violence,
assaulting and injuring public servants, damaging public property
and causing grave disturbance to public order. The Commissioner
of Police also recorded his satisfaction that K.T. Naveen Kumar @
Naveen, Sujith Kumar22, Amol Kale and Amit Degvekar23, have
jointly committed an offence having punishment of three years or
more within the preceding period of ten years and the
chargesheet(s) had been filed against them before the competent
Court and cognizance thereof has been taken. He then formed an
opinion that these accused had jointly conspired to assassinate
one Prof. K.S. Bhagawan for expressing his views which were
inimical to that of their ideology. They intended to instil fear in the
hearts and minds of those whose views were antithesis to their own
21 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as
accused No.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
accused No.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
accused No.4 in the prior approval and as accused No.5 in the additional
chargesheet.
14
views and stifle the fundamental right of free speech and
expression. The Commissioner of Police was also convinced that
the arrested accused Nos.1 to 12 and the absconding accused No.5
were active members of an organized crime syndicate and have
committed the present offence in furtherance of their organized
crime activity in order to promote insurgency. The Commissioner
of Police adverted to the findings in the investigation record
revealing that one Rajesh D. Bangera24 gave training in arms to
various members of the syndicate since 2012 at various places in
and around Karnataka and Maharashtra. After having taken note
of these facts, the Commissioner of Police recorded his satisfaction
in the following words:
“Investigation findings have clearly revealed that these
members of the organized crime syndicate were in
constant touch with one another and actively
underwent arms training, arms shooting practice,
crude bomb making and indoctrination. They met,
conspired and trained at various places in and around
Karnataka and Maharashtra with the intention of
promoting insurgency. Documents seized during the
investigation clearly reveal the intention of the accused
to assassinate 8 writers/thinkers of Karnataka and 26
other writers/thinkers from the rest of the country.
24 Not named in FIR No.221/2017 and in the preliminary chargesheet; shown as
accused No.11 in the prior approval and as accused No.8 in the additional
chargesheet.
15
Documents seized in the course of investigation
conducted reveal the plans of how the organized crime
syndicate intended to cause grave disturbance to
public order during the release of a movie titled
‘Padmaavat’ by attacking films theatres where the said
movie would have been exhibited by the use of deadly
substances like petrol bombs, acid etc. and cause
bodily harm to the viewers and economically hurt the
film distributors. These documents further reveal the
intention of the syndicate to procure and use RDX,
petrol bombs, acids, poisons and other incendiary and
chemical materials.
Investigation findings have prima facie revealed
that these members of the organized crime syndicate
conspired and murdered Ms. Gauri Lankesh to further
their cause and to promote insurgency.
Thus, on perusal and evaluation of the entire
material brought on record and also taking into
consideration the factual circumstances of the case
including the proximity and time gap in committing
the crimes and having applied my mind, I am satisfied
and convinced that the arrested and wanted accused
have committed the offence as defined in section 2(1)
of the Karnataka Control of Organized Crimes Act,
2000.
NOW, THEREFORE, in exercise of the powers
conferred upon me by Section 24(1)(a) of the said Act,
I, T. Suneel Kumar, IPS, Additional Director General of
Police and Commissioner of Police, Bengaluru City
hereby grant/accord my prior approval to invoke
Section 3 of The Karnataka Control of Organized
Crimes Act 2000, to Sri M.N. Anucheth, IPS, DCP
(Administration), Bengaluru City and Chief
Investigating Officer (Special Investigation Team) in the
Bengaluru City Rajarajeshwari Nagar Police Station
Crime No. 221/217 u/s 302, 120(B), 118, 114 r/w 35
of Indian Penal Code and 3, 25 of Indian Arms Act.
Sri M.N. Anucheth, Chief Investigating Officer,
shall scrupulously follow and comply with the
16
provisions of The Karnataka Control of Organized
Crimes Act, 2000.
This order given under my signature and seal
today i.e. 14th August, 2018.”
15. It is plain that tangible material was placed before the
Commissioner regarding information about the commission of an
organized crime by the members of organized crime syndicate,
which warranted grant of prior approval to invoke Section 3 of the
2000 Act. This prior approval was assailed before the High Court
by way of writ petition filed much after the appropriate authority
had already accorded sanction and the competent court had taken
cognizance of that crime on 17.12.2018.
16. The High Court opened the judgment by noting that the
challenge is to the order dated 14.08.2018 of the Commissioner of
Police, Bengaluru City granting approval to invoke Section 3 of the
2000 Act. In the latter part of the judgment, however, it posed a
wrong question to itself which was obviously not relevant at this
stage — as to whether Section 3 of the 2000 Act applies to the writ
petitionerMohan Nayak.N? Notably, the High Court was not called
upon nor has it analysed the entire material collected by the
17
Investigating Agency, which had been made part of the chargesheet
filed before the competent Court and in respect of which
cognizance is also taken.
17. 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.
18. The moot question to be answered in these appeals is about
the purport of Section 24 of the 2000 Act. Section 24(1)(a), which
is crucial 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 of organized crime under this Act 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;
…...”
19. The purport of this section, upon its textual construct, posits
that information regarding commission of an offence of organized
crime under the 2000 Act can be recorded by a police officer only
18
upon obtaining prior approval of the police officer not below the
rank of the Deputy Inspector General of Police. That is the
quintessence for recording of offence of organized crime under the
Act by a police officer.
20. What is crucial in this provision is the factum of recording of
offence of organized crime and not of recording of a crime against
an offender as such. Further, 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? In that, whether there
was discernible information about commission of an offence of
organized crime by known and unknown persons as being
members of the organized crime syndicate? Resultantly, what
needed to be enquired into by the appropriate authority (in the
present case, Commissioner of Police) is: 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. It is cardinal to observe that
only after registration of FIR, investigation for the concerned
19
offence would proceed — in which the details about the specific
role and the identity of the persons involved in such offence can be
unravelled and referred to in the chargesheet to be filed before the
competent Court.
21. Concededly, the original FIR registered in the present case
was for an ordinary crime of murder against unknown persons. At
the relevant time, the material regarding offence having been
committed by an organized crime syndicate was not known. That
information came to the fore only after investigation of the offence
by the SIT, as has been mentioned in the report submitted to the
Commissioner of Police, Bengaluru City for seeking his prior
approval to invoke Section 3 of the 2000 Act. Once again, at this
stage, the 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 2000 Act.
The prior approval was not for registering crime against individual
offenders as such, but for recording of information regarding
20
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 High Court, thus,
examined the matter by applying erroneous scale. The
observations made by the High Court in the impugned judgment
clearly reveal that it has glossed over the core and tangible facts.
22. Notably, 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 the writ
petitionerMohan 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 filed before the competent Court qua the
writ petitionerMohan Nayak.N regarding offences under Section
3(1)(i), 3(2), 3(3) and 3(4) of the 2000 Act. The High Court did so
being impressed by the exposition of this Court in Lalit Somdatta
21
Nagpal25
, 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 not
disclose justification for application of provisions of the 2000 Act
including qua the writ petitionerMohan Nayak.N, provided he was
being proceeded only for offence of organized crime punishable
under Section 3(1) of the 2000 Act. For, the reported decision
deals with the argument regarding invocation of provision
analogous to Section 3(1) of the 2000 Act. Be it noted that
requirement of more than two chargesheets is in reference to the
continuing unlawful activities of the organized crime syndicate and
not qua individual member thereof. Reliance was also placed on
Brijesh Singh26. Even this decision is of no avail to the private
respondentMohan Nayak.N for the same reason noted whilst
distinguishing Lalit Somdatta Nagpal27
. Further, the questions
considered in that case, as can be discerned from paragraph 12 of
the reported decision, are regarding jurisdiction of the competent
Court to take notice of chargesheets filed against the accused
25 supra at Footnote No.5
26 supra at Footnote No.6 (paragraph 25)
27 supra at Footnote No.5
22
outside the State. It is not an authority on the issue under
consideration.
23. We may hasten to add that the fact that the Investigating
Agency was unable to collect material during investigation against
the writ petitionerMohan 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.
23
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
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. This position is
expounded in the case of Ranjitsingh Brahmajeetsing Sharma
vs. State of Maharashtra28 which has been quoted with approval
in paragraph 85 of the judgment in Prasad Shrikant Purohit29
.
The same reads thus:
“85. A reading of para 31 in Ranjitsing Brahmajeetsing
Sharma case30 shows 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. Therefore, even if one may
not have any direct role to play relating to the
commission of an “organised crime”, but when the
nexus of such person with an accused who is a
member of the “organised crime syndicate” or such
nexus is related to the offence in the nature of
28 (2005) 5 SCC 294
29 supra at Footnote No.10
30 supra at Footnote No.28
24
“organised crime” is established by showing his
involvement with the accused or the offence in the
nature of such “organised crime”, that by itself
would attract the provisions of MCOCA. The said
statement of law by this Court, therefore, makes the
position clear as to in what circumstances MCOCA can
be applied in respect of a person depending upon his
involvement in an organised crime in the manner set
out in the said paragraph. In paras 36 and 37, it was
made further clear that such an analysis to be
made to ascertain the invocation of MCOCA against
a person need not necessarily go to the extent for
holding a person guilty of such offence and that
even a finding to that extent need not be recorded.
But such findings have to be necessarily recorded for
the purpose of arriving at an objective finding on the
basis of materials on record only for the limited
purpose of grant of bail and not for any other purpose.
Such a requirement is, therefore, imminent under
Section 21(4)(b) of MCOCA.”
(emphasis supplied)
25. It is not necessary to multiply authorities in this regard.
Suffice it to observe that the High Court in the present case was
essentially concerned with the legality of prior approval granted by
the Commissioner of Police, Bengaluru City dated 14.08.2018 for
invoking Section 3 of the 2000 Act and thus, to allow recording of
information regarding commission of offence of organized crime
under the 2000 Act and to investigate the same. As aforesaid,
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.
26. 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
26
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. This Court in Prasad Shrikant Purohit31 in paragraphs
61 and 98 expounded that at the stage of taking cognizance, the
competent Court takes cognizance of the offence and not the
offender. This analogy applies even at the stage of grant of prior
approval for invocation of provisions of the 2000 Act. 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
31 supra at Footnote No.10
27
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.
27. A priori, the conclusion reached by the High Court in partly
allowing the writ petition filed by the writ petitionerMohan
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. Further, the High Court has clearly exceeded its
jurisdiction in quashing the chargesheet filed against the writ
petitionerMohan 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)].
28. Taking any view of the matter, therefore, these appeals
deserve to be allowed and the impugned judgment and order of the
High Court needs to be set aside.
29. While parting, we may clarify that rejection of writ petition
filed by the private respondentMohan Nayak.N will not come in his
way in pursuing other remedies as may be available to him and
permissible in law. We may not be understood to have expressed
any opinion either way on the merits of such remedy. In other
words, this judgment is limited to the consideration of question
whether prior approval dated 14.08.2018 granted by the
Commissioner of Police, Bengaluru City, in connection with offence
registered as Crime No.221/2017, is valid or otherwise. We have
held that the same does not suffer from any infirmity including qua
private respondentMohan Nayak.N having noted his intimate
nexus with the brain behind the entire event being none other than
Amol Kale and master arms trainer Rajesh D. Bangera who are
29
part and parcel of an organized crime syndicate and committed
organized crimes as such.
30. In view of the above, the appeals are allowed. The impugned
judgment and order dated 22.04.2021 passed by the High Court is
set aside and the writ petition filed by Mohan Nayak.N stands
dismissed.
Pending application(s), if any, stands disposed of.
………………………………J.
(A.M. Khanwilkar)
………………………………J.
(Dinesh Maheshwari)
………………………………J.
(C.T. Ravikumar)
New Delhi;
October 21, 2021.
