Whether the assignee can execute the decree = The Explanation clearly stipulates that nothing in Order XXI Rule 16 of the CPC would affect the provisions of Section 146 and the transferee of the right in property which is subject matter of a suit may apply for execution of the decree without separate assignment of the decree as required by law. No doubt the appellants are not parties in the suit proceedings but they claim as assignees of the decree holder.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.18278 OF 2017

VAISHNO DEVI CONSTRUCTION Rep. Thr.

Sole Proprietor (D) Thr. LRs & Anr. … Appellants

Versus

UNION OF INDIA & ORS. …Respondents

With

C.A. No.18279/2017

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The contours of the legal controversy which arise for consideration

in the present appeal emanate from the plea of the appellants claim based

as an assignee of the decree holder in terms of Order XXI Rule 16 of the

Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) in

their application filed under Section 47 of the CPC by taking recourse to

Section 146 of the CPC read with Section 2(1)(g) of the Arbitration

&Conciliation Act, 1996 (hereinafter referred to as the ‘A&C Act’). The

1

significant aspect is the addition of the explanation to Order XXI Rule 16

of the CPC, which was added pursuant to the recommendation made by

the Law Commission of India in its 54th Report on the CPC in 1973,

which in turn was a sequitur to the conflicting views of the High Courts

on the matter in issue.

The facts:

2. In order to appreciate the controversy, relevant facts are being set

out. On 29.12.1995, a contract was awarded by the Union of India to one

Surendra Nath Kanungo @ S.N. Kanungo for executing the work of

extension of runway at Port Blair Airport (hereinafter referred to as

‘Works’). Shri S.N. Kanungo passed away in the year 2012 and is

represented by legal heirs in the present proceedings as respondent Nos.2

to 7, while respondent No.1 is the contract awarding authority.

3. Shri S.N. Kanungo entered into an arrangement whereby the

Works were assigned to Vaishno Devi Constructions, a sole

proprietorship concern of Prabhat Bhushan Kanungo (appellant No.1 in

CA No. 18278 of 2017). It appears that appellant No.2, Surya Prakash

Kanungo was also taking care of the work. A different part of the work

was assigned to BeeDee Builders, a sole proprietorship of Swapna Das

2

and, once again, apparently her husband Bijoy Kumar Das was playing a

role in executing the Works as the said two parties are impleaded as

appellant Nos.1 and 2 in CA No. 18279/2017. Shri S.N. Kanungo was a

special class contractor and it appears from the case set up by the

appellants that they were to act on behalf of S.N. Kanungo to carry out

the Works for which they were to be paid monthly remuneration and

hiring charges of certain equipment that was to be provided by the

appellants herein. The appellants claim to have supervised the work of

extension of runway on behalf of Shri S.N. Kanungo but apparently some

part of their dues were not paid. Shri S.N. Kanungo is stated to have

executed an Assignment Deed along with a cheque in favour of Mr.

Prabhat Bhushan Kanungo for Rs.1 crore as security on 27.10.1999 to

secure payment of such dues. The claims were in respect of both the

appellants.

4. It appears that some disputes arose between Shri S.N. Kanungo

and respondent No.1 which were referred to arbitration and an award was

passed in his favour on 22.03.1999. Shri S.N. Kanungo received the

money under the award on 28.01.2001.

5. Another reference was made in respect of another set of non3

payments claimed by Shri S.N. Kanungo from respondent No.1.The

dispute was referred to the sole arbitration of Shri T.K. Mishra, who

passed an award in favour of S.N. Kanungo on 31.10.2006. Respondent

No.1 filed proceedings before the High Court of Calcutta to set aside the

award under Section 34 of the A&C Act. The proceedings succeeded in

terms of an order of the learned single Judge of the High Court dated

28.09.2007. On appeal being preferred before the Division Bench of the

High Court, the judgment of the learned single Judge was reversed by a

judgment dated 03.03.2008 and the appeal was allowed.

6. Shri S.N. Kanungo, in order to recover the amount, filed an

execution case before the District Judge, Port Blair, being Other

Execution Case No.01/2008.During the pendency of the execution

proceedings, respondent No.1 filed an SLP in the Supreme Court, being

SLP(C) No.21507/2008, challenging the judgment of the Division Bench

dated 03.03.2008 and seeking stay of the execution proceedings. Notice

was issued and stay of execution proceedings was granted in his favour.

During the pendency of the SLP, Shri S.N. Kanungo passed away in 2012

and was substituted by his legal heirs in both the SLP and the execution

proceedings. The Supreme Court ultimately dismissed the SLP vide

4

order dated 19.01.2016 making only an alteration of the rate of interest

while observing that the interest awarded was on the higher side and,

therefore modifying it to 8% (simple interest) from the date of the bill.

7. It is at that stage that the appellants in the two appeals before us

came into the proceedings by filing objections in the form of an

application under Section 47 read with Order 22 Rules 1&2 of the CPC

read with Sections 2(1)(g) and 36 of the A&C Act.

8. The claims made by the appellants were on the basis of an

assignment made by Shri S.N. Kanungo and, thus, sought to keep any

order for release of the amount in abeyance in full or in part to protect

their interests. It appears that the prayer for interim relief did not succeed

as the applications were dismissed on 08.04.2016.Ultimately on

26.12.2016, both sets of objections claiming a right in the decretal

amount were also rejected by the executing court on the basis that the

Assignment Deed and cheque had not been proved in those proceedings

to establish the fact of assignment. It may, however, be noted that there

was no trial in this matter before the executing court.

9. The aforesaid order was then sought to be assailed before the

Calcutta High Court by filing a civil revision petition which was

5

dismissed vide impugned judgment dated 13.02.2017. On the SLP being

preferred, notice was issued on 17.04.2017 and a direction to maintain

status quo was also simultaneously issued pending disposal of the matter.

Since the dispute between the two sets of private parties would cause

liability of interest on respondent No.1, in terms of order dated

06.03.2018, the request of respondent No.1 to deposit the decretal

amount in the executing court was accepted. One would presuppose that

this amount would be kept in an interest-bearing deposit.

Appellants’ Submissions:

10. Learned counsel for the appellants sought to contend that the

appellants were the authorised assigned representatives of Shri S.N.

Kanungo. They relied on the amended provisions contained in Order 21

Rule 16 of the CPC in their application under Section 47 of the CPC by

taking recourse to Section 146 of the CPC read with Section 2(1)(g) of

the A&C Act, claiming that Shri S.N. Kanungo voluntarily executed an

assignment deed on 27.10.1999, which is a document in writing, while

simultaneously issuing a cheque as security.

11. Order XXI of the CPC is titled as “Execution of Decrees and

Orders”. Rule 16 of Order XXI deals with “application for execution by

6

transferee of decree” and reads as under:

“Order XXI

Execution of Decrees and Orders

.... .... .... ....

16. Application for execution by transferee of decree.—Where a

decree or, if a decree has been passed jointly in favour of two or

more persons, the interest of any decree-holder in the decree is

transferred by assignment in writing or by operation of law, the

transferee may apply for execution of the decree to the Court which

passed it; and the decree may be executed in the same manner and

subject to the same conditions as if the application were made by

such decree-holder:

Provided that, where the decree, or such interest as aforesaid, has

been transferred by assignment, notice of such application shall be

given to the transferor and the judgment-debtor, and the decree shall

not be executed until the Court has heard their objections (if any) to

its execution:

Provided also that, where a decree for the payment of money against

two or more persons has been transferred to one of them, it shall not

be executed against the others.

[Explanation. —Nothing in this rule shall affect the provisions of

section 146, and a transferee of rights in the property, which is the

subject matter of the suit, may apply for execution of the decree

without a separate assignment of the decree as required by this

rule.]”

12. It may be observed that the Explanation was inserted by Act 104 of

1976 (hereinafter referred to as the ‘Code of Civil Procedure

(Amendment) Act, 1976’) w.e.f. 01.02.1977 and has a material bearing

in the conspectus of the respective arguments. The recourse to Section

7

47 of the CPC in the application arises from this provision specifying the

questions to be determined by the court executing a decree, and it reads

as under:

“47. Questions to be determined by the Court executing decree.

—(1) All questions arising between the parties to the suit in which

the decree was passed, or their representatives, and relating to the

execution, discharge or satisfaction of the decree, shall be

determined by the Court executing the decree and not by a separate

suit.

[***]

(3) Where a question arises as to whether any person is or is not the

representative of a party, such question shall, for the purposes of this

section, be determined by the Court.

[Explanation 1.—For the purposes of this section, a plaintiff whose

suit has been dismissed and a defendant against whom a suit has

been dismissed are parties to the suit.

Explanation II—(a) For the purposes of this section, a purchaser of

property at a sale in execution of a decree shall be deemed to be a

party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such

property to such purchaser or his representative shall be deemed to

be questions relating to the execution, discharge or satisfaction of

the decree within the meaning of this section.]”

13. Section 146 of the CPC deals with the “Proceedings by or against

representatives” and reads as under:

“146. Proceedings by or against representatives.—Save as

otherwise provided by this Code or by any law for the time being in

8

force, where any proceeding may be taken or application made by or

against any person then the proceeding may be taken or the

application may be made by or against any person claiming under

him.”

14. It was, thus, the case of the appellants that their claim raised a

question to be determined by an executing court within the parameters of

Section 47 of the CPC in the context of the appellants claiming rights

under the assignment of Shri S.N. Kanungo (as per Section 146 of the

CPC). Section 2(1)(g) of the A&C Act being part of the definition clause

reads as under:

“2. Definitions. —

(1) In this Part, unless the context otherwise requires,—

.... .... .... .... ....

(g) “legal representative” means a person who in law represents the

estate of a deceased person, and includes any person who

intermeddles with the estate of the deceased, and, where a party acts

in a representative character, the person on whom the estate

devolves on the death of the party so acting;”

15. The provisions of the CPC were thus sought to be made applicable

to these proceedings for execution of an award which had culminated in a

decree in the capacity of an assignee/representative to claim from Shri

S.N. Kanungo on account of the assignment.

16. In the conspectus of the aforesaid dispute, the common case is that

the judgment of this Court in Jugalkishore Saraf v. M/s. Raw Cotton

9

Co. Ltd.1

 is of utmost significance. This is so as the failure of the

appellants to succeed before the courts below is predicated on the

reasoning that this judgment of the Supreme Court covers the case

against the appellants. A specific reliance was placed on para 26, as per

which Order XXI Rule 16 contemplates the actual transfer of the decree

by an assignment in writing executed “after the decree is passed”. Thus,

while a transfer of or an agreement to transfer a decree that may be

passed in the future may, in equity, entitle the intending transferee to

claim the beneficial interest in the decree after it is passed, such equitable

transfer does not relate back to the prior agreement and does not render

the transferee a transferee of the decree by an assignment in writing

within the meaning of Order XXI Rule 16 of the CPC.

17. Learned counsel for the appellants sought to invite our attention to

certain other paragraphs in support of the proposition they seek to

advance, more specifically paras 52, 54, 56 and 59. Earlier judicial

precedent of the Bombay High Court and the Calcutta High Court were

referred to for the proposition that Order XXI Rule 16 was not intended

to apply to cases where serious contest arose with respect to the rights of

persons to an equitable interest in a decree. Two views were mentioned,

1 AIR 1955 SC 376.

10

i.e., the strict view about the requirement of existence of a decree; and

the other view based on equity, when an agreement has been entered into

in writing albeit prior to the decree which may be optional for the courts

depending on the extent of investigation required to arrive at a

conclusion.2

 This is followed up by a discussion in para 53 of the

judgment on the scope of Order XXI Rule 16 of the CPC. The SC opined

that until a person applying for execution establishes his title as the

transferee of a decree, he cannot claim the benefit of that provision.

Such assignment can be in writing or by operation of law. In this behalf

Section 5 of the Transfer of Property Act, 1882 defines “transfer of

property” as an act by which the transferor conveys property in present or

in future to the transferee or transferees. In that context it was observed

that a decree which is the subject matter of transfer must be in existence

as on the date of the transfer. The words “in present or in future” qualify

the word “conveys” and not the word “property” in Section 5 and would,

thus, not operate to a decree which would come into existence in the

future. Such a decree could not be said to be transferred by an

assignment in writing and the matter resting merely in a contract to be

performed in the future which may be specifically enforced as soon as

2Prabhashinee Debi v. Rasiklal Banerji 1931 ILR 59 Cal 297.

11

the decree was passed would be no transfer automatically in favour of the

transferee of the decree when passed. The discussion ends with the

opinion that any warrant for importing this equitable principle while

construing the statutory provision enacted under Order XXI Rule 16 of

the CPC would not be appropriate as it does not prescribe any mode in

which such an assignment in writing has to be executed in order to

effectuate a transfer of a decree.

18. The Supreme Court noticed that the High Court of Calcutta in

Purna Chandra Bhowmick v. Barna Kumari Devi3

had applied the

equitable principle and held that the plaintiff in whose favour the

defendant had executed a mortgage bond assigning by way of security

the decree that would be passed in a suit instituted against a third party

for recovery of money due on unpaid bills for work done, was entitled to

a declaration that he was an assignee of the decree passed in favour of the

defendant and as such, was entitled to realise the decretal debt either

amicably or by execution. The high court further held that there could be

no objection to decide a question involving investigation of complicated

facts or difficult questions of law in execution proceedings, as Section 47

of the CPC authorised the Court executing the decree to decide all

3 AIR 1939 Cal 715.

12

questions arising therein and relating to execution of the decree, as it

facilitates adjudication and obviates the necessity of filing a separate suit

for determination of the same.

19. A distinction was made in respect of transfer of an actionable

claim within the meaning of Section 3 of the Transfer of Property Act,

1882. In cases of transfer of book debt or property coming within the

definition of actionable claim, the same necessarily involved transfer of a

transferor’s right in a decree which may be passed in his favour in a

pending litigation and the moment a decree is passed in his favour by the

court of law, that decree is automatically transferred in favour of the

transferee by virtue of the assignment in writing already executed by the

transferor. The book debt does not lose its character of a debt by its

being merged in the decree and without anything more, the transferee is

entitled to the benefit of the decree passed by the court in favour of the

transferor. The transferee of an actionable claim would, thus, step into

the shoes of the transferor and claim to be transferee of the decree by

virtue of the assignment in writing executed by the transferor in his

favour. The transferee could, therefore, claim to execute the decree

under Order XXI Rule 16 of the CPC.

13

20. In the conspectus of the discussion what was submitted by learned

counsel for the appellant was that the amendments made to the CPC vide

the Code of Civil Procedure (Amendment) Act, 1976 are of significance

as the judgment is pre that amendment. Of course, this was an

alternative plea to the plea based on a claim of an assignment deed being

an actionable claim.

Respondents’ Submissions:

21. The respondents, on the other hand, disputed the right of the

appellants and claimed that the Assignment Deed itself is a disputed

document which had not seen the light of the day for 17 years till 2016,

and did not find a mention in the appellants’ legal notices. The

appellants could have taken recourse to the Assignment Deed when an

award was delivered in favour of late Shri Surendra Nath Kanungo on

22.03.1999. The cheque given as a security could have been encashed

when the awarded money was paid to Shri S. N. Kanungo in 2001. The

appellants took no steps in pursuance of that award but have raised the

issue only at the stage when the second award had been made in 2006.

Notably, the second award was confirmed by the Supreme Court as well.

The appellants were not the legal representatives of Shri S.N. Kanungo,

14

but at best that was an independent claim that could be adjudicated in

appropriate civil proceedings. The decree not being in existence, the

respondent claimed they were fully covered by the judgment in

Jugalkishore Saraf4

and that the amendments to Order XXI Rule 16

would not change the position of law as laid down therein.

22. It was pleaded that the appellants were amongst such persons who

were engaged by Shri S.N. Kanungo and had been paid their dues. There

was no amount outstanding and nothing was owed to them. The

Assignment Deed and the cheque dated 27.10.1999 were fraudulent

documents and the letter head and the signed cheque of Shri S.N.

Kanungo had been misused.

Conclusion:

23. On analysis of the submissions there is little doubt that the

impugned judgments would have been completely in accordance with

law if the amendments were not made in 1976 and would have been fully

covered by the judgment in Jugalkishore Saraf5

. Thus, the only aspect

which we have to consider is whether that amendment made any

difference to the legal position as enunciated in the said judgment.

4 (supra)

5 (supra)

15

24. It is an admitted position that the explanation was added to Order

XXI Rule 16 which did not exist earlier, pursuant to the

recommendations made by the Law Commission of India in its 54th

Report on the Code of Civil Procedure, 1908. The Explanation was so

added due to conflicting High Courts’ decisions on the question, i.e.,

whether a person who does not have a written assignment of the decree,

but who has succeeded to a decree holders’ right, is entitled to such

decree under Section 146 of the CPC.

25. In Penniah Pillai v. T. Natarajan Asari6

 the Madras High Court

decided this question in the affirmative. The high court gave liberty to

the transferees to avail of Section 146 if they did not fall within the

provisions of Order XXI Rule 16 of the CPC and, thus, would cover

transferees of a property after the decree was passed. In this behalf the

learned Judge disagreed with an earlier judgment of the Madras High

Court in K.N. Sampath Mudaliar v. Sakunthala Ammal7

 opining that

Section 146 of the CPC could not have the effect of overriding Order

XXI Rule 16 of the CPC. The Law Commission agreed with the view

taken in the former judgment (which was delivered at a later point of

6 AIR 1968 Mad 190.

7 1964 2 MLJ 563.

16

time) and further noted that this view was supported by the High Courts

of Andhra Pradesh8

, Patna9

 and Kerala10 as well. Thus, the Law

Commission recommended amending Order XXI Rule 16 to clarify that

it does not affect the provisions of Section 146 and that a transferee of

rights in the subject matter of the suit can obtain execution of a decree

without separate assignment of the decree. The objective appears to be to

not have multifarious proceedings to determine the issue of assignment,

but to determine the issue of assignment in the execution proceedings

itself.

26. In the conspectus of the aforesaid we are of the view that the

objective of amending Order XXI Rule 16 of the CPC by adding the

Explanation was to deal with the scenario as exists in the present case, to

avoid separate suit proceedings being filed therefrom and to that extent

removing the distinction between an assignment pre the decree and an

assignment post the decree. Thus, what has been discussed even in the

judgment in Jugalkishore Saraf11 as a view based on the equitable

principle was sought to be incorporated in Order XXI Rule 16 of the

CPC by adding the Explanation, something which had not been done

8 Satyanarayana v. Arun Maik AIR 1955 AP 81.

9 Ramnath v. Anardei Devi AIR 1964 Pat 311.

10 Mani Devasia v. Varkey Scaria (1960) Ker. LT 1077.

11 (supra)

17

earlier. Once the legislative intent is clear, and the law is amended, then

the earlier position of law cannot be said to prevail post the amendment

and it is not in doubt that the present case is one post the amendment.

27. We may further add that while considering the divergent views of

the High Courts, the Law Commission took note of the fact that two

different interpretations of Jugalkishore Saraf12had been adopted. Thus,

the Law Commission really sought to clarify the legal position so that the

conflicting interpretation of the Supreme Court judgment would not

survive. The Explanation clearly stipulates that nothing in Order XXI

Rule 16 of the CPC would affect the provisions of Section 146 and the

transferee of the right in property which is subject matter of a suit may

apply for execution of the decree without separate assignment of the

decree as required by law. No doubt the appellants are not parties in the

suit proceedings but they claim as assignees of the decree holder.

28. We make it clear that we are not going into the validity of the

document, i.e., the Assignment Deed or the cheque as that would be a

matter to be decided by the executing court. The question was as to

whether at the threshold, the appellants’ objection could be rejected on

the ground that they were assignees who had acquired the rights prior to

12 (supra)

18

the passing of the decree. The rest of the job would be of the executing

court, despite the considerable prolongation which has taken place. We

may only add that our endeavour to see that an amicable solution is

found by the parties was not successful, thus we have little option but to

set aside the impugned judgments and remit the matter back to the

executing court for determination in terms of the judgment of this Court.

Considering the lapse of time that has already taken place, the executing

court will endeavour to give its consideration as early as possible.

29. The appeals are accordingly allowed leaving the parties to bear

their own costs.

...……………………………J.

[Sanjay Kishan Kaul]

...……………………………J.

[B.R. Gavai]

New Delhi.

October 21, 2021.

19

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. - 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)].- 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 part and parcel of an organized crime syndicate and committed organized crimes as such.

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.

granting the benefit of pension - when the appellant made claim for the pensionary benefits by taking into consideration and reckoning the service of 10 years rendered by the appellant between 05.02.1974 to 31.05.1984 in the Telecom Department which was service under the Central Government. The Accountant General, by the communication dated 26.07.2006 however informed that since the break between the Central Service and State Service is nearly three years, unless the same is condoned by the State Government, the Central Service cannot be reckoned as qualifying service for pension.=the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said 12 Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break.

                                                                 REPORTABLE

   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO. 6292 OF 2021  

(Arising out of SLP(C) No. 29856/2019)

Valsan P.                    .…Appellant(s)

Versus

The State of Kerala and Ors.                     ….  Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

1. The   appellant   is   before   this   Court   in   this   appeal,

assailing the order dated 21.05.2019 passed by the learned

Division Bench of the High Court of Kerala at Ernakulam in OP

(KAT) No.468 of 2017 titled, The State of Kerala and Others.

Vs. Valsan P. By the said order the learned Division Bench has

allowed   the   OP   and   set   aside   the   order   dated   14.11.2016

passed   by   the   Kerala   Administrative   Tribunal,

Thiruvananthapuram (for short ‘KAT’) in O.A. No.975 of 2015.

1

The KAT had through the said order allowed the application

granting   the   benefit   of   pension   by   condoning   the   period   of

break in service, as being permissible in the circumstance.

2. The undisputed facts are that the appellant worked as a

Technician   in   the   Telecom   Department   during   the   period

05.02.1974 to 31.05.1984. The appellant thereafter joined as

an Engineer in Steel Industries Limited, Kerala (for short ‘SILK’)

on 04.06.1984. The said SILK is a Public Sector Undertaking

(for short ‘PSU’) owned by Government of Kerala. He worked

there till 31.05.1987. Subsequent thereto, through the Public

Service   Commission,   the   appellant   joined   the   Technical

Education Department on 31.05.1987. He served for about 19

years and on attaining the age of superannuation, retired from

service on 30.06.2006.

3. The   contested   issue   arose   at   this   point   when   the

appellant made claim for the pensionary benefits by taking into

consideration and reckoning the service of 10 years rendered by

the appellant between 05.02.1974 to 31.05.1984 in the Telecom

Department which was service under the Central Government.

The   Accountant   General,   by   the   communication   dated

2

26.07.2006 however informed that since the break between the

Central Service and State Service is nearly three years, unless

the same is condoned by the State Government, the Central

Service cannot be reckoned as qualifying service for pension.

The   appellant   therefore   made   a   representation   dated

23.09.2006 to the Government requesting to condone the said

break in service. Though the said request was rejected by the

communication dated 12.02.2007, it was by an unreasoned

order.   On   being   assailed,   the   same   was   set   aside   and   the

matter   was   sent   back   for   reconsideration.   On   such

reconsideration,   the   request   made   by   the   appellant   was

declined stating that there are no rules for condoning the break

in service. It stated that as per rules the break between the two

appointments   shall   not   exceed   the   joining   time   admissible

under service rules. The rule referred to was Rule 29 (b) Part III

of Kerala Service Rules (for short ‘KSR’). 

4. The   appellant   however   filed   a   review   petition   dated

17.09.2014   seeking   the   State   Government   to   review   the

decision since ‘SILK’, to which the appellant had joined in the

sandwiched period was a fully State­owned PSU. Hence, the

appellant requested the exercise of power under Rule 39 of Part

3

II of Kerala State and Subordinate Service Rules (for short ‘KS

& SSR’). The review petition filed by the appellant was rejected

through   the   intimation   dated   21.05.2015   despite   the

Government order dated 24.09.2014. The appellant who was

aggrieved by the rejection of his request approached the KAT in

O.A. No.975 of 2015.

5. The KAT on making a detailed analysis of not just the

rules   but   also   the   series   of   Government   orders   which   are

relevant,   held   the   appellant   entitled   to   the   benefit   and

accordingly allowed the application. The KAT noted that the

requirement was that the period of service in ‘SILK’ is to be

condoned as a disconnect period to provide continuity of service

in   the   two   employments.   Thus,   giving   the   benefit   of   the

Government order dated 24.09.2014 the entitlement as claimed

was upheld. The High Court on the other hand has declined the

relief by proceeding on the basis as if the appellant was seeking

to   reckon   the   service   rendered   by   him   in   ‘SILK’   also   as

pensionable service. Insofar as service rendered in the Telecom

Department it was held that the appellant should approach the

Central   Government   seeking   to   reckon   the   same.   The   High

Court, therefore without addressing the real issue has set aside

4

the order passed by the KAT. The appellant thus claiming to be

aggrieved has filed this appeal.

6. We have heard Mr. P.V. Surendranath, learned senior

counsel for the appellant, Mr. C.K. Sasi, learned counsel for the

respondents and perused the appeal papers.

7. To put the matter in perspective, it is to be noted at the

outset   that   the   appellant   had   worked   in   the   Telecom

Department   from   05.02.1974   to   31.05.1984   which   is

pensionable service in usual course if the other requirements

were   satisfied.   The   appellant   had   thereafter   worked   in   the

Technical Education Department under the State Government

from 31.05.1987, till his retirement on attaining the age of

superannuation   on   30.06.2006.   The   said   service   is   also

pensionable   service.   During   the   interregnum,   between

04.06.1984 to 30.05.1987 the appellant worked in ‘SILK’ which

is   a   State   Government   Public   Sector   Undertaking   and   the

service rendered therein is admittedly not pensionable service.

The   said   period   of   service   therefore   acts   as   a   disconnect

between the two different pensionable service rendered by the

5

appellant and the same needs to be condoned to provide a

single block of pensionable service.

8. In that background, it is also to be kept in perspective

that the case of the appellant is not that the non­pensionable

service rendered in ‘SILK’ is also to be reckoned and the entire

service from 05.02.1974 to 30.06.2006 is to be admitted for

computing the pensionary benefits as assumed by the High

Court.   On   the   other   hand,   what   the   appellant   seeks   is   to

exclude the service rendered in ‘SILK’ and condone that period

between   04.06.1984   to   31.05.1987   from   being   treated   as   a

disjoint or break between the two pensionable services, though,

one is under the Central Government and the other under the

State Government. The sum and substance of the claim put

forth   by   the   appellant   is   to   reckon   the   service   between

05.02.1974   to   31.05.1984,   plus,   the   service   between

31.05.1987 to 30.06.2006 as the total number of years as the

pensionable   service,   clearly   excluding   the   number   of   years

between 04.06.1984 to 30.05.1987.

9. With reference to the consideration made by the State

Government in rejecting the claim of the appellant, the learned

6

counsel for the respondents has referred to Rule 29, Part III

KSR to contend that the Rule is categorical that the benefit of

past service will stand forfeited if the break between the two

appointments exceeds the joining time admissible under the

service Rules. The said Rule reads as hereunder:

  “Rule 29 Part III KSR

29.   Resignation   and   Dismissal.   ­   (a)

Resignation of the Public Service or dismissal

or removal from it, entails forfeiture of past

service. 

(b) Resignation of an appointment to take up

another   appointment   the   service   in   which

counts is not resignation from public service. 

Note:   ­   The   break   between   the   two

appointments   should   not   exceed   the   joining

time admissible under the service rules plus

the public holidays".

10. The above noted Rule if taken into consideration as a

standalone   provision,   it   would   settle   the   issue   against   the

appellant  since  the  break between  the two appointments is

much more than the joining period and the break itself is due

to non­pensionable employment. However, what is required to

7

be examined is the availability of provision to condone such

break.   The   learned   counsel   for   the   appellant   has   therefore

referred to Rule 39 of Part II KS and SSR to indicate the power

available to the State Government to take just and equitable

decisions relating to the service of any person and the Rule

should be dealt in the manner in which it is favourable to the

person in service. The said Rule reads as hereunder:

“Rule 39 of Part II KS & SSR 

39.   Notwithstanding,   anything   contained   in

these rules or in the Special Rules or in any

other   Rules   or   Government   Orders   the

Government shall have power to deal with the

case of any person or persons serving in a civil

capacity under the Government of Kerala or

any candidate for appointment to a service in

such   manner   as   may   appear   to   the

Government to be just and equitable: 

Provided that where such rules or orders

are applicable to the case of any person or

persons, the case shall not be dealt with in any

manner less favourable to him or them than

that provided by those rules or orders.

This amendment shall be deemed to have

come into force with effect from 17th December

1958.”

11. In that backdrop, having noted that the appellant’s first

spell of pensionable service was under the Central Government

8

and the second spell was under the State Government, it would

be   apposite   to   take   note   of   the   Government   Order   dated

12.11.2002 referred by the learned counsel for appellant. The

relevant portion of the Government Order dated 12.11.2002

reads as hereunder:

“Government   have   examined   the   matter   in

detail   and   are   pleased   to   order   that   the

employees   of   the   State   Government

Departments   who   left   the   former   service   in

Central   Government/   Central   Public   Sector

Undertakings on their own volition for taking

up   appointment   is   State   government

Departments will be allowed to reckon their

prior service for all pensionary benefits along

with   the   service   in   the   State   Government

Department if the former employer remits the

share   of   proportionate   prorate   pensionary

liability on a service ­ share basis. 

These Orders will take effect, including

monetary   effect,   only   from   the   date   of   this

order  and   individual   cases   otherwise   settled

will not be re­opened.”

12. Though the benefit of reckoning the earlier pensionable

service   between   Central   Government   and   State   Government

was provided, it was subject to remitting the proportionate pro

rata pensionary liability on service share basis between the two

employers. However, by a subsequent Government Order dated

06.12.2003,   which   has   reference   to   the   earlier   Government

9

Order dated 12.11.2002, the State Government has done away

with   the   proportionate   pro   rata   sharing   between   the   two

employers   for   payment   of   pensionary   benefits.   The   State

Government has notified to bear the pensionary benefits. The

relevant   portion   of   the   said   Government   Order   dated

06.12.2003 reads as hereunder:

“Government   have   examined   the   matter   in

detail and in modification of the orders issued

in the G.O. 3rd cited are pleased to order that

in the case of prior service rendered by Central

Government   employees   in   State   Government

and   vice   versa,   the   liability   of   Pension

including gratuity, will be become in full by the

central   Government/State   Government   to

which   the   Government   servant   permanently

belongs   at   the   time   of   retirement   and   no

recovery of proportionate pension will be mode

from   Central   Government/State   Government

under whom he had served. But in the case of

employees who left the former service in the

Central Public Sector Undertakings the orders

issued in G.O. dt 12.11.02 will stand.”

13. In view of the said position, the observation of the High

Court   that   the   appellant   is   free   to   move   the   Central

Government if he has a case that his service in the Telecom

Department is liable to be reckoned is not justified. If the break

in service is condoned as sought by the appellant, then the

entire   relief   would   be   available   at   the   hands   of   the   State

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Government.   Therefore,   the   solitary   moot   question   for

consideration in the instant case is, as to whether the break in

service   interrupting   the   service   rendered   in   Telecom

Department   and   the   Technical   Education   Department   is

condonable.

14. On this aspect, the learned counsel for the appellant has

relied on the Government Order dated 24.09.2014 whereunder

the condonation of the non­qualifying sandwiched period was

provided for, to reckon the qualifying service. The Government

Order was made with reference to Rule 29 (a) Part III KSR. The

Government Order dated 24.09.2014 reads as hereunder:    

“As per Rule 29(a) Part III Kerala Service Rules,

resignation of the Public Service or dismissal

or removal from it, entails forfeiture of past

service. As per Rule 29(b) of ibid, resignation of

an   appointment   to   take   up   another

appointment the service in which counts is not

resignation from public service and the break

between two appointments should not exceed

the joining time admissible under the service

rules plus public holidays. 

2)  Several   requests  have  been   received   in

Government to reckon the prior qualifying

service   for   pension   after   condoning   the

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non­qualifying   sandwiched   service   as

break without forfeiture of past service. 

3)  Government   have   examined   the  matter

in detail and are pleased to order that the

prior  public   service   shall   be   reckoned  as

qualifying   service   for   pension   after

condoning  the  sandwiched  non  qualifying

service as break between the two services.”

A   perusal   of   the   Government   Order   noted   above

indicates   that   the   benefit   sought   for   by   the   appellant   is

provided and the sandwiched non qualifying service as break in

the two services is condonable and the prior public service

shall be reckoned as qualifying service for pension. The learned

counsel for the respondents contended that the High Court was

justified   in   holding   that   the   appellant   had   retired   on

30.06.2006, while the Government Order is dated 24.09.2014

and as such cannot be made applicable retrospectively. We are

unable to accede to such contention. In fact, the KAT had

taken note of the entire sequence and had rightly noted that

the issue had not been settled and not reached finality in the

case of the appellant since his review petition dated 17.09.2014

against the order dated 25.07.2014 was still pending when the

Government   Order   dated   24.09.2014   was   issued.   The   said

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Government Order in para 2 has taken note of the several

requests   received   to   reckon   the   prior   qualifying   service.

Further, the main aspect of reckoning the service rendered in

Central Government for pensionary benefit after joining State

Government service was given effect through the Government

Order   dated   12.11.2002   and   06.12.2003   i.e.,   when   the

appellant was still in State Government service and had not

retired. The issue of condoning the break i.e., the sandwich

period was claimed immediately on retirement and it was still

being agitated. The review was rejected on 21.05.2015 only

after   the   Government   Order   dated   24.09.2014   was   issued

granting the benefit of condoning the break.

15. In that view, we are of the considered opinion that the

KAT was justified in its conclusion and High Court has erred in

setting aside the same. The order dated 21.05.2019 passed by

the   High   Court   of   Kerala   in   O.P.   (KAT)   No.468   of   2017   is

therefore set aside. The order dated 14.11.2016 passed by the

KAT in O.A. No. 975 of 2015 is restored for its implementation.

The time line depicted in the said order for implementation

shall apply from this day.

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16. The appeal is accordingly allowed with no order as to

costs. 

17. The   pending   applications,   if   any,   shall   also   stand

disposed of. 

……………………….J.

(M.R. SHAH)

                                                     ……………………….J.

                                               (A.S. BOPANNA)

New Delhi,

October 21, 2021 

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