Karnataka High Court
Raju vs State Of Karnataka on 3 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.4795/2017
BETWEEN:
1. RAJU
S/O LATE SRI. PALANI
AGED ABOUT 24 YEARS
NO.79, NEAR SOMESHWARA
TEMPLE, LALBAGH SIDDAPURA
JAYANAGAR
BENGALURU-560 037.
2. BASAVARAJU
S/O SRI.SHIVAMALLU
AGED ABOUT 29 YEARS
NO.55, APPAIANNA GARDEN
LALBAGH ROAD,
SIDDAPURA
JAYANAGAR
BENGALURU-560 037.
3. ABHINAY
S/O MUNINANJAPPA
AGED ABOUT 30 YEARS
NO.62, LALBAGH SIDDAPURA
JAYANAGAR 1ST BLOCK
BENGALURU-560 037.
4. CHETHAN
S/O RAMESH
AGED ABOUT 27 YEARS
R/AT NO.52, SIDDAPURA
NEAR SOMESHWARA TEMPLE
JAYANAGAR 1ST BLOCK
BENGALURU-560 037.
2
5. PRAKASH
S/O LATE MUNIYAPPA
AGED ABOUT 35 YEARS
R/AT NO.61, LALBAGH
SIDDAPURA
JAYANAGARA 1ST BLOCK
BENGALURU-37.
6. CHETAN KUMAR
S/O RAMAKRISHNA
AGED ABOUT 29 YEARS
R/AT 79, LALBAGH
SIDDAPURA
NEAR SOMESHWARA TEMPLE
JAYANAGAR 1ST BLOCK
BENGALURU-37.
7. AVINASH
S/O MOHAN
AGED ABOUT 27 YEARS
R/AT NO.64, LALBAGH ROAD
SIDDAPURA, JAYANAGAR
1ST STAGE, NEAR SOMESHWAR
TEMPLE, BENGALURU-37.
8. KARTHIK
S/O CHELUVA KANNA
AGED ABOUT 30 YEARS
R/AT NO.46, LALBAGH ROAD
SIDDAPUR, SHANKARAPPA
GARDEN, JAYANAGAR 1ST
STAGE, BENGALURU-37.
9. RAJU
S/O SAGAYA RAJU
AGED ABOUT 21 YEARS
R/AT NO.81, NEAR AYAPPA
TEMPLE, LALBAGH ROAD
SIDDAPUR, JAYANAGAR
1ST STAGE, BENGALURU-37.
... PETITIONERS
(BY SRI. YOUNOUS ALI KHAN, ADVOCATE)
3
AND:
STATE OF KARNATAKA
BY YELAHANKA P.S.
BENGALURU
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT BUILDING
BANGALORE.
... RESPONDENT
(BY SRI SANDESH J CHOUTA, SPP-II)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
12.05.2017 PASSED BY THE PRL. CITY CIVIL AND S.J.,
BANGALORE IN CR.NO.58/2017 OF YELAHANKA P.S.,
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard Sri. Younous Ali Khan, learned counsel appearing for petitioners and Sri. Sandesh J. Chouta, learned SPP appearing for respondent - State. Perused the records.
2. Short point that arises for consideration in this petition is:
"Whether order passed under Section 24(a) of The Karnataka Control of 4 Organized Crimes Act, 2000 , is to be read as applicable only to the accused persons whose names are indicated therein or it would be relatable to the crime number / FIR?"
3. Respondent - police registered a suo-moto case on 20.02.2017 at 3.00 a.m. in Cr.No.58/2017 for the offences punishable under Sections 399, 402 IPC and Sections 30, 27 of the Arms Act, 1959 against named eight (8) persons and others. It was alleged thereunder that Police Inspector of Yelahanka Police Station received credible information on 19.02.2017, while he was in night patrol duty that some persons had prepared to commit dacoity near judicial colony and as such, he proceeded to the said place at about 1.40 a.m. and found Mohankumar, Nagaraj, Raju, Basavaraju, Abhi, Chetu, Prakash, Mahesh and others were holding pistol and knives and had prepared to commit dacoity of gold, cash and valuables from the pedestrians, who would pass-by and as such, immediately they apprehended Mohankumar, Nagaraja, Raju and 5 Basavaraju and seized vehicles, pistol, live bullets, knife, etc. under mahazar after registering the FIR. During the pendency of investigation Section 3 of The Karnataka Control of Organized Crimes Act, 2000 (hereinafter referred to as 'KCOCA' for short) came to be invoked on 07.03.2017 against accused Nos.1, 2, 11, 12 and 18 as per Annexure-C.
4. Petitioners herein filed an application under Section 167(2) of Cr.P.C. for grant of statutory bail contending interalia that respondents have failed to file charge sheet within a period of 60 days and as on the date of filing of application by petitioners for grant of bail it was past 78 days and yet charge sheet had not been filed and as such by virtue of Section 167(2)(a)(ii) petitioners are entitled for being enlarged on bail. Hence, they sought for grant of bail. Trial Court by order dated 12.05.2017 dismissed the said application and as such petitioners are before this Court invoking extraordinary jurisdiction of this Court for being enlarged on bail.
6
5. It is the contention of Sri.Younous Ali Khan, learned counsel appearing for petitioners that right vested to petitioners - accused under Section 167(2) of Cr.P.C. is an indefeasible right, which has accrued to them and there being no dispute to the fact that invocation of KCOCA was not against the petitioners and there being no approval for prosecuting the petitioners under the provisions of KCOCA, right available to prosecution to investigate or file charge sheet beyond the period of 60 days or 90 days, is not available insofar as petitioners are concerned. It is his further contention that provisions of KCOCA having not been invoked against petitioners nor approval for prosecution having not been obtained under the order dated 07.03.2017 and same being only against accused Nos.1, 2, 11, 12 and 18, on completion of 60 days namely, on 61st day petitioners are automatically entitled for being released on bail. As such, trial Court was not justified in rejecting the bail application of petitioners. It is also his contention that as per 7 mandate of Section 24 of KCOCA no offence under the Act can be registered by a police officer without prior approval of police officer not below the rank of Deputy Inspector General of Police and when there is no such prior approval obtained against petitioners, provisions of KCOCA cannot be pressed into service or stave off the claim of petitioners for being enlarged on bail under Section 167(2) of Cr.P.C.
6. In support of his submission he has relied upon the following judgments:
(i) 1996 Crl.L.J. 1234: INDOFIL
CHEMICALS COMPANY, BOMBAY AND
OTHERS vs. V. KUNWARSINGH
MADHAOSINGH MAHANE AND
ANOTHER
(ii) 2006 Crl.L.J. 145: DILAWAR SINGH vs. PARVINDER SINGH @ IQBAL SINGH & ANR.
7. Per contra, Sri. Sandesh J. Chouta, learned SPP appearing for respondent-State would support the order passed by trial Court and contends that statutory relief or protection available under Section 167(2) of 8 Cr.P.C. would not surface in a case where the provisions of KCOCA is invoked and when an order under Section 24(1)(a) invoking KCOCA is passed, it is only a step in the proceedings for commencement of investigation and only after such investigation being done, matter would be placed before the competent authority as prescribed under sub-section (2) of Section 24 of KCOCA, who on appraisal of material so placed would pass an order of sanction and said order need not necessarily disclose the names of accused persons in the approval order passed and it would relate to crime number, since even in respect of persons who may not be involved in the organized crimes it can be applied. Hence, he would submit that invocation of Section 24(1)(a) of KCOCA should not be construed as restricted to accused persons whose names are specified in the said order, but it would relate to the crime or FIR so registered, as the case may be and as such, he contends that petitioners herein by virtue of non-filing of charge sheet on completion of 60 days would not be entitled to be released on bail as per sub-section (2) of Section 167 of 9 Cr.P.C. In support of his submission he has relied upon the following judgment:
(i) (2007) 3 SCC 633: VINOD G. ASRANI vs. STATE OF MAHARASHTRA
8. In reply, Sri.Younous Ali Khan, learned counsel appearing for petitioners would also draw the attention of the Court to the objections filed by prosecution to the regular bail petition to contend that prosecution itself is admitting that provisions of KCOCA have been invoked only in respect of accused Nos.1, 2, 11, 12 and 18 and as such, it cannot be gainsaid by the prosecution now that provisions of KCOCA would also be applicable to the petitioners and on account of non- filing of charge sheet within 60 days petitioners would be entitled to be enlarged on bail and as such he prays for allowing the petition as sought for.
9. In the light of contention raised hereinabove, it would be apt and appropriate to note the relevant provisions, which may have a bearing on the 10 contentions so raised namely, Sections 2(1)(d), 2(1)(e), 2(1)(f) and 24(1) & 24(2) OF KCOCA. It reads:
"2. Definitions: (1) xxxx
(a) xxxx
(b) xxxx
(c) xxxx
(d) "Continuing unlawful activity"
means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one chargesheet have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;
(e) "Organized crime" means any continuing unlawful activity by an individual singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;
(f) "Organized crime syndicate", means a group of two or more 11 persons who acting either singly or collectively, as a syndicate or gang, indulge in activities of organized crime;
(g) xxxx
(h) xxxx"
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;
(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police.
(2) No special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of an Additional Director General of Police."
10. A reading of Section 167(2) of Cr.P.C. would disclose that Magistrate can authorise the detention of 12 accused persons otherwise in the custody of police, beyond period of fifteen (15) days, if he is satisfied that adequate grounds exist for doing so. However, such detention would not authorise the detention of accused beyond 90 days where the investigation relates to the offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten (10) years and sixty (60) days, where the investigation relates to any other offence. On expiry of 90 or 60 days, as the case may be, accused person is required to be released on bail if he is prepared to furnish bail. By virtue of said provision, petitioners herein have filed the application in question for being enlarged on statutory bail, as already noticed hereinabove, contending interalia that period of detention is beyond sixty (60) days and same is impermissible since charge sheet has not been filed and as such, they are entitled for being enlarged on bail.
11. A reading of Section 2(1)(d), 2(1)(e) and 2(1)(f) of KCOCA would clearly indicate that "Continuing 13 Unlawful Activity" would mean an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for three (3) years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge sheet have been filed before a competent Court. The expression "Organized crime" would also disclose that it is a continuing unlawful activity by an individual, singly or jointly, either as a member of the organized crime syndicate or on behalf of such syndicate, etc. The "Organized crime syndicate" as defined under Section 2(f) means a group of two or more persons who singly or collectively, as a syndicate or gang indulge in activities of organized crime. Thus, emphasis under these definition clauses is not only to the organized crime but also to continuing of such activity by an individual either singly or jointly by group of two or more persons and in such circumstances it would attract these provisions. In this background when the permission accorded by the competent authority under Section 14 24(1)(a) of KCOCA dated 07.03.2017 - Annexure-C when perused it would disclose that Assistant Commissioner of Police, Yelahanka Sub-Division, Bengaluru has submitted an application to the competent authority for grant of prior approval under Section 24(1)(a) of KCOCA disclosing the names of five accused persons who had formed a crime syndicate and are continuously involved in unlawful activity by use of violence and with an object of gaining pecuniary benefit as indicated under Section 2(1)(d), 2(1)(e) and 2(1)(f) by also bringing to the notice of the sanctioning authority criminal cases registered against such persons including crime number in question namely, Cr.No.58/2017 registered by Yelahanka Police Station and for the purposes of proceeding to investigate the said crime by invoking Section 24(1)(a) of KCOCA prior approval was sought for. The competent authority namely, Additional Commissioner of Police, East, Bengaluru City in exercise of his power vested under Section 24(1)(a) of KCOCA has granted approval to apply the provisions of KCOCA and to invoke Section 3 of the 15 said Act in Crime No.58/2017 registered under Sections 399, 402, 120(b) of IPC read with Sections 27 and 30 of Indian Arms Act, 1959 and accordingly directed Sri. B.M.Narayanaswamy, Assistant Commissioner of Police to carry out further investigation under Section 24(1)(b) of the KCOCA.
12. A conjoint reading of Section 24(1) and 24(2) would clearly disclose that sanction is accorded under sub-section (1) of Section 24 of KCOCA for the purposes of carrying out investigation and during such investigation the Investigating Officer may very well proceed to investigate to find out as to who are all involved and on investigation being completed, the Investigating Officer may place all such material before the sanctioning authority and such authority would examine the same to grant sanction against all such persons, who may be involved and if in the opinion of said authority all such persons are involved in the commission of organized crime they can be proceeded once sanction is obtained. It does not restrict power of 16 the sanctioning authority to restrict himself to accord sanction only to the persons whose names are indicated in the application submitted by the applicant for prior approval, inasmuch as, on such approval being granted to the Investigating Officer, material so collected may also result in names of other accused persons also being disclosed as having involved in such organized crime or being part of organized crime syndicate. There may be instances where an approval is granted under Sections 24(1)(a) of KCOCA and name of a person may not have found in the application so submitted for grant of approval and during investigation it may be found other person/s are also involved in the commission of organized crime and as such sanctioning authority on the basis of material so collected during the course of investigation would examine the said material, satisfy himself about there being necessity to grant sanction under Section 24(2) of KCOCA and accord sanction for prosecuting all such accused persons who may be involved in commission of organized crime, by granting sanction under Section 24(2) KCOCA.
17
13. Hon'ble Apex Court in the case of VINOD G. ASRANI vs. STATE OF MAHARASHTRA reported in (2007) 3 SCC 633 was examining as to whether non inclusion of petitioner's name in the approval under Section 23(1)(a) of MCOCA (analogous provision to Section 23(1)(a) of KCOCA was fatal to the investigation or not? and found that in the facts obtained in the said case though petitioner's name was not included in the approval granted under Section 23(1)(a) MCOCA, while granting sanction, his name had been included under Section 23(2) after the stage of investigation into the complaint, since his complicity was established during the course of such investigation. It has been held:
"8. We have carefully considered the submissions made on behalf of the respective parties and the relevant provisions of MCOCA and we are of the view that the High Court did not commit any error in dismissing the petitioner's writ application. We are inclined to accept Mr. Altaf Ahmed's submissions that non-inclusion of the petitioner's name in the approval under Section 23(1)(a) of MCOCA was not fatal to the investigation as far as the petitioner is concerned. On the other hand, his name was included in 18 the sanction granted under Section 23(2) after the stage of investigation into the complaint where his complicity was established. The offences alleged to have been committed by the petitioner have a direct bearing and/or link with the activities of the other accused as part of the Chhota Rajan gang which was an organized crime syndicate.
9. As pointed out by Mr. Ahmed, this Court in Kari Choudhary v. Sita Devi had while considering a similar question observed that the ultimate object of every investigation is to find out whether the offences alleged to have been committed and, if so, who had committed it. The scheme of the Code of Criminal Procedure makes it clear that once the information of the commission of an offence is received under Section 154 of the Code of Criminal Procedure, the investigation authorities take up the investigation and file charge-sheet against whoever is found during the investigation to have been involved in the commission of such offence. There is no hard-and- fast rule that the first information report must always contain the names of all persons who were involved in the commission of an offence. Very often the names of the culprits are not even mentioned in the FIR and they surface only at the stage of the investigation. The scheme under Section 23 of MCOCA is similar and Section 23(1)(a) provides a safeguard that no investigation into an offence under MCOCA should be commenced 19 without the approval of the authorities concerned. Once such approval is obtained, an investigation is commenced. Those who are subsequently found to be involved in the commission of the organized crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of MCOCA."
14. In the light of aforestated authoritative pronouncement of law by Hon'ble Apex Court when the facts on hand are examined at the cost of repetition, it would clearly disclose that approval which has been granted under Section 24(1)(a) of KCOCA is in respect of Crime No.58/2017 and as such, petitioners cannot be heard to contend that it has to be read or considered or construed as an approval granted only in respect of accused Nos.1, 2, 11, 12 and 18. If this contention were to be accepted then the provision itself would become otiose and render it nugatory, for the simple reason that Investigating Officer only after having obtained approval would be empowered to carryout investigation under the KCOCA and during the course of said investigation he would be able to investigate to 20 find out as to whether there is complicity of other persons and as to who are all involved in the commission of organized crime and there may be instances that once such approval is obtained and investigation is commenced, those who are subsequently found to be involved in commission of organized crime can very well be proceeded once sanction is obtained against them under Section 24(2) of KCOCA. It may also turn out that initially names of all the persons involved in the commission of organized crime may not be available at the stage of investigation and only after prior approval for investigation is obtained under Section 24(1)(a) of KCOCA and investigation being carried out, complicity of others may also surface and such persons whose complicity is revealed during the course of investigation would not be entitled to take umbrage that there was no prior approval issued under Section 24(1)(a) of KCOCA, on the premise their names was/were not found in the order of prior approval and thereby they may stave off the prosecution initiated against them. To stave- off said 21 contention, it is necessary to hold that contention of learned Counsel for petitioners does not appeal to logic.
15. For myriad reasons aforestated, this Court is of the considered view that contention of Sri. Younous Ali Khan, learned counsel appearing for petitioners cannot be accepted and as such petitioners would not be entitled to claim benefit of Section 167(2) of Cr.P.C. namely, for grant of statutory bail on the ground of charge sheet having not been filed within a period of 60 days.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby dismissed.
(ii) Order dated 12.05.2017 passed by City Civil Sessions Judge, Bengaluru, in Cr.No.58/2017 rejecting I.A.Nos.1 to 5 are hereby affirmed.22
(iii) However, rejection of this petition or observations made hereinabove would not come in the way of jurisdictional Sessions Court examining the application/petition said to have been filed by petitioners for grant of regular bail under Section 439 of Cr.P.C.
independently.
Sd/-
JUDGE DR