Karnataka High Court
K T Naveen Kumar vs State Of Karnataka on 10 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 20
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRL.P. NO. 5507/2019
BETWEEN:
K.T. NAVEEN KUMAR @ NAVEEN
S/O THIME GOWDA
AGED ABOUT 37 YEARS
R/AT SHEKARIAAIAH'S HOUSE
1ST FLOOR, KARAGAL BEEDI
BERRURU TOWN, KADURU TALUK
CHIKKAMAGALURU DISTRICT - 577 116
PERMANENT RESIDENT OF
KADHALURU VILLAGE AND POST
HATHURUHOBLI, MADHURU TALUK
MANDYA DISTRICT
KARNATAKA - 571 428. ... PETITIONER
(BY SRI. CHANDRASHEKAR R.P, ADVOCATE)
AND:
STATE OF KARNATAKA
SPECIAL INVESTIGATION TEAM
(RAJARAJESHWARINAGAR POLICE STATION)
BENGALURU
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001. ... RESPONDENT
(BY SRI. H.S. CHANDRAMOULI, SPP)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN CR.NO.221/2017 OF RAJARAJESHWARI NAGAR
POLICE STATION, BENGALURU CITY FOR THE OFFENCE
P/U/S.302, 120-B, 114, 118, 109, 201, 203, 204, 35 OF IPC
AND U/S 25(1), 25(1B) AND 27(1) OF INDIAN ARMS ACT
1959 AND U/S 3(1)(i), 3(2), 3(3) AND 3(4) OF KCOC ACT
2000.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.12.2019 AT PRINCIPAL
BENCH, BENGALURU, COMING ON FOR 'PRONOUNCEMENT
OF ORDER', THIS DAY AT DHARWAD BENCH, K.N.
PHANEENDRA, J. MADE THE FOLLOWING:
ORDER
The petitioner is arraigned as Accused No.17 in the charge sheet filed by the respondent - Police for the offence punishable under Sections 302, 120B, 114, 118, 109, 201, 203, 204, 35 of IPC and Sections 25(1), 25(1b) and 27(1) of the Indian Arms Act, 1959 and u/s.3(1)(i), 3(2), 3(3) and 3(4) of Karnataka Control of Organized Crimes Act, 2000 [hereinafter referred to as "KCOC Act" for short].
2. Initially, charge sheet was filed against this petitioner and another by name Praveen who was absconding and thereafter, further charge sheet has been 3 filed against 18 persons and in that subsequent charge sheet, the petitioner is shown as A17.
3. Before adverting to the submissions made by the learned counsel for the petitioner in support of the petition and also the submissions made by the learned SPP Sri Chandramouli in support of their objection statement, it is just and necessary to have the brief factual matrix of the case:
The deceased Gowri Lankesh was a Journalist and a progressive thinker and serious critic who was aged about 56 years residing at House No.476/A, 15th Cross, Ideal Homes Township, Rajarajeshwari Nagar, Bengaluru City.
She was participating in many progressive movements and she has established her office situated at No.9, East Anjaneya Temple Street, Gandhi Bazaar, Bengaluru and she was also running a tabloid called Gowri Lankesh Patrike. She was plying from place to place with reference to her progressive movements. She was occasionally visiting the complainant who is no other than her sister by name Kavitha Lankesh as her mother was residing along with Kavita Lankesh. It is the further case of the prosecution 4 that about a week prior to the date of the incident, the said deceased Gowri Lankesh had visited the house of her sister, (the complainant) and informed her that some people are suspiciously watching her near her office and home and suspected the conduct of some persons. In fact, the complainant had advised her to lodge a complaint in this regard. In spite of that, the deceased Gowri Lankesh did not lodge any complaint to the Police.
In this background, it is alleged that on the incident day that was on 5.9.2017 at about 2.00 p.m., the complainant Kavitha Lankesh visited her sister Gowri Lankesh's office and they talked to each other for about 5 minutes and complainant went back to her house. But, in the night at about 8.26 p.m., the complainant received a phone call to the effect that something had happened to Gowri Lankesh. Immediately, the complainant rushed to the house of Gowri Lankesh and she saw the Gowri Lankesh's Car bearing Registration No.KA-05/MR-3782 parked in front of her house. The gate was half opened and the complainant found her sister Gowri Lankesh lying on the floor in a pool of blood and that she has also observed that 5 the deceased sustained some bullet injuries and cartridge pieces were found near the body. Immediately, she suspected that some miscreants might have targeted her. Thereafter, the complainant Kavitha Lankesh lodged a complaint in Rajarajeshwari Nagbar Police Station and the Police have registered a case in Crime No.221/2017 u/s.302 of IPC read with Section 25 of the Indian Arms Act against some un-known persons. After thorough investigation, the police have filed a charge sheet and the same has been later registered as a Spl.CC No.872/2018 for the alleged offences.
4. The charge sheet allegations disclose that, the accused persons are the members of a Crime Syndicate whose main object was to fight against the Anti Hindu elements. They were planning for the purpose of assassinating the persons who raise their voice against Hindus on Sanathana Dharma. In this background, the case of the prosecution is that, the deceased Gowri Lankesh was a progressive thinker, giving lot of speeches against Hinduism and as well as Sanathana Dharma. Therefore, the accused persons particularly A1 Amol Kale who is the leader 6 of the said Syndicate have hatched a conspiracy to do away with the life of the deceased Gowri Lankesh.
5. It is the case of the prosecution that in the year 2013 itself, this A1 Amol Kale and other accused persons by name A8 Rajesh D Bangera, A5 Amith Degwekar, and A10 Sharad Kalaskar along with the head of the Syndicate Dr. Veerendra Thavade, were involved in the murder of Dr.Dabolkar who was murdered in Poona, Maharashtra State who was also a proagressive thinker who was against Sanathana Dharma. In this connection, a case was registered against them in CBU/SCB, Mumbai, RC.BSI.2014/S/004 u/s.302 read with 34 of IPC and with other allied offences.
6. It is also alleged that in the year 2015 another progressive thinker of Kollapura, Maharashtra by name Govinda Pensare was also murdered. In that case also, Anmol Kale, and others were involved and a case was registered against them in Crime No.39/2015 by the SIT Officers of Rajarampuri Police Station.
7. It is also alleged that in the year 2018, these persons have also made all arrangements in order to target another 7 progressive thinker of Mysuru Professor Bagawan and in this context also against the above said persons A1 Amol Kale, A5 Amith Degwekar, A13 Sujith Kumar along with A14 Manohar Manohar Dundeppa Yadave, A15 Vikas Patil @ Dada and A17 Naveen Kumar were charge sheeted for the offence punishable under Sections 120B, 37 of IPC and Sections 3 and 25 of the Indian Arms Act in Crime No.45/2018. Therefore, it is alleged that the accused persons who are the members of the unknown crime syndicate indulged in organized crimes, they have taken sufficient precautions and they had conducted training their group people at various places with a common motive of murdering the prominent personalities of the society who raise their voice against Hinduism and Sanathana Dharma. They formed a team called insurgency and indulged in unlawful activities in order to affect the social security and integrity of the nation. Some of the persons joined the said Syndicate subsequently, but their object was one and the same. Likewise, the petitioner also joined the said organization knowing fully well about the said organization consisting of the above named accused persons and they 8 are all in active participation right from the year even prior to 2013.
8. In the above said backdrop, it is alleged that all the accused persons have one way or the other involved themselves to strengthen the said syndicate and they were conducting security meetings from time to time in various locations. The members of the syndicate were also watching who are all the persons who raise their voice against Hinduism and Sanathana Dharma etc., and giving information to all the other syndicate members in order to fight against the Anti Hindu elements.
9. The Charge Sheet papers also divulge that the, target of Gowri Lankesh appears to had been started in the year 2017. On 19th or 20th of August, 2017, there was a program of Hindu Organization at Adi Chunchanagiri mutt, Vijayanagara, Bengaluru, which was focused on religion, education and etc., In this program, the petitioner/accused along with other accused persons particularly, Sujith Kumar @ Praveen had participated in the program and conspired to kill Gowri Lankesh as she has given a speech against 9 Hinduism and she has talked about Sanathana Dharma in order to defame the very object of Sanathana Dharma. Therefore, all the accused persons have decided to do away with the life of the deceased Gowri Lankesh. In this background, some of the accused persons have been watching the whereabouts and the movements of Gowri Lankesh and on the date of the incident i.e., on 5.9.2017, the accused Nos.1 & 2 came on a motorcycle and accused No.2 shot bullets and caused bullet injuries on the deceased and the deceased died instantaneously in front of her house.
10. The learned counsel for the petitioner strenuously contended that the incident occurred on 5.9.2017 at 8.00 pm., the charge sheet was filed on 23.11.2018 and the petitioner was arrested on 2.3.2018 in connection with some other case in Crime No.45/2018 for the offence punishable under Sections 3 and 25 of the Indian Arms Act. His voluntary statement was recorded and on the basis of the voluntary statement this accused person was actually nabbed by the police to this case since then he has been in Judicial Custody. As charge sheet has already been filed and the petitioner is no more required for investigation and 10 the entire case revolves around circumstantial evidence, the petitioner is ready and willing to offer substantial surety for his appearance, therefore, he prayed for grant of bail.
11. The learned counsel for the petitioner further contended that the first mega conspiracy said to had occurred in the year 2016 and on that day, only Accused Nos.1, 5, 14 and 13 were present and participated in the conspiracy in the month of June. Again, in the month of August, 2016 last week of the said month, the accused Nos.1, 3, 4, 5, 6, 10 and 15 have conspired themselves in a house taken by one Sharath Galaskar and alleged to have conspired to kill Gowri Lankesh. Subsequently, during the months of January and February 2017, the accused No.1 has instructed some other accused persons to do some acts to ascertain the address and movements of Gowri Lankesh and also secured a motorcycle for the main accused. In February and March, 2017, again accused Nos.1, 3 and 4 have collected the information about movements of the Gowri Lankesh, address and etc., In the month of May, 2017, the accused Nos.1, 8 and 11 have joined together for the purpose of taking a house for rent for their conspiracy meetings. In the 11 month of August, 2017, the second conspiracy with reference to the murder of the deceased, conducted in the rented house at Shastrinagar in Belgaum, in none of the above said dates, the present petitioner was present and participated in the conspiracy.
12. Therefore, the training, meeting and ideology which were discussed by some of the other accused persons at that time the Petitioner was not at all there. Therefore, he cannot be styled as a member of a crime syndicate. It is also contended that the accused No.17 has not even met A1 and A2 and the main accused head of the alleged crime syndicate i.e., A15 (Tawade @ Dada) at any point of time.
Only in the month of June, 2017, Accused No.13 met A17 (Petitioner), as per the instructions of A1 i.e., one year after the alleged main conspiracy two live bullets alleged to have given by this petitioner to A13 which were actually not at all used for the commission of any offence. Petitioner did not meet A1, A2 or A15 at any point of time. A2 and A3 are the persons who alleged to have actually committed the murder of the deceased and A2 shot at the deceased and A3 12 drew the motor cycle to take away A2 along with him. It is the voluntary statement of this petitioner in Crime No.45/2018 has been mainly relied upon along with the oral confession alleged to have been made before CWs.4, 5, 6 and 7. The Police have filed charge sheet against this petitioner and another by name Praveen as the main culprits but subsequently their role has been shifted alleging only assisted the other Accused persons and conspired with others because of that reason the KCOC Act has been invoked, and the petitioner has been entangled in the case. It is further submitted that there is no materials to show that, as to when actually the crime syndicate was started and who are all the original members, whether the petitioner knew about the idealogy of the said crime syndicate and intentionally with an intention to join hands with them joined the said syndicate. Further, in no two cases Petitioner is charge sheeted or no two charge sheets are available to show this petitioner was also a member of the said crime syndicate. Therefore, the KCOC Act is not attracted, hence the petitioner is entitled to be enlarged on bail.
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13. Per contra, learned SPP submitted that even prior to 2013 the Crime Syndicate has been started as the records clearly discloses that, there are number of cases filed against the members of the crime syndicate and they were involved in commission of such offences and particularly many charge sheets have been filed against some of the syndicate members. Of course, it is not a murder for gain, but for social ideologies and the said organization was selecting the persons who raise voice against Sanathana Dharma. Lot of materials are collected to show that the deceased Gowri Lankesh was an activist and propagating secularism and she was giving speeches against Sanathana Dharma etc., Though there are no eye witnesses, the conspiracy and the crime syndicate and their objective can be very well proved during the course of full dressed trial. It is a hidden agenda of the syndicate members and they have taken utmost care not to leave any clue to investigate the matter but in spite of that, the police were successful in nabbing the accused persons and collecting lot of materials. Some of the witnesses who have examined u/s.164 Cr.PC., have stated about the activities of the petitioner who was 14 also belonged to the said organization who indulged in conducting programs pertaining to Hinduism etc., He has also submitted two sealed covers containing Lakshmi note book containing some of the telephone numbers including the telephone number of this petitioner and further submitted that though he has not directly conspired with A1, A2 and A15 but the surrounding circumstances discloses that he has also assisted those persons agter the incident and knowing fully well, when the said organization had been indulging in committing the murders of social activists and in spite of that he joined hands. Therefore, it is a clear case where the KCOC Act is appropriately and reasonably invoked by the police and once the KCOC Act is invoked, there is a bar for granting of bail to the accused particularly when such serious allegations are made. Hence, he pleaded for dismissal of the petition.
14. On careful perusal of the entire charge sheet papers, of course, there is no material to show that prior to 2013 or subsequent to 2013, upto 2017 no cases have been filed against this petitioner and no charge sheet have been filed against him except registering a case in Crime No.45/2014 15 in which the statement of other accused persons were also recorded after 5-6 months of filing the present charge sheet. The accused/petitioner was also arrested in the said case and his voluntary statement was recorded. Therefore, the police found his involvement also in this particular case. Hence, the accused was handed over to the investigating agency who was conducting this case.
15. The role assigned to the petitioner particularly is that the accused No.13 has contacted this petitioner for the purpose of purchasing bullets and explosives etc., the learned SPP has mainly relied upon the voluntary statement of some of the accused persons and also 164 statement of One Abhishek, Syed Shabbir, H.C. Girish, Anil Kumar before whom it is alleged that the petitioner has stated that they were all known to him. All the accused persons were known to the petitioner and particularly A1, A2 and A15 have disclosed that, themselves with the active assistance of others have committed the murder of Gowri Lankesh and Accused Nos.1 & 2 have also committed the murders like that previously i.e., Dr. Narendra Dabolkar and Govinda Pensare and etc., These statements cannot be at this stage 16 be totally discarded, as those statements under section 164(5) have some higher evidentiary value. Apart from that, the involvement of this petitioner is that he has facilitated the other accused persons by name Sujith Kumar and he also took some of the persons to his house and particularly A1 and A2 was with him and when the above said witnesses were talked with this man and he has disclosed that he was also indulged in committing the murder of Gowri Lankesh. Of course, this extra judicial confession has to be proved beyond reasonable doubt during the course of full dressed trial. But when these witnesses have stated in their 164 Cr.PC. statement, that in fact, importance has to be given by the court so far as this aspect is concerned. The learned counsel also brought to the notice of this court that in Crime No.45/2018, the police have seized two sims along with five live bullets from this petitioner. It is also stated that this accused, the petitioner has noted down the phone numbers of A13 and other accused persons in a Lakshmi Note book seized in Crime No.26/2019. This also shows that accused No.11 also contacted this petitioner and inturn petitioner also had 17 contact with A1. The Police have also collected the voice test of the petitioner and others and the FSL report has also been secured which also establishes the conversation of this petitioner with other accused persons. The main culprit who is the master mind A15 Dada is still absconding, in connection with this case in order to show the interaction between the accused persons, the police have also seized 3 mobiles and 20 sim cards which contain the cell number of this petitioner who has contacted the other accused persons. Apart from the above, another sealed cover produced before the court by the learned SPP, wherein it contains the statement of the wife of the petitioner is recorded she has also stated that, the accused had brought gun and bullets to his house on the guise that the gun will be used for the purpose of deterring monkeys. It is contended that though the accused has not participated in all the conspiracy from 2013, but the statement of the above witnesses as noted above and other materials show that they have categorically stated that Sujith Kumar one of the conspirator and member of the organized crime syndicate has disclosed the activities of the syndicate to this petitioner and who was also a like 18 minded person involved in the Hindu Progressive Society and conducting so many programs on behalf of Hinduism and he is also a progressive thinker for the development of Sanathana Dharma and Hinduism. Therefore, they have selected this man for the purpose of helping the crime syndicate in order to commit the murder of Gowri Lankesh.
16. The records also discloses that this petitioner was also indulged in un-authorisedly possessing live bullets and fire arm weapons for which he was caught in Crime No.45/2018 as noted above. It is also alleged that, the petitioner in fact has not co-operated for the tests i.e., Polygraphy-lie Detection, Narco Analysis and Brain Electrical Oscillations Signature Profiling. During the course of investigation, it revealed that the petitioner also receiving calls through coin booths and land lines located in Belgaum from other members of the Crime Syndicate particularly from mobile phone number of other accused Bharath Kurune. It is evident from the records that he was closely associated with Sujith Kumar @ Praveen who was the main accused in this case. The accused has provided with two bullets to A13 Sujith Kumar. The records discloses that A1-Amol Kale and 19 A4-Amith Baddi, A6-Bharath Kurne, A14-Manohar Dundappa Yadave and petitioner participated in Crime No.45/2018 charge sheet has been filed in CC No.1896/2018 that shows that the petitioner's name also finds along with other accused persons in the said case. The other accused persons were also involved particularly Amol Kale and others in the murder of Dr. Narendra Dabholkar of Poona Maharashtra in 2013, Dr.Govinda Pansare of Kolhapur, Maharashtra in 2015 and Journalist Gowri Lankesh of Bengaluru in 2017 were murdered and that the petitioner's name was not there, but it shows that he might be having some connection with the other accused persons.
17. Therefore, looking to the above said facts and circumstances, at this stage, the court cannot straight away say that there is no prima facie case against the accused and it cannot be said that he is an innocent at this stage.
18. Coming to the attraction of KCOC Act, of course, both the counsels have taken me through various decisions but it may not be necessary for this court to deal with all those decisions.
2018 (a). Learned counsel for the petitioner relied upon a ruling of the Hon'ble Supreme Court reported in (2007) 4 SCC 171 (state of Maharashtra and others vs. Lalit Somdatta Nagpal and another. In the said case the apex Court was dealing with MCOCA Act has observed that, "having regard to the stringent provisions its provisions will have to be very strictly interpreted and the authorities concerned will have to be bound down to the strict observance of the said provisions. There can be no doubt that the provisions of MCOCA have been enacted to deal with the organized criminal activities in relation to offences which relate to terror and to endanger and to unsettle the economy of the country for which stringent measures have been adopted. The provisions of MCOCA seek to deprive a citizen of his right to freedom at the very initial stage of the investigation, marking it extremely difficult for him to obtain bail."
At paragraph No. 63 the apex Court further observed that, "the offence under MCOCA must comprise continuing unlawful activity relating to organized crime undertaken by an individual singly or jointly, either as a member of the organized crime syndicate or on behalf of such syndicate by use of coercive or other unlawful means with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person for promoting insurgency."
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19. Therefore, the learned counsel contended that the person should be a member of the crime syndicate even at the initial stage and subsequently if any act is committed by any member of the syndicate then only it will become an offence. In this case the accused has not participated in any of the conspiracy held, as argued earlier.
20. He has also relied upon the ruling of the apex court in the case of Mahipal Singh V. C.B.I. reported in AIR 2014 SC 2660. In this case also the apex court referring to MCOCA observed that, "there must be more than one charge sheet against any one member of the crime syndicate in order to attract the provisions. There is no doubt sofar as the said principle is concerned."
21. It is worth to mention here a decision of the Hon'ble Apex Court as to whether a person who join the crime syndicate subsequently though he was not involved in other earlier cases whether he can also be called as a member of the said crime syndicate. The Hon'ble Apex Court in a decision in (1) Pratapbhai Hamirbhai Solanki Vs. State of Gujarat and another reported in (2013) 1 SCC 613; 22 (2) In the case of Devender Pal Singh Vs. State of NCT of Delhi and another, reported in (2002) 5 SCC 234; and (3) In the case of Raju and Others Vs. State of Karnataka by Yelahanka Police Station, Bengaluru in Criminal Petition No.4795/2017; wherein this court and the Hon'ble Apex Court have categorically observed that -
"15. ... The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity."
22. Even a person who joins the organized crime subsequently, but knowing fully well the objectives of the said crime Syndicate and he joins the same, it is deemed that he had knowledge of the earlier activities of the said 23 crime syndicate and thereafter, join the same. Therefore, though he had not participated in the earlier crime, but subsequently, he joined the organized crime syndicate in such an eventuality, the Section says that as it is a continuing offence, he can be caught under the provisions of KCOC Act.
23. It is worth to mention here the observation made by this court at paragraphs 11, 12 and 13 in Crl. Petition No.4795/2017, Raju and Others Vs. State of Karnataka by Yelahanka Police Station, Bengaluru, relying upon various rulings of the Apex Court, which reads thus:
"11. A reading of Section 2(1)(d), 2(1)(e) and 2(1)(f) of KCOCA would clearly indicate that "Continuing 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) 24 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 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 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 25 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 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 26 commission of organized crime, by granting sanction under Section 24(2) KCOCA.
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 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.27
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 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." It is worth to refer here other two important rulings of the apex court 28 reported in (2005) 5 SCC 294 (Ranjitsing Brahmajeetsing sharma v. State of Maharashtra and another). At paragraph No. 89, the apex Court has observed in the following manner.
"89: A reading of paragraph 31 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' 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 organized crime in the manner set out in the said paragraph."
In the case reported in (2017) 10 SCC 779 between State (NCT, Delhi) Vs. Brijesh Singh & Others, at paragraph No.25 the apex Court has observed as under:
"25. Organised crime which is an offence punishable under Section 3 of MCOCA means a continuing 29 unlawful activity committed by use of force or violence for economic gain. One relevant pre-condition which has to be satisfied before any activity can be considered as a continuing unlawful activity is that there should be atleast two charge sheets filed against the members of an organized crime syndicate within the previous 10 years and a 'competent Court' has taken cognizance of such charge sheets. In the instant case, there are eight charge sheets filed against the Respondents, six out of which are in the State of Uttar Pradesh. The submission of the Respondents, which was accepted by the Courts below, is that such charge sheets which are filed in the State of Uttar Pradesh are not relevant for the purpose of determining whether the Respondents have indulged in a continuing unlawful activity. The Courts below held that only charge sheets filed in competent courts within Delhi have to be taken into account. We are not in agreement with the Courts below."
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24. In view of the above said decision relied upon by the parties, this Court has to examine whether the provisions of KCOCA Act which is almost on par with the MCOCA Act as dealt by the Hon'ble apex Court, has to be looked into.
25. A reading of the Sections 2(1)(d), 2(1)(e) and 2(1)(f) of the KCOCA and the aforesaid decision, it clearly goes to show that sometimes the names of the culprits are not mentioned at the stage of investigation and after obtaining the sanction, if the investigation is continued, those who are subsequently found in the commission of the organized 30 crime can very well be proceeded against when once the sanction is obtained against the remaining accused persons. In the instant case, as per the law, sanction has been obtained is not in dispute and even it has not been seriously challenged during the course of arguments. When that being the case, the contention of the learned counsel for the petitioner is not acceptable and the same is rejected.
26. In view of the above said decision, various other decisions have also been considered by this court. Therefore, it is crystal clear that some times, the names of the culprits are not mentioned at the stage of investigation or even at the time of obtaining sanction but if it is found that the said person has got like mind to join the crime syndicate though he was not the member earlier as the offences are continuing in nature, he is also caught under the provisions of the KCOC Act. Though I have tentatively noted above, that the petitioner had joined hands subsequently with the alleged crime syndicate but the material collected by the police tentatively discloses that he knowing fully well earlier activities of the crime syndicate appears to have joined hands with them. Therefore, he is 31 also said to be the member of the crime syndicate as per the prosecution case. The list of cases against the accused persons as brought out in the objection statement against A1. There are already 4 cases filed in CC No.9618/2018 for conspiration to murder Professor Bagwan of Mysuru; Govind Pensare of Kolhapur, Maharashtra; Dr.Narendra Dabolkar of Poona, Maharashtra and for supplying fire arms. The list also discloses that the accused persons i.e., A4, 12, 10, 6 and 2 in more than two cases charge sheet have been filed and cognizance have been taken. Therefore, at this stage, it cannot be straight away said that the KCOC Act is not attracted. Of course, the involvement of this petitioner, the knowledge about the earlier activities of the crime syndicate and knowing fully well, he participated has to be proved beyond reasonable doubt during the course of full dressed trial. But, at this stage, u/s. 21 of the KCOC Act unless the court comes to the conclusion that the accused is not guilty of the alleged offence, bail cannot be granted.
27. Of course, similarly placed accused Sri Mohan Nayak N. who is cited as A11 after the charge sheet is filed, 32 approached this court in Crl.P.No.8325/2018 and this court vide Order dated 11.2.2019 by a detailed order rejected the said bail petition. On facts, I am not relying upon the said order passed by this court. However, with regard to attraction of the KCOC Act, this court has in detail discussed relying upon the various decisions cited by both the sides. In fact, those decisions were also cited in this case and came to the conclusion that at the preliminary stages, it cannot be said that the accused was not guilty of the alleged offences under the KCOC Act. Therefore, the petition filed by almost similarly placed accused was rejected.
28. Though the parity cannot be taken into consideration for the purpose of rejecting the bail petition, but it can be considered for the purpose of granting bail, but as I have said, I am not taking into consideration the factual aspects so far as the other accused persons are concerned, whose bail application is rejected for the consideration of parity, but the invocation of KCOC Act by the police in this case rightly or wrongly has been in detail discussed by this court. For that purpose only I am relying upon the above said order passed by this court.
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For the above said reasons, I do not find any strong reasons to allow the petition. Hence, the petition is devoid of merits and the same is liable to be dismissed. Accordingly, the Petition is dismissed.
Sd/-
JUDGE PL*