The court asked both the parties to file their written submissions within a week
The Supreme Court Tuesday "tentatively" indicated that it is inclined to set aside a part of the high court order quashing the charge sheet against an accused, allegedly involved in the murder of journalist Gauri Lankesh, for the purported offences under the provisions of the Karnataka Control of Organised Crimes Act (KCOCA).
A bench headed by Justice AM Khanwilkar told the lawyer appearing for the accused that what has been given to him is a "bonus" as the Karnataka High Court has also quashed the charge sheet against him for the alleged offences under the KCOCA.
The top court observed this while hearing the pleas including the one filed by Kavitha Lankesh, sister of the journalist, challenging the April 22 order of the high court quashing the August 14, 2018 order of the police authority granting approval to invoke the provision of KCOCA for investigation against Mohan Nayak.
Gauri Lankesh was shot dead on the night of September 5, 2017, from close quarters near her house in Bengaluru's Rajarajeshwari Nagar.
"We are tentatively indicating to you that we are inclined to quash the last part of the order. On prior approval, even if we uphold the finding given by the high court, the fact remains that nothing prevents the investigating agency to investigate the factum of whether you are a member of that syndicate or not and to present a charge sheet after collating the material in that regard," the bench, also comprising justices Dinesh Maheshwari and CT Ravikumar, told the counsel appearing for Nayak.
"So far as you are concerned, what has been given to you is a bonus. The charge sheet has also been quashed," observed the bench, which reserved its order on the petitions.
The top court also questioned the counsel appearing for the state as to how approval for invoking KCOCA was granted by the authority without there being any prior offence registered against the accused and how could he be levelled as a member of the organised crime syndicate.
The state's counsel said the preliminary charge sheet was filed under the provisions of the Indian Penal Code and the Arms Act and later, during the investigation, the role of the accused came to the notice of the investigation officer after which the approval was sought.
"This charge sheet material comes after investigation. At that stage, without there being any offence registered against this particular person how can you level him as member of the organised crime syndicate unless there is some material which was placed before the authority to give prior approval," the bench observed.
It is said that to be a member of the organised crime syndicate, a person has to be a part of the continuing unlawful activity of the syndicate.
During the arguments, the counsel appearing for the accused said if the arguments of the prosecution are to be accepted then anyone can be said to be a member of the syndicate
When the counsel termed the law "draconian", the bench said, "Once the validity of the Act has been upheld, how can you say draconian?".
"These laws have their own purpose," the bench said.
The lawyer said the law has been misused and that is why they have approached the court.
The bench said on the aspect of prior approval, the counsel for the accused may be right but to say that no offence has been registered in the past and so he cannot proceed at all, is not correct.
The counsel appearing for Kavitha Lankesh argued that the high court has erred in coming to the conclusion that KCOCA was not applicable against the accused.
He referred to the role of the accused, as noted in the high court order, and said it is alleged that he had taken a house on rent in the guise of running an acupressure clinic but it was meant to accommodate the members of the syndicate.
The bench, after hearing the submissions, asked the parties to file their written submissions within a week.