when the nexus of such person with an accused who is a member of the “organised crime

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HONBLE MR. JUSTICE S.VISHWAJITH SHETTY
CRL.P.No.7963/2023
BETWEEN:
SRI. MOHAN NAYAK N

AND:
STATE OF KARNATAKA


18. Petitioner as against whom the allegation is about conspiring with the other accused persons to commit the murder of Gouri Lankesh has been in custody from 18.07.2018. Though he is alleged to be a member of the syndicate committing organized crime, the material on record would go to show that he is not arrayed as co- 21 accused in any of the cases registered against the other accused persons for committing organized crimes. 19. The Hon'ble Supreme Court in Kavitha Lankesh's case supra has observed that the material collected by the Investigating Agency as against the petitioner herein was not sufficient to invoke Section 3(1) of the COCA against the petitioner. In paragraphs 29 & 30 of the said judgment, the Hon'ble Supreme Court has observed as under: 29. We may hasten to add that the fact that the investigating agency was unable to collect material during investigation against the writ petitioner Mohan Nayak N. for the 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 Sections 3(2), 3(3) or 3(4) of the 2000 Act cannot be recorded and investigated against him as being a member of the organised crime syndicate and/or having played role of an abettor, being party to the conspiracy to commit organised 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 charge-sheets have been filed against the person so named, before a competent 22 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. 30. As regards offences punishable under Sections 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 organised 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 organised crime syndicate. This position is expounded in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 : 2005 SCC (Cri) 1057] which has been quoted with approval in para 85 of the judgment in Prasad Shrikant Purohit [Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 SCC 440 : (2015) 3 SCC (Cri) 138] . The same reads thus: 85. A reading of para 31 in Ranjitsing Brahmajeetsing Sharma case [Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 : 2005 SCC (Cri) 1057] shows that in order to invoke 23 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 the 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 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 24 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 the MCOCA.