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Wednesday, September 22, 2021

Explained: Karnataka’s organised crime law, Lankesh murder, and an HC order

In the Gauri Lankesh murder, a Special Investigation Team invoked KCOCA in 2018. The SIT has arrested and chargesheeted 17 people linked to right-wing groups who created a syndicate to carry out killings and attacks on critics.

Written by Johnson T A | Bengaluru |
Updated: July 26, 2021 11:43:51 am
Journalist Gauri Lankesh was murdered in 2017

The Karnataka Control of Organised Crime Act (KCOCA), 2000, a stringent law modelled on the Maharashtra Control of Organised Crime Act, 1999, is at the centre of a controversy in Karnataka relating to its use in the case of journalist Gauri Lankesh’s murder in 2017.

On April 22, the Karnataka High Court ordered dropping of KCOCA charges against Mohan Nayak, a key accused in the murder. Nayak, 50, is also accused of being an integral part of an organised crime syndicate that shot down Lankesh. As the BJP-led state government delayed over mounting a challenge against the High Court order, the slain journalist’s sister Kavitha Lankesh has moved the Supreme Court over the dropping of KCOCA charges.

At the heart of the controversy is a clause under which any person arrested for an organised crime, even an abettor, is considered a member of the organised gang involved in the crime, if any of the persons arrested for the crime has one or more preceding chargesheets for similar crimes in the previous 10 years.

Karnataka Control of Organised Crime Act: The law & its use

KCOCA was legislated during the tenure of a Congress government in 2001 and received Presidential assent in December 2001. Among its provisions, it allows police to hold arrested persons in custody for 30 days and in judicial custody for up to 180 days before filing a chargesheet, unlike in other crimes where the maximum allowed duration for such custody is 14 and 90 days respectively. In KCOCA cases, bail can be rejected based on prima facie evidence of involvement of a suspect in a crime; a confession before a police officer can be treated as evidence; and legal telephone interceptions are given credence.

Initially, KCOCA was used very sparingly, since the setting up of special courts for KCOCA cases were delayed. In the early 2000s, the then Congress government was reluctant to use it since the Prevention of Terrorism Act (POTA), 2002 was still in force then (it was repealed in 2004).

The law was used by the Karnataka police against a gang linked to underworld don Bannanje Raja, who was arrested for the December 2013 shooting of trader R N Naik in Ankola in coastal Karnataka. Although there were no chargesheets against Bannanje Raja himself when he was deported from Morocco in 2015, police invoked KCOCA against him on account of the multiple chargesheets faced by many others arrested for the shooting.

These cases are currently in a special KCOCA court. There are 17 KCOCA cases pending in the state.

In the Gauri Lankesh murder, a Special Investigation Team invoked KCOCA in 2018. The SIT has arrested and chargesheeted 17 people linked to right-wing groups who created a syndicate to carry out killings and attacks on critics, primarily in Karnataka and Maharashtra, during 2013-18.

The controversy

On April 22 this year, a single judge of the Karnataka High Court, K S Mudagal, ordered the dropping of KCOCA charges against Nayak, an alternative medicine practitioner who allegedly helped those involved in the killing of Gauri Lankesh, on the grounds that the law was not applicable to him since he had no prior chargesheets. The High Court order quashed the August 14, 2018 order of the Bengaluru police commissioner invoking KCOCA in the murder case – with specific reference to Nayak — and also ordered the quashing of charges under KCOCA against Nayak on the ground that he was not involved in “continuing unlawful activities” as defined in KCOCA.

The court rejected the plea of the Karnataka police who cited the KCOCA provision that a person is considered involved in “continuing unlawful activity” linked to a crime syndicate if any one person in the group accused of a crime faces more than one chargesheet for similar offences within the preceding period of 10 years.

Courts on the clause

In 2019, the Karnataka High Court, ruling in the case of a Class 12 examination paper leak, said the definition of “continuing unlawful activity” under KCOCA does not mean that more than one chargesheet had to be filed in the preceding 10 years even against abettors of the organised crime.

A special KCOCA court has held the view in the Gauri Lankesh case that “the provisions of KCOC Act can also be invoked against the abettor, who assisted and abetted the continuing unlawful activity of an organised crime syndicate”.

Referring to an MCOCA case, the court said “even if a person is not having any direct role to play as regards the commission of an organised crime, if the nexus either with an accused who is a member of an organised crime syndicate or with the offence in the nature of organised crime is established, that would attract the invocation of Sec.3(2) of MCOCA… The provisions of MCOCA and KCOC Act are similar”.

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Gauri Lankesh murder accused

The police have cited the fact that key accused in the Gauri Lankesh murder case, such as Amol Kale and Sharad Kalaskar, are also charged in the killing of the rationalist Narendra Dabholkar, the leftist thinker Govind Pansare, and the Kannada scholar M M Kalburgi, 77, apart from attempting to kill the writer K S Bhagawan and plotting of acts of terrorism in Maharashtra. Police cited multiple violent crime charges against four of the 15 others in the case from the last 10 years.

The SIT investigation found that Nayak, a sympathiser of the right-wing group Sanatan Sanstha which allegedly inspired the murders, was closely associated with main accused Kale and Degwekar. He is accused of being a key conspirator who rented a house a few kilometres from Lankesh’s home to shelter the four hitmen involved.

Implications of HC order

The Karnataka police are of the view that the HC order of April 22 would result in accused in many more cases seeking dropping of KCOCA charges.

The police department sent a proposal from police headquarters to the Karnataka Home Department for filing of a plea in the Supreme Court against the dropping of the KCOCA charges in the Nayak case. With the BJP government yet to decide on an appeal, Kavitha Lankesh has now filed a special leave petition in the Supreme Court.

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