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Kerala High Court Reserves Order In Dileep's Plea To Quash FIR In Murder Conspiracy Case

Hannah M Varghese
31 March 2022 11:52 AM GMT
Kerala High Court Reserves Order In Dileeps Plea To Quash FIR In Murder Conspiracy Case
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The Kerala High Court on Thursday reserved orders in the plea moved by Dileep to quash the FIR filed by the Crime Branch of Kerala Police against him and five others for conspiring to murder the investigation officials in the 2017 actor rape case, in which Dileep is facing trial as the chief conspirator.Justice Ziyad Rahman A.A extensively heard all the parties in detail over a period of...

The Kerala High Court on Thursday reserved orders in the plea moved by Dileep to quash the FIR filed by the Crime Branch of Kerala Police against him and five others for conspiring to murder the investigation officials in the 2017 actor rape case, in which Dileep is facing trial as the chief conspirator.

Justice Ziyad Rahman A.A extensively heard all the parties in detail over a period of three days before reserving verdict in the case. The Judge said that the order will be delivered within a week. The prosecution has undertaken not to file the final report in this case before that. 

In 2017, a popular actress was abducted and raped in a moving vehicle pursuant to a conspiracy, allegedly schemed by Dileep. Being the 8th accused in the case, he is now undergoing trial before the CBI Special Judge. The case made headlines once again in 2022 when film director Balachandrakumar made shocking disclosures against the actor bringing out new allegations against him.

He had released audio recordings of people, allegedly including Dileep attempting to sabotage the 2017 case and planning to endanger the lives of the officials. Following this, the trial court (which handles the 2017 actor rape case) had recorded a confidential statement from the director.

Consequently, Dileep and five men were booked under Sections 116 (abetment), 118 (concealing design to commit offence), 506 (criminal intimidation) and 120B (criminal conspiracy) r/w Section 34 (common intention) of IPC. The new case was filed under non-bailable sections.

In his plea, actor Dileep accused the filing of the impugned FIR as a vindictive, ill-motivated, pre-determined and malafide act executed with oblique motives.

Yesterday, Senior Advocate Siddarth Agarwal appearing for Dileep had concluded his arguments in the case. Today he submitted his rebuttals after the prosecution was done presenting its case.

DGP T.A Shaji appearing on behalf of the Prosecution was part-heard yesterday. The DGP resumed his submissions today.

He demonstrated that a mere agreement to commit a criminal act is sufficient to constitute the offence of criminal conspiracy while asserting that it was a cognisable offence since one of the acts proposed to be committed is punishable with more than two years of imprisonment. The DGP also referred to Section 154 of CrPC which deals with information in cognizable cases to argue that the only requirement under this provision was a reasonable suspicion of the committal of an offence.

Significantly, it was pointed out that according to the prosecution in the 2017 case, the conspiracy to commit the sexual offence was planned in 2013 and the act was carried out much later in 2017. The DGP argued that a similar pattern was followed in this case as well.

"The agreement (for murder-conspiracy) was entered into four years ago but they' hae deferred its commission because obviously if something happens to the investigating officers now, he will come under suspicion.This is a peculiar case because the offence is yet to be committed, it is deferred. But this agreement itself is crucial incriminating material."

During the hearing, the Single Judge asked the State what explanation Balachandrakumar provided for the delay in revealing the conspiracy. To this, the DGP responded that Balachandrakumar was closely associated with Dileep back then since he was directing a film involving the actor.

"He was, admittedly, like an inmate at Dileep's residence."

The Court wondered if that didn't suggest an ill-motive on part of the director. The DGP replied, 

"That is a matter of investigation. It may even come out that Balachandrakumar was also a part of the conspiracy. But right now we have to unravel if there was a conspiracy in the first place... Unlike other cases of conspiracy, in this case, there is a person who directly witnessed the conspiracy."

The Prosecution also addressed the issue of the accused allegedly tampering with the mobile phones they surrendered. It was submitted that in the 6 of 7 phones they submitted, there was evidence that a large chunk of data was erased just before they were surrendered and that in one of the phones, around 32 contacts were deleted. 

However, senior counsel Agarwal interjected at this point to clarify that the said phone did not belong to the petitioner. The DGP agreed to this but argued that while it may not belong to the petitioner, it did belong to one of the other accused who was part of the conspiracy which is sufficient to prove that they have tampered with evidence.

When the Court suggested that what they erased need not be evidence, the DGP responded that although that might be true, being the accused in a case, they ought not to have done that.

"After the court specifically asked them not to tamper with the mobile phones, can they clear data? Now that it is clear that they have come here with soiled hands, they cannot seek discretionary relief from this court. It should also be noted that their reply to this is an insult to the Intelligence. They claimed that the data they erased was not connected with the conspiracy or the people involved therein. How can they take such a stand? How can they decide for themselves what is required for the investigation? How can they be the judge of their own cause?"

The Judge agreed with this. 

It was further submitted with reliance placed on several precedents that it is manifest that a conspiracy is hatched in secrecy and mere inferences are sufficient to attract the offence. The Meeting of minds of the conspirators can be inferred from the circumstances, the DGP added.

Regarding the petitioner's prayer for the investigation to be transferred to another agency, the DGP argued that there was absolutely no whisper of the current investigation proceeding in the wrong direction or on a demonstrable bias or malafides.

"The Investigating Officer is conducting an impartial investigation. If the investigation shows some offences are not attracted, they will be deleted from the charge sheet. We are proceeding with an open mind, looking into all possibilities in the case. Every material we collect is tested and retested for its veracity. It's nothing like the narrative put out by the petitioner. We assure all the accused that the investigation will only be in accordance with law."

The DGP submitted that in the absence of established malafide or bias there cannot be a prayer to change the investigating agency merely based on apprehensions of the accused.

When the prosecution completed its arguments, Senior Advocate Agarwal rebutted all the submissions and pointed out that the entire case was based on some stand-alone internal utterances that could under no circumstances be sufficient to be the subject of an FIR. He added that the prosecution was misusing the provision of criminal conspiracy by dealing with it like it is a mathematical formula. If that is the threshold the law requires, we are leading the way to a police state, the counsel argued. 

It was also asserted that the issue of tampering with mobile phones was entirely irrelevant in the present case and that it was brought up by the prosecution merely to distract the court.  

When the petitioner vehemently objected to the involvement of certain officers in the investigation, the Court asked if the probe can be handed over to any agency where these officers were not involved. The petitioner answered this query by pointing out that the Court may not ask the prosecution to constitute a team without these officers since even today these officers are not investigating officers on paper.

"The SIT is a mere curtain to create an illusion of separation."

As such, they sought for the investigation to be handed over to an independent agency. This was resisted vigorously by the prosecution. 

The decision in this case will possibly be declared in a week. 

Background:

According to the actor, this FIR was registered merely to fabricate evidence in the 2017 actor abduction and rape trial which is going on before the Additional Special Sessions Judge. It was also contended that the FIR was registered in violation of provisions of Section 154 of CrPC (information in cognizable cases) since there is a total absence of any allegation or material to attract the offences alleged in the FIR.

Dileep has further argued that the Investigating Officer has created false, unsigned statements of film director Balachandrakumar to wreak his personal vendetta and on that basis, he himself lodged a false complaint in the form of a letter to get the FIR registered.

In such circumstances, the petitioner has sought to quash the FIR and proceedings pursuant to the same on the ground that it was registered in violation of law, the initiation of criminal proceeding being manifestly attended with malafides and instituted with an ulterior motive for wreaking vengeance and also on the ground that the allegations even if accepted in toto do not constitute ingredients of any of the offences alleged.

Apprehending arrest in this case, Dileep, his brother P. Sivakumar and his brother-in-law T.N.Suraj had approached the High Court praying for anticipatory bail. Finding that there was no prima facie material to suggest that the accused had committed criminal conspiracy to target the investigating officers, a Single Judge had granted pre-arrest bail in the matter.

Case Title: P. Gopalakrishnan @ Dileep & Ors v. State of Kerala & Anr.

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