'Prima Facie No Material': Kerala High Court Grants Pre-Arrest Bail To Dileep In Murder Conspiracy Case [Updated With Judgment]

The Kerala High Court on Monday allowed the anticipatory bail plea moved by actor Dileep and other accused in the alleged criminal conspiracy to kill police officers investigating the sensational 2017 sexual assault case.Justice Gopinath P. pronounced the highly-anticipated verdict after two weeks of elaborate hearing. "Your apprehensions regarding non-cooperation with the investigation can be addressed by conditions", the Court informed the Prosecution while dictating the order. It was also clarified that if these conditions were violated, the prosecution was entitled to apply for arrest. The pre-arrest bail plea was filed by the actor after the Crime Branch of Kerala Police filed a new FIR against him and five others for allegedly conspiring to murder the investigation officials in the 2017 actor kidnap and rape case, in which Dileep is facing trial as the chief conspirator. Earlier this year, director Balachandra Kumar had released audio recordings of people 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.Apprehending arrest, Dileep, his brother P. Sivakumar and his brother-in-law T.N.Suraj approached the Court praying for anticipatory bail.Prima Facie no material to suggest criminal conspiracyIn the 40-page order, the Court noted that there was no prima facie material to suggest that the accused had committed criminal conspiracy to target the investigating officers."Having considered the materials placed and having gone through Annexures-G, H and I along with the other materials which, according to the prosecution, indicate that a criminal conspiracy has been established, I am of the opinion, prima facie, that at present, there is no material to suggest that the accused had committed the offence of criminal conspiracy", Justice Gopinath noted in the order. The Court also noted that there is nothing in the facts to show that the offence of abutment was committed."Coming to the facts of this case, there is nothing to suggest, at present, that the accused had done something or some act in respect of which an offence of abetment can be alleged. For an offence of abetment, something must be done. There is no material to suggest that an act or illegal omission had occurred for the accused in this case to be charged with an offence of abetment of that act or omission. Therefore, prima facie and for the purposes of these Bail Applications, it can be presumed that Section 116 of the Code is not attracted"The Court further said that if there is no material to suggest criminal conspiracy, offence under Sectio 118 IPC will also not get attracted.As regards the offence of Criminal Intimidation under Section 506 IPC, the Court noted :"Criminal intimidation punishable under Section 506 of the Code is essentially a threat. There is no case for the prosecution that any of the officers had been directly threatened or intimidated by the accused in this case". The Court said that the words allegedly spoken by the accused cannot be termed as 'threat or intimidation' for the purposes of Section 506 of the Indian Penal Code.No Offence of Criminal IntimidationThe Court noted that there was no case for the prosecution that any of the officers had been directly threatened or intimidated by the accused in this case.The alleged incident of Dileep having spoken to Baiju Poulose on 31.1.2018 at the Sessions Court, Ernakulam was the primary ground used by the prosecution to establish an offence of criminal intimidation.However, it was found that the statement by itself or words allegedly spoken by Dileep cannot be termed as 'threat or intimidation' for the purposes of Section 506 of IPC.Non-cooperation/ propensity to influence witnessesReliance was placed on Sushila Aggarwal and others v. State (NCT of Delhi) & Anr to point out that even if anticipatory bail is granted, the prosecution is not powerless to seek relief u/s 439 (2) CrPC if the accused acts in violation of any term under which the bail is granted.'Regarding the non-cooperation with the investigation, I am of the opinion that even if bail is granted to the accused it is always open to the prosecution to move this court for cancellation of bail or for arrest of the accused as held by the Constitution Bench in Sushila Aggarwal (supra)."Justice Gopinath added that the non-production of one phone which is now stated to be non-traceable by itself does not compel him to hold that the same amounts to non-cooperation with the investigation.Although the apprehension that if the accused are released on bail they will...

'Prima Facie No Material': Kerala High Court Grants Pre-Arrest Bail To Dileep In Murder Conspiracy Case [Updated With Judgment]

Hannah M Varghese

I am of the opinion, prima facie, that at present, there is no material to suggest that the accused had committed the offence of criminal conspiracy", Justice Gopinath noted in the order.

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