Can Mere Utterances Qualify As Conspiracy? Kerala High Court Asks State In Dileep's Plea To Quash FIR In Murder-Conspiracy Case

The Kerala High Court on Wednesday continued to hear the parties in actor Dileep's plea seeking 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 heard the arguments in the afternoon session and both the sides presented their arguments. Singinificantly, during the hearing, the Judge asked the Director General of Prosecution if mere utterances, as in this case, qualify as conspiracy.

To this, DGP TA Shaji responded that these are not mere utterances and that the utterances were only a manifestation of a conspiracy which were corroborated by the audio recordings produced by director Balachandrakumar.

The case will be taken as the first item tomorrow for DGP to conclude his arguments.

Submissions on Behalf of the Petitioner:

Senior Advocate Siddarth Agarwal appearing for Dileep concluded his arguments in the case before the Court today. The Counsel picked up where he left off yesterday and continued to point out how it was very unusual for the case to be investigated by the Crime Branch by the same officers who were investigating the 2017 case. He suggested that this could be an indicator of malafide intentions. 

Apart from this, it was argued that when a person comes up on live TV out of the blue and makes allegations of an act that happened over 4 years ago, an FIR on the same would ideally be registered after an enquiry. However, in this case, the FIR was registered within 5 to 6 days based on this interview.

"Even if they claim that they conducted an enquiry within these 5-6 days, the question is who conducted this enquiry. The intended victim of the conspiracy (investigating officer Biju Paulose) conducted the enquiry in this case. That indicates the scope for an unfair investigation."

Further, it was emphasised that during the pre-arrest bail proceedings in this case before this Court, the Single Judge had directed the State not to arrest Dileep. It was alleged that the to avenge this, the Crime Branch conducted a large-scale rraid at the petitioner's residence with the media telecasting the entire search. The Counsel argued that it was an unnecessary and humiliating measure.

"They did not even spare the bedroom of my 84-year-old ailing mother."

The alleged offence being a conspiracy, which only consists of words, the Counsel wondered how the officers could find any evidence of this offence at the petitioner's residence while asserting that he suspected the search being conducted to plant fabricated evidence.

"This is not an investigation or prosecution. This is persecution," remarked the Senior Advocate.    

Moving on, referring to the allegation where Senior Advocate Raman Pillai (Dileep's counsel before the trial court) was accused of witness tampering in the 2017 case, it was pointed out that the Crime Branch issued notice to the Senior Counsel in this regard without verifying the veraciy of the allegations. 

"Contrary to what the witness testified, Raman Pillai  had not met anyone in the said period. In fact, he had contracted COVID-19 during the said time period. Yet this lie has been propagated on an affidavit which was submitted before this hall of justice."

The Court's attention was then invited to the prima facie assessment made by the Single Judge while granting me anticipatory bail in this case. In the said order, the Single Judge had prima facie presumed that Section 116 IPC was not attracted and further said that if there is no material to suggest criminal conspiracy, offence under Section 118 will also not get attracted.

The Counsel added that if the material in the FIR does not in itself reveal a cognisable offence, the investigation agency cannot proceed u/s 154 CrPC based on material that they collect later on.

Pointing out on all these aspects among others, the petitioner's counsel concluded his arguments reminding the Court that 'not only a fair trial but a fair investigation is also the right of an accused, and an integral part of rule of law.' 

Submissions on Behalf of the Respondents:

DGP T.A Shaji launched his arguments clarifying that the origin of this case and the further investigation that is going on in the 2017 case is one and the same.

He narrated that Balachandra Kumar wrote to the Chief Minister's office on November 11, 2021 seeking protection to his life. This complaint reached the police on Decemeber 29. Meanwhile, on December 25, his interview with a news channel aired on television revealing the allegations that ignited this case.

It was submitted that since no action was taken on his complaint to Chief Minister, the director filed a complaint to the police which was subsequently forwarded to Biju Paulose. The DGP submitted that this was the only relation between them while adding that 'there is not a scrap of paper to suggest that they knew each other before.' 

At this juncture, the Court asked if it can be termed as a conspiracyand why Biju Paulose was entrusted with the investigation.

The DGP replied that Biju Paulose was entrusted with the probe since he was the Investigating Officer in the 2017 case and the present case is an offshoot of that matter. 

Regarding the question of conspiracy, DGP Shaji argued that whether the allegations mentioned in the complaint constitute an offence is the question at this stage, and asserted that the allegations were sufficient to constitute the offence of conspiracy.

"The moment this FIR was filed, they filed for anticipatory bail. Since there had been no investigation back then, this court found that there was no material to support allegations at that time while granting anticipatory bail. But the situation is different now."

He also pointed out the last part of the judgement granting anticipatory bail to the actor which says that its observations must not be considered as a finding of the court. 

When the Court noted that people's understanding of 'conspiracy' may vary from its strictest legal sense, the DGP responded that the witness perceived the impugned discussion as a conspiracy and that this ought to be investigated.

When asked why Balachandrakumar was not made the first informant, it was submitted that the case was registered upon the ADGP's direction.

"If any of the information reveals a cognisable offence u/s 154 CrPC, a case can be registered."

Regarding the petitioner's argument about the raid conducted at his residence, the DGP clarified that it was not in furtherance of this case, but of the 2017 case. The submissions of behalf of the respondents will continue tomorrow. 

Background:

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.