BREAKING| Kerala High Court Orders Dileep And Other Accused To Surrender Their Mobile Phones To Its Registrar General By 10.15 am On Monday

The Kerala High Court on Saturday directed actor Dileep and other accused to hand over six mobile phones to its Registrar General in a sealed box by 10.15 am on Monday in the alleged criminal conspiracy to kill police officers investigating the sensational 2017 sexual assault case.

Justice Gopinath P. relying on the Supreme Court decision in State of Bombay vs Kathi Kalu Oghad & Ors and a Karnataka High Court decision, observed: 

"...having heard the parties, I am of the view that in light of the law laid down by Supreme Court and having regard to Section 45 of Evidence Act and Section 79A of Information Technology Act, the prosecution has every right to seek that the accused hand over the mobile phones for forensic examination. I am of the view that examination of the phones must be done by one of the agencies notified under Section 79 A of IT Act."

Director-General of Prosecution T.A Shaji appearing for the prosecution argued that by refusing to hand over their phones, the accused have demonstrated that they will not cooperate with the investigation. He added that after film director Balachandrakumar made the disclosures regarding the said conspiracy, all the accused changed their phones immediately.

On the other hand, Senior Advocate B. Raman Pillai appearing for Dileep alleged that the entire police force in the State was against him and that the prosecution was merely attempting to protract the trial in the 2017 rape case and somehow find a way to arrest him. 

Although the Senior counsel sought more time to produce the phones, the Court was not inclined to grant the same. Accordingly, they have been directed to produce 6 out of 7 mobile phones demanded by the prosecution to the Registrar General by Monday at 10:15 am. 

Live Twitter thread of the hearing below :

Yesterday when the matter was heard, the Court was prima facie of the opinion that the actor should hand over the phones to the investigating officer

The developments ensued after the prosecution submitted an application accusing Dileep and his men of attempting to destroy critical evidence in the ongoing investigation. This was filed in the anticipatory bail plea moved by the actor and others.

The Crime Branch had sought a direction to the petitioners to immediately surrender the specified mobile phones which they refused to hand over to the investigating officer during interrogation.

It was added that although the accused made themselves available for the interrogation as directed by the Court, they refused to hand over the mobile phones they used prior to January 2022 to the investigating officers.

When asked to surrender the same, they apparently denied to do so taking a stand that notice under Section 91 is not maintainable and that the mobile phones were sent for forensic examination through their lawyers.

Thus, the prosecution argued that the accused had purposefully removed their mobile phones and attempted to conceal and thereby destroy the evidence under the pretext of sending it to examination.

Further, it was pointed out that although the investigating agency is empowered to seize the concealed mobile phones by recourse to the provisions under the CrPC, it was felt appropriate for the matter to be brought to the notice of the Court and seek a directive to the petitioners to surrender the mobile phones used by them prior to the first week of January 2022 before the investigating officer.

They added that since the main allegation against them is the commission of criminal conspiracy to harm the life of the investigating officers, digital evidence is of most importance to unearth the offence.

Therefore, the prosecution asserted that the mobile phones used by the petitioners for a considerable period after 2017 are primary materials to be subjected to examination as a part of the criminal investigation and that they are absolutely necessary to be taken into custody for the purpose of investigation.

Citation: 2022 LiveLaw (Ker) 45

Click Here To Read/Download The Order

https://www.livelaw.in/pdf_upload/interim-order-29012022-dileep-bail-matter-408535.pdf