'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 conspiracy

In 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 Intimidation

The 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 witnesses

Bail conditions

The Court has imposed the following conditions for bail :

1. Each of the Petitioners shall execute separate bonds for sums of Rs.1,00,000/- (Rupees one lakh only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.

2.Petitioners shall appear before the investigating officer in Crime No.6/2022 Crime Branch Police Station as and when summoned to do so

3. Petitioners shall co-operate with the investigation and make themselves available for interrogation whenever required;

4. Petitioners shall not tamper with any evidence;

5. Petitioners shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer;

6. Petitioners shall surrender their passports before the jurisdictional Court. If they do not have any passport an affidavit to that effect should be filed.

7. Petitioners shall not involve in any other crime while on bail.

If any of the bail condition is violated, the Investigating Officer will be at liberty to seek cancellation of bail.

Arguments on Behalf of the Accused:

Senior Advocate B. Raman Pillai assisted by Advocate Philip T Varghese appearing for the accused alleged that the hidden agenda of the prosecution was to entrap the actor rather than prove the offence.

He repeatedly argued that the entire Police Force in the State was against his client, merely because the prosecution failed to prove the actor's guilt or involvement in the 2017 case. 

"The conspiracy is not between the accused. The conspiracy is between the ADGP and other officers with a hidden agenda to register an FIR and throw me behind bars," the senior counsel had contended. 

Therefore, the primary argument was that most of the allegations put forth by the prosecution in this case were concocted efforts to frame the actor.

To prove that the case is a vengeful move on part of the Investigating Officer and Balachandran Kumar, it was pointed out that instead of being handled by the Aluva Police Station (where the alleged conspiracy is said to have been hatched), the matter is being investigated by the Crime Branch.

The senior counsel also produced a set of decisions where individuals accused of having committed grave offences were granted anticipatory bail by the Court.

The counsel admitted that although it is difficult to prove a conspiracy, mere suspicion is not sufficient to find one guilty of it. To establish the same, reliance was placed on the decision in State Of Tamil Nadu v. Nalini & 25 Ors where it was observed, suspicion howsoever strong does not take the place of proof. The Senior Counsel argued that mere words expressing anger and outburst at officers who arrested Dileep cannot be construed as conspiracy to kill.

Arguments on Behalf of the Prosecution:

On the other hand, DGP T.A Shaji appearing for the prosecution pointed out that the nature and gravity of the accusation have to be considered before granting pre-arrest bail.

In response to the accused's contention that the crime should have been registered at the Aluva Police Station rather than at the Crime Branch, the DGP assisted by Additional Public Prosecutor P. Narayanan submitted that Crime Branch has statewide jurisdiction and is the notified agency to conduct an investigation.

The prosecution also highlighted several aspects to prove that Balachandra Kumar is a credible witness in the case. It was added that the minor inconsistencies in his statement only prove that it was genuine, and pointed out that the accused had failed to prove any material variations.

The prosecution further pointed out that the subsequent conduct of the accused upon being aware of a crime being registered against them was sufficient to prove that they were trying to hide something. To support this contention, the prosecution relied on the fact that they had refused to hand over their phones to the investigating officers. 

Substantiating on this argument, reliance was placed on the Supreme Court decision in Vipan Kumar Dhir vs State of Punjab, where it was held that the gravity of the offence, the conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail.

Other Related Developments: 

Meanwhile, the prosecution had submitted an application last month accusing Dileep and his men of attempting to destroy critical evidence in the ongoing investigation by refusing to hand over the mobile phones they had used before January 2022.

In this matter, the Court had directed the accused to hand over these phones to its Registrar General in a sealed box by 31 January 2022. Later on, these phones were ordered to be handed over to the Jurisdictional Magistrate Court (JFCM Aluva). Subsequently, the JFCM decided to send the phones to a forensic lab in Thiruvanthapuram.

Recently, the actor had also moved a separate application before the Court seeking to halt further investigation in the actor rape case. This case will be taken up by the Court today before a different bench.