Thread by @barandbench

The Kerala High Court will soon be hearing the anticipatory bail plea moved by Malayalam Actor Dileep and others in a case of alleged conspiracy to kill the police officers investigating the 2017 actress assault case against him.
#Dileep #Keralahighcourt

Previously, the Court had granted Dileep and four others interim anticipatory bail and directed them to appear for interrogation for 33 hours over 3 days.

Read more :bit.ly/3s3IgGY

Yesterday, the prosecution told the Court that Dileep had destroyed critical evidence including mobile phones.
The matter is before Justice Gopinath P.
Sr. Adv TA Shaji is the Director General of Prosecution
Sr. Adv B Raman Pillai, adv Philip T Varghese for Dileep

Hearing commences.
Pillai : we have filed a legal objection ( to prosecutions demand for mobile phones)

Gopinath J : I have done some research on my own and I don't think the argument that submitting mobile phones amount to self incrimination.

#Dileep

Gopinath J : After coming into force of Sec 79A of Information technology Act, forensic examination of phones can only be done by experts appointed by central govt. You giving phone to your own forensic analysts will not be accepted.

#Dileep

Gopinath J : I understand that there might be other material on the phone including conversation with lawyers but Sec 79 A is clear . We will have to find a balance
Pillai : Kerala FSL was notified by Central Govt only recently

Gopinath J : thirdly, how do we reasonably segregate the information on the phone between what is relevant to the investigation and what might be personal or privileged communication such as with lawyers.

#Dileep

Shaji : merely because there may be privileged communication cannot insulate someone from investigation when crime has been committed.

#Dileep

Shaji : during interrogation they ( the accused) have identified the voices as their own .

Note : The voices being referred to are those in the audio clips released by director Balachandra Kumar

Shaji describes the statements collected from several of the other accused who have also applied for anticipatory bail. Their cases are tagged with Dileep's plea.

#Dileep

Shaji : they have demonstrated that they will not co-operate with the investigation. We have progressed in the investigation but he is not entitled to protection from this court. After balachandra Kumar made statements, ALL the accused changed their phones immediately.

#Dileep

Gopinath J : yes, I have also seen. Possibly these are factors that can be connected to establish that there was a plan. An agreement and conspiracy by itself is definitely a crime. Today, I think I will compel them to hand over their phone. They cannot decline to do so.

#Dileep

Shaji : 438 A CrPC is also not there to protect the accused even if it is a statutory expression derived from Article 21.

Gopinath J : yes, the Puttaswamy judgement also goes against it. A Karnataka Judgement by Justice Suraj Govindraj also goes over this exhaustively

#Dileep

Gopinath J : you can't ask him to give you information to aid in investigation but handing over the instrument itself, the mobile phone, I don't think, is self incrimination. What do you say Mr. pillai

#Dileep

Pillai : we have nowhere else to go, my lord. The entire police force of the state is against us. We are at the mercy of the court.

Gopinath J : it can't be that you keep the phone and say you've sent it to your own forensic expert. At least submit to High Court registry.

Pillai : not the Kerala FSL. That is part of kerala police force.

Gopinath J : we can look into that.

Shaji : no other person gets this much privilege. What will society think ?

Pillai : my friend may not say that

#Dileep

Gopinath J : I passed the previous interim order because I thought prosecution is entitled to investigate the serious allegations. But now if I think you are not cooperating and withholding evidence, the tone and tenor will change

#Dileep

Pillai takes the Court through the investigation and trial in the actress assault case of 2017 in which Dileep is the 8th accused. The proceedings are still going on at the trial court

Pillai : towards the end of the trial, the Supreme Court directed that trial should be concluded in 6 months. That has been extended four times.

#Dileep

Pillai : they are trying to protract the trial by any means. 28/12/2021 is an important date. Only IO (Baiju Paulose) was left to be examined at the court . On 28/12, balachandra Kumar statements were released and in 29/12 they sought time to investigate it. SPP resigned

#Dileep

Pillai takes the court through the State's plea at the Supreme Court for extension of trial which was recently rejected.
Dileep trial: Supreme Court declines to pass directions on State's plea to extend deadline, leaves it to trial court's discretion | barandbench.com/news/dileep-tr…

Pillai : Now these two cases ( sexual assault, conspiracy to kill police officers) are being investigated together. The statements given by this man ( balachandra Kumar ) is the creation of the Investigating Officer.

Pillai : After examination of over 200 witnesses in the other case , they have no evidence against 1st petitioner, Dileep and we apprehend that they have registered this crime to arrest him despite that

#Dileep

The hearing is interrupted by what sounds like someone reporting on the case, live and on video
Gopinath J : I thought of not opening the VC link but I thought since many people are interested, including a brother judge I decided otherwise.

#Dileep

Gopinath J : as long as the proceedings are not in-camera then I thought the Court must be open, there is no secret .

Shaji : somebody is wondering why a bail app is being heard at so much length.
Gopinath J : this holds up all other proceedings. Yesterday I had 52 regular bail applications. I can't hold that up and hear this. You and Mr.Pillai appear. How can I tell other lawyers to wait.

Gopinath J : your argument, mr pillai, is that the entire police force, Prosecution is against you. But the phone has to be examined and afterwards you examine it by your own experts and see.

#Dileep

Gopinath J : conspiracy is difficult to prove. If it has gone from blurting out something to a plan there is an offence and they have to investigate.

Pillai : but phone is not involved at all. We never thought.

Gopinath J : I am least concerned. You produce it before High Court Registry at 10:15 am Monday. This is a long rope.
Pillai : that is not enough time.
Gopinath J : no, it is more than enough. If you don't co-operate, I will vacate previous order. You have to produce.

#Dileep

Varghese : a lot of gadgets have already been taken. Four phones have been sought for from dileep. Fourth phone which is mentioned is not a phone that we are aware of.

#Dileep

Shaji : there are 7 phones my lord . They have admitted as well.

[ Correction : the previous tweet said Varghese. Sr. Adv Pillai was making the submission]

Shaji : your lord may pass a conditional order. If they don't submit phones their protection may be vacated.

#Dileep

Pillai argues vehemently against the prosecution's request .

Gopinath J : I'm passing the order now. If you take such a stand, tomorrow a rape accuse scan say that he will not give a potency test

#Dileep

Pillai : I want to mention something about the police in the state. recently I appeared for an accused in a case in Kottayam. He was acquitted. The police, the SP , immediately told media that court was wrong etc. They have no respect for the court.

#Dileep

Note : Pillai appeared for former Bishop Franco Mulakkal who was recently acquitted by a Kottayam court in a case where he was accused of repeatedly raping a Nun .

#Dileep #francomulakkal

HC dictates ORDER

HC : the Learned DGP would vehemently submit that there is no violation of Article 20(3) as direction to produce phone would not amount to self incrimination. It is submitted that Investigating agency has every right to ask for mobile phone

HC : having heard counsels on both sides, I am of the view that in light of law laid down by the Supreme Court in State of Bombay v Kathi Kalu Oghad & Ors. by an 11 judge Bench, and being in respectful agreement with the analysis of the law...

HC : ...The Karnataka HC in Virendra Khanna case, having regard to provisions of section 45 A of the evidence act and section 79 A of the information technology act ...

HC : I am of the opinion that the prosecution has every right to seek that the accused hand over the mobile phones for the purpose of forensic examination.

HC : in light of the provisions of 79A IT Act... I am if the view that examination of the phones must be done by one of the agencies notified under sec 79 A of the IT act.

HC : the counsel appearing for petitioners would submit that the phone mentioned as no.4 bearing imei no .... , The petition does not indicate the make of the phone in question ...

HC : taking into account the submission of the counsel for petitiner there will be direction to submit the phones 1,2,3,4,6,7 be produced in a sealed box before the registrar general of this court by 10:15 am on 31/1/2022.

HC : post on 31/1/2022

#Dileep

Pillai : not enough time....

Gopinath J : there is one and a half days. Even today you could have sent. There are lots of flights to Bombay ( where dileep sent the phones )

#Dileep

Pillai (in Malayalam) : afraid to give because it will become 161 statement. Any statement will come...

#Dileep

Hearing ends.
End of thread

[BREAKING] Kerala High Court orders Dileep to submit his mobile phone before HC registry

report by @GitiPratap

#kerala #highcourt #dileep

Read story: bityl.co/AhtL