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Why Kerala HC Dismissed Dileep Plea Against Further Probe in Sexual Assault Case

The high court held there is no bar on further investigation, even after a trial starts.

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Why Kerala HC Dismissed Dileep Plea Against Further Probe in Sexual Assault Case
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The Kerala High Court on Tuesday, 8 March dismissed a plea by actor Dileep opposing further investigation into the 2017 sexual assault case arising out of the revelations by filmmaker Balachandra Kumar, but also said that the police have to complete the additional probe by 15 April.

Dileep is the eighth accused in the case, which was filed after a Malayalam actor was allegedly abducted and sexually assaulted in a moving car in Kochi in February 2017. He is alleged to have conspired to arrange the attack and received a video of the assault, which was filmed by the attackers, including 'Pulsar' Suni.

The trial in the case before a CBI Special Judge had progressed significantly when new shocking allegations made by director Balachandra Kumar against actor Dileep in November last year had given a fresh direction to this case.

Kumar alleged that Dileep had been involved in a conspiracy to kill the officials involved in the investigation. On 29 December 2021, the investigating officer informed the trial court that it was conducting a further investigation in the case based on these revelations.
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Dileep had approached the Kerala High Court on 2 February against the further investigation of the case based on these new allegations, arguing that a final report had been filed in the case on 22 November 2017, charges had already been framed, and 202 witnesses (all but one) had already been examined.

Senior advocate B Raman Pillai, representing him, claimed that the prosecution was trying to fabricate evidence against the actor. He argued that the new revelations were a result of a conspiracy between Balachandra Kumar and the investigating officer, Baiju Paulose and was meant to sabotage the trial.

The Kerala High Court heard detailed arguments from Dileep and the state authorities, and reserved its decision on 24 February.

Details of the Kerala HC Order

Justice Kauser Edappagath accepted the argument made by the prosecution and the police that the police have a right to conduct a further investigation into any case without having to get permission from the court, under Section 173(8) of the Code of Criminal Procedure.

The judge noted that the power vested in investigative agencies to conduct further investigation is very wide, as recognised by multiple judgments of the Supreme Court.

The high court judge rejected Pillai's argument for Dileep that no further investigation can be conducted after the trial in a case begins, and that the delay this could cause to the trial is grounds to suspend the further investigation.

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"There is no merit in the said contention. It is trite that the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation. The hands of the investigating agency should not be tied down on the ground of mere delay as the ultimate object is to arrive at the truth [Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) 5 SCC 347]."
Kerala High Court in order dated 8 March 2022

The high court also rejected another argument by the actor that he should have had the right to be heard by the trial court before it accepted the police's report on the need for a further investigation.

Finally, the high court noted that, in accordance with Supreme Court precedents, it is supposed to be "extremely cautious and slow to interfere" with the investigation or trial of criminal cases unless it is convinced beyond any manner of doubt that the proceedings have been instituted in a mala fide or malicious way or are an abuse of power. Dileep had failed to convince the court that this was the case here.

After reviewing the revelations and materials submitted by Balachandra Kumar, the judge noted that while he could not comment on their truthfulness or veracity. However, if found to be true, they "may have a bearing on the case."

"Once additional materials or fresh information pertaining to the crime are received after filing of the final report, it is the right and duty of the police to enquire into the same and to find out whether there is any truth in it or not," the high court held. "This statutory right and duty of the police cannot be circumscribed without any valid reason."

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The high court's order also notes that the right to a fair trial includes fair investigation, and that the constitutional guarantee under Article 21 of hte Constitution "embraces both the life and liberty of the accused and the interest of the victim as well as of the society at large and cannot be alienated from each other."

According to the report submitted by the Director General of Prosecution to the Kerala High Court in a sealed cover, the police have identified 38 points for the purpose of further investigation. They have already recorded the statements of 40 witnesses and taken a voice sample from Dileep which has been sent for forensic examination along with the clips submitted by Balachandra Kumar.

While the DGP wanted another three months to complete the investigation, Justice Edappagath was of the view that "it would be just and proper if the investigating agency is given time till 15/4/2022 to complete the further investigation."

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