Kerala HC declines to quash murder conspiracy FIR against Dileep or transfer case to CBI

The Kerala High Court on Tuesday declined to quash an FIR against actor Dileep and others, accusing them of conspiring to intimidate and kill the officials probing the 2017 actress assault case, saying the offence of criminal conspiracy was attracted based on director Balachandra Kumar's statement that the accused had decided to harm the police officers.

The high court said that while Kumar's statement does not specifically mention the commission of any murder, ''but the agreement (among the accused) is apparently for causing physical harm to the police officers''. Justice Ziyad Rahman A A also declined to transfer the case to the CBI, saying that there was not ''sufficient force'' in the allegations by the actor that proper and fair investigation was not possible in the matter. The high court said that apart from mere allegations, ''there are no materials substantiating the same''.

It further said that while traces of ''overzealousness on the part of the authorities concerned can be found'', it could not find any materials revealing any ulterior motive or malafide on the part of the investigating agency.

''In such circumstances, I do not find any reason to allow the prayer sought for the transfer of investigation in this case,'' the judge said and dismissed Dileep's plea seeking quashing of the FIR or transferring the case to CBI.

Regarding the offences of abetment, intimidation and criminal conspiracy mentioned in the FIR, the court said that there were no materials or information in the FIR to indicate that the first two offences were attracted.

However, the court said that the offence of criminal conspiracy was attracted, not because of the utterances allegedly made by the actor against the police officers at his residence, ''but because of the statement of Balachandra Kumar'' -- which was also recorded in the complaint of Baiju Paulose -- that the accused have decided to cause harm to five police officers.

The court further said that formation of such an agreement was revealed from the contents of the FIR and the complaint and the reading the allegations therein as a whole, ''prima facie suggests an intention to cause physical injuries to the police officers, including chopping off hands (of one of them)''.

''In this case, it is true that annexure-9 FIR does not contain any substantiating materials indicating the nature of the agreement and the stage of execution of such agreement. However, it contains information as to the existence of an agreement to commit an offence punishable with more than two years. ''In such circumstances, no discrepancies or any legal infirmity can be attributed to the registration of the said FIR,'' the court said and added that lack of a preliminary enquiry before lodging of the FIR cannot be reason to quash the proceedings.

The court, further substantiating its decision, said that when invoking its powers under the Criminal Procedure Code to quash or interfere with an FIR, ''the relevant consideration can only be the allegation contained in the FIR and not the materials placed in support of the same''.

The materials substantiating the allegations have to be collected through the process of investigation, which has to commence based on the registration of the FIR, it added.

The court further said that even if the allegations only reveal a doubtful case for making out the offences, at the stage of FIR, the benefit of the doubt should go to the investigation as any interference at this stage would foreclose all opportunities for the police to collect materials in support of the allegations.

''In my view, the duty of the court is not confined to seeing that no innocent person is punished but also to ensuring that proper punishment is granted to the real culprits. Therefore a balance has to be struck, and I find that a proper balancing can be made in this case, by allowing the investigation to continue,'' the judge said in his 81-page long decision.

The court said that the actor has not made out a case warranting interference in the FIR by it.

Dileep, in his plea filed through advocate Philip T Varghese, had claimed that there was absence of any material in the murder conspiracy FIR to indicate commission of any of the offences attributed to the accused and the entire case was based on something allegedly ''wished'' by him.

The Crime Branch, represented by Director General of Prosecutions (DGP) T A Shaji and Additional Public Prosecutor P Narayanan, on the other hand had contended before the court that the allegations in the FIR make out offences which warrant setting in motion of the investigation machinery.

The actor and five others were booked under various provisions of the Indian Penal Code, including Sections 116 (abetment), 118 (concealing design to commit offence), 120B (criminal conspiracy), 506 (criminal intimidation), and 34 (criminal act done by several people) and later Section 302 was also added to it for allegedly conspiring to murder the officials probing the 2017 actress assault case.

The actress-victim, who has worked in Tamil, Telugu and Malayalam films, was abducted and allegedly molested in her car for two hours by some persons who had forced their way into the vehicle on the night of February 17, 2017 and later escaped in a busy area. The entire act was filmed by those persons to blackmail the actress.

There are 10 accused in the 2017 case and police have arrested seven. Dileep was arrested subsequently and released on bail.