Dileep case: Kerala High Court tells survivor to file fresh plea for SIT probe into unauthorised memory card access

The Kerala High Court on Monday dismissed an application moved by the survivor in the 2017 actress assault case seeking a court-monitored probe by a Special Investigation Team (SIT) of the State police into the alleged unauthorised access of the memory card with visuals of the assault when it was in the custody of the trial court [XXXX v. State of Kerala & Ors.].

Justice CS Dias dismissed the plea that was filed in the form of an application in a previously disposed of case, wherein the High Court had ordered the trial judge to conduct an enquiry into the issue.

Justice Dias opined that the application raised an issue that was substantive enough and which arose from a separate cause of action, warranting the filing of a fresh petition.

Therefore, while dismissing the application, the Court clarified that it does not preclude the survivor from filing a fresh petition for a probe.

"On an overall consideration of the facts of the case and the exposition of the law in precedents cited above, I am of the definite view that the reliefs sought in the present application are substantive in nature and arise from a fresh and independent cause of action, and are not ancillary in nature. Hence, I hold that the application is not maintainable in law. Consequentially, the application is dismissed, without precluding the applicant's right to initiate appropriate proceedings in accordance with law", the order stated.

In 2017, the survivor-actress was allegedly abducted and sexually assaulted in a moving vehicle by several persons, allegedly at Malayalam cine actor Dileep's behest.

The trial in the case is underway before the Ernakulam District and Sessions Court.

The actress had moved the High Court in 2022 alleging that the memory card which holds visuals of the attack and which was seized as evidence, was accessed, copied and transmitted without authorisation.

In December last year, the High Court had directed the Ernakulam District and Sessions Judge to conduct a fact-finding enquiry into these allegations.

Once the enquiry was conducted, the survivor had to approach the High Court again to get access to the fact-finding report and the High Court directed the Sessions Court to provide a copy of the report.

The survivor-actress subsequently filed the present application alleging that the fact-finding enquiry headed by the sessions judge was not conducted in "a fair, free and complete" manner as directed by the High Court.

She contended that even though the High Court had permitted the judge to take the assistance of the police or other expert agencies, the same was deliberately avoided by the judge.

She also alleged that she was kept away from the enquiry and was not even allowed to make any written submissions.

She, therefore, sought a fresh probe by an SIT under the supervision of the High Court.

Senior Advocate Gaurav Agrawal appearing for the actress argued that the entire enquiry was vitiated and that the sessions judge had chosen to conduct it in-camera even though there was no direction to that effect from the High Court.

However, the High Court concluded that it would be more appropriate for her to file a separate petition as a new cause of action seems to have arisen.

[Read Order]