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

The Kerala High Court on Saturday ordered Malayalam cine actor Dileep to hand over his mobile phone to the Court registry in a sealed cover in connection with a case registered against him by the Kerala Police [P Gopalakrishnan alias Dileep & Ors. v State of Kerala & Ors.]..Dileep and four others have been booked by the Crime Branch of the Kerala Police for allegedly conspiring to kill police officers who are investigating the 2017 actress sexual assault case against him.The order to hand over mobile phone was passed by single-judge Justice Gopinath P on a plea by prosecution seeking seeking possession of seven mobile phones of the accused."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. In light of the provisions of 79A Information Technology Act Act, I am of the view that examination of the phones must be done by one of the agencies notified under sec 79 A of the IT act," the Court held.The Court therefore, ordered that 6 out of the 7 the mobile phones, excluding one regarding which sufficient information wasn't provided, be produced before the High Court registry in a sealed cover by 10.15 am Monday, January 31."Taking into account the submission of the counsel for petitioner there will be direction to submit the phones 1,2,3,5,6,7 be produced in a sealed box before the registrar general of this court by 10:15 am on January 31, 2022," the Court said..Senior Advocate B Raman Pillai, appearing for Dileep, vehemently opposed the application of the prosecution seeking possession of the mobile phones. Pillai argued that seeking mobile phone would amount to violation of the accused's right against self-incrimination under Article 20(3) of the Constitution, especially since the phones contained privileged conversations between Dileep and his lawyers. He also submitted that they had sent the phones to their own forensic experts. .The Director General of Prosecution, Senior Advocate TA Shaji, contended that merely because there may be privileged communication, the same cannot insulate the accused from investigation when crime has been committed.The prosecution alleged that the accused had stopped using the mobile phone in question the day after new allegations were levelled against them by film director Balachandra Kumar..The Court opined that granting possession of mobile phones to prosecution would not amount to self incrimination in light of the judgement of the Supreme Court in KS Puttaswamy and that of the Karnataka High Court in Virendra Khanna v. State of Karnataka.Moreover, going by the provisions of Section 79A of the Information Technology Act, the phone must be examined by a forensic expert notified under the Act and not by any other forensic lab of choice. "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," Justice Gopinath remarked. Therefore, to 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, the Court directed the accused to hand over the phones to the High Court Registry so that an appropriate decision can be taken. "I passed the previous interim order (granting interim protection) 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," the judge cautioned orally.This is the second time that the Court conducted a hearing on Saturday in connection with Dileep case..At a hearing last Saturday, the Court had orally remarked after viewing material provided to it in a sealed cover by the prosecution, that there seems to be "is a possibility of investigation being influenced" which is "disturbing, to say the least".However, it had granted Dileep and the other four accused interim anticipatory bail and directed them to submit to interrogation at the Crime Branch for 11 hours each from January 22 to 25. .Dileep and his associates are already being tried for allegedly planning and executing a revenge crime against a female actor in the Malayalam film industry by having her abducted, sexually assaulted and photographed nude in a moving vehicle. The actress was said to have played a role in the dissolution of Dileep's marriage with his ex-wife. On January 3, 2022 the Investigating Officer in the case which began in 2017 informed the CBI Special Court that further investigation would be necessary after statements from a film director Balachandra Kumar revealed that he had heard Dileep's statements that indicated his intention to take revenge on the police officers investigating the case.Subsequently, the Crime Branch of the Kerala Police registered a new FIR against Dileep and five others (one whose custody was not sought for by the prosecution) for allegedly threatening the investigation officials.Of the six accused, Dileep, his brother P Sivakumar and brother-in-law TN Suraj have been charged for offences punishable under Sections 116 (offering bribe to public servant), 118 (concealing design to commit offence punishable with death or imprisonment for life), 506 (criminal intimidation) and 120-B (criminal conspiracy) read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code.They then approached the Kerala High Court through through advocates Philip T Varghese, Thomas T Varghese, Achu Shubha Abraham, Litha VT, Monisha KR and Nitya R seeking anticipatory bail.In their plea, it is claimed that the statements of Balachandra Kumar were tutored by the Investigating Officer and that the timing of releasing the interview indicates that the prosecution is merely trying to extend the trial in the sexual assault case, which by directive of the Supreme Court, is due to conclude by February 16, 2022. .Dileep has also approached the Kerala High Court with a separate plea seeking to restrain the media from reporting on the trial of the case till the final verdict is pronounced..Read more about the history of the assault case and the plea for anticipatory bail here..[Read Order]