Dileep's Plea: Offences U/s. 116, 118 and 506 IPC Not Attracted, Section 120B Will Apply- Kerala HC Refuses To Order CBI Probe
The Kerala High Court has declined to quash the offence registered against actor Dileep for conspiring to harm the officers who are investigating the Actress Sexual Assault case against him. The Court has also declined the alternative prayer of the actor to transfer the investigation from the state police to the CBI.
Justice Ziyad Rahman has, however, held that offences under Sections 116, 118 and 506 of the IPC are not attracted in the case.
Actor Dileep had approached the High Court seeking to quash the FIR registered against him this year for offences under Sections 506, 116, 118, 120B read with Section 34 of the Indian Penal Code (IPC). By a further report, Section 302 of IPC was also incorporated.
Apart from the Actor, the other accused in the case are Anoop, his brother, T.N.Suraj, Appu, Byju B.R. (Baiju Chengamanad) and one identifiable person.
Senior Advocate Siddharth Aggarwal appeared for the Actor Dileep while Director General of Prosecution T. A.Shaji appeared for the State and Police officers. Assistant Solicitor General S. Manu appeared for the CBI.
Section 506 of IPC (Punishment for criminal intimidation)
With respect to Section 506 of IPC, the Court held that unless the threat, which is the subject matter of the offence, is conveyed to the victim or was intended to be conveyed to him so as to cause an alarm in the mind of the complainant or the victim, it cannot be treated as criminal intimidation. "The aforesaid utterances were made while seeing the images of five police officers in a video. The manner and circumstances in which the aforesaid utterances were made would not amount to any criminal intimidation...", the Court held.
The Court concluded that in the absence of specific allegations in the statements leading to the FIR, it cannot be concluded that the offence under Section 506 is attracted.
Sections 116 and 118 of IPC
With respect to Section 116 (Abetment of offence punishable with imprisonment—if offence be not committed) and Section 118 (Concealing design to commit offence punishable with death or imprisonment for life), the Court held that they are different forms of abatement under Section 107 and that to invoke Section 107, there must be some positive act or an illegal omission in pursuance of a conspiracy between the accused.
"On going through the contents of Annexure-9, no such positive act or illegal omission is seen. It only mentions a design or agreement without any consequent action or omission. Therefore, it cannot be concluded that the offences under Sections 116 and 118 of IPC are made out from the information furnished", the Court held.
However, the Court held that though Sections 116, 118 and 506 of IPC are not applicable, Section 120B can be invoked.
Section 120B of IPC (Punishment of criminal conspiracy)
The Court held that though the utterances mentioned in the FIR, by themselves cannot be treated as a material for attracting the offence of criminal conspiracy, the statements of Balachandra Kumar, who had complained to authorities about the conspiracy by the actor to harm in the police officers, contains allegations that the accused had arrived at an agreement for causing harm to the police officers. "A specific statement to that effect is contained therein", the Court held.
"In my view, in this case, the offence of Section 120B IPC is attracted not because of the utterances allegedly made by the petitioner, but because of the statement of the said Balachandra Kumar, which is also recorded in the complaint of 3rd respondent, that accused have decided to cause harm to five police officers named therein. It is true that it does not specifically state the commission of any murder, but the agreement is apparently for causing physical harm to the police officers", the Court held.
The Court noted that the actor had said that the hands of one of the police officers would be chopped off. That, the Court held is an agreement between the accused for committing an offence. The Court held, "Therefore, it reveals an allegation of formation of an agreement to commit an offence punishable with imprisonment for more than two years".
Malafide Intentions of Police
With respect to the allegations of the actor regarding the close relationship between Balachandra Kumar and S. Sreejith IPS, the Court held, "I am of the view that there are no sufficient materials produced by the petitioner to substantiate the same, apart from mere allegations". The Court also held that since there are sufficient allegations in FIR and the documents based on which the same was registered, for attracting the offence of Section 120B IPC, the question of malafides loses its significance.
The Court held that the present case is not one where FIR was registered merely upon getting the information, but some inquiry is seen conducted before the same.
Transfer of Investigation To CBI
The Court held that the accused does not have a right to seek a change of the investigation agency.
The Court also held the present case is not one where police officers are alleged to be involved in the commission of the crime but are alleged victims of the crime. "Merely because the conspiracy alleged against the petitioner is to commit a crime against the police officers, it cannot be concluded that the police are interested in the matter, and it would affect the neutral status of the police", the Court held.
The Court held that even though certain documents indicated some suspected blemish in the service record of S. Sreejith IPS, the "in the absence of any material indicating influence being thrust upon him (investigating officer) at the instance of such superior officers, an order for transferring the investigation to another agency cannot be made".
The Court also noted that "On scrutinizing the circumstances under which registration of the crime is made, traces of over-zealousness on the part of the authorities concerned can be found". However, the Court held that there was no material revealing any ulterior motive or malafide on the part of the investigating agency.