KOCHI: The Kerala High Court on Friday asked actor Dileep and others, who are accused in a case registered for allegedly conspiring to kill investigating officers in the 2017 actor abduction and sexual assault case, what their apprehension was in handing over their phones to the investigating officers. "It's improper not to hand over the phones to the investigating officer," observed Justice Gopinath P.
The court made the observation on an application filed by the prosecution in the anticipatory bail pleas of Dileep and others. The court further asked Dileep, "Why don't you surrender before the High Court registry? Don't you have faith in this court?"
To this, Dileep's counsel argued that this is a witch-hunt and an intrusion into the actor's privacy. "In my reply to the notice issued by the crime branch, I have admitted that there are other phones and that they are with my forensic experts to retrieve certain information. If I wanted to conceal anything, I would have denied the existence of such phones. This is a witch-hunt," submitted Dileep's counsel.
The court will hear the matter again on Saturday at 11 am through a special sitting.
In its observation on Friday, the court made it clear that "prima facie, there is nothing to prove an offence, but the allegations are serious and they have to be thoroughly investigated. What I'm concerned about is the investigating agency's effort to establish a conspiracy". The prosecution said they need Dileep's phones. "Meanwhile, you gave your phones to forensic experts and they tampered with them. Tomorrow the prosecution will say they have submitted tampered phones," orally observed the court.
Dileep's counsel argued that if he wanted to destroy the evidence, he would have done that a long time ago.
TA Shaji, Director General of Prosecution, sought a directive to the petitioners including Dileep to immediately surrender the specified mobile phones which they refused to hand over to the investigating officer during interrogation. Since the main allegation against them is the commission of criminal conspiracy to harm the life of the investigating officers, digital evidence is of utmost importance to unearth the offence.
Therefore, the prosecution asserted that the mobile phones used by the petitioners for a considerable period after 2017 are primary materials to be subjected to examination as a part of the criminal investigation and that "they are absolutely necessary to be taken into custody for the purpose of investigation". Actor Dileep was using two iPhones and two other mobile phones. Similarly, Anoop, brother of Dileep, used two mobile phones and TN Suraj used one mobile phone during that specified period. The prosecution sought that the seven mobile phones used by these persons be produced.
In the interim order passed by the Kerala High Court last Saturday, the judge had made it amply clear that the petitioners should fully cooperate with the investigation and that any attempt to interfere with the course of investigation in any manner will entitle cancellation of this order of protection.
The prosecution informed that the accused made themselves available for the interrogation as directed.
The investigating officer has obtained the CDRs (call data records) of the phone numbers (SIM numbers) used by the petitioners. It is revealed that "the mobile phones used by the petitioners after the first week of January 2022 were not the same as those used by them prior to the first week of January 2022. As part of an investigation to examine the contents of the mobile phones, which were used by the petitioners previously and found concealed by them from the investigating officers, they were directed to produce them by giving a notice under section 91 of Cr.PC. The petitioners refused to hand over the mobile phones which were used by them, taking a stand that notice under section 91 is not maintainable and that the mobile phones were sent for forensic examination through their lawyers," submitted the prosecution.
The prosecution argued that the accused had purposefully removed their mobile phones and attempted to conceal and thereby destroy the evidence under the pretext of sending it to examination.
"Petitioners are demonstrably not co-operating with the investigation as directed by this court in the order dated January 22, and for that reason alone the protection granted to the petitioners is liable to be revoked." Further, it was pointed out that although the investigating agency is empowered to seize the concealed mobile phones by recourse to the provisions under the CrPC, it was felt appropriate for the matter to be brought to the notice of the court and seek a directive to the petitioners to surrender the mobile phones used by them before the first week of January 2022 before the investigating officer.