[Dileep Bail] Press Freedom not a license to abuse judiciary: Kerala High Court

While granting anticipatory bail to Malayalam cine actor Dileep in a case of alleged conspiracy to kill police officers who were investigating the 2017 actress sexual assault case against him, the Kerala High Court remarked on the intense media scrutiny that the case has come under recently. [P Gopalakrishnan alias Dileep v State of Kerala & Ors.].Justice Gopinath P remarked that over the course of several hearings in the case, including two long hearings held on Saturdays, there were comments from certain quarters against the Court and the manner in which this case was handled. In the order delivered today, the Court quoted from the preface of the book Supreme but not Infallible penned by Justice BN Kirpal. “The title of the volume 'Supreme but not Infallible' – is taken from an oft quoted self -reflection of an American judge: “We are not final because we are infallible, we are infallible only because we are final.” We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the Court, though final, is fallible. These essays are a reminder of what the Court is and does."The Court noted that these words which are intended to convey the message that even the highest court in the country has no claim that it is infallible. Justice Gopinath observed that the discussions on mainstream and social media have dissected the process of the court and even though free speech must be protected zealously, the same cannot be a license for persons with little knowledge of legal principles to abuse the justice delivery system."Mainstream television media and social media have commented upon the way this court went upon its business in handling this case. Observations made in Court during the course of hearing have been dissected and made subject matter of intense discussion. The existence of a vibrant, independent and free press is no doubt essential to democracy. The constitutional Courts in this country have been zealous to protect the freedom of speech and expression but this cannot be a license for persons armed with half baked facts with little or no knowledge of how the judiciary functions and little or no knowledge of the fundamental legal principles that govern it, to abuse the justice delivery system," the Court said..The Court also quoted twice from the book Literature of Law.First was Lord Mansfield's words at the trial of the radical John Wilkes in 1770.“I will not do that which my conscience tells me is wrong, upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press: I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow.”Then the words of Judge Hiller B. Zobel at the trial of the Nanny Louise Woodward in 1998 was also adverted to.“Elected officials may consider popular urging and sway to public opinion polls, Judges must follow their oaths and do their duty, heedless ofeditorials, letters, telegrams, picketers, threats, petitions, panellists and talk shows. In this country, we do not administer justice by plebiscite.”"Both the above quotations extracted from the book ‘Literature of the Law’ echo, in no uncertain terms, the sentiments of this Court. I leave it at that", the Court said. .Interestingly, Dileep has also approached the Kerala High Court with a separate plea seeking to restrain the media from reporting on the trial of the sexual assault case till the final verdict is pronounced.The Court had in that matter ordered the Kerala Police to investigate into the allegations that news channel Reporter TV and other media outlets violated a trial court order which had issued a gag order restraining the media from reporting proceedings in the actress assault case in which Dileep is one of the main accused..Dileep and his associates were already being tried by at the Additional Sessions (CBI special No III) Court in Ernakulam for allegedly planning and executing a revenge crime against a prominent actress by having her abducted, sexually assaulted and photographed in a moving vehicle.The trial which has seen its share of controversies was nearing completion when a film director Balachandra Kumar gave an interview and released some audio clips indicating close association between Dileep, the 8th accused in the case, and Pulsar Suni, the 1st accused. The clips and Kumar's statements also revealed a conspiracy to kill the police officers who were involved in the investigation.This led to registration of a fresh fresh information report (FIR) against Dileep and five others.Dileep, his brother and his brother-in law, represented by Senior Advocate B Raman Pillai and advocates Philip T Varghese, Thomas T Varghese, Achu Shubha Abraham, Litha VT, Monisha KR and Nitya R, approached the Court seeking anticipatory bail..In each of the offences alleged under various sections of the Indian Penal Code, the Court found as follows:120B: Criminal ConspiracyThe offence of criminal conspiracy as defined in Section 120A and punishable under Section 120B is no doubt an offence by itself. The offence will lie even if an illegal act was either done or not done pursuant to the conspiracy. The very agreement or concurrence between the conspirators is an offence and is punishable. However, the judgment in Kehar Singh v Union of India indicates “The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict.” "Having considered the materials placed, I am of the opinion, prima facie, that at present, there is no material to suggest that the accused had committed the offence of criminal conspiracy," the Court said.506: Criminal IntimidationCriminal intimidation punishable under Section 506 of the Code is essentially a threat. There is no case for the prosecution that any of the officers had been directly threatened or intimidated by the accused in this case.The Court, from a prima facie assessment, found similarly that the offences punishable under Section 116 (abetment of an offence) and Section 118 (concealing design to commit an offence punishable with death or imprisonment for life) would not stand as they are part of the offence of conspiracy which it had already rejected..The prosecution, led by Director General of Prosecution TA Shaji had vehemently argued that the accused had not co-operated with the investigation especially in light of their reluctance to submit some old mobile phones.In this regard, the Court opined that even if bail is granted to the accused it is always open to the prosecution to move this court for cancellation of bail or for arrest of the accused as held by the Constitution Bench in Sushila Aggarwal v State (NCT of Delhi). "The non-production of one phone which is now stated to be non-traceable by itself does not compel me to hold that the same amounts to non-cooperation with the investigation...I am also of the view that the investigation can be properly conducted without the custody of the accused making it clear that even while on anticipatory bail the ‘deemed custody’ or ‘limited custody’ will be with the prosecution for the purposes of any recovery etc", the Court said..The Court accordingly set conditions while granting bail.Read a summary of the anticipatory bail hearings here..[Read Judgement]