The government petition stated that the victim herself had objected to the handing over of the visuals to Dileep, and that she had apprehensions she would be “finished off at any cost”.

Kerala govt opposes Dileep plea for actor assault video says contents could be leaked
news Actor assault case Thursday, December 13, 2018 - 18:09

The government of Kerala has filed an affidavit before the Supreme Court stating that actor Dileep must not be given a copy of the video that was taken of the assault of a female actor in February 2017. Dileep, who is charged with conspiracy in the abduction and assault of a popular Malayalam actor, had approached the Supreme Court with his request for a copy of the recorded visuals. This after his petition demanding the same was rejected by the Angamaly Magistrate Court, on February 7, 2018, and then the Kerala High Court on August 13, 2018.

The Government of Kerala has now submitted an affidavit before the Supreme Court putting forth various reasons why Dileep’s plea should be rejected. 

Concern over leak

The affidavit put forward by the Kerala government clearly states that “the supply of a copy of memory card to the petitioner/accused is strongly objected on the main ground that there is no guarantee that the contents thereof will not be leaked out”. 

It pointed out that if the video recording in question is leaked, it will cause “extreme damage to the pride, dignity, privacy and peaceful life of the victim”, and its leak will therefore “achieve the very purpose for which this crime was committed”. This is a reference to the police’s stated belief, repeated many times in the government’s new affidavit, that Dileep specifically demanded that the primary accused in this case, Pulsar Suni, take a video recording of the attack and hand it over to Dileep, which he could later use to blackmail the victim, or as the affidavit says, “to prevail upon the victim not to tender evidence against the accused.”

Fair trial

The affidavit also attempts to answer the issues raised by Dileep’s lawyer, Mukul Rohatgi, on Dileep’s right to a fair trial and the supposed dependence of his fair trial on securing a physical copy of the video recording, by stating that Dileep and his lawyer had been allowed to watch the videos more than once by the Angamaly District Magistrate, making them familiar with what the videos contained. It also pointed out that he could view them again through the proper, protected judicial channels if he so wished. 

The affidavit also opposed Dileep’s contention that the video was doctored and that he needed a physical copy of the video to prove that they were doctored, by pointing out that the recorded visuals had been sent to for “Laboratory Examination in the Cyber Forensics Wing in the Kerala State Forensic Science Laboratory under proper safeguards”, and that this forensics examination in turn had proved that “the memory card was last accessed on 18.02.2017 ie.much before it came into the possession of either the Court or the police” and “that the memory card in question has not been morphed, edited or tampered with.”

Rights and wishes of the survivor 

The affidavit also pointed out that handing over the recorded visuals to the accused, that is, Dileep, would violate the survivor’s “right to privacy and [her] fundamental rights”. It pointed out that “the victim has the right of privacy against revealing the visuals or pictures of commission of a sexual assault upon her”, and that “if the copy of the footage is given without taking into consideration the fundamental rights and the right of privacy of the victim, the same will adversely affect the case of the prosecution and will be against all the principles of law and human rights.”

The affidavit further states that the survivor herself had pointed out that Dileep is an influential man in the film industry and a multi-millionaire “capable of doing any harm to the victim”, and that the survivor had herself personally “already objected to the giving away of the copy of the visual footage to the petitioner pointing out apprehensions that [she] will be humiliated, insulted and will be finished off at any cost by the petitioner”.

The affidavit therefore reiterated that the judgements taken by the Angamaly Magistrate Court and the Kerala High Court in denying Dileep a physical copy of the recorded visuals in question were just, and contended that Dileep will still have a fair trial even if he is not granted a physical copy of the recorded visuals of the sexual assault in question. 

Dileep not legally entitled to copy of the memory card 

Another contention made by Dileep’s lawyer in this case is that he is legally entitled to a copy of the memory card and its recorded visuals as it falls under the definition of a “document”. Section 207 of the Code Of Criminal Procedure (CrPC) states that “the Magistrate shall furnish to the accused, free of cost, a copy of the police report, […] and any other document or relevant extract thereof forwarded to the Magistrate with the police report”.

The government contended that “As per section 207 of CrPC, the petitioner is not entitled to get the contents of the memory card. It is not a statutory right of the petitioner to ask for the contents of the memory card which is the medium of offence and which can be used for repeated offence using the same medium.” In saying this, the government means that the recording of the sexual assault on the memory card was in itself a crime, and therefore the memory card was the medium through which one of the offences Dileep is on trial for took place, and could be used for repeating the offence by making copies of, or distributing, the recorded visuals of the sexual assault. 

It further attempted to oppose Dileep’s lawyer Adv Mukul Rohatgi’s contention that the memory card was a document by reiterating out that it was simply a material object and a “product of the crime’, and therefore not a “document” that was required to be handed over to Dileep. 

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