Kerala actor sexual assault case: HC dismisses survivior’s plea for FIR over ‘illegal access’ to memory card

The Kerala High Court building in Ernakulam.
| Photo Credit: The Hindu

The Kerala High Court on Monday (October 14, 2024) dismissed as not maintainable the application filed by the survivor in the 2017 sexual assault case seeking a directive to register an FIR on the basis of the fact finding inquiry conducted by the Ernakulam Principal Sessions Judge into the unauthorised access made to the memory card containing the videos of the sexual assault while it was in judicial custody and a probe by a Special Investigation Team into it. 

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Justice C.S.Dias while dismissing the application observed that the relief sought in the present application is substantive in nature and arise from a fresh and independent cause of action and are not ancillary in nature and therefore, this application is not maintainable in law. Consequently, the application is dismissed without precluding the right of the applicant to initiate appropriate proceedings in accordance with the law”.

The survivor moved the application in a writ petition on which the High Court had ordered a fact finding inquiry by the principal sessions judge.

Counsel for the survivor had argued that since the fact-finding inquiry had proved right her allegation that unauthorised access had been made into the memory card, an investigation should be conducted to find out who all made the unauthorised access to the memory card, the purpose of unauthorised access and to whom the copies of the videos had been transmitted. In fact, only a scientific investigation by a special investigation team would bring to light all these aspects.

The Principal Sessions Judge who conducted the fact finding inquiry should have ordered registration of an FIR and thus taken the inquiry to its logical conclusion as the inquiry had disclosed tampering with the memory card. In fact, the inquiry found that a crime had been committed. Therefore, the sessions judge was duty bound to order registration of an FIR. The inquiry had revealed only a tip of the iceberg. Therefore it was only in the interest of the survivor that an investigation by a special investigating team was conducted into the issue.

The inquiry was conducted by the Principal Sessions Judge on a High Court directive and it was found that three persons: a former Angamaly court magistrate, and two court employees accessed the memory card. the survivor also alleged going by the inquiry report, Leena Rasheed, the then Judicial First Class Magistrate, Angamaly, Mahesh Mohan, Senior Clerk of the then Principal and Sessions Judge who is now a judge of the High Court, and Thajudeen, then Shirstadar of the trial court, Ernakulam, had accessed it.

Counsel for Actor Dileep who opposed the plea submitted that the application was not maintainable. Once the original writ petition of the survivor for a probe into the issue had been disposed of by ordering a fact finding inquiry, the court could not entertain another petition on the same issue.