'FIR Lodged Malafidely': Jharkhand High Court Quashes Case Against MPs Nishikant Dubey, Manoj Tiwari In Deoghar Airport Case

Terming the FIR to be ‘Malafide’ and observing that allowing the case to continue will lead “to abuse of process of law”, the bench of Justice Sanjay Kumar Dwivedi granted relief to Dubey, his two sons, Tiwari, and others including the Airport Director, several workers of BJP.

The bench observed that the Aircraft took off after obtaining valid permission from the ATC and as per the Aircraft Act, 1934, which is in itself a complete code, the complaint regarding such instances can only be lodged by the competent authority, which was not done in the instant case.

The Court also opined that when the Special Act is there and is applicable to the facts of the case, Sections of the Indian Penal Code won’t be applicable to the alleged set of facts.

“…further considering the materials on record which suggests that several cases have been lodged against the petitioner no.1 in W.P.(Cr.) No. 448 of 2022 which have been quashed by this Court and some judgments are affirmed by the Hon’ble Supreme Court, it transpires that F.I.R. has been lodged malafidely and allowing to continue the proceeding will amount the abuse of process of law,” the court remarked.

In the instant case, the allegations against Tiwari and Dubey were that they pressurized the personnel to grant them permission to take off their flight as they had landed on a chartered flight to visit a victim’s family in the district of Dumka.

Appearing for the petitioners, the Counsel for the petitioners argued that Aircraft Rules 1937 defines flight by night, and Rule 4 of Schedule II speaks that flight by night for the purpose of this schedule, except where otherwise stated, means a flight performed between the period of half an hour after sunset and half an hour before sunrise and in the instant case, the Chartered Aircraft took off at 18.17 hours and in view of Rule 4 the outer time limit was 18.33 hours.

It was further submitted that an FIR cannot be lodged under the Aircraft Act and that a cognizance shall be taken under section 12-B of the Aircraft (Amendment) Act, 2020 by the previous sanction of the Director General of Civil Aviation or Director General of Bureau of Civil Aviation Security or Director General of Aircraft Accidents Investigation Bureau, however, in the instant case, the FIR was lodged by Suman Aman, Deputy Superintendent of Police and Incharge of Security of Deoghar Airport.

Against this backdrop, it was argued that in view of that section, only a complaint could have been maintained in the instant case as per the definition of “complaint” under section 2(d) of the CrPC and since a “complaint” only is maintainable, the FIR itself was an abuse of the process of law.

On the other hand, the Counsel for the state submitted that the flight took off in spite of insufficient visibility which is beyond the time. It was also argued that at this stage, the FIR was not required to be quashed which can be looked into at the time of cognizance.

Court’s observations

At the outset, the Court noted that the flight had not taken off in absence of any clearance from the ATC and that it was an admitted fact that the ATC clearance was provided and the flight took off on 18.17 hours.

“Looking into the said Rule (Schedule II Rule 4 of The Aircraft Rules, 1937) it is crystal clear that before half an hour of sunrise and half an hour after sunset flight can take off. It is not the case that the flight has taken off in absence of any clearance from the ATC. Had it been the case that in absence of any ATC clearance, the flight has taken off the matter would have otherwise…The question remains when the ATC clearance is there, whether the petitioners…who are heading the advisory committee (Dubey is the Chairman of the Deoghar Airport Advisory Committee) are liable to face prosecution or not. The answer is clearly no”

Further, taking into account Section 12B of the Aircraft (Amendment) Act, 2020, the Court observed that no Court is allowed to take cognizance under the said Act save on a complaint made by or with the previous sanction in writing by the Director General of Civil Aviation or Director General of Bureau of Civil Aviation Security or Director General of Aircraft Accidents Investigation Bureau, as the case may be.

Thus, the Court held that an FIR in the instant case itself was not maintainable when the complaint was required to be filed pursuant to sanction as disclosed in that Act.

In view of this, the entire criminal proceeding registered under sections 336, 447 and 448 of the Indian Penal Code and sections 10 and 11A of the Airport Act, 1934, pending in the Court of Sub Divisional Magistrate, Dumka was quashed.

Case title - Dr. Nishkant Dubey and others vs. The State of Jharkhand and others along with connected matters

Citation: 2023 LiveLaw (Jha) 7

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