Karnataka High Court Quashes Criminal Complaint Against AAI, Air India Executives Over Mangalore Flight Crash

A single bench of Justice Ashok G. Nijagannavar passed the order while allowing the petitions filed in 2013 by AAI and its executive Ansbert D'Souza, and AI and its executive Peter Abraham, who challenged the cognisance taken by the magistrate court merely on the basis of "deemed sanction" for their prosecution.

The court while quashing the complaint observed that said "Trial court has failed to consider the closure of the earlier chargesheet on the reason that the pilots who have been arraigned as accused have expired in the air crash and also the report of Court of Inquiry."

Case Background:

An Air India Express flight crashed at Mangalore airport on May 22, 2010 killing 152 passengers and six crew members. The aircraft which was returning from Dubai (flight no IX-812) overran the runway and fell down the hill on the end of the runway.

The judicial magistrate first class, on February 19, 2013, had taken cognisance for offences like culpable homicide not amounting to murder, causing death by negligence under Indian Penal Code against AAI, AI and their executives based on the private complaint lodged on March 6, 2012, by Mangaluru-based 812 Foundation, represented by its secretaries Nayana Pai and Yeshwant Shenoy.

The complaint alleged that the accident was the direct consequence of gross and willful negligence on the part of Air India, AAI and the DGCA. The death of the 158 passengers was due to the failure of the officers to perform otherwise mandated by statute. The accused were duty bound to maintain the airport in accordance with ICAO standards and the accused were duty bound to ensure that no license is issued to those airports which do not meet ICAO norms.

Further, it was claimed that there was no firing fighting system at the airport, there was no preparedness as per ICAO norms. There was no arrangement for carrying out rescue operations in the event of an air crash. There were no suitable rescue equipment and services at the airport. The air carrier has failed to conduct the proper risk assessments of the airport and take appropriate action to eliminate or mitigate the approach and landing accent reduction procedure.

Submission of the petitioner:

Senior Advocates Gurudas S Kannur and Uday Holla appearing for the petitioners submitted that the trial court could not have taken cognizance of the complaint without the sanction of under section 197 of CrPC. The trial court erred in interpreting the judgments of the apex court in the case of Subramanain Swamy and Vineet Narain.

It was also submitted that the trial court failed to take into consideration the court of inquiry report submitted by the committee headed by experts who after holding a public enquiry and examining nearly 100 witnesses.

Further it was said that it is a malafide complaint filed with an intention to harass the petitioners. The sanction under section 156 (3) CrPC is a must for investigation without which the magistrate cannot even order investigation.

Court findings:

The court referring to the Apex court judgement in the case of Subramania Swamy noted:

"The trial court based its decision on the case of the Supreme Court reported in (2012) 3 SCC 64 Subramanain Swamy. The said case relates to prosecution under Section 19 of the Prevention of Corruption Act wherein the Supreme Court has referred the guidelines framed by CVC regarding sanction."

It added in the present case the allegation is in respect of negligence and offence punishable under section 304A of IPC which has nothing to do with the Prevention of Corruption act.

The bench also took into account that section 32 of the Airport Authority of India Act specifies that all officers and employees of Airport Authority of India (AAI) shall be deemed to be public servants within the meaning of section 21 of IPC. Further, section 33 of AAI act specifies that no suit prosecution or any proceeding shall lie against the AAI or any member or any officer or any other employee of AAI for anything done in good faith or any damage sustained by any aircraft or vehicle in consequences of any defect in any airport, civil enclaves, heliports, airstrips, aeronautical communication station or other things belonging to or under the control of authority.

Following which it said "In the present case the complainant himself had submitted the application for sanction to prosecute some of the accused persons but the said application was not submitted to the concerned authority as such there was some delay. Thereafter, the complainant- has approached the magistrate court for issuance of process on the pretext of deemed sanction, which is not tenable."

It added "The Magistrate court need not act as a sanctioning authority. Section 197 of CrPC does not provide for any deemed sanction. In the instant case the sanctioning authority has rejected the application of the complainant seeking sanction to prosecute the accused. The persons who are sought to be prosecuted are also government servants. Therefore, without sanction to prosecute the complainant was not at all maintainable. Since the sanction has been refused which has become final, the complaint is liable to be quashed."

Accordingly, the bench held "In view of the facts and circumstances of this case this court is of the view that order dated February 19, 2013 tasking cognizance and issuance of summons only on the ground of deemed sanction is not legal and justified."

The court then went through the Court of Inquiry and the charge sheet submitted by the police and said "Both in the opinion of the investigating and prosecuting agency and the learned judge, the person now named in the complaint had no role to play. The learned judge closed the case in terms of the report filed by the investigating agency and it was categorically stated that the error was of the pilot and co-pilot and since both of them were dead, no prosecution is possible against them. There was no allegation against the persons named in the complaint. All these facts have not been even considered by the magistrate while taking cognizance."

The bench concluded by saying "The trial court has failed to consider the closure of the earlier chargesheet on the reason that the pilots who have been arraigned as accused have expired in the air crash and also the report of court of inquiry. In view of the amended subsection (1) of section 202 of CrPC, it is obligatory upon the magistrate that before summoning the accused residing beyond his jurisdiction, he shall enquire into the case himself or direct investigation to be made by the police officer or by such other person for finding out whether or not there was sufficient ground for proceeding against the accused. In the case at hand no such attempt is done by the magistrate."