'Sanction Not Required For Investigation,' Jharkhand To Supreme Court In Deagarh Airport Case Against MPs Nishikant Dubey, Manoj Tiwari

A bench of Justice Abhay Oka and Justice Augustine George Masih asked the state to produce judgements to support its contention that investigation can go on without taking prior sanction. 

The HC had quashed the FIR on the ground that no prior sanction was taken as per the Aircraft (Amendment) Act, 2020.

During the hearing today, the counsel for the state submitted that the question of sanction will not arise at the stage of investigation but only at the stage of filing of complaint once the court has to take cognizance of the complaint. "So bar will not apply at the stage of investigation, but after we have filed the charge sheet and the investigation is complete."

Thereafter, the Court asked for judgments to support this contention. "In similar cases, there are judgements which take a view that investigation can be done before cognizance is taken, and that material can be used for filing a complaint. You just get those judgements, this will require hearing", Justice Oka said.

The Court kept the matter on 18th December and permitted the parties to file submissions in brief along with copies of the judgements.

In July 2023, the Court issued notice on a petition filed by the State of Jharkhand challenging the Jharkhand High Court's decision to quash the FIR against BJP MPs Nishikant Dubey, Manoj Tiwari, and others in the Deoghar Airport case.

The FIR alleged that the accused had threatened and coerced Air Traffic Control (ATC) personnel into permitting the take-off of a private aircraft in violation of safety regulations at Deoghar Airport in September 2022. Dubey, Tiwari, and others allegedly forcibly entered the ATC at Deoghar Airport and pressured personnel to allow the take-off of a private aircraft, even though the airport was not equipped for night operations. The FIR was registered under sections 336, 447, and 448 of the IPC, as well as sections 10 and 11A of the Aircraft Act, 1934.

The State has argued that the High Court misapplied the principle of special law prevailing over general law by holding that the Aircraft Act, 1934, would supersede the IPC. It contended that the IPC provisions are distinct and separate from sections 10 and 11 of the Aircraft Act. The State further asserted that the Aircraft Act cannot override the IPC when violations compromise safety and security, endangering lives.

The State contended that the High Court conducted a “mini trial” under Article 226 of the Constitution. It argued that the court decided disputed facts—such as whether the pilot exited the aircraft or whether undue influence was exerted on the ATC—issues still under investigation. The State also pointed out that the Investigating Officer (IO) had concluded that ATC initially refused permission for takeoff due to low visibility but was coerced by the respondents to grant clearance.

The State alleged that the accused, including Members of Parliament, misused their positions and endangered lives and safety. It contended that as public figures, they were obligated to uphold the highest standards by adhering to rules and regulations.

High Court's Ruling

The High Court analyzed Schedule II Rule 4 of The Aircraft Rules, 1937, which defines night flight as occurring between half an hour after sunset and half an hour before sunrise. In this case, the sunset occurred at 6:03 PM, and the flight took off at 6:17 PM. Observing that the flight had ATC clearance, the court held that the petitioner could not be prosecuted, as the responsibility for safety lay with the Airport Authority.

The Court noted that Section 12B of the Aircraft (Amendment) Act, 2020, mandates that courts can only take cognizance of offenses under the Aircraft Act upon a complaint by, or with the written sanction of, the Director General of Civil Aviation (DGCA) or other designated authorities. It ruled that the FIR was not maintainable, as a complaint in accordance with this provision had not been filed.

The High Court held that when a special law provides for specific punishments, IPC provisions are not attracted. The High Court concluded that the FIR was lodged with malafide intent and allowing the proceedings to continue would amount to an abuse of the process of law.

Case no. – SLP(Crl) No. 7844/2023 

Case Title – State of Jharkhand v. Nishkant Dubey