Deoghar Airport Case : Supreme Court Issues Notice On Jharkhand Govt's Plea Challenging HC Order Quashing FIR Against BJP MPs

The Supreme Court on Monday issued a notice in the petition filed by the State of Jharkhand challenging the Jharkhand High Court's order quashing the FIR against BJP MPs Nishikant Dubey, Manoj Tiwari and few others in the Deoghar Airport case. The FIR was lodged over allegations that the accused had threatened and forced ATC to permit the takeoff of private aircraft in violation of security regulations at Deoghar Airport in September 2022.

The bench comprising Justices Abhay S. Oka and Sanjay Karol issued notice to Dubey, Tiwari and other accused in the State's plea. The High Court had held that IPC offences are not attracted since there’s a special Act, i.e. Aircraft Act, 1934(Act). Further, it was opined that FIR was not maintainable since only a complaint can be made to DGCA as per section 12B of the Act.

State's Contentions

Offenses under IPC distinct and separate from Aircraft Act: Aircraft Act won’t prevail

The State contended that the High Court wrongly decided the principle of special law(Aircraft Act) prevailing over general law(IPC). The IPC provisions are distinct and separate from offences under section 10 and 11 of the Aircraft Act,1934. He further submitted that the Aircraft act cannot prevail over IPC when safety and security regulations were violated endangering the life and safety of airport.

Mini trial conducted by HC under Article 226

The State submitted that High Court decided disputed question of fact as to whether the pilot came out or not and whether the petitioner exerted undue influence on ATC or not which was under investigation.

Furthermore, IO found that ATC had refused permission for takeoff since there was low visibility, therefore the respondent coerced ATC to give permission.

Misuse of position as a member of parliament

The State submitted that the accused endangered the life and safety when they themselves hold a public post of MP and one respondent no.4 a member of the standing committee of civil aviation. He further contended that the respondents being public persons are obligated to maintain the highest standard by following rules and regulations.

BACKGROUND OF THE CASE

It was alleged that Nishikant Dubey, Manoj Tiwari and others  had forcibly entered the AIR Traffic Control (ATC) and pressurized the personnel to grant him permission to take off. It was further alleged that the Deoghar Airport was not equipped for night takeoffs.

Thereafter, FIR was lodged against him under sections 336, 447, and 448 of the Indian Penal Code and sections 10 and 11A of the Aircraft Act, 1934.

Petitioner not liable to face prosecution since ATC clearance was granted: Jharkhand HC

The High Court analyzed Schedule II Rule 4 of The Aircraft Rules, 1937 where it appears that flight by night means a flight performed between the period of half an hour after sunset and half an hour before sunrise. In the present case, the sunset occurred at 6.03 P.M. It was further disclosed that the flight took off at 6.17 p.m.

The High, therefore, observed that it is not the case that the flight has taken off in the absence of any clearance from the ATC. The question remains when the ATC clearance is there whether the petitioner is liable to face prosecution or not.

The court held that the answer is clearly no, considering that it is the responsibility of the Airport Authority to take the safety of the Aircraft as well as of the passenger.

Under Aircraft Act, cognizance can only be taken by complaint to DGCA: FIR not maintainable

The court noted that under the Aircraft (Amendment) Act, 2020 where Section 12B provides how cognizance of the offense is required to be taken in violation of the Aircraft Act.

After analysis, the court opined 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 F.I.R. itself is not maintainable when the complaint is required to be filed pursuant to sanction as disclosed in that Act”.

IPC offences are not attracted since there’s a Special Law(Aircraft Act) holds High Court

The High Court reasoned that when the Special Act is there and provision of punishment is there, then it is well settled law that I.P.C. Sections are not attracted as has been held by the Hon’ble Supreme Court in the case of Hare Kant Jha.

Malafide and Abuse of process of Law: Jharkhand HC

The High Court remarked that F.I.R. has been lodged in a malafide manner and allowing to continue the proceeding will amount to the abuse of the process of law

Case title: State of Jharkhand v Nishikant Dubey | SLP(Crl) No. 7844/2023

Petitioner's lawyer : AOR Jayant Mohan