Tanur Boat Accident: Kerala High Court Grants Bail To Chief Surveyor And Senior Port Conservator

The Kerala High Court on Monday granted bail to Chief Surveyor of the Kerala Maritime Board, Sebastian Joseph, and the Senior Port Conservator, Baypore, Prasad V.V., who had been arrested in connection with the tragic Tanur boat accident that claimed 22 lives, including 15 children in Malappuram district.

Justice Ziyad Rahman A.A. passed the order on noting that substantial progress had been made in the investigation and further incarceration of the petitioners was not required. 

The petitioners had been arrested on June 11, 2023, and have been in judicial custody ever since. 

"...now the petitioners have been in judicial custody since 11.6.2023, and as on the date, more than 40 days have elapsed since the date of their arrest. Even though the learned ADGP highlighted that there are high chances of the evidence being tampered with and the witnesses being influenced, if the petitioners are released on bail, I do not find any justifiable reason to accept the contention. It is reported that, both the petitioners are already under suspension, and therefore, I do not find any possibility of them tampering with the evidence. Moreover, it is evident from the report of the investigating officer that the records kept in the office of the petitioners in connection with the incident were already seized," the Court observed while allowing the bail applications.

The Case

The prosecution allegation is that on May 7, 2023, a boat which permitted excess number of passengers and took them for a ride, capsized. The prosecution alleged that the accused persons had permitted the operation of the said boat by carrying people even before its registration was complete. It was also alleged that the boat was initially a fishing boat, and as against statutory provisions, it was converted into a passenger boat, and the accused had helped the owner of the boat in carrying out the necessary alterations in this regard. 

The petitioners averred that they were arrested and detained in police custody in order to satisfy the media that had made 'hue and cry' alleging the involvement of politicians and to stop the media from making allegations against the government.

It was submitted that when the owner of the boat submitted an application for survey, which was forwarded to the 1st petitioner in his capacity as the Chief Surveyor, the latter rejected the prayer on the ground that the owner did not submit Form 1 application and that it was thus not possible to survey the boat. It was submitted that the boat owner thereafter submitted a complaint to the Chief Executive Officer, Kerala Maritime Board, who subsequently directed the Port Officer and Registering Authority, Aleppey, to collect Rs. 10,000/- as fine, and to conduct the survey of the boat. Joseph thus contended that he had strictly followed the procedure and rejected the prayer of the boat owner on the ground that Form 1 had not been submitted. It was added that the higher authorities had decided to condone the procedural lapses on the part of the boat owner, and directed the survey of the boat.

As against the 2nd petitioner, the prosecution alleged that he conveyed the proposed registration number of the boat to the boat owner even before the registration formalities were over and thereby provided an opportunity to the owner to operate the boat. The 2nd petitioner however claimed that there were no materials to substantiate this allegation. 

The petitioners submitted that at the time of the accident, the boat was carrying 52 persons without any safety measures such as life jackets and other equipment, and the main causes of the accident were overloading and lack of stability of the boat. It was submitted that the 1st petitioner, who never granted any statutory permission for the said boat to operate, could thus not be proceeded against. It was added that neither of the petitioners could be attributed any responsibility in respect of the accident since it was caused only by the accused boat owner and other accused operating the vehicle in violation of the safety norms.

Findings of the Court 

The Court said materials on record indicate the possibility of lapses or willful omissions on the part of the petitioners. For instance, it noted that the certificate of survey conspicuously silent as to which year the boat was built in. It added this aspect was relevant, considering the prosecution's averment that the boat had been converted from a fishing boat to a passenger boat against the statutory provisions under Inland Vessels Act, 2021. The Court was of the view that the said aspect could have been easily identified by the 1st petitioner, who is a qualified person. 

The Court also took note of the Additional Director General of Prosecution's (ADGP's) argument that the 1st petitioner had not made any mention of the upper deck of the boat while preparing the certificate of survey, even though the upper portion had every characteristic of the upper deck to carry passengers. 

Additionally, the Court noted that the 1st petitioner had also not examined whether the alteration of the boat was done in an unauthorized yard. 

The Court was thus of the opinion that while there certainly were aspects indicating the lapses on the part of the petitioners which had to be investigated, the petitioners had been in judicial detention since their arrest on June 11, 2023. Noting that there had been substantial progress in the case with 360 witnesses having been questioned and several documents seized, the Court was of the opinion that bail may be granted to the petitioners. 

Addressing the ADGP's concern that since the incident had gained much public attention, releasing the petitioners on bail at this juncture would send the 'wrong message' to the society, the Court observed,

"...even as per the prosecution itself the direct cause of the accident was the illegal operation of the boat by the 1st accused (boat owner) and his agents. Now they were arrested and detained. As far as the role of the petitioners is concerned, the same is to the effect that they permitted and facilitated the 1st accused to operate the said boat without complying with the statutory requirements. It is a matter to be established by the prosecution. Anyhow, considering all the materials placed before this Court and also the fact that the petitioners have been in custody for more than 40 days, I do not find any necessity for further incarceration of the petitioners. In this regard, it is also to be noted that the detention of the accused during the investigation cannot be for punitive or preventive purposes". 

The bail applications were moved through Advocates S. Rajeev, M.S. Aneer, V. Vinay, Sarath K.P., Anilkumar C.R., and Prerith Philip Joseph. Additional Senior Advocate and Additional Director General of Prosecution Gracious Kuriakose and Senior Public Prosecutor Suresh appeared on behalf of the respondents. 

Case Title: Sebastian Joseph v. State of Kerala & Anr. and Prasad V.V. v. State of Kerala & Anr. 

Citation: 2023 LiveLaw (Ker) 350

Case Number: Bail Appl. 5397 of 2023 and Bail Appl. 5414 of 2023

Click Here To Read/Download The Order