IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 4029 of 2006()
1. CAPT.MUHAMMAD ANISUR RAHMAN KHAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.V.J.MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :08/01/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.4029 of 2006
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Dated this the 8th day of January, 2007
ORDER
The petitioner is the Master of a Vessel `MV BANGLAR
GOURAB’. The Vessel was anchored in the Cochin Port. Cargo in the
said Vessel was being transferred to another Vessel. Discharge of the
cargo commenced on 28.10.l2006. On 10.11.2006, an unfortunate
accident took place while the ship’s crane/Derrick No.6 was being
operated. Sacks of rice was the consignment. While they were being
discharged to the neighbouring Vessel, the sling and rope of the said
crane/Derrick gave way and the deceased one Sebastian who was on
board was hit on the head leading to his instantaneous death. A
crime was registered and the police conducted the investigation. At
the end of the investigation, final report has been filed alleging
commission of the offence punishable under Section 304 A I.P.C by
the petitioner, the Master of the ship.
2. The petitioner has come to this Court with this petition
under Section 482 Cr.P.C praying that the extraordinary inherent
jurisdiction available to this Court under Section 482 Cr.P.C may be
invoked to prematurely terminate the proceedings initiated against
him. The learned counsel for the petitioner submits that the
allegations, even if accepted in toto, do not at all reveal any culpable
Crl.M.C.No.4029 of 2006 2
negligence on the part of the petitioner. The prosecution of the
petitioner under Section 304 A I.P.C is bad and totally unsustainable
in the circumstances. The petitioner did not allegedly have any direct
involvement in the discharge of the cargo or the operation of the
derrick. Except that he was the Master of the ship, no allegations
whatsoever of any act of omission or commission is attributed to him
at all. In these circumstances the proceedings against him may be
quashed. Continuation of the proceedings against the petitioner
works out untold hardship and misery to the petitioner obliging the
petitioner to stay back even when this Vessel has been given the
requisite clearance by all authorities to leave the Port. Proceedings
may in these circumstances be quashed, it is prayed.
3. The learned Public Prosecutor was requested to make his
submissions. The case diary has been placed before me for my
perusal. I shall not refer to unnecessary details. After going through
the case diary in its entirety, I find the only allegation that is raised
against the petitioner is that the ship, of which he was the Master,
was an old one. Thus there is significantly no specific allegation
whatsoever raised against the petitioner. The learned Public
Prosecutor was requested to point out whether there is any allegation
of any overt act or covert omission on the part of the petitioner
identified by the Investigator to justify raising of an allegation under
Crl.M.C.No.4029 of 2006 3
Section 304 A I.P.C against the petitioner. Significantly the learned
P.P fairly submits that there is no other allegations whatsoever raised
against the petitioner except that the ship of which he is the Master is
an old one.
4. I take note that there is no specific allegation that the
petitioner did do or did not do anything which he was expected not to
do or to do culpable negligence is the gross breach of a duty to take
care which is expected of a reasonably prudent person in the given
circumstances. Rashness is the culpable disregard of the
consequences which the doer of the act is aware of and which he
allegedly and carelessly ignores in the performance of the act. Except
that the ship was old, there is no allegation whatsoever against the
petitioner. Significantly there is no allegation that any specific act of
inspection/maintenance/repair had not been attended to by the
petitioner. There is no allegation that periodical maintenance and
repairs and certification of sea worthiness by the authorities which
the petitioner was expected to perform had not been performed by
him. Case diary clearly reveals that the operation of the crane/derrick
was done by others and the petitioner had no specific act or role while
the cargo was discharged using the crane in question. Of course, the
learned counsel for the petitioner relies on Annexure-A3 letter
admittedly issued by the petitioner acknowledged by CW4 in which he
Crl.M.C.No.4029 of 2006 4
had given specific instructions about the manner in which the cargo
was to be discharged and the cranes/Derricks operated. Annexure-A4
shows that a letter of protest was issued by the petitioner to the
persons responsible for operating the crane, that is the stevedores
working on board the ship. Annexure-A4 also reveals that such a
letter of protest was given by the petitioner. According to me, it is
unnecessary to go into those details. The petitioner has a case that
the deceased was unauthorisedly entered the ship and that the Ship’s
Derrick/crane was operated by the Stevedores/their employees in a
rash and negligent manner ignoring the instructions and protests of
the petitioner. Suffice it to say, at the risk of repetition that except
the allegation that the ship was old, no specific allegation whatsoever
is raised against the petitioner regarding his role in the accident
which had unfortunately taken place.
5. I am, in these circumstances, satisfied that this is a fit case
where the powers under Section 482 Cr.P.C can and deserve to be
invoked in favour of the petitioner. Such powers, it is of course trite,
are to be invoked sparingly and in exceptional cases in aid of justice.
The possible adverse consequences which might visit the petitioner if
he were compelled to remain here till the completion of the
proceedings against him in the ordinary course does also weigh with
me in choosing to invoke the powers under Section 482 Cr.P.C.
Crl.M.C.No.4029 of 2006 5
6. The distinction between the concepts of actionable civil
negligence and culpable criminal negligence which alone can attract
the consequences under Section 304 I.P.C, must also be alertly borne
in mind. The liability of the Master/owner of the ship for civil
negligence need not be adjudicated in this proceedings. At the
appropriate stage and the appropriate forum, may be called upon to
decide that question. I am satisfied that sufficient materials to justify
an indictment under Section 304 A I.P.C have not been collected and
placed before the learned Magistrate to justify issue of process under
Section 304 A I.P.C against the petitioner. It follows from the above
discussions that the proceedings against the petitioner is liable to be
quashed.
7. In the result, this Crl.M.C is allowed. All further
proceedings initiated against the petitioner before the learned Judicial
Magistrate of the First Class-I, Ernakulam as C.C.No.4924 of 2006
filed on the basis of the final report in Crime No.359 of 2006 by the
Harbour Police, Wellingdon Island, Kochi-3 is hereby quashed.
Needless to say, the passport of the petitioner shall be released to him
and he shall be permitted to leave India.
Hand over a copy of this order to the learned counsel for the
petitioner today itself.
(R.BASANT, JUDGE)
Crl.M.C.No.4029 of 2006 6
rtr/-