IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 202 of 2009(S)
1. GANGADHARAN.C.V., 'ABHAYAM', EDAKKAD PO
... Petitioner
2. SOBHANA.MP. 'ABHAYM', EDAKKAD POST,
Vs
1. UNION OF INDIA, REP. BY MINISTRY OF
... Respondent
2. MINISTRRY OF SHIPPING COMPANY
3. SECRETARY TO GOVERNMENT MINISTRY OF
4. INDIA STEAMISHIP COMPANY
5. DIRECTOR GENERAL, D.G.SHIPPING COMPANY
6. POLICE COMMISSIONER, KOZHIKODE.
7. DISTRICT COLLECTOR, KOZHIKODE.
8. SUB INSPECTOR OF POLICE, ELATHUR.
9. CENTRAL BUREAU OF INVESTIGATION,
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :01/06/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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W.P(Crl.)No.202 of 2009
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Dated this the 1st day of June, 2010
JUDGMENT
BASANT, J.
Petitioners are the parents of Mr.Sanaj Gangadharan, the
4th Engineer in a shipping company owned by the 4th respondent.
They have come to this Court for issue of a writ of habeas corpus
to direct the production of their son Sanaj Gangadharan, who is
said to be missing from 08.03.2009. The vessel in question
“Ratna Urvi” arrived at anchorage of Fujariah Port in U.A.E at
19.00 hours local time on 07.03.2009. Bunkering commenced at
22.00 hours. The bunkering operation was supervised by the
said Sanaj Gangadharan. He was duly assisted by his senior
Engineer. The operation continued till 04.48 hours on
08.03.2009. On completion of the bunkering, Mr.Sanaj
Gangadharan was given off by the Chief Engineer with direction
to report at 18.00 hours. The said Sanaj Gangadharan is
reported to have had his lunch at 12.00 hours and thereafter at
13.15 hours, he went up to the bridge to enquire about the
prospect of the signing off. To cut a long story short, he was
seen on board at 13.30 hours by the electrical officer. He was
not seen thereafter.
W.P(Crl.)No.202 of 2009 2
2. According to the petitioners, no proper
enquiry/investigation has been conducted into circumstances
under which the petitioners’ son was said to be missing from
13.30 hours on 08.03.2009. They have hence come before this
Court to issue necessary directions. To summarise their prayer,
they want a proper enquiry/investigation to be conducted to
ascertain the whereabouts of their son. They want appropriate
further action to be taken after ascertaining the relevant details.
3. Notice has been issued to all the respondents.
Respondent Nos.1 to 3 and 5 have filed statements. The 4th
respondent has also filed a statement. The 9th respondent, C.B.I,
has entered appearance through the Standing Counsel, but no
statement has been filed. Respondent Nos.2 and 5 have filed a
counter affidavit. Respondent Nos.6, 7 and 8 are represented by
the Government Pleader. No statement has been filed by them.
4. Respondent Nos.1 to 3 and 5 are represented by the
learned A.S.G.I. The learned A.S.G.I takes the stand that
necessary action under the Merchant Shipping Act, 1958 has
already been taken by the Union Government and its officers. A
preliminary enquiry has been conducted and report submitted as
required under Sections 358 and 359 of the said Act. A copy of
W.P(Crl.)No.202 of 2009 3
the preliminary enquiry report has been produced. The officer
who conducted the preliminary enquiry did not suggest any
formal investigation as required under Section 360 of the
Merchant Shipping Act. The officer who conducted the
preliminary enquiry, did not suspect any foul play and the matter
stood closed with the preliminary enquiry report submitted by
the said officer.
5. As directed by this Court, the learned A.S.G.I took
instructions from the Consul General of India, U.A.E and has
obtained report of the senior Public Prosecutor, Fujariah
submitted to the Ministry of Justice. The Fujariah police after
investigation had come to the conclusion that the missing of
Sanaj Gangadharan “was due to drowning”. The investigation
and the enquiries in the case did not reveal anything contrary to
that. It was further concluded by the senior Public Prosecutor
that the said act of drowning was not proved to be due to any
deliberate act or negligence of anybody. It was opined that the
said alleged drowning “may be considered as a fate and destiny”.
Accordingly he had recommended that the matter be closed as it
is an accident.
W.P(Crl.)No.202 of 2009 4
6. The learned A.S.G.I, in these circumstances, takes the
stand that both on the preliminary enquiry report under
Secs.358 and 359 and on the basis of the result of
investigation/enquiry held by the police at Fujariah, respondents
1 to 3 and 5 do not feel the necessity to conduct any further
enquiry in the matter. The conclusion that it was an accident
may be accepted and further proceedings may be discontinued,
prays the learned A.S.G.I.
7. The 4th respondent also takes the stand that the
disappearance of Sanaj Gangadharan was only an accident. A
detailed counter statement has been filed by the 4th respondent.
To sum up, the 4th respondent takes the stand that there is
absolutely no foul play in the disappearance of Sanaj
Gangadharan. He must have accidentally fallen into the sea
while the vessel was at Fujariah Port . The possibility of suicide
is also not ruled out by the 4th respondent. The 4th respondent
has no objection against any appropriate further enquiry being
conducted. But the 4th respondent asserts that there has been no
inadequacy, omission or failure on the part of the 4th respondent
in doing the needful following the disappearance of Sanaj
Gangadharan. The 4th respondent appears convinced and
W.P(Crl.)No.202 of 2009 5
satisfied that there is no foul play and that the disappearance
was either accidental or suicidal – fatal.
8. The petitioners have filed reply affidavit in which they
bring to the notice of the court various circumstances which do
not give the unfortunate parents the satisfaction that proper
enquiry/investigation has been conducted into the circumstances
under which their son Sanaj Gangadharan has allegedly
disappeared. They bring to the notice of the Court the fact that
there was no possibility whatsoever for Sanaj Gangadharan to
commit suicide. They also point out that with the standing and
experience that he has and with no other untoward incident
having been taken place, the possibility of accidental fall must
also be effectively ruled out. They do not make any specific
allegation as such against any specified individual. But they
have brought to the notice of the Court several circumstances
that cumulatively result in their inability to accept the theory of
an accident or suicide. In short, the petitioners take the gracious
stand that the matter deserves to be investigated for them to
have satisfaction that all relevant facts have been ascertained.
They do, in these circumstances, pray that appropriate directions
may be issued to the 9th respondent to conduct a proper
W.P(Crl.)No.202 of 2009 6
investigation/enquiry into the matter and authentically ascertain
the circumstances under which their son Sanaj Gangadharan
allegedly disappeared.
9. It is not necessary for us to advert in detail to the
various circumstances pointed out by the petitioners. But we do
note that they point out that there was some dissatisfaction/
disagreement in the relationship between their son Sanaj
Gangadharan and his employers. They further point out that the
Fujariah police does not even appear to have been apprised to
the fact that the slippers (foot wear) of Sanaj Gangadharan were
available on board after his disappearance. They further point
out that some organic remnants which were detected have not
been subjected to proper examination to ascertain whether they
are remnants of Sanaj Gangadharan.
10. We have considered all the relevant inputs. We must
say that we are also left with the feeling that authentic
ascertainment of the cause of disappearance of Sanaj
Gangadharan has not been made so far. We appreciate the
agony and helplessness of the petitioners and have no hesitation
to agree that a proper enquiry/investigation deserves to be
conducted.
W.P(Crl.)No.202 of 2009 7
11. The fact that preliminary enquiry has been conducted
and report submitted in accordance with the provisions of
Secs.358 and 359 is not, according to us, sufficient and
convincing reason not to direct further probe into the matter.
A reading of the preliminary enquiry report which has been
placed before us (Ext.R1) convinces us that the same cannot be
reckoned as an authentic and competent attempt to ascertain the
circumstances under which the son of the petitioners allegedly
disappeared. The learned counsel for the petitioners places
reliance on the decision in Unnikrishnan v. Divisional
Inspector of Police (2001 (2) KLT 942) and Subir Biswas v.
Divisional Inspector of Police (2001 (3) KLT 569) to drive
home his contention that the investigation/enquiry under Part
XII of the Merchant Shipping Act, 1958 cannot be held to be a
substitute for a proper investigation into an alleged crime if the
same has been committed. Following the logic, the learned
counsel argues that the suspicious or mysterious disappearance
of an individual will also have to be properly enquired into and
investigated by the police notwithstanding the provisions of Part
XII of the Merchant Shipping Act. We agree with the learned
counsel on that aspect.
W.P(Crl.)No.202 of 2009 8
12. Who is to be directed to conduct the
investigation/enquiry is the next question. A direction under
Sec.360 of the Merchant Shipping Act that a formal investigation
be conducted by the Magistrate appears to be possible. But we
do not think that resort to that course will be efficacious or
sufficient. We agree with the learned counsel for the petitioners
that the 9th respondent has the requisite infrastructure,
competence and facilities to help the court in the conduct of an
enquiry/investigation like the one that is needed in the case.
The learned counsel for the petitioners suggests that even
though on the basis of the materials presently available, a formal
registration of a regular crime may not be possible under the
CBI Manual, the CBI can be directed to register a Preliminary
Enquiry (PE case) and enquire/ investigate to the circumstances
of the disappearance of Sri.Sanaj Gangadharan. We are
persuaded to agree that the said course would be the ideal
course to be followed in the circumstances of the case.
13. From the records it appears that the
Vishakhapattanam police, Andhra Pradesh was also informed
about the disappearance of Sanaj Gangadharan and some action
has been taken at that end. We are unable to ascertain what
W.P(Crl.)No.202 of 2009 9
actually has transpired in such action by the Vishakhapattanam
police. This writ petition is pending from 23/5/09 and we do not
think it necessary to further delay the proceedings to
authentically ascertain what has transpired with the
Vishakhapattanam police. No one has a case that the
Vishakhapattanam police has come to any authentic conclusion
on the cause of disappearance of Sanaj Gangadharan.
14. Taking all the relevant circumstances into account, we
are satisfied that the ideal course to be followed in the instant
case is to direct the 9th respondent to register a PE case in
accordance with the CBI Manual and conduct
enquiry/investigation into the disappearance of Sanaj
Gangadharan, son of the petitioners at Fujariah Port on 8/3/09.
In the course of such investigation, needless to say, the 9th
respondent shall ascertain whether any action has been taken by
the Vishakhapattanam police. Such investigation can be
reopened by the 9th respondent and proper further action can be
taken.
15. We accordingly allow this writ petition and issue the
above directions. Appropriate further action shall be taken by
the 9th respondent as directed above. The 9th respondent can
W.P(Crl.)No.202 of 2009 10
direct the PE case to be registered at the appropriate unit of the
CBI. We accept the request of the learned Standing Counsel for
the 9th respondent – CBI, and direct that respondents 1 and 3
shall ensure that all facilities are afforded to the 9th respondent
to undertake the preliminary enquiry/investigation as ordered by
us in this writ petition. Bimonthly report shall be submitted by
the CBI to this Court of the action taken by the CBI – the 9th
respondent, in pursuance of the above directions issued by us.
The first such report shall be filed before this Court by 2/8/10.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/