Point of Law:Private complaint – Cognizance of offence - order of the Magistrate for taking cognizance and issuance of process only on the point of deemed sanction is not tenable and there are no valid grounds to entertain the private complaint

ORDER :

Criminal Petition No. 3696/2013 is filed under Section 482 Cr.P.C. by petitioners-accused Nos. 2 and 5.

Criminal Petition No. 5696/2013 is filed under Section 482 Cr.P.C. read with Section 227 of Constitution of India by petitioners-accused Nos. 1 and 9.

1. The petitioners, who have been arraigned as accused in P.C. No. 35/2012 registered for the offences punishable under Sections 304(11), 304A, 337, 338 read with Section 34 of IPC and Sections 6, 45, 161, Part V, Schedule 11, Section O of the Air Craft Rules, 1937 pending on the file of JMFC-II Court, Mangaluru, are seeking quashing of proceedings initiated as per order dated 19.02.2013.

2. Brief background of the case is that a private complaint under Section 200 Cr.P.C. came to be filed by respondent No. 2-812 Foundation, represented by its Secretaries Mrs. Nayana Pai and Mr. Yeshwanth Shenoy, on 06.03.2012 for the offence punishable under Section 304(II), 304A, 337, 338 of IPC and Sections 6, 45, 161 Part V Schedule II, Section O of the Aircraft Rules 1937 read with Section 34 of IPC.

3. The allegations made in the complaint are as under:

(i) On 22nd May 2010 Air India Express Flight 812 crashed at the Mangalore airport and FIR No. 0120 was registered at Bajpe Police Station, on 13th February the investigating the officer filed charge-sheet informing that the case against the accused person in the charge-sheet are dead as such the matter is abated. The I.O. without perusing the important evidence namely the report of Court of inquiry has submitted the report.

(ii) The accident is a direct consequence of willful and gross negligence on the part of the Air authority of India, Air India, and Directorate General of Civil Aviation.

(iii) One Mr. Arthur Perira had filed Writ petition Nos. 37681/97 and 20905/2002 against Air Authority of India. Both petitions were disposed off by this Court directing the Air Authority of India and Government to comply with laws. Then, SLP No. 1172/2003 was filed wherein, the same direction was given by the Supreme Court.

(iv) The Airport and the constructions are not as per the specifications of ICAO (Aerodrome design and operations) but the inquiry officers have deliberately tried to justified the presence of concrete structures which are not permissible.

(v) The death of 158 innocent passengers was due to the failure of the officers to perform the duty otherwise mandated by statute.

(vi) The accused Nos. 1, 7, 8, 9 and 10 were duty bound to maintain airport in accordance with ICAO standards and accused Nos. 3, 11, 13, 14 and 15 were duty bond to ensure no licenses are issued to airports which did not meet ICAO norms, accused Nos. 2, 4, 5 and 6 were duty bound to conduct there own risk assessment of the airport but all these officers have failed to perform their duties.

(vii) There was no proper fire fighting service at the airport there was no preparedness in accordance with ICAO norms. There was no arrangements for conducting rescue operations in the event of air crash.

(viii) No emergency access roads were provided in the Aerodrome so as to facilitate minimum response times and there was no surface to provide safeguards.

(ix) There were no suitable rescue equipment and services at the airport.

(x) The airport authority has committed breach of is statutory duties and has failed to follow the directions of the Karnataka High Court and Supreme Court.

(xi) No action is taken for correction of the mistake to prevent the possibility of repetition of the accident.

(xii) The DGCA has failed to ensure that the airport meets all requirements in accordance with air craft rules 1937 and ICAO guidelines. The DGCO has also fail to verify the ATPL license and log book of PIC (Pilot in Command) before issuing FATA license and the same has been issued in violation of CAR and aircraft rules.

(xiii) The operator (Air India) has failed in ensuring that pilots have all valid licenses before they are allowed to fly.

(xiv) The captain was not rostered as per the original rost