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2010 Supreme(Ker) 782
IN THE HIGH COURT OF KERALA
R. BASANT, M.C. HARI RANI, JJ.
Gangadharan C.V. Abhayam, Edakkad PO & Ors. - Petitioners
Versus
Union of India & Ors. - Respondents
W.P(Crl.). No. 202 of 2009(S)
Decided On : 01-06-2010
For the Petitioners:Kaleeswaram Raj, Advocate.
For the Respondents: K.J. Mohammed Anzar, Government Pleader, M.V.S. Namboothiry, Standing Counsel, CBI, V.M. Syam Kumar, Kripa Elizabeth Mathews, Divya C. Mohan, T.P.M. Ibrahim Khan, Assistant Solicitor General of India.
The suspicious or mysterious disappearance of an individual should be properly investigated by the police, notwithstanding the provisions of Part XII of the Merchant Shipping Act.
Headnote:
Habeas Corpus - Missing Person - Merchant Shipping Act, 1958 - Sections 358, 359, 360 - The court directed the Central Bureau of Investigation (CBI) to register a Preliminary Enquiry (PE case) and conduct an investigation into the disappearance of the individual at Fujariah Port. The court found that the preliminary enquiry report submitted under Sections 358 and 359 of the Merchant Shipping Act was not sufficient to ascertain the circumstances of the disappearance. The court also held that the suspicious or mysterious disappearance of an individual should be properly investigated by the police, notwithstanding the provisions of Part XII of the Merchant Shipping Act.
Fact of the Case:
The parents of a missing individual filed a writ of habeas corpus seeking a proper enquiry/investigation into the circumstances under which their son disappeared at Fujariah Port.
Finding of the Court:
The court found that the preliminary enquiry report under Sections 358 and 359 of the Merchant Shipping Act was not sufficient and convincing to ascertain the circumstances of the disappearance. The court directed the CBI to register a PE case and conduct an investigation into the disappearance.
Issues: The main issue was whether a proper enquiry/investigation should be conducted into the disappearance of the individual despite the preliminary enquiry report submitted under the Merchant Shipping Act.
Ratio Decidendi: The court held that the suspicious or mysterious disappearance of an individual should be properly investigated by the police, notwithstanding the provisions of Part XII of the Merchant Shipping Act. The court also found that the preliminary enquiry report was not sufficient to ascertain the circumstances of the disappearance.
Final Decision: The court allowed the writ petition and directed the CBI to register a PE case and conduct an investigation into the disappearance. The CBI was also directed to submit bimonthly reports to the court on the action taken.
R. Basant, J.
1. 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.
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 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.
6. The learned A.S.G.I, in these circumstances, takes the stand that both on the preliminary enquiry report under Sections 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
