IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 WP(Crl.).No. 202 of 2009(S) --------------------------- PETITIONERS: --------------- 1. GANGADHARAN.C.V., 'ABHAYAM', EDAKKAD PO KOZHIKKODE DIST. 2. SOBHANA.MP. 'ABHAYM', EDAKKAD POST, KOZHIKODE DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: --------------- 1. UNION OF INDIA, REP. BY MINISTRY OF EXTERNAL AFFAIRS NEW DELHI. 2. MINISTRRY OF SHIPPING COMPANY REP. BY THE SECRETARY MINISTRY OF SHIPPING COMPANY NEW DELHI. 3. SECRETARY TO GOVERNMENT MINISTRY OF PRAVASI AFFAIRS, NEW DELHI. 4. INDIA STEAMISHIP COMPANY KOLKATTA REP. BY THE MANAGING DIRECTOR, INDIA STEAMSHIP COMPANY KOLKATTA. 5. DIRECTOR GENERAL, D.G.SHIPPING COMPANY MUMBAI. 6. POLICE COMMISSIONER, KOZHIKODE. 7. DISTRICT COLLECTOR, KOZHIKODE. 8. SUB INSPECTOR OF POLICE, ELATHUR. 9. CENTRAL BUREAU OF INVESTIGATION, REP. BY THE OFFICER IN CHARGE CENTRAL BUREAU OF INVESTIGATION, NEW DELHI. GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R9 SRI.V.M.SYAM KUMAR FOR R4 SMT.KRIPA ELIZABETH MATHEWS FOR R4 SMT.DIVYA C.MOHAN FOR R4 SRI.T.P.M.IBRAHIM KHAN, ASST.S.G OF INDIA FOR R1 TO R3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** W.P(Crl.)No.202 of 2009 ********************* 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/