IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Bail Appl..No. 6000 of 2009 CRIME NO.208/CR/2009 OF CBCID, KOTTAYAM ARISING FROM CRIME NO.395 OF 2009 OF KUMALI POLICE STATION PETITIONER: 1ST ACCUSED: -------------------- VICTOR SAMUEL, AGED 42 YEARS, S/O. LATE C.V. SAMUEL, KONIL HOUSE, THEKKADY P.O., KUMALI, PEERUMEDU, IDUKKI. BY ADV. SRI.C.V.MANUVILSAN SMT.K.VIDYA RESPONDENT: COMPLAINANT: --------------- STATE OF KERALA, REP BY THE SUPERINTENDENT OF POLICE, CB CID, KOTTAYAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA DIRECTOR GENERAL OF PROSECUTIONS SRI.V.G.GOVINDAN NAIR PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/10/2009, ALONG WITH B.A.NO.6042 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS. 6000, 6042, 6054, 6174 and 6175 OF 2009 ------------------------------------------------------ Dated this the 20th day of October, 2009 O R D E R Accused Nos.1, 2 and 4 to 6 in Crime No.208 of 2009 of CBCID, Kottayam have filed B.A.Nos.6000 of 2009, 6054 of 2009, 6042 of 2009, 6175 of 2009 and 6174 of 2009 respectively under Section 439 of the Code of Criminal Procedure. Accused Nos.1 and 4 were arrested on 4.10.2009, accused No.2 was arrested on 5.10.2009 and accused Nos.5 and 6 were arrested on 14.10.2009. They are in judicial custody. 2. The offences alleged against the petitioners are under Sections 280, 282, 218, 420 and 304 read with Section 34 of the Indian Penal Code. 3. On 30.9.2009 at about 4.25 PM, “Jalakanyaka”, a double decker boat belonging to the Kerala State Tourism Development Corporation, took more than 75 tourists on board and started its journey in Thekkady. There is dispute regarding the number of B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 2 :: passengers on board the boat. There is also dispute as to the number of persons in the lower deck and in the upper deck. The boat was driven by the first accused, Victor Samuel. The second accused, Aneesh @ Nankan, was the lascar of the boat. When the boat was returning to the landing place, it would appear that some wild animals were seen on the shore. There is a version that some of the passengers shifted their place to that side of the boat, which caused the boat to be in a slanting position. The driver lost control of the boat. There is another version that the driver after slowing down the boat for some time, suddenly turned the boat to the left side in high speed, which resulted in the loss of control. Whatever may be the reason, the boat capsized. 45 persons lost their lives. 4. It is stated that the first accused was responsible for saving the lives of eight persons while the second accused was responsible for saving the lives of about twelve persons. This is the version made by accused Nos.1 and 2. In spite of the best efforts made by all concerned, as already stated, 45 persons died, though several persons could be rescued. Most of the tourists belonged to other States. B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 3 :: 5. The prosecution alleges that the first accused, Victor Samuel, drove the boat in a rash and negligent manner and without adhering to the safety norms. It would appear that the allegation made against accused No.2 lascar, and accused No.4, V.Prakash, who is the gate keeper, is that they were responsible for providing entry to more number of persons in the boat than permitted. The seating capacity of the boat is 75. The prosecution alleges that more than ten persons were taken on board the boat above the seating capacity and they were provided with additional chairs in the boat. The fifth accused, N.A.Giri, is the manufacturer of the boat. He entered into an agreement with the Kerala Tourism Development Corporation to manufacture the boat at a cost of more than Rs.40 lakhs. It is alleged that while manufacturing the boat, the fifth accused made certain deviations from the approved specifications, which resulted in the boat being unsafe for journey. The third accused is the Chief Inspector of Boats, who is a Government Servant, and who has issued Certificate of Fitness to the boat. It is alleged that he made a change in the seating capacity. Instead of 50 seats in the lower deck and 25 seats in the upper deck, the Fitness B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 4 :: Certificate would show that the seating capacity in the lower deck was 48 and that in the upper deck was 27. According to the prosecution, this among other things, contributed to the disaster. The sixth accused, K.K.Sanjeev, is an officer in the Indian Register of Shipping, who issued Hull Construction Certificate dated 26.5.2009. It is alleged that without proper investigation and verification of the boat, the Hull Construction Certificate was issued by the sixth accused. 6. Learned counsel appearing for the petitioners submitted that the offences under Sections 420 and 304 of the Indian Penal Code are not made out even if all the allegations made against them are taken as true. It is submitted that in order to attract Section 304 of the Indian Penal Code, there must be culpable homicide as defined in Section 299 of the Indian Penal Code and the ingredients of Section 304, either Part I or Part II, must be established. It is submitted that none of these ingredients are available in the case. The counsel relied on the decision of the Supreme Court in Keshub Mahindra v. State of M.P. ((1996) 6 SCC 129 – (Bhopal tragedy case) and Prabhakaran v. State of Kerala (2007 (3) KLT 400 (SC)) B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 5 :: in support of the contention that the offence under Section 304 would not be made out. It is also submitted that the ingredients of Section 420 of the Indian Penal Code are also not made out. It is submitted that in order to attract Section 420, the ingredients of the offence of cheating, as defined in Section 415, should be made out. According to the accused persons, the ingredients of Section 415 are conspicuously absent in the case on hand. It is pointed out on behalf of the accused that the offences under Sections 218, 280 and 282 of the Indian Penal Code are bailable. Section 218 of the Indian Penal Code provides for the punishment of a public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture. 7. Sri.M.K.Damodaran, learned Senior Counsel appearing for the sixth accused, submitted that the sixth accused is not a public servant as defined in Section 21 of the Indian Penal Code and, therefore, Section 218 is not attracted. It is also pointed out that going by the materials, the allegation of an offence having been committed under Section 218 is not made against accused Nos. 1, 2, 4 and 5. B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 6 :: 8. For the purpose of disposal of these Bail Applications, it is not desirable to arrive at a conclusion as to whether the offences under Sections 420 and 304 of the Indian Penal Code are made out. At the same time, I hasten to observe that there is substance in the contention raised by the accused that offences under Sections 420 and 304 are not made out. This observation is on the prima facie aspect of the case and it should not be taken as a finding on facts or on law. 9. It is pointed out that the sixth accused has given the Hull Construction Certificate, in which the particulars of the vessel are mentioned. The Certificate of Inspection issued by the Chief Inspector of Boats show certain details slightly different from the Hull Construction Certificate issued by the sixth accused. As mentioned earlier, the number of passengers the vessel is licensed to carry was changed in the certificate issued by the third accused, quite different from the seating capacity mentioned in the Hull Construction Certificate. The counsel appearing for the accused persons brought to my notice that the tender notice issued by the Government gives B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 7 :: an entirely different picture. The Government invited tenders for the supply of two Eco friendly luxury boats. The 75 seater Eco friendly luxury boat, as per the specifications provided in the tender notice, should have 40 seats in the upper deck and the balance 35 seats in the lower deck. Now the prosecution alleges that the accident occurred because more passengers were allowed to board on the upper deck. How could this argument go along with the tender specifications issued by the Government of Kerala is a matter to be considered at the appropriate stage. Prima facie, it would appear that the tender specifications were made in the tender notice, not after making any scientific study. 10. In the course of investigation, the investigating officer questioned several witnesses and their statements under Section 161 of the Code of Criminal Procedure were recorded. The investigating agency had also sought the assistance of Dr.Pyari Lal, Head of the Department, Department of Ship Technology, Cochin University of Science and Technology. He issued a certificate dated 7.10.2009, which shows that the vessel was having “A LIST ANGLE OF 2.90 by Star board“. It is stated in the certificate thus: “A degree B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 8 :: of magnitude of 2.9 degree is dangerous to a small vessel like this with passengers on board.” 11. Prima facie, the following facts appear to be clear: 1) More passengers than permitted were allowed to board the boat, though tickets were issued only for 75 persons. The allegation is that accused Nos.1, 2 and 4 were responsible for allowing more number of passengers to board the boat. It would also appear that they used to indulge in such practice and divide among them the profits derived out of it. 2) The boat driver is not a well experienced driver. He got the licence only in October 2008, though he was employed in KTDC in various capacities since 1999. The first accused, Victor Samuel, has taken charge as driver of the boat only on 20.9.2009. 3) Apart from the fixed seats provided in the boat, additional plastic chairs were provided for accommodating extra passengers. 4) The driver, lascar and the watcher used to permit ticketless B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 9 :: passengers to board the boat. They used to share the profits derived out of it. 5) On the date of the incident, at least ten additional passengers than permitted were taken on board. 6) It is fairly clear that the boat had a slanting towards right even at the inception. It was noticed during trial run itself and the allegation is that the fifth accused stated that there was nothing to worry and it would be alright when the passengers board the boat. 7) Life jackets were not provided to the passengers. Sufficient number of life buoys were also not available in the boat. 8) The Tourism Department had to spend about Rs.42 lakhs for the boat in question. The Department did not derive the benefit of the amounts spent by them nor did the tourists get the benefit of safety. This is a matter to be seriously taken note of by the State. 9) It would appear that though the fifth accused has manufactured more than 130 boats, Jalakanyaka – the boat in question – is the only double decker boat manufactured by him. B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 10 :: 10) Before allowing the boat to take passengers regularly, the required safety measures were not taken. It is also alleged that the boat designer was not consulted after construction of the boat and before the same was allowed to be plied taking passengers. According to the designer, so many deviations were made in building the boat and though the deviations were minor in nature if taken individually, its cumulative effect on the safety and stability of the boat would be very serious. 12. The State of Kerala has witnessed several boat tragedies. After the incident, we start lamenting and then indulge in discussions to find out who was responsible for the incident. Sometimes, a Commission would be appointed. Nobody knows what happened to such commission reports. The poor infrastructural facilities continued to exist in spite of the tragedies and in spite of the commission reports. 13. It is said that Kerala is one out of the ten places which a person should see during his life time. That is a reason why Kerala finds a prominent place in the tourists map of the world. We have to B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 11 :: ask the following questions to ourselves: Do we properly exploit the tourism potential of our State? Do we provide adequate measures for the safety of the tourists? Do we have the adequate infrastructural facilities for properly conducting tourism activities, when compared to the facilities available elsewhere in the world? There is no point in finding fault with one individual or a few individuals. The question is whether we are collectively indulging ourselves in the betterment of the State and the prospects of tourism in the State. We have to examine whether KTDC has lived up to the standards. That is a matter for the people to decide and not for the Court to judge while disposing of an application for bail. 14. I am constrained to grant bail to accused Nos.1, 2 and 4 to 6 in the facts and circumstances mentioned above and the provisions of law referred to above. It is relevant to note in this context that Sections 280 and 282 of the Indian Penal Code provide for a meager punishment for navigating a vessel in a manner so rash and negligent so as to endanger a human life and for knowingly or negligently conveying or causing to be conveyed for hire any person by water in any vessel, when that vessel is in such a state or so B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 12 :: loaded as to endanger the life of the person. The punishment provided under Sections 280 ;and 282 is imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both. The activities of tourism have increased. We have seen several tragedies affecting the life and limb of hundreds of citizens. I think, it is high time that a graver punishment is provided for the offences under Sections 280 and 282 of the Indian Penal Code and make those offences non-bailable. This is a matter to be considered by the Parliament and not to be dictated by the court. 15. Learned Director General of Prosecutions submitted that the investigation is at the initial stage. Each accused had his own role to play in the offence alleged. The particular role of each accused would be revealed after a full and complete investigation of the case. It is too early to consider the request for bail made by the accused persons. It is also submitted by the learned Director General of Prosecutions that this is a case where 45 persons have lost their lives and the matter has to be taken very seriously. 16. In the facts and circumstances mentioned above, I am of B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 13 :: the view that the petitioners are entitled to be released on bail and the Bail Applications are to be allowed. The petitioners shall be released on bail on their executing bond for Rs.50,000/- each with two solvent sureties for the like amount to the satisfaction of the Judicial Magistrate of the First Class – II, Peerumed, subject to the following conditions: a) The petitioners shall report before the investigating officer between 9 A.M. and 1 P.M. on alternate Mondays, till the final report is filed or until further orders; b) The petitioners shall appear before the investigating officer for interrogation as and when required; c) The petitioners shall co-operate with the investigation and shall make themselves available whenever required by the investigating officer and shall not try to influence the prosecution witnesses or tamper with the evidence; d) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; e) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Applications are allowed as above. Registry shall communicate a copy of this order to the Chief Secretary to the Government, Government of Kerala, B.A. NOS.6000, 6042, 6054, 6174 & 6175 OF 2009 :: 14 :: Thiruvananthapuram and to the Secretary, Department of Law, Justice and Company Affairs, New Delhi. (K.T.SANKARAN) Judge ahz/