Kerala High Court
Mr.V.P.Sahadevan vs Union Of India on 17 November, 2020
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942
WP(C).No.39854 OF 2017(F)
PETITIONER/S:
1 MR.V.P.SAHADEVAN
AGED 67 YEARS, S/O.V.P.DAMODARAN,
PENSIONER,ALAKA - 34,
GOWRINAGAR, PONGUMOODU,
MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM,KERALA - 695011.
2 MRS.JAYASREE.P
W/O.V.P.SAHADEVAN, AGED 60 YEARS,
HOUSE WIFE,ALAKA -34, GOWRINAGAR,
PONGUMOODU,MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM,KERALA - 695011.
BY ADV. SRI.VARGHESE P.CHACKO
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF DEFENCE,
NEW DELHI, PIN: 110 011.
2 CHIEF OF THE AIR STAFF
AIR HEADQUARTERS (VAYU BHAWAN), NEW DELHI,PIN 110
011.
3 THE COMMANDING OFFICER
NO.2 SQN AIR FORCE, AIR FORCE STATION,TEZPUR, ASSAM
- 784001.
4 THE AIR OFFICER COMMANDING
NO.11 WING AIR FORCE, AIR FORCE STATION,TEZPUR,
ASSAM - 784001.
5 CENTRAL BUREAU OF INVESTIGATION
PLOT NO.5-B, CGO COMPLEX,LODHI ROAD, NEW DELHI-
110003.
6 SUPERINTENDENT OF POLICE
BOMDILA P.O., WEST KAMENG DISTRICT,ARUNACHAL
PRADESH, PIN 790001.
7 S.I. OF POLICE
RUPA POLICE STATION, WEST KAMENG,ARUNACHAL PRADESH,
PIN - 790003.
R1 BY SRI.SUVIN R.MENON, CGC
R1 BY ADV. SRI.SUVIN R.MENON CGC
R1 BY ADV. SRI.P.CHANDRASEKHARA PILLAI C.B.I.
R5 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-
03-2020, THE COURT ON 17-11-2020 DELIVERED THE FOLLOWING:
WP(C) 39854/2017
3
JUDGMENT
Dated this the 17th day of November 2020 Writ Petition filed under Article 226 of the Constitution of India. The parents of the deceased pilot of the Indian Air Force who was involved in an aircraft crash and believed to be dead are before this Court seeking the following prayers:-
"i)To issue a mandamus or any other Writ, Order, for directions directing the the CBI and all other respondents to carry out a detailed enquiry and investigation in the matter connected with the incident of the subject matter mysterious disappearance of the SU-30 MKI aircraft with two pilots therein, on 23/05/2017 at about 11:15 hrs from Air Force Station, Tezpur and to file a detailed report before this Court, expeditiously or within such time as may be fixed by this Hon'ble Court.
ii) To issue a mandamus or any other Writ, Order, or direction, directing the respondents Nos.1 to 4 to file a report before this Hon'ble Court as to the facts and circumstances, leading to that of declaring the death of Flt.
Lt. Achudev S, fighter pilot as "Battle Casuality"
And
iii) Grant such other further reliefs as may deem fit and proper, in the above facts and circumstances, by this WP(C) 39854/2017 4 Hon'ble Court, in the interest of justice." ( ibid)
2. The facts in brief are as follows:-
The applicants believe that their son Flt. Lt. Achudev S and the co-pilot Sqn. Ldr. D. Pankaj went missing on 23rd May, 2017 along with their fighter jet SU-30 MKI. The petitioners are persuaded to believe that their son and the co-pilot are still alive and could be retrieved either from India or from the neighbouring country if the version of the Indian Air Force is nullified by a detailed investigation into the entire episode of missing pilots and the fighter jet. It is pointed out that the Police in the civil administration are kept away from the investigation in a dubious manner. The petitioners believe that the pilots may have accidentally crossed over the border as a result of cyber hijacking of their fighter jet. The petitioners are not ready to believe that the fighter jet had crashed in the State of Arunachal Pradesh inside a thick forest area. It is alleged that the crash site was created by the IAF to cook up a story of the fighter jet crashing and rendering the pilots dead. The WP(C) 39854/2017 5 evidence that is produced by the IAF is either contradictory or illogical.
An empty coffin was handed over to the petitioners and an attempt to make them believe that the entire body was reduced to ashes and only issue and a warrant belonging to the pilots and portions of a mutilated left palm with four fingers were recovered.
3. The petitioners would contend that the part of the cause of action arose within the State of Kerala since an empty coffin purporting to be containing the biological remains of the petitioners' son was delivered in Kerala as a "cover-up" and would therefore give this Court jurisdiction to entertain the matter.
4. Respondents 1 to 4 have filed a statement inter alia contending that the Writ Petition is not maintainable befor this Court for the reason that no part of the cause of action arose within the jurisdiction of this Court. The alleged accident occurred in the State of Arunachal Pradesh and a criminal case has been registered with the local Police in consequence of which the Superintendent of Police, WP(C) 39854/2017 6 Bomdila and the Sub Inspector of Police, Rupa Police Station have been arrayed as respondent Nos. 6 and 7, respectively. Hence, it is submitted that this Court has no jurisdiction to entertain the Writ Petition. It is further submitted that a Court of Inquiry in accordance with Rules 154-157 Air Force Rules, 1969 read with provisions of chapter XV para 781-801 Regulations for the Air Force, 1964 (Rev 2000) was assembled immediately after the aircraft accident and has been completed. Further, the statutory Rules provide that only a person subject to Air Force Act, 1950, whose character and service reputation is affected by anything in the evidence before or in the report of a Court of Inquiry, he is entitled to a copy of the proceedings unless the Chief affairs staff sees reason to order otherwise. It is against the interest of the security of the State to supply a copy of the proceedings of the petitioners. Moreover, it is also pointed out that under Section 6 of the Delhi Special Police Establishment Act, 1946, the consent of the State of Arunachal Pradesh is necessary for an investigation of the accident WP(C) 39854/2017 7 by the Central Bureau of Investigation. Under the circumstances, the State of Arunachal Pradesh is a necessary party to this petition. It is also stated that on 23/05/2017 fighter jet SU-30 MKI got airborne from the Air Force Station Tezpur on a training mission and while flying at an altitude of 1800 metres it crashed into a thickly wooded hillside. The two pilots Sqn Ldr D. Pankaj ans Flt.Lt. S. Achudev lost their lives in the accident. Inclement weather and the thickly forested terrain hampered the attempts to locate the crash site initially. The wreckage of the jet was eventually sighted after 3 days aircraft was disintegrated and the impact resulted in the aircraft fuel getting ignited causing extensive burning in the vicinity of the crash site. Only a shoe and a wallet, and a part of the left hand of one of the crews. The identity was confirmed by DNA fingerprinting by the CDFD Hyderabad as that of the petitioners' son Flt.Lt. S. Achudev. This was also communicated to the petitioners. As per the request of the 1st petitioner, a repeat DNA matching of the mortal remains with blood sample of the 1st petitioner was facilitated at WP(C) 39854/2017 8 Rajeev Gandhi Centre for Biotechnology, Thiruvananthapuram reconfirmed that the mortal remains belong to the petitioners' son. Despite all this, the petitioners remain unconvinced about the demise of their son. The petitioners declined to receive the mortal remains of their son. The petitioners have relied upon and unsubstantiated claim made by a "private investigator" hired by them who has created a suspicion in the minds of the petitioners. The speculation about a possible cyber attack by an enemy country has been examined and ruled out. There is no possibility of the pilots being detained either in India or by any foreign country. The communications that ensued between the Air Marshal and the 1st petitioner are produced.
5. In view of the statement filed by the Central Government and the submissions made by the counsel appearing for the Central Government insisting on hearing the question of maintainability of this Writ Petition as a preliminary issue, the learned counsel for the petitioners was directed to produce the records pertaining to the WP(C) 39854/2017 9 registration of a Crime by the Police. Accordingly, Ext.P16 was produced. It is a copy of the response to the query made by the 1st petitioner to the Superintendent of Police, West Kameng district, Bomdila under the provisions of the Right to Information Act. In that reply, certified copies of the F.I.R of Rupa Police station UD case No. 06/17 under Section 174 Cr.P.C and the final report dated 24/08/2017 have been produced.
6. Heard the learned counsel for the petitioners the learned counsel appearing for the Central Government and also the learned standing counsel appearing for the CBI. Records perused.
7. The main allegation of the petitioners is that there was a cover up of the actual incident by the Indian Air Force and that the petitioners are not yet satisfied that their son has died in the plane crash. They are still under the impression that the plane which was flown by the 2 pilots went missing and that the petitioners' son is also missing without any trace and therefore, further investigation into the WP(C) 39854/2017 10 matter by an agency like the Central Bureau of Investigation is required. It is also contended that the local Police were kept away from the entire investigation and that they were in the dark about the incident. This is belied by Ext.P16 document produced by the petitioners. The relevant portion of the final report submitted by the Police after investigation reads thus:-
"During the course of investigation, the informant and all the persons connected with the case were examined and recorded their statements. The ground/aerial searched operation was conducted with the Army and Air Force authority to locate the wreckage. On 26/08/2017 such a team of Air Force managed to locate the crash the site through Cheetah/ALH helicopter of Air Force in between the dense forest of Khellong and Shergaon Forest Reserve area.
The research team of Police team led by DySP (HQ) reached at the crash the site on 30/05/2017 by foot march. All the material evidence like a wallet containing credit card/debit card ofFlt.Lt. S. Achudev, mangled portion of flying board with identity disc of Sqdn Ldr D. Pankaj were lifted by the Air Force authority through para dropping on 26/08/2017 for further analysis, only wreckage of aircraft was found there was photographed"
WP(C) 39854/2017 11 This would indicate that even though the legal forensic analysis was done by the Court of Inquiry authority of the Air Force and no material has been handed over to Police administration, a copy of the expert opinion by the board of experts constituted by the Air Force authority has been collected and enclosed with the final report for perusal by the Magistrate. The investigating officer was convinced that the aircraft had crashed and both the pilots were reported to be blown with the aircraft and completely burned and reduced to ashes. The Police authorities or the Civil Administration did not find it necessary to enquire further into the matter and the final report was accepted by the Magistrate.
8. In case the petitioners had any objection regarding the acceptance of the final report filed under Section 174 Cr.P.C, they have the option to challenge it before the Magistrate. It was not done.
9. The learned counsel appearing for the Central Government relies on the decision in Navinchandra Majitha v. State of WP(C) 39854/2017 12 Maharashtra and Others [2000 KHC 1376 : AIR 2000 SC 2966] in support of his argument that this Court has no territorial jurisdiction to entertain the Writ Petition. In that decision, the appellant therein had filed a Writ petition against the State of Maharashtra, the State of Meghalaya, the Special Superintendent of Police, CID, Shillong and others praying interalia to quash the complaint lodged by J.B. Holdings Ltd., or in the alternative to issue a Writ of mandamus directing the State of Kerala to transfer the investigation being conducted by the officers of CID, at Shillong to the Economic Offences Wing, General Branch of CID, Mumbai or any other investigating agency of the Mumbai Police, etc. and the Hon'ble Supreme Court held that so far as the territorial jurisdiction with reference to a criminal offence is concerned, the main factor to be considered is the place where the alleged offence was committed.
10. The learned counsel for the petitioners has relied on the decision of the Hon'ble Apex Court in Oil and Natural Gas WP(C) 39854/2017 13 Commission v. Utpal Kumar Basu [1994 (4) SCC 711] to argue that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed, entitle him to a judgement and in determining the objection of lack of territorial jurisdiction of the Court must take all the facts. In support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts.
11. The Hon'ble Supreme Court had in fact in the decision of Navinchandra (supra) relied on the aforesaid decision of ONGC (supra) to conclude thus:-
" Having given such a wide interpretation to the expression Ahmedi,J (as the learned Chief Justice then was) speaking for M.N. Venkatachaliah, C.J. and B.P.Jeevan Reddy, J, utilise the opportunity to quash and the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice of convenience. The following are the observations. WP(C) 39854/2017 14 "If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the Court, certain members of the Court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said Court, the litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation."
12. In the instant case, the petitioners would contend that the coffin allegedly containing the mortal remains of their son was delivered at Thiruvananthapuram. The coffin was actually empty and therefore there is alleged to be a cover-up by the IAF and hence the cause of action arose within the jurisdiction of this Court. An FIR has been registered at the Rupa Police Station and the final report filed before the jurisdictional Magistrate accepting the finding of the Court WP(C) 39854/2017 15 of Inquiry made by the IAF. The place of residence of the person moving the High Court is not a criteria to determine the contours of the cause of action in this Writ Petition. In the aforesaid situation, it is impossible to hold that even part of the cause of action arose within the jurisdiction of this High Court. I therefore, hold that this Writ Petition is not maintainable before this Court for want of jurisdiction.
Hence, the Writ Petition is dismissed.
Sd/-
ASHOK MENON JUDGE jg WP(C) 39854/2017 16 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT-P1: TRUE COPY OF THE BATTLE CASUALITY CERTIFICATE REFERENCE NO.AIR(HQ/21901/32755/PO-3(F) DATED 28.9.2017.
EXHIBIT-P2: TRUE COPY OF THE ATTRIBUTABILITY CERTIFICATE OF DECEASED ARMED FORCES PERSONNEL DATED 30.10.2017.
EXHIBIT-P3: TRUE COPY OF THE DEATH CERTIFICATE NO.18/2017 DATED 31.7.2017.
EXHIBIT-P4: TRUE COPY OF THE INTERIM REPORT O1.12.2017 SUBMITTED BY THE PROFESSIONAL PRIVATE INVESTIGATOR MR.BIKASKUMAR DAS.
EXHIBIT-P5: TRUE COPY OF THE PETITION DATED 25.07.17 SUBMITTED BY THE 1ST PETITIONER BEFORE THE PRESIDING OFFICER, COURT OF INQUIRY.
EXHIBIT-P5(A): TRUE COPY OF THE REPLY DATED 11.08.2017 TO EXT.P5 ISSUED BY THE 1ST RESPONDENT AIR FORCE TO THE 1ST PETITIONER.
EXHIBIT-P6: TRUE COPY OF THE PETITIONERS/REPRESENTATION FILED BY THE 1ST PETITIONER BEFORE THE HONOURABLE PRESIDENT OF INDIA.
EXHIBIT-P6(A): TRUE COPY OF THE PETITION/REPRESENTATION FILED BY THE 1ST PETITIONER DATED 18.06.17 BEFORE WP(C) 39854/2017 17 THE HONOURABLE PRIME MINISTER OF INDIA. EXHIBIT-P6(B): TRUE COPY OF THE PETITION/REPRESENTATION FILED BY THE 1ST PETITIONER DATED 27.06.17 BEFORE THE HON'BLE PRIME MINISTER OF INDIA.
EXHIBIT-P6(C): TRUE COPY OF THE PETITION/REPRESENTATION FILED BY THE 2ND PETITIONER BEFORE THE HONOURABLE PRIME MINISTER OF INDIA.
EXHIBIT-P6(D): TRUE COPY OF THE PETITION/REPRESENTATION DATED 27.6.17 FILED BY THE 1ST PETITIONER BEFORE THE HONOURABLE FINANCE & DEFENCE MINISTER OF INDIA, MR.ARUN JAITLY.
EXHIBIT-P6(E): TRUE COPY OF THE PETITION/REPRESENTATION DATED 28.09.17 FILED BY THE 1ST PETITIONER BEFORE THE HONOURABLE DEFENCE MINISTER OF INDIA, MRS.NIRMALA SITHARAMAN.
EXHIBIT-P6(F): TRUE COPY OF THE REPRESENTATION DATED 27.6.17 SUBMITTED BY THE 1ST PETITIONER TO THE AIR HEAD QUARTERS, NEW DELHI.
EXHIBIT-P6(G): TRUE COPY OF THE REPLY DATED 18.07.17 ISSUED FOR AND ON BEHALF OF THE AIR STAFF.
EXHIBIT-P7: TRUE COPY OF THE LETTE/REQUEST FOR FURTHER INVESTIGATION WITH CBI DATED 20.9.17 SUBMITTED BY THE 1ST PETITIONER BEFORE THE AIR HEAD QUARTERS.
EXHIBIT-P7(A): TRUE COPY OF THE REPLY DATED 27.10.17 ISSUED AS AGAINST EXT.-P7 BY THE AIR FORCE.
WP(C) 39854/2017 18 EXHIBIT-P8: TRUE COPY OF THE HISTOPATHOLOGY AND TOXICOLOGY EXAMINATION REPORT NO.IAM/2008/4/AP/688 DATED 28.6.2017 IN RESPECT OF CASUALITIES OF SU-30MKI CRASH OF 11 WING AF.
EXHIBIT-P8(A): TRUE COPY OF THE CONFIRMATION OF DNA MATCHING DATED 25.07.17 ISSUED BY THE RESPONDENT AIR FORCE TO THE 1ST PETITIONER.
EXHIBIT-P8(B): TRUE COPY OF THE CONFIRMATION OF DNA MATCHING DATED 31.08.17 ISSUED BY THE RESPONDENT AIR FORCE TO THE 1ST PETITIONER.
EXHIBIT-P9: TRUE COPY OF THE NEWS ARTICLES REPORTED IN VARIOUS MEDIA.
EXHIBIT-P14 TRUE COPY OF THE PICTURES OF THE SHOE AND WALLET ALLEGEDLY RECOVERED FROM THE CRASH SITE EXHIBIT-P15 TRUE COPY OF HTE DNA ANALYSIS REPORT ISSUED BY RAJIV GANDHI CENTRE FOR BIOTECHNOLOGY, TVM NO.RGCB-RFDF FILE NO.803/17 DATED 28.8.2017.
EXHIBIT-P16 TRUE COPY OF THE RTI REPLY DATED 28.8.2018 ISSUED BY THE PIO DY.SUPERINTENDENT OF POLICE, WEST KAMEG DISTRICT, BOMDILA.
RESPONDENT'S EXHIBITS ANNEXURE-R2(a) TRUE COPY OF HTE LETTER DATED 18.7.2017 SENT BY AIR MARSHAL S.HARPAL SINGH, DIRECTOR GENERAL (INSPECTION AND WP(C) 39854/2017 19 SAFETY) TO THE 1ST PETITIONER.
ANNEXURE-R2(b) A TRUE COPY OF HTE LETTER DATED 25.7.2017 SENT BY AIR MARSHAL S.HARPAL SINGH TO THE 1ST PETITIONER.
ANNEXURE-R2(c) A TRUE COPY OF THE LETTER DATED 11.08.2017 SENT BY AIR MARSHAL S.HARPAL SINGH TO THE 1ST PETITIONER.
ANNEXURE-R2(d) A TRUE COPY OF HTE LETTER DATED 27.10.2017 SENT BY AIR MARSHAL S.HARPAL SINGH TO THE 1ST PETITIONER.
ANNEXURE-R2(e) A TRUE COPY OF HTE LETTER DATED 6.12.2017 SENT BY AIR MARSHAL S.HARPAL SINGH TO TEH 1ST PETITIONER.