Introduction:
The Kerala High Court recently passed an important interim order highlighting the fundamental principle that criminal prosecutions must be founded upon valid and subsisting laws. In Katie Michelle Phelps and Another v. State of Kerala (Crl.MC No. 4547 of 2026), Justice C.S. Dias granted interim protection to two United States citizens who were facing criminal proceedings for allegedly operating a drone in a restricted security zone near key defence establishments in Fort Kochi.
The petitioners, Katie Michelle Phelps and Christopher Ross Harvey, were accused of flying a drone in a designated Red Zone situated near the Indian Coast Guard Headquarters and the Indian Navy’s Dronacharya establishment in Fort Kochi. Based on these allegations, the Fort Kochi Police Station in Ernakulam registered Crime No. 151 of 2026 against them. The prosecution invoked Section 10 of the Aircraft Act, 1934, Rules 22 and 49 of the Drone Rules, 2021, and Section 3(5) of the Bharatiya Nyaya Sanhita dealing with common intention.
The case soon assumed legal significance because the petitioners challenged the very foundation of the prosecution. Their principal contention was that the criminal case had been registered under a statutory provision that had ceased to exist. According to the petitioners, the Aircraft Act, 1934 had already been repealed and replaced by the Bharatiya Vayuyan Adhiniyam, 2024 with effect from January 1, 2025. Therefore, continuing criminal proceedings under a repealed statute was legally impermissible.
Apart from questioning the applicability of the repealed law, the petitioners also challenged the allegations against the second accused. They contended that the First Information Report itself disclosed that only one individual had operated the drone and that there was no material connecting the second petitioner to the alleged offence. Consequently, they argued that the continuation of proceedings against the second petitioner amounted to an abuse of the criminal process.
The matter came before the Kerala High Court in a petition seeking quashing of the criminal proceedings. At the interim stage, the Court was called upon to determine whether the petitioners had established a prima facie case warranting protection from further investigation and prosecution. The case raises significant questions relating to criminal liability under repealed statutes, procedural fairness in criminal prosecutions, and the limits of joint liability under modern criminal law.
The order is particularly relevant in an era where drone operations have become increasingly common and are subject to extensive regulation due to concerns relating to national security, aviation safety, and protection of strategic defence installations. While the State retains the authority to regulate and prosecute unlawful drone activity, the case illustrates that such prosecutions must be based upon valid legal provisions and supported by adequate factual allegations.
Arguments of the Parties:
The petitioners challenged the legality of the criminal proceedings on multiple grounds. Their primary submission was that the entire prosecution was vitiated because it was founded upon a statute that no longer remained in force. They pointed out that Section 10 of the Aircraft Act, 1934, which formed one of the principal provisions invoked against them, had ceased to operate after the enactment of the Bharatiya Vayuyan Adhiniyam, 2024.
According to the petitioners, the Aircraft Act stood repealed with effect from January 1, 2025. Since the alleged incident took place on March 21, 2026, more than a year after the repeal came into force, the investigating agency could not legally invoke provisions of the repealed legislation. They argued that criminal liability cannot be imposed under a statute that has ceased to exist and that such a prosecution is fundamentally unsustainable in law.
The petitioners further contended that the continuation of proceedings based upon a repealed law would amount to a serious abuse of the criminal justice process. Criminal law, by its very nature, requires strict adherence to statutory provisions. Therefore, when the legal basis of the prosecution itself is defective, the Court ought to intervene to prevent unnecessary harassment and misuse of investigative powers.
A separate and equally significant argument was advanced on behalf of the second petitioner. The petitioners pointed to the contents of the FIR itself and argued that the prosecution’s own narrative indicated that only one person had operated the drone. According to the allegations recorded by the police, the first petitioner was identified as the individual who allegedly flew the drone in the restricted area.
In contrast, there was no allegation demonstrating that the second petitioner was physically present at the location at the relevant time or participated in the operation of the drone. The petitioners submitted that the FIR failed to disclose any factual basis for implicating the second petitioner.
They argued that merely naming a person as an accused without disclosing his specific role cannot justify criminal prosecution. Since Section 3(5) of the Bharatiya Nyaya Sanhita concerning common intention had been invoked, the prosecution was required to demonstrate some material indicating shared intention or active participation. In the absence of such material, the continuation of proceedings against the second petitioner was said to be wholly unjustified.
The petitioners therefore sought quashing of the criminal proceedings in their entirety. In the alternative, they sought interim protection from coercive steps pending final adjudication of the matter.
At the interim stage, the State’s detailed response was yet to be placed before the Court. The prosecution’s position, as reflected in the FIR, was that the petitioners had violated aviation and drone regulations by operating a drone within a highly sensitive security zone near defence establishments.
The allegations suggested that the drone had been flown in an area designated as a Red Zone, where drone operations are either prohibited or subject to strict regulatory control. Such restrictions are imposed because unauthorized aerial activity near military and strategic installations may pose risks to national security and operational safety.
The State relied upon the provisions cited in the FIR to justify the registration of the crime and the commencement of investigation. However, at the stage of considering interim relief, the investigating agency had not yet filed a comprehensive statement explaining the legal basis for invoking provisions of the repealed Aircraft Act or detailing the evidence connecting both petitioners to the alleged offence.
Recognizing the need to obtain the State’s response, the Court granted time to the investigating officer to file a statement addressing the issues raised in the petition.
Court’s Judgment:
Justice C.S. Dias examined the material placed before the Court and focused primarily on the legal validity of the prosecution as framed in the FIR. The Court was not required at this stage to determine whether the petitioners had in fact violated drone regulations or whether they were ultimately guilty of any offence. Instead, the immediate question was whether the petitioners had established a prima facie case warranting interim protection.
A crucial aspect of the Court’s reasoning related to the repeal of the Aircraft Act, 1934. The Court noted that the petitioners had specifically pointed out that the Aircraft Act had been repealed with effect from January 1, 2025, upon the coming into force of the Bharatiya Vayuyan Adhiniyam, 2024.
The Court found that the petitioners had indeed been charged under provisions of the repealed enactment. Since the alleged incident occurred after the repeal had taken effect, the issue raised by the petitioners was not merely technical but went to the root of the prosecution itself.
Criminal law operates on the principle that offences must be defined and prosecuted under valid legal provisions. A prosecution founded upon a repealed statute may raise serious concerns regarding legality, jurisdiction, and procedural fairness. It was this concern that persuaded the Court to examine the matter with caution.
After considering the factual circumstances and the materials available on record, Justice Dias concluded that the petitioners had succeeded in establishing a prima facie case deserving interim protection. The Court specifically recorded that the fact that the petitioners had been charged under a repealed law constituted a sufficient basis to justify an interim order.
The Court observed that where a substantial legal issue exists regarding the very applicability of the statute invoked by the prosecution, continuation of criminal proceedings without judicial scrutiny may cause undue prejudice to the accused persons.
Consequently, the Court exercised its discretionary jurisdiction and stayed all further proceedings in Crime No. 151 of 2026 registered by the Fort Kochi Police Station. The stay was granted for a period of two months.
The interim order effectively halted the progress of the criminal proceedings pending further consideration of the matter. At the same time, the Court did not quash the FIR outright. Instead, it adopted a cautious approach by granting temporary protection while directing the investigating officer to place the State’s position on record.
This balanced approach reflects an important principle governing the exercise of inherent and supervisory powers by constitutional courts. While courts must intervene where a prosecution appears legally unsustainable, they must also ensure that investigative agencies are afforded an opportunity to explain their actions and justify the legal basis of the proceedings.
The Court’s order should therefore be understood as an interim assessment rather than a final determination of the rights and liabilities of the parties. The stay merely recognizes that the petitioners have raised substantial legal questions requiring examination before the investigation can proceed further.
Another noteworthy aspect of the case concerns the allegations against the second petitioner. Although the Court did not make a final pronouncement on this issue at the interim stage, the petitioners’ argument that the FIR itself failed to disclose his role may become a significant consideration during the final hearing.
Indian criminal jurisprudence consistently requires that criminal liability, particularly liability based on common intention, must be supported by specific factual allegations. Courts have repeatedly emphasized that mere association with an accused person cannot automatically result in criminal responsibility unless the essential ingredients of the offence are disclosed.
The matter has now been posted for further consideration on July 2, by which time the investigating officer is expected to file a statement responding to the contentions raised by the petitioners.
The interim order is significant because it reinforces the foundational principle that criminal prosecutions must be grounded in valid and existing law. It also demonstrates the judiciary’s role in ensuring that investigative actions conform to statutory requirements and constitutional safeguards. While the final outcome of the case remains to be determined, the order serves as an important reminder that even in matters involving sensitive security concerns, the rule of law requires strict compliance with legal procedures and valid statutory authority.