Full Judgment Text
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PETITIONER:
CAPTAIN SUBASH KUMAR
Vs.
RESPONDENT:
PRINCIPAL OFFICER, MERCANTILE MARINEDEPARTMENT, MADRAS
DATE OF JUDGMENT22/02/1991
BENCH:
SAIKIA, K.N. (J)
BENCH:
SAIKIA, K.N. (J)
PUNCHHI, M.M.
CITATION:
1991 AIR 1632 1991 SCR (1) 742
1991 SCC (2) 449 JT 1991 (1) 658
1991 SCALE (1)262
ACT:
Merchant Shipping Act, 1958: Section 363-Initiation of
enquiry proceeding into charges of incompetency or
misconduct of Captain of Ship.
HEADNOTE:
The appellant was the Master of the Merchant ship, M.V.
Eamaco, when it sank in the high seas nearly 232 nautical
miles away from India. The appellant was holder of a
Master’s certificate issued by the Director General of
Shipping, Calcutta. The ship was owned by a Singapore
company and was flying Panamian flag.
The first respondent filed a complaint in the Court of
14th Metropolitan Magistrate, Egmore, Madras against the
appellant for initiation of enquiry proceedings under
section 363 of the Merchant Shiping Act, 1958 complaining
about the negligence of the appellant while he was the
Master of the ship and further stating that the shipping
casualty had occurred due to sheer negligence and gross in
competence of the Master when he failed to launch the life
boats and life crafts which resulted in loss of the ship,
the cargo and valuable lives of sailors.
The appellant filed a Criminal Miscellaneous Petition
in the High Court under section 482 of the Cr. P.C. stating
that the proceedings were by an abuse of process of the
court and the Court had no jurisdiction to proceed with the
complaint against the appellant when there was no negligence
on his part.
The High Court rejected the petition and held that the
Shipping Act was applicable to the instant case and the
action of the petitioner amounted to sheer negligence and
called for investigation and inquiry under the Act. The
appellant has appealed to this Court.
In this court it was inter alia contended on behalf of
the appellant that (i) the negligence complained of having
occurred in respect of a foreign ship, flying foreign flag,
at a place 232 natuical miles away from India, and as such,
outside the territorial waters of India, the Act was
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not applicable; (ii) even if the Act was applicable it would
not amount to a shipping casualty as envisaged in part XII
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of the Act; and (iii) even assuming that Chapter XII applied
the complaint could not have been filed by the appellant in
the court of the 14th Metropolitan Magistrate, Egmore under
Section 363 of the Act.
On behalf of the respondent it was contended that the
shipping casualty having occurred within the territorial
waters of India which extended up to 200 nautical miles, the
Act would be applicable. It was further submitted that the
certificate of competentence issued under the provisions of
Part VI of the Act was a valuable certificate and if the
holder of such a certificate of competency was alleged to
have committed misconduct or acts of incompetency there was
no reason why an inquiry into that misconduct or
incompetency could not be orderd by the Central Government
to a court competent to exercise jurisdiction under section
361 of the Act.
Allowing the appeal, setting aside the judgment of the
High Court, and quashing the complaint and the proceedings
against the appellants, this Court.
HELD: (1) The ship was not a ship owned wholly by
persons each of whom was a citizen of India or by a company
satisfying the description under clause (b) or (c) of sub-
section (2) of Section 2 of the Act. The ship being a
Panamanian ship registered in Panama would come within the
purview of the Act only while it was within India including
its territorial waters. [749C-D]
(2) By a notification of the Government of India dated
15th January, 1977 the exclusive economic zone of India had
been extended upto a distance of 200 nautical miles into the
sea from the shore and other maritime zones, under the 40th
Constitution Amendement Act, 1976. [750H-751A]
(3) The concepts of territorial waters, continental
shelf and exclusive economic zone are different concepts and
the proclamation of exclusive economic zone to the limit of
200 nautical miles into the sea from the shore baseline
would in no way extend the limit of territorial waters which
extends to 12 nautical miles measured from the appropriate
baseline. [751B]
(4) Admittedly the ship at the time of the casualty was
at a place beyond the territorial waters of India and even
the exclusive economic zone of India. If this be the
position, the ship would not be covered by the provisions of
section 2 of the Act and consequently the provisions of
744
the Act would not apply to the instant casualty. [751C]
(5) The Act itself having not been applicable, Chapter
XII being a part of the Act will also not be applicable.
[751D]
(6) What is envisaged under section 361 is a formal
investigation into a shiping casualty and not a preliminary
inquiry. Similarly section 262 does not envisage inquiring
into any charge of incompetency or misconduct otherwise than
in the course of the formal investigation into a shipping
casualty. [753H-754B]
(7) Prima facie, the complaint does not disclose the
ingredients required under section 363 of the Act. It
nowhere mentions that it was a transmission of the statement
of a case to the court by the Central Government; it also
nowhere mentions that the reason to believe had been founded
otherwise than in the course of a formal investigation into
the shipping casualty. On the other hand in para 2 it says
that the complainant is the Principal Officer who is
competent person appointed under the Act to complain about
the negligence of the accused. There is however no doubt
that he is not so empowered under section 363. [757G,E-F]
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(8) The High Court correctly observed that section 363
enabled the Central Government to transmit a case to the
court which had jurisdiction under section 361 to make an
inquiry against master, mate or engineer into the charges
for incompetency or misconduct otherwise than in the course
of formal investigation into shipping casualties, but the
High Court failed to notice that the complainant himself had
no power under section 363. [758C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Civil Appeal No. 135
of 1991.
From the Judgment and order dated 16.6.1989 of the
Madras High Court Crl. M.P. No. 2717 of 1988.
T.S. Krishnamoorthy Iyer, K. Rajeswara, N.D.B. Raju and
K.R. Chaudhary for the Appellant.
K.K. Lahiri, R.K. Jain (NP), Sreekant, N. Terdal, Mrs.
Sushma Suri and A Subba Rao for the Respondent.
The Judgment of the Court was delivered by
745
K.N.SAIKIA, J. Special leave granted.
The appellant Captain Subhash Kumar was the Master of
the Merchant ship M.V. Eamaco owned by Eamaco Shipping Co.
(P) Ltd. Singapore, hereinafter called ‘the ship’. On
12.8.86 the ship went into distress due to the vessel’s hold
Nos. 2 & 3 taking in water, the pumping operations being
insufficient and though initially the appellant sent radio
message for help he failed to launch the life boats and life
crafts and to abandon the ship to enable M.V. Shoun World to
pick them up and due to the failure of motor life boats and
life crafts, when the ship sank, only 11 out of 28 persons
were rescued resulting in loss of life to the remaining
persons. At about 18.25 Hrs. that day Madras Radio, which
was the communication centre between the land and seafaring
ships, informed the office of the Principal Officer,
Mercantile Marine Department, Madras, District Madras,
hereinafter called as ‘Principal Officer’, that an urgent
message had been received by the said Radio from the
appellant and from that communication it was clear that the
ship under the command of the appellant was posted at
position 11 degrees 08 minutes North, 83 degrees 41 minutes
East on 12th at 11.30 Greenwich meantime. The said message
further indicated that the vessel’s hold Nos. 2 & 3 were
taking in water and the pumping out operation was not
sufficient and it called the assistance from all ships in
the vicinity. At 20.28 Hrs. the Madras Radio again
contacted the Principle officer and said that the Radio had
received SOS message (distress message) and he took
necessary steps.
The Principal Officer filed a complaint in court of
14th Metropolitan Magistrate, Egmore, Madras-8 against the
appellant for initiation of an inquiry proceeding under
section 363 of the Merchant Shipping Act, 1958 (Central Act
No.4 of 1958), hereinafter called ‘the Act, complaining
about the negligence of the appellant while he was the
Master of the ship as aforesaid; and that at that time he
was residing at Laxmi Niwas, 41, Marshal Road, Egmore,
Madras-8 and further stating that the shipping casualty had
occurred due to sheer negligence and gross incompetence on
the part of the appellant in commanding the ship and the
crew; and that the very fact that the life boats and life
floats were not used and not even lowered so as to make use
of that indicated that the appellant had not even thought
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about that which a Captain of the ship should have done,
resulting in loss of the ship, the cargo and valuable lives
of the sailors who had at no time doubted about the
competency of the Master or revolted against him. The
complaint accordingly said that the Magistrate’s Court by
the provisions of section 363 had got powers to make inquiry
into the charges of
746
incompetence or of misconduct of the appellant therein. It
also said that the inquiry be commenced in accordance with
the provisions of the Act so as to cancel the certificates
of competency of the Master, namely, the appellant, which
had been granted by the Central Government; and that
cancellation might be recommended under the Act after
holding the aforesaid inquiry. The complaint also said that
the appellant rendered himself liable to be proceeded
against under the provisions of part XII of the Act which
envisaged various modes of investigation and inquiry; and
under section 363 the court had powers to make an inquiry
into the charges of incompetency or misconduct of the
appellant.
On 25.3.1988, the appellant received a notice stating
that the inquiry proceedings were instituted against him
before the 14th Metropolitan Magistrate under section 363 of
the Act. The appellant thereupon filed Cr. M.P. No.2717 of
1988 in the High Court under section 482 of the Cr.P.C.
stating that the proceedings were by an abuse of process of
the court and the Court had no jurisdiction to proceed with
the complaint against the appellant when there was no
negligence on his part. It was also stated that the fact
that the appellant was a holder of a Master certificate
issued by the Director General of Shipping, Calcutta would
not attract the provisions of the Act inasmuch as the ship
was a foreign ship and the Master certificate had been
issued by a foreign country and the casualty had occurred in
the high seas nearly 232 nautical miles away from India and
being in open sea the ship was subject to the jurisdiction
and also to the protection of the State under whose maritime
flag it sailed. The appellant was, it was further stated,
to be in command of the ship by virtue of the certificate
issued by the Panamanian Government, the flag of the ship
was of Panama and, therefore, the provisions of the Act
would not at all apply, much less its section 363. In other
words the proceedings were allegedly intended to harass the
appellant without jurisdiction and it amounted to an abuse
of process of court.
The learned Single Judge who heard the petition
rejected the contention that in view of the language of
section 2 of the Act it would not be applicable and that it
would not be a shipping casualty as defined in section 358
of the Act, and held that the Act was applicable in the
instant case and the action of the petitioner amounted to
sheer negligence and called for investigation and inquiry
under the Act. Hence this appeal.
Mr. T. Krishnamurthy Iyer, the learned cousel for the
appel-
747
lant, submits, inter alia, that the negligence complained of
having occurred in respect of foreign ship flying foreign
flag at a place 232 nautical miles away from India, and as
such, outside the territorial waters of India the Act would
not be applicable; and that even if it was applicable it
would not amount to a shipping casualty as envisaged in part
XII of the Act; and lastly that even assuming that chapter
XII applied, the complaint could not have been filed by the
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Principal Officer in the court of the 14th Metropolitan
Magistrate, Egmore, Madras-8 under section 363 of the Act.
Mr. K. Lahiri, the learned counsel for the respondents
submits that the shipping casualty having occurred within
the territorial waters of India which extended up to 200
nautical miles, the Act would be applicable and the
complaint was rightly filed under section 363 of the Act;
and that the High Court under section 482 of the Code of
Criminal Procedure rightly refused to quash the proceedings.
Three questions, therefore, are to be decided in this
appeal. First, whether the Act would at all be applicable
in the facts and circumstances of the case; secondly, if the
Act was applicable whether part XII of the Act would apply;
and thirdly, if both the Act and part XII were applicable
whether the complaint made by the Principal Officer under
section 363 of the Act would be maintainable.
Taking the first question first, the Act is one to
foster the development and ensure the efficient maintenance
of India Mercantile Marine in the manner best suited to
serve the national interest and for that purpose to
establish a National Shipping Board and Shipping National
Fund to provide for registration of India ship and the law
relating to Merchant shipping. Section 2 of the Act deals
with its application and says;
"(1) Unless otherwise expressly provided, the
provisions of this Act which apply to-
(a) any vessel which is registered in India; or
(b) any vessel which is required by this Act to be
so registered; or
(c) any other vessel which is owned wholly by
persons to each of whom any of the descriptions
specified in clause (a) or in clause (b) or in
clause (c), as the case may be, of
748
section 21 applies, shall so apply wherever the
vessel may be.
(2) Unless otherwise expressly provided, the
provisions of this Act which apply to vessels other
than those referred to in sub-section (1) shall so
apply only while any such vessel is within India,
including the territorial waters thereof."
In the instant case the ship was not registered in
India and was not required by this Act to be so registered.
Clause (c) refers so clauses (a), (b) and (c) of section 21
which defines Indian ships, and says:
"For the purposes of this Act, a ship shall not be
deemed to be an Indian ship unless owned wholly by
persons to each to whom any of the following
descriptions applies:-
(a) a citizen of India; or
(b) a company which satisfies the following
requirements, namely:
(i) the principal place of business of the company
is in India;
(ii) at least seventy-five per cent of the share
capital of the company is held by citizens of
India:
Provided that the Central Government may, by
notification in the official Gazette, alter such
minimum percentage, and where the minimum
percentage is so altered, the altered percentage
shall, as from the date of the notification, be
deemed to be substituted for the percentage
specified in this sub-clause;
(iii) not less than three-fourths of the total
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number of directors of the company are citizens of
India;
(iv) the chairmen of the board of directions and
the managing director, if any, of the company are
citizens of India;
(v) the managing agents, if any, of the company are
citizens of India or in any case where a company is
the managing agent, the company satisfies the
requirements specified in sub-cls. (i), (ii), (iii)
and (iv). or
749
(c) a co-operative society which satisfies the
following requirements, namely:-
(i) the co-operative society is registered or
deemed to be registered under the Co-operative
Societies Act, 1912, or any other law relating to
co-operative societies for the time being in force
in any State,
(ii) every individual who is a member of the co-
operative society and where any other co-operative
society is a member thereof, every individual who
is a member of such other co-operative society, is
a citizen of India."
The ship was not a ship owned wholly by persons each of
whom was a citizen of India or by a company satisfying the
descriptions under clause (b) or (c). Sub-section (2) of
section 2 makes the provisions of the Act applicable to
vessels other than those referred to in sub-section (1) only
while any such vessel is within India, including the
territorial waters thereof. The ship a Panamanian ship
registered in Panama would come within the purview of the
Act only it is within India including the territorial
waters.
This leads us to the question as to the extent of
territorial waters of India. The Territorial Waters,
Continental shelf, Exclusive Economic Zone and other
Maritime Zones Act, 1976 (Act No. 80 of 1976) is an Act to
provide for certain matters relating to the territorial
waters continental shelf, exclusive economic zone, and other
maritime zones of India. Section 2 of the Act defines
"limit" in relation to the territorial waters, the
continental shelf, the exclusive economic zone or any other
maritime zones of India to mean the limit of such waters
shelf or zone with reference to the mainland of India as
well as the individual or composite group or groups of
islands constituting part of the territory of India. Section
3 deals with sovereignty over, and limits of, territorial
waters and says:
"(1) The sovereignty of India extends and has
always extended to the territorial waters of India
(hereinafter referred to as the territorial waters)
and to the seabed and subsoil underlying, and the
air space over such waters.
(2) The limit of the territorial waters is the line
every point of which is at a distance of twelve
nautical miles from the nearest point of the
appropriate baseline.
750
(3) Notwithstanding anything contained in sub-
section (2), the Central Government may whenever it
considers necessary so to do having regard to
International Law and State practice, alter, by
notification in the Official Gazette, the limit of
the territorial waters.
(4) No notification shall be issued under sub-
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section (3) unless resolutions approving the issue
of such notification are passed by both Houses of
Parliament."
Thus sub-section (2) clearly provides that the limit of
the territorial waters is a line every point of which is at
a distance of 12 nautical miles from the nearest point of
the appropriate baseline. Under Article 297 of the
Constitution of India things of value within territorial
waters or continental shelf and resources of the exclusive
economic zone to vest in the Union. It says:
"(1) All lands, minerals and other things of
value underlying the ocean within the territorial
waters, or the continental shelf, or the exclusive
economic zone, of India shall vest in the Union and
be held for the purposes of the Union.
(2) All other resources of the exclusive
economic zone of India shall also vest in the Union
and be held for the purposes of the Union.
(3) The limits of the territorial waters, the
continental shelf, the exclusive economic zone, and
other maritime zone, of India shall be such as may
be specified, from time to time, by or under any
law made by Parliament."
Sub-section (3), thus, empowers the Central Government
if it considers necessary so to do having regard to the
International Law and State practice, alter, by notification
in the Official Gazette, the limit of territorial waters.
Under sub-section (4) no such notification shall be issued
unless resolutions approving the issue of such notification
are passed by both Houses of Parliament. A proclamation was
made by the President of India published on September 30,
1967 in the Gazette of India Extraordinary, Part III,
section 2 Notification of the Government of India in the
Ministry of External Affairs No. FL/III (1) 67.
By a Notification of the Government of India dated 15th
751
January, 1977 the exclusive economic zone of India has been
extended upto a distance of 200 nautical miles into the sea
from shore and other maritime zones, 1976 under the 40th
Constitution Amendment Act, 1976.
The concepts of territorial waters, continental shelf
and exclusive economic zone are different concepts and the
proclamation of exclusive economic zone to the limit of 200
nautical miles into the sea from the shore baseline would in
no way extend the limit of territorial waters which extends
to 12 nautical miles measured from the appropriate baseline.
The submission that territorial waters extends to the limit
of 200 nautical miles by virtue of the notification
extending exclusive economic zone to 200 nautical miles has,
therefore, to be rejected. Admittedly the ship (M.V.Eamaco)
at the time of the casualty was at a place beyond the
territorial waters of India and even the exclusive economic
zone of India. If this be the position, the ship would not
be covered by the provisions of section 2 of the Act and
consequently the provisions of the Act would not apply to
the instant casualty.
Taking the second question it is obvious that the Act
itself having not been applicable Chapter XII being a part
of the Act will also not be applicable. This Chapter deals
with investigations and inquiries and contain sections 357
to 389. Section 357 defines "coasts" to include the coasts
of creeks and tidal rivers. Section 358 deals with shipping
casualties and report thereof and says:
"(1) For the purpose of investigations and
inquiries under this Part, a shipping casualty
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shall be deemed to occur when-
(a) on or near the coasts of India, any ship is
lost, abandoned, stranded or materially damaged;
(b) on or near the coasts of India, any ship causes
loss of material damage to any other ship;
(c) any loss of life ensues by reason of any
casualty happening to or on board any ship on or
near the coasts of India;
(d) in any place, any such loss, abandonment,
stranding, material damage or casualty as above
mentioned occurs to or on board any India ship and
any competent witness thereof is found in India;
752
(e) any Indian ship is lost or is supposed to have
been lost and any evidence is obtainable in India
as to the circumstances under which she proceeded
to sea or was last heard of.
(2) In the cases mentioned in clauses (a), (b) and
(c) of sub-section (1), the master, pilot, harbour
master or other person in charge of the ship, or
(where two ships are concerned) in charge of each
ship at the time of the shipping casualty, and
in the cases mentioned in clause (d) of sub-
section (1), where the master of the ship concerned
or (except in the case of a loss) where the ship
concerned proceeds to any place in India from the
place where the shipping casualty has occurred, the
master of the ship,
shall, on arriving in India, give immediate
notice of the shipping casualty to the officer
appointed in this behalf by the Central
Government."
Clause (d) envisages shipping casualty in any place but
occurring to or on board any Indian ship whether the Master
of the ship concerned (except in the case of a loss) where
the ship concerned proceeds to any place in India from the
place where the shipping casualty of the ship has occurred,
the Master of the ship. Thus this provision will not cover
the ship. The conclusion, therefore, is inescapable that
the casualty in the instant case would not be a shipping
casualty envisaged in section 358. Subsequent sections,
namely, 359, 360, 361 and 362, relate to shipping casualties
as envisaged in section 358.
The impugned complaint was ex facie made under section
363 of the Act which deals with power of Central Government
to direct inquiry into the charges of incompetency or
misconduct, it says:
"(1) If the Central Government has reason to
believe that there are grounds for charging any
master, mate or engineer with incompetency or
misconduct, otherwise than in the course of a
formal investigation into shipping casualty, the
Central Government.
(a) if the master, mate or engineer holds a
certificate under this Act, in any case;
753
(b) if the master, mate or engineer holds a
certificate under the law of any country outside
India, in any case where the incompetency or
misconduct has occurred on board an Indian ship;
may transmit a statement of the case of any court
having jurisdiction under section 361 which is at
or nearest to the place where it may be convenient
for the parties and witnesses to attend, and may
direct that court to make an inquiry into that
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charge.
(2) Before commencing the inquiry, the court shall
cause the master, mate or engineer so charged to be
furnished with a copy of the statement transmitted
by the Central Government."
From the above provisions it appears that section 359
envisages the officers referred to in sub-section (2) of
section 358. Receiving the information that a shipping
casualty has occurred and reporting in writing the
information to the Central Government and his proceeding to
make a preliminary inquiry into the casualty and sending a
report thereof to the Central Government or such other
authority as may be appointed by it in that behalf. Under
section 360 the officer, whether he has made a preliminary
inquiry or not, may, and, where the Central Government so
directs, shall make an application to the court empowered
under section 361 requesting it to make a formal
investigation into any shipping casualty and the court shall
thereupon make such investigation. Thus the officer himself
may or when directed by the Central Government shall make an
application to the court requesting it to make a formal
investigation into any shipping casualty. Section 361
empowers the court to make a formal investigation under Part
XII. A Judicial Magistrate of the first class specially
empowered in this behalf by the Central Government and a
Metropolitan Magistrate shall have jurisdiction to make
formal investigation into any shipping casualty under Part
XII. What has to be noted in this section is that the court
on an application of the officer makes a formal
investigation into shipping casualties and not a preliminary
inquiry which could have been done by the officer referred
to in sub-section (2) of section 358, and under section 359
send a report to the Central Government. Section 360 also
envisages making of application to court by the officer
whether he had made preliminary inquiry or not, requesting
it to make formal investigation into any shipping casualty.
Thus under section 361 what is being envisaged is a formal
investigation into a shipping
754
casualty and not a preliminary inquiry. Section 362 deals
with only formal investigation and says that while making
such investigation into a shipping casualty the court may
inquire, into any charge of incompetency or misconduct
arising, in the course of the investigation, against any
master, mate or engineer, as well as into any charge of a
wrongful act or default on his part causing the shipping
casualty. Under sub-section (2) a statement of the case has
to be furnished to the Master, mate or Engineer. Section
362 does not envisage inquiring into any charge of
incompetency or misconduct otherwise than in the course of
the formal investigation into a shipping casualty, Section
363 (1) envisages the Central Government, when it has reason
to believe that there are grounds for charging any master,
mate or engineer with incompetency or misconduct, otherwise
than in the course of a formal investigation into shipping
casualty, (b) if he holds a certificate under the law or any
country outside India, in any case where the incompetency or
misconduct has occurred on board an Indian ship, and the
transmitting of the statement of the case to any court
having jurisdiction under section 361 where it may be
convenient for the parties and witnesses to attend, and the
Central Government may direct that court to make an inquiry
into that charge. Under clause (a) the Central Government
may exercise the power if the Master, mate or Engineer holds
a certificate under the Act, in any case. Thus under this
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section the Central Government must have reason to believe
that there are grounds for charging any master etc. with
incompetency or misconduct, otherwise than in the course of
a formal investigation into shipping casualty, in case of a
master of a foreign ship who holds a certificate under the
Act "in any case". It also envisages the transmitting the
statement of the case to any court having a jurisdiction
under section 361. The question is what would be the
meaning of the words "in any case". Would it mean any case
of shipping casualty, or it would mean any case irrespective
of shipping casualty. In other words, under the above
provisions if the appellant was the master of the ship and
the casualty was outside the territorial waters of India and
the ship involved was a foreign ship would the expression
"in any case" cover the instanct case? If the preceding
sections of Part XII dealt with only Shipping casualty, will
it be permissible to interpret the words "in any case"
irrespective of shipping casualty and anywhere outside the
territorial waters of India and whoever is the owner of the
Vessel? Will not the ejusdem generis rule apply? Again when
the Act itself is not applicable to a case, can these words
be given a meaning beyond the applicability of the Act?
Verba secundum materiam subjectam intelligi nemo est qui
nesciat. There is no one who does not know that words are
to be understood according to their subject matter. The
subject matter of
755
Part XII is investigations and inquiries into shipping
casualty. Would ’in any case" then mean in any case of
shipping casualty? We have read the other relevant
provisions of the Act. Nemo aliquam partem recti
intelligere potest, antequam totum interum atque itrerum
parlegerit. No one can properly understand any part of a
statute till he had read through the whole again and again.
We find that Part VI of the Act deals with certificates of
officers, namely, Masters, mates and Engineers, Section
76(1) provides:
"Every foreign-going Indian ship, every home-trade
Indian ship of two hundred tons gross or more when
going to sea from any port or place in India and
every ship carrying passengers between ports or
places in India shall be provided with officers
duly certificated under this Act according to the
following scale, namely:
(a) in every case, with a duly certificated master;
(b) if the ship is a foreign-going ship or a home-
trade passenger ship of one hundred and fifty tons
gross or more, with at least one officer besides
the master holding a certificate not lower than
that of first mate in the case of a foreign-going
ship and of mate in the case of a home-trade
passenger ship;
(c) if the ship is a home-trade ship, not being a
passenger ship, of four hundred and fifty tons
gross or more, with at least one officer besides
the master holding a certificate not lower than
that of mate.
(d) if the ship is a foreign-going ship and carries
more than one mate, then with the second mate duly
certificated."
Section 79 deals with examination for, and grant of,
certificate. Section 82 provides that a note of all orders
made for canceling, suspending, altering or otherwise
affecting any certificate of competency, in pursuance of the
powers contained in this Act, shall be entered on the copy
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of the certificate kept under section 81. Section 87
empowers the Central Government to make rules, inter alia,
to (f) prescribe the circumstances or cases if which
certificates of competency may be canceled or suspended.
Section 363 of the Act does not refer to Part VI and
the rules for
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suspension or cancellation of certificates. This would be
consistent with the view that section 363 confines itself to
cases of misconduct or incompetency associated with a
shipping casualty.
Assuming that it covers a case of a foreign ship on
high seas, it would only be to make an inquiry into that
charge and not into the shipping casualty itself.
The question then arises, as has been submitted by Mr.
Krishnamurthy Iyer, when the entire Act is not applicable to
there instant casualty would it be consistent with the
extent of applicability of the Act to pick up three words,
namely, "in any case" and apply it to the prejudice of the
appellant. Mr Lahiri submits that the certificate of
competency issued under the Act by the appropriate
authorities under part VI are valuable certificates and if
the holder of such a certificate of competency issued under
the provisions of Part VI is alleged to have committed
misconduct or acts of incompetency there is no reason why an
inquiry into that misconduct or incompetency cannot be
ordered by the Central Government to a court competent to
exercise jurisdiction under section 361 of the Act.
Section 363 does not envisage the court acting on a
statement transmitted by the Central Government to conduct a
formal investigation into the shipping casualty but only the
courts’ making an inquiry into the charge of incompetency or
misconduct. Section 364 provides giving of opportunity to
the person to make defence. Section 365 empowers the court
to regulate its proceedings. Section 369 provides that the
court shall, in the case of all investigations or inquiries
under this Part, transmit to the Central Government a full
report or its conclusions which it has arrived at together
with the evidence. Under sub-section (2) of that section
where the investigation or inquiry affects master or an
officer of a ship other than an Indian ship who holds a
certificate under the law of any country outside India, the
Central Government may tansmit a copy of the report together
with the evidence to the proper authority in that country.
Section 370 deals with power of court as to certificates
granted by Central Government. A certificate can be
canceled or suspended under clause (a) by a court holding
formal investigation and under clause (v) by a court holding
inquiry under this part into the conduct of the master, mate
or engineer if the court finds that he is incompetent or has
been guilty of any gross act of drunkenness, tyranny or
other misconduct or in a case of collision has failed to
render such assistance or gave such information as is
required by section 348. Under sub-section (3), where the
court
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cancels or suspends a certificate, the court shall forward
it to the Central Government together with the report which
it is required by this Part to transmit to it. Thus, this
section deals with power of the court while holding a formal
investigation into a shipping casualty under clause (a) and
while holding an inquiry into the conduct of the master,
mate or engineer i.e. otherwise than while holding a formal
investigation into shipping casualty. If the expression "In
any case" is interpreted to cover a foreign ship by a
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foreign master but holding an Indian certificate having a
shipping casualty outside the territorial water sections 363
and 370b) may be applicable. If on the other hand the words
"in any case" is not allowed to be interpreted to include
such a master of such a ship and in such a casualty it may
not be covered.
The question then is whether the instant complaint can
be construed as a statement of the Central Government as
envisaged in section 363. One of the requisites of section
363 is that the Central Government must have reason to
believe that there are grounds for charging any master etc.
with incompetency or misconduct; and such reason to believe
must have been arrived at otherwise than in the course of a
formal investigation into the shipping casualty and it is
the Central Government who why transmit the statement of a
case to a court having jurisdiction under section 361. We
have to examine whether the complaint is ex facie under
section 363. It nowhere mentions that the Central
Government had such reason to believe. It nowhere mentions
that it was a transmission of the statement of a case to the
court by the Central Government. It also nowhere mentions
that reason to believe had been found otherwise than in the
course of a formal investigation into the shipping casualty.
On the other hand in para 2 it says that the complainant is
the Principal Officer who is competent person appointed
under the Act to complain about the negligence of the
accused. There is no doubt that he is not empowered under
section 363. In para 6 the complaint says that the court
under section 363 has got powers to make an inquiry into the
charges of incompetency or misconduct of the accused and
para 8 mentions: "The inquiry so as to cancel the
certificate of the competency of the master namely the
accused which has been granted by the Central Government may
be recommended under this Act after holding the above said
inquiry and thus render justice." Therefore, prima facie the
complaint does not disclose the ingredients required under
section 363.
We enquired of the respondents as to whether there have
been earlier instances of such an inquiry having ever been
made; and the
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answer is in the negative. We feel that had such
interpretation been given earlier the Act being an old one
of 1958, some instances ought to have been available.
However, the instant appeal is from an order of the
High Court refusing to quash the complaint and the
proceedings. Quashing of the complaint could have been
done, if taken on its face value it failed to disclose any
ingredient of the offence.
The High Court found as fact that the appellant had two
certificates issued under section 78 of the Act from the
Director General of Shipping, Calcutta and Bombay
respectively. The High Court correctly observed that
section 363 enables the Central Government to transmit a
case to the court which has jurisdiction under section 361
to make an inquiry against master, mate or engineer into the
charges for incompetency or misconduct otherwise than in the
course of formal investigation into shipping casualties but
the High Court failed to notice that the complainant himself
had no power under section 363. High Court has not
considered the extent of applicability of the Act and
whether all ingredients required under section 363 were
satisfied in the impugned complaint.
We accordingly set aside the Judgment of the High
Court, quash the complaint and the proceedings before the
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14th Metropolitan Magistrate, Egmore, Madras-8, but make it
clear the it shall still be open for the Central Government
to act under s. 363 of the Act according to law if it so
decides. Appeal allowed.
R.S.S. Appeal allowed.
759