http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13

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

743

not applicable; (ii) even if the Act was applicable it would

not amount to a shipping casualty as envisaged in part XII

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13

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]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13

(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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13

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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13

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

756

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

757

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13

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

758

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13

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