Kerala High Court
Raymund Gencianeo vs State Of Kerala on 26 June, 2003
Equivalent citations: 2003(2)ALT(CRI)323, 2004CRILJ2296, 2003(3)KLT174
ORDER G. Sasidharan, J.
1. A Philippine national who was a member of a crew in a Japanese vessel is being prosecuted for the offence punishable under Section 307 I.P.C. alleging that he attempted to commit murder of the Captain and Chief Officer of the ship while he was on board the ship when it was 850 miles away from the Cochin coast. The case against the petitioner is now pending on the file of the First Additional Assistant Sessions Judge, Ernakulam as S. C. 135 of 2003. Petitioner was arrested on 29.11.2002 and he is now in judicial custody. Quashing of the proceedings in the above case is sought for by contending that the courts in India have no jurisdiction to try the above case since the allegation is that a foreign national committed the offence in a foreign vessel while the vessel was outside the territory of India.
2. In Annexure-A1 statement given by Captain of the ship and Annexure-A2 statement given by the Chief Officer it is stated that at the time when the occurrence took place, the ship was 850 miles away from Cochin coast. Section 4 of the Indian Penal Code provides that the provisions of the Code apply to any offence committed by any citizen of India in any place without and beyond India and by any person on any ship or aircraft registered in India wherever it may be. Section 2 of the Code provides that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof of which he shall be guilty within India. Section 3 of the Code provides that any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of the Code for any act committed beyond India in the same manner as if such act had been committed within India. A reading of the above provisions would make it clear that a foreign national will be liable for punishment under the Code if any offence is committed by him within the territory of India.
3. Article 1 (3) of the Constitution of India says that the territory of India shall comprise (a) the territories of States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. Article 297(1) of the Constitution of India provides that 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. Article 297(3) says that the limits of territorial waters, the continental shelf, the exclusive economic zone and other maritime zones of India shall be such as may be specified from time to time by or under any law made by Parliament. Article 297 was substituted by the Constitution (Fourtieth Amendment) Act, 1976 which came into force with effect from 27.5.1976. Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 was enacted in exercise of the powers given to the Parliament under Article 297(3) of the Constitution of India. In the above Act in Section 3(1) it is said that the sovereignly of India extends and has always extended to the territorial waters of India and to the seabed and subsoil underlying and the air space over such waters. Sub-clause 2 of Section 3 says that 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. Sub-clause 3 of the above section provides that 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 territorial waters.
4. The submission made by the learned counsel for the petitioner is that 850 miles mentioned in Annexures-A1 and A2 has to be understood as nautical miles because when the officers of a ship mentions about mile ordinarily it means nautical mile. As per Sub-clause 2 of Section 3 of the Act, the limit of 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. Even if the word mile mentioned in Annexures-A1 and A2 is considered as land mile, the place where the ship was there at the time when the offence is alleged to have been committed will be beyond the territorial waters of India.
5. In Halsbury's Laws of India para 295.017 says that territorial waters of India extend up to a line, every point of which is at a distance of 12 nautical miles from the nearest point on the appropriate baseline and that the limits of these waters can be modified by the Central Government after both the Houses of Parliament have passed the resolutions approving such modification, whenever it considers necessary to do so and having regard to International Law and State Practice. In paragraph 295.016 it is stated that the sovereignty of India extends and has always extended to the territorial waters of India and to the seabed and subsoil underlying the territorial waters and the air space above such waters. In the Law Lexicon at page 1270 what is meant by territory of India is stated as follows:
"Territory of a State comprises its ports and harbours, the mouths of its rivers, and its landlocked bays. By the usage of nations the territorial jurisdictions extend also to a marine league seawards. This belt of sea is known as territorial waters."
In Oxford Dictionary nautical mile is stated to be a unit of approximately 2,025 yards (1,852 metres) and that it is also known as sea mile. In Admiralty Manual of Navigation, Vol. I at Page 8 it is said that nautical mile is a standard fixed length and that the term nautical mile in British publications today is the British Standard Nautical Mile of 6,080 feet (1,853.18 metres) although the International Nautical Mile of 1852 metres is now used by most other countries. In Page 9 it is stated that nautical mile being 6,080 feet and the statute mile 5,280 feet, 7 nautical miles are approximately equal to 8 statute miles and that more accurately, 13 nautical miles are equivalent to 15 statute miles.
6. It has not been brought to the notice of this Court that the Central Government in exercise of the powers conferred under Section 3(3) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act issued any notification altering the limit of territorial waters. The territorial waters is every line every point of which is at a distance of twelve nautical miles from the nearest point on the appropriate baseline. Since the case of the prosecution is that the occurrence took place when the ship was 850 miles away from seashore, even if that 850 miles is taken as nautical miles or land miles, it is clear that the offence is alleged to have been committed by a foreign national in foreign vessel outside the territory of India. The Indian courts have no jurisdiction to try an offence which is alleged to have been committed by a foreign national in a foreign vessel outside the territory of India and hence the proceedings in the case are liable to be quashed.
This petition is allowed on quashing the proceedings in S. C. 135 of 2003 on the file of the First Additional Assistant Sessions Judge, Ernakulam as against the petitioner. The Commissioner of Police, Kochi is directed to see that the petitioner is sent back to his country after taking steps in accordance with law.