Case: Captain Subash Kumar Vs. Principal Officer, Mercantile Marinedepartment, Madras

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 25. 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 a 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 transmit 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 cancelled or suspended under clause (a) by a court holding formal investigation and under clause (b) 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 give such information as is required by Section 348. Under sub-section (3), where the court 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 foreign master but holding an Indian certificate having a shipping casualty outside the territorial waters Sections 363 and 370(b) 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 26. 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 may 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 the 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 abovesaid inquiry and thus render justice." * Therefore, prima facie the complaint does not disclose the ingredients required under Section 363 27. We enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the 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 28. 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 29. 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 investigations 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

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. In the instant case the ship was not registered in India and was not required by this Act to be so registered.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 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 casualty17. Taking the second question it is obvious that the Act itself having not been applicable Part XII being a part of the Act will also not be applicable. This part deals with investigations and inquiries and contains Sections 357 to 389. Section 357 defines "coasts" to include the coasts of creeks and tidal rivers.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 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 of 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 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 ship involved was of foreign ship would the expression "in any case" cover the instant 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 one who does not know that words are to be understood according to their subject matter. The subject matter of 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 interum parlegerit. No one can properly understand any part of a statue till he has read through the whole again and again. We find the Part VI of the Act deals with certificates of officers, namely, masters, mates andWe enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the 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 beenThe 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 investigations 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