hackTheBox/cv · Datasets at Hugging Face

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Article 225 of the Constitution of India. The pre-Constitution enactments have
continued to remain in force in India as existing laws.67.
The High Court as a Court of Admiralty is treated as a separate entity exercising a
distinct and specific or prescribed or limited jurisdiction. This reasoning is based on the
assumption that the continuance in force of the Colonial Courts of Admiralty Act, 1890
as an existing law carves out a distinct jurisdiction of the High Court limited in ambit
and efficacy to what has been granted by the Admiralty Court Act 1861, and that
jurisdiction has remained stultified ever since. This restrictive construction is not
warranted by the provisions of the Constitution. Accordingly, a foreign ship falls within
the jurisdiction of the High Court where the vessel happens to be at the relevant time,
i.e., at the time when the jurisdiction of the High Court is invoked, or, where the cause of
action wholly or in part arises. The Merchant Shipping Act empowers the concerned
High Court to arrest a ship in respect of a substantive right. This jurisdiction can be
assumed by the concerned High Court, whether or not the defendant resides or carries
on business, or the cause of action arose wholly or in part, within the local limits of its
jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of
the High Court, and the owner of the ship has entered appearance and furnished
security to the satisfaction of the High Court for the release of the ship, the
proceedings continue as a personal action. The conclusion is that all the High Courts in
India have inherent admiralty jurisdiction and can invoke the same for the enforcement
of a maritime claim.68.
Even while exercising extraordinary powers available under the Constitution the
jurisdiction of the High Court is primarily circumscribed by its territorial limits, viz., the
jurisdiction has to be in context of the territorial jurisdiction available to the High Court.
If the overall scheme of IPC, 1860 (section 4), Cr PC, 1973 (section 188), The Merchant
Shipping Act, 1958 (section 437) and the Territorial Waters Act, 1976 (section 13) are
taken into consideration read with sections 2(2) and 3(15) of the Merchant Shipping
Act, it is apparent that for a Court, including High Court, to be vested with jurisdiction,
an offender or offending vessel have to be found within local territorial limits of such
Court.69.
[s 4.3] Piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft,
and directed:
(i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in
subparagraph (a) or (b).70.
The Convention on the Law of Sea known as United National Convention on the Law of
Sea, 1982 (UNCLOS) sets out the legal framework applicable to combating piracy and
armed robbery at sea, as well as other ocean activities. UNCLOS, 1982 is a
comprehensive code on the international law of sea. It codifies and consolidates the
traditional law within a single, unificatory legal framework. It has changed the legal
concept of continental shelf and also introduced a new maritime zone known as
exclusive economic zone. Exclusive economic zone is a new concept having several
new features.71. The UNCLOS signed by India in 1982 and ratified on 29 June 1995,
encapsulates the law of the sea and is supplemented by several subsequent
resolutions adopted by the Security Council of the United Nations.
Before UNCLOS came into existence, the law relating to the seas which was in
operation in India, was the Territorial Waters, Continental Shelf, Exclusive Economic
Zone and Other Maritime Zones Act, 1976, which spelt out the jurisdiction of the
Central Government over the Territorial Waters, the Contiguous Zones and the
Exclusive Economic Zone. The provisions of the UNCLOS are in harmony with and not
in conflict with the provisions of the Maritime Zones Act, 1976, in this regard. Article 33
of the Convention recognises and describes the Contiguous Zone of a nation to extend
to 24 nautical miles from the baseline from which the breadth of the territorial sea is
measured. Similarly, Articles 56 and 57 describe the rights, jurisdiction and duties of
the coastal State in the Exclusive Economic Zone and the breadth thereof extending to
20 nautical miles from the baseline from which the breadth of the territorial sea is
measured. This provision is also in consonance with the provisions of the 1976 Act.
The area of difference between the provisions of the Maritime Zones Act, 1976, and the
Convention occurs in Article 97 of the Convention which relates to the penal
jurisdiction in matters of collision or any other incident of navigation.72.
[s 4.4] Jurisdiction of Indian High Courts.—
In view of the declaration of law made by the Supreme Court in M V Elisabeth v Harwan
Investment and Trading,73. the High Courts in India have inherent admiralty jurisdiction.
The offences which come within the admiralty jurisdiction are now defined by the
Merchant Shipping Act, 1958.
(C) Aircraft.—The provisions of the Code are made applicable to any offence
committed by any person on any aircraft registered in India, wherever it may be.
[s 4.5] Liability of foreigners in India for offences committed outside its limits.
—
The acts of a foreigner committed by him in territory beyond the limits of India do not
constitute an offence against the Penal Code, and, consequently, a foreigner cannot be
held criminally responsible under that Code by the tribunals of India for acts committed
by him beyond its territorial limits. Thus, when it is sought to punish a person, who is
not an Indian subject, as an offender in respect of a certain act, the question is not
'where was the act committed,' but 'was that person at the time, when the act was
done, within the territory of India'. For, if he was not, the act is not an offence, the doer
of it is not liable to be punished as an offender, and he is, therefore, not subject to the
jurisdiction of criminal Courts.74. But if a foreigner in a foreign territory initiates an
offence which is completed within Indian territory, he is, if found within Indian territory,
liable to be tried by the Indian Court within whose jurisdiction the offence was
completed.75.
[s 4.6] Section 4 IPC and section 188 of Cr PC.—
Section 188 Cr PC, 1973 and section 4 of the IPC, 1860 spell out that if the person
committing the offence at that point of time is a citizen of India, then, even if the
offence is committed beyond the contours of India, he will be subject to the jurisdiction
of the Courts in India. The rule enunciated under the two sections rests on the principle
that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the
offence. However, section 188 of the Code places an interdiction in the enquiry or trial
over offences committed outside India by a citizen of India insisting for sanction from
the Central Government to do so.76.
1. MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND
1968 SC 339] : 1970 Cr LJ 1651 .

Article 225 of the Constitution of India. The pre-Constitution enactments have

continued to remain in force in India as existing laws.67.

The High Court as a Court of Admiralty is treated as a separate entity exercising a

distinct and specific or prescribed or limited jurisdiction. This reasoning is based on the

assumption that the continuance in force of the Colonial Courts of Admiralty Act, 1890

as an existing law carves out a distinct jurisdiction of the High Court limited in ambit

and efficacy to what has been granted by the Admiralty Court Act 1861, and that

jurisdiction has remained stultified ever since. This restrictive construction is not

warranted by the provisions of the Constitution. Accordingly, a foreign ship falls within

the jurisdiction of the High Court where the vessel happens to be at the relevant time,

i.e., at the time when the jurisdiction of the High Court is invoked, or, where the cause of

action wholly or in part arises. The Merchant Shipping Act empowers the concerned

High Court to arrest a ship in respect of a substantive right. This jurisdiction can be

assumed by the concerned High Court, whether or not the defendant resides or carries

on business, or the cause of action arose wholly or in part, within the local limits of its

jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of

the High Court, and the owner of the ship has entered appearance and furnished

security to the satisfaction of the High Court for the release of the ship, the

proceedings continue as a personal action. The conclusion is that all the High Courts in

India have inherent admiralty jurisdiction and can invoke the same for the enforcement

of a maritime claim.68.

Even while exercising extraordinary powers available under the Constitution the

jurisdiction of the High Court is primarily circumscribed by its territorial limits, viz., the

jurisdiction has to be in context of the territorial jurisdiction available to the High Court.

If the overall scheme of IPC, 1860 (section 4), Cr PC, 1973 (section 188), The Merchant

Shipping Act, 1958 (section 437) and the Territorial Waters Act, 1976 (section 13) are

taken into consideration read with sections 2(2) and 3(15) of the Merchant Shipping

Act, it is apparent that for a Court, including High Court, to be vested with jurisdiction,

an offender or offending vessel have to be found within local territorial limits of such

Court.69.

[s 4.3] Piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for

private ends by the crew or the passengers of a private ship or a private aircraft,

and directed:

(i) on the high seas, against another ship or aircraft, or against persons or

property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the

jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with

knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in

subparagraph (a) or (b).70.

The Convention on the Law of Sea known as United National Convention on the Law of

Sea, 1982 (UNCLOS) sets out the legal framework applicable to combating piracy and

armed robbery at sea, as well as other ocean activities. UNCLOS, 1982 is a

comprehensive code on the international law of sea. It codifies and consolidates the

traditional law within a single, unificatory legal framework. It has changed the legal

concept of continental shelf and also introduced a new maritime zone known as

exclusive economic zone. Exclusive economic zone is a new concept having several

new features.71. The UNCLOS signed by India in 1982 and ratified on 29 June 1995,

encapsulates the law of the sea and is supplemented by several subsequent

resolutions adopted by the Security Council of the United Nations.

Before UNCLOS came into existence, the law relating to the seas which was in

operation in India, was the Territorial Waters, Continental Shelf, Exclusive Economic

Zone and Other Maritime Zones Act, 1976, which spelt out the jurisdiction of the

Central Government over the Territorial Waters, the Contiguous Zones and the

Exclusive Economic Zone. The provisions of the UNCLOS are in harmony with and not

in conflict with the provisions of the Maritime Zones Act, 1976, in this regard. Article 33

of the Convention recognises and describes the Contiguous Zone of a nation to extend

to 24 nautical miles from the baseline from which the breadth of the territorial sea is

measured. Similarly, Articles 56 and 57 describe the rights, jurisdiction and duties of

the coastal State in the Exclusive Economic Zone and the breadth thereof extending to

20 nautical miles from the baseline from which the breadth of the territorial sea is

measured. This provision is also in consonance with the provisions of the 1976 Act.

The area of difference between the provisions of the Maritime Zones Act, 1976, and the

Convention occurs in Article 97 of the Convention which relates to the penal

jurisdiction in matters of collision or any other incident of navigation.72.

[s 4.4] Jurisdiction of Indian High Courts.—

In view of the declaration of law made by the Supreme Court in M V Elisabeth v Harwan

Investment and Trading,73. the High Courts in India have inherent admiralty jurisdiction.

The offences which come within the admiralty jurisdiction are now defined by the

Merchant Shipping Act, 1958.

(C) Aircraft.—The provisions of the Code are made applicable to any offence

committed by any person on any aircraft registered in India, wherever it may be.

[s 4.5] Liability of foreigners in India for offences committed outside its limits.

—

The acts of a foreigner committed by him in territory beyond the limits of India do not

constitute an offence against the Penal Code, and, consequently, a foreigner cannot be

held criminally responsible under that Code by the tribunals of India for acts committed

by him beyond its territorial limits. Thus, when it is sought to punish a person, who is

not an Indian subject, as an offender in respect of a certain act, the question is not

'where was the act committed,' but 'was that person at the time, when the act was

done, within the territory of India'. For, if he was not, the act is not an offence, the doer

of it is not liable to be punished as an offender, and he is, therefore, not subject to the

jurisdiction of criminal Courts.74. But if a foreigner in a foreign territory initiates an

offence which is completed within Indian territory, he is, if found within Indian territory,

liable to be tried by the Indian Court within whose jurisdiction the offence was

completed.75.

[s 4.6] Section 4 IPC and section 188 of Cr PC.—

Section 188 Cr PC, 1973 and section 4 of the IPC, 1860 spell out that if the person

committing the offence at that point of time is a citizen of India, then, even if the

offence is committed beyond the contours of India, he will be subject to the jurisdiction

of the Courts in India. The rule enunciated under the two sections rests on the principle

that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the

offence. However, section 188 of the Code places an interdiction in the enquiry or trial

over offences committed outside India by a citizen of India insisting for sanction from

the Central Government to do so.76.

1. MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND

1968 SC 339] : 1970 Cr LJ 1651 .