SUBIR BISWAS Vs. DIVISIONAL INSPECTOR OF POLICE

JUDGEMENT

(1.) MAIN question urged in these Original Petitions is whether powers of the ordinary criminal court are barred by detailed provisions contained in Part XII of the Mercantile Shipping Act.

(2.) ON 21. 7. 1990, at about 0050 hours, a fire was noticed in and around the Cochin Oil Terminal area. At the time of the unfortunate incident, two boats, belonging to a contractor engaged by the Cochin Port Trust for the use of the staff, were lying along the Cochin Oil Terminal at the rear side. ON seeing the fire, employees of the boats untied the same and started the engines and tried to get away from the place of incident. But, they were not able to escape. . The boats were completely burnt. Four men who were inside the boats also lost their lives in the incident. An F. I. R. was filed by the police immediately, reporting the incident, before the Additional Judicial first Class Magistrate's Court, Ernakulam. Thereafter, by notification dated 8. 1. 1992, Government of India published notification in the India Gazette dated 25. 1. 1993 empowering the Chief Judicial Magistrate, Ernakulam under S. 361 of the Mercantile Shipping Act, 1958 thereinafter referred to as 'the Act') to conduct a formal investigation under para 12 of the Act into the loss of lives and boats and the cause of fire. S. 361 of the Act reads as follows: "361. Court empowered to make formal investigation: a Judicial Magistrate of the first class specifically empowered in this behalf by the central Government and a Metropolitan Magistrate shall have jurisdiction to make formal investigation into shipping casualties under this Part. " The Chief Judicial Magistrate, Ernakulam, accordingly, conducted a detailed investigation. Petitioners in these three Original petitions were also examined. After a very detailed consideration, the Chief judicial Magistrate held that the fire occurred due to the leaking of naphtha from the cargo ship M. T. Dadabai Naoroji which was discharged along with the ballast water from the ship on 21. 7. 1990 and the following finding was entered into: "18. Therefore, on a consideration of the entire evidence and the circumstances in this case, I conclude that the loss of life and boats and the cause of lire in and around the Cochin Oil Terminal area on 22. 7. 1990 occurred due to pollution of naphtha by M. T. Dadabai Naoroji". Ext. Pl report was submitted on 10. 6. 1994. Consequent to the finding, charges were issued to the petitioners, who were Captain, Chief officer and Chief Engineer of the above ship at that time, under sections 114, 337, 431 and 304 (A) of the Indian Penal Code.

(3.) THE offences now charged are under the Indian Penal code'. Punishment of the offence committed within India are covered by S. 2 of the Indian Penal Code as well as by the procedure laid down under the Code of criminal Procedure, 1908. In S. 4 Cr. P. C. , it is stated that offences under the indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained therein. THErefore, trial of the offence alleged to have been committed has to be done according to the Code of Criminal Procedure by the jurisdictional criminal court. That is why, even under S. 361, the investigating court is also directed to commit the offence to the proper court. No other special form of procedure is prescribed so as to attract S. 5 of the Code of Criminal Procedure. THErefore, if an offence under the Indian Penal Code is alleged, the criminal courts in India, unless otherwise expressly barred, have power to deal with the matter after complying with the procedure laid down in the Code of Criminal Procedure and, here, there is neither an express bar nor an implied bar and merely because there are provisions in the Mercantile Shipping Act for a detailed enquiry and investigation, there is no bar for taking action under the Code of Criminal procedure when offences under the Indian Penal Code are alleged to have committed. THErefore, I am of the opinion that the contention regarding maintainability of the petition cannot be accepted.