RAYMUND GENCIANEO Vs. STATE OF KERALA

JUDGEMENT

(1.) A Philippine national who was a member of a crew in a Japanese vessel is being prosecuted for the offence punishable under S.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. S.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. S.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. S.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.) Art.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. Art.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. Art.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. Art.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 Art.297(3) of the Constitution of India. In the above Act in S.3(1) it is said that the sovereignty 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 cl.2 of S.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 cl.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.