SKsays-- "Sec. 3 of the Indian Penal Code reads as follows:
Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: 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 this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied).
VKG---It is applicable to ' Any person liable by an Indian law'. The Marines were in the contiguous zone on an Italian flagged ship and hence not liable by an Indian law. It is applicable only if 'the marines were on Indian soil'. If they were on Indian soil only then they are subjected to Indian laws.
SK:-------Section 3 of the Penal Code reproduced above has the following attributes:
(a) It applies to all persons including foreigners and is not confined to citizens of India.
(b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.
(c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.
(d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.
(a) It applies to all persons including foreigners and is not confined to citizens of India.
(b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.
(c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.
(d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.
VKG:----a) It applies to all persons including foreigners.................................. Provided the foreigner was in Indian soil or where Indian law applies and it was not the case.
b,c,d ) As for (a) as the law is not valid for a foreigner on a foreign soil or a place equivalent to foreign soil. The ship under Italian flag in contiguous zone is same as Italy.
SK.....
Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.
VKG ......As stated above the Section 3 of IPC is not applicable to the Italian Marines. They were brought to India by force or false pretenses and that act itself amounts to an illegal act amounting to kidnapping.
ADMIRALTY OFFENCES (COLONIAL) ACT.
First of all Admiralty Offences (Colonial ) Act was made by British Crown to deal with its innumerable colonies in its heyday. It is accepted that Indian Constitution has accepted it but intent was to rule the colonies. In the Indian Republic its relevance is not a true thing though we can bring it at our convenience.
SK....The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.
Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:
Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-
Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.
The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.
VKG.......What is the relevance of this Act in this case. The act which was made at a time India was a colony of Britain is applicable to India as an independent Republic. India has its own power to deal with such offences enumerated in the above paragraphs. But this act does not give extra territorial powers on the colony or India.
SK.... In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.
VKG....In High Seas when a piracy occurs ships in the vicinity goes to help the victim ship. Which ever first ship reaches can take over the command. On that basis that country under whose flag the ship reached the spot and rescued the affected ship and caught the pirates have authority to deal with the pirates. In this case Indonesia did not have any objections for the outlaws from their country being tried by India. That case has no similarity to the present Enrica case.
Suppression of Unlawful Activities Act.
SK......
The Captain of the Vessel Enrica Lexie and the two Italian Marines are also liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.
The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.
Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:
Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-
(1) Whoever unlawfully and intentionally-
(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;
(b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;
(c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;
(1) Whoever unlawfully and intentionally-
(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;
(b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;
(c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;
Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:
(g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-
(i) causes death to any person shall be punished with death;
(ii) ……;
(iii) ……;
(iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and
(v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.
(emphasis supplied)
Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:
Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.
Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-
(a) …;
(b) …; or
(c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India. (emphasis supplied)
(g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-
(i) causes death to any person shall be punished with death;
(ii) ……;
(iii) ……;
(iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and
(v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.
(emphasis supplied)
Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:
Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.
Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-
(a) …;
(b) …; or
(c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India. (emphasis supplied)
Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. It reads as follows:
Thus the burden shifts on to the accused making their criminal trial a very arduous one.
VKG.....SUA Act was specifically made to deal with terrorism in High Seas. Whether it is specified that it applies to terrorism exclusively or not is immaterial. For normal criminal activities every country has its own criminal laws and International bodies have common laws which most of the countries have ratified. It is to be applied when any terrorist activities take place. When the LeT team with Kasab and others came on a boat to Bombay it was a sea-borne terrorist act. But when the Italian Marines shoots at a boat under the mistaken belief that it was a pirate boat and kills two fishermen it is hardly an act of terrorism. If one applies SUA Act to this it will be an act like misuse of TADA or POTA to deal with ordinary crimes. So this SUA Act cannot be applied.
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