1. The present matter has been referred to us by the Sessions Judge of Kanara in the following circumstances.
2. A subject of the State of Junaghad in Kathiawar was arrested in Bombay and accused of committing a serious offence on a ship belonging to a Junaghad subject on the high seas some eighteen miles or thereabouts from the coast of the Kanara District. Having been arrested in Bombay the accused was taken to Karwar. He was placed before the First Class Magistrate there and on the point being raised that Magistrate held that he had jurisdiction to enquire into the case. The Sessions Judge, however, doubted whether these proceedings were founded on any jurisdiction and has submitted the case to us for our orders.
3. If we find that the Kanara Courts have not jurisdiction, we shall have so to express our opinion and leave it to the Magistrate to discharge the accused. It cannot be doubted that some Court somewhere has jurisdiction to try this offence. And seeing that the accused is a subject of the Junaghad State and that the ship on which the alleged offence is said to have been Committed belongs to a subject of that State and has not been registered as a British ship, we thought it proper to give notice to the Junaghad State. Mr. Taraporevalla has appeared as counsel to represent the State and has put before us an interesting argument. But though, as I have said, there must be jurisdiction somewhere to try this offence, what we have to consider is whether the Courts of the Kanara District have such jurisdiction. The case is certainly not provided for either by the Code of Criminal Procedure or the Indian Penal Code. The offence, if any, committed, is not territorially an offence under the Indian Penal Code, nor is it an offence which is made triable by any of the provisions of the Criminal Procedure Cude. We must, therefore, look elsewhere for a foundation for jurisdiction if such jurisdiction exists in the Kanara Courts. We have looked elsewhere, un ler the assistance afforded us by the counsel for the Junaghad State on the one hand and the Government Pleader on the other and we have undoubtedly derived great assistance from their arguments.
4. The most natural enactment to turn to in the first instance is no doubt the Merchant Shipping Act which is 57 & 58 Vic, c. 60. The pertinent section there is 686 which tells us that if the ship were a British ship, no doubt British Courts would have jurisdiction. British ship is defined in Section 1 of the same Act and indubitably the ship in this case cannot be a British ship unless the owner of that ship comes tinder the head ' natural born British subject' for he does not come-under any of the other heads. We do not think that the expression ' natural born British subject' in the Merchant Shipping Act can be read to include a natural born subject of the Junaghad State. So far as our researches have gone, we can find no suggestion in any case dealing with the Statute-Law relating to, or the written law of, British India which bring a natural born subject of the Junagad State within the meaning of the expression ' natural born British subject.
5. Whatever meaning these words might bear in international or diplomatic matters it seems to me that we must treat them when used in the Merchant Shipping Act as having the meaning which appropriately attaches to them for the purpose of the written law of this country. In that view they cannot include a natural born subject of the Junaghad State.
6. Then we have been referred to the Admiralty Offences (Colonial) Act of 1849, 12 & 13 Vic, c. 96. It was suggested, when this matter was first argued before us, that within the words of that Statute we could find justification for saying that the Courts in the Kanara District had jurisdiction. The words of that Act in Clause 1 refer to a jurisdiction in regard to offences committed upon the sea and also to offences committed in any haven, river, creek or place. It also refers to the jurisdiction of the Admiral or Admirals and the question arises as. to whether the word 'sea ' there used means only that part of the sea over which the Admiral or Admirals has or have jurisdiction or whether it means the sea generally. If it means the latter, then seeing that the accused was found in India, the Courts would have jurisdiction to deal with him. But if the word 'sea' therein used means only that part of the sea over which the Admirals have jurisdiction, then the Court would not have jurisdiction in this particular case; for Admirals have jurisdiction over the sea within territorial waters and a ship at a distance of eighteen miles from the coast is undoubtedly outside territorial waters. Personally I have no doubt that the word ' sea ' as used in this statute means that portion of the sea over which the Admiral has jurisdiction, for two reasons : firstly, the Act is described as an Act to provide for the prosecution and trial in Her Majesty's Colonies of offences committed within the jurisdiction of the Admiral. That description implies that the Act is dealing only with places or with so much of the sea as the Admiral has jurisdiction over. That is the first reason. The second reason is this: that the jurisdiction given by this statute to Colonial Courts, which jurisdiction has been extended to India by an Act of 1860. 23 & 24 Vic. c. 88, is a conferred jurisdiction. The intention, it seems to me quite plainly, is that Colonial Courts, and within that expression we must include Indian Courts, shall have conferred upon them the same jurisdiction as British Courts possess in British territory to which British statutes relate. Such jurisdiction in Britain is discussed in the case of Reg. v. Keyn (1876) 2 Ex. D. 63, and there can be no doubt after reading that case that the Admiral's jurisdiction in Britain does not extend as regards the open sea beyond territorial limits which are some three miles from low water mark. If that is the only jurisdiction of the Admiralty Courts in Britain and if the Statute 12 & 13 Vic. is intended to extend such jurisdiction to Colonial Courts, then it is quite impossible to suppose that this Statute gave to Colonial Courts jurisdiction in the matter of offences committed on, non-British ships on the high seas outside the territorial limits. These two reasons seem to me to show satisfactorily that we cannot find a basis for jurisdiction in the Kanara Courts in virtue of this Statute, 12 & 13 Vic. c. 96.
7. I have now exhausted all the sources which were suggested to us as a possible foundation for jurisdiction in the Kanara Courts, and I cannot myself think of any other source. The conclusion to my mind is quite inevitable that the Kanara Courts have no jurisdiction in this case. I do not think it is in any way necessary to proceed to consider what Court or Courts has or have jurisdiction.
8. The order that we must make therefore is that the First Class Magistrate in Kanara has no jurisdiction to deal with this alleged offender and that he should make an order discharging him.
9. The case is one which I have decided according to a somewhat narrow but, as it seems to me, a correct view of the law relating to jurisdiction. But the case suggests that the matter is one both of theoretical and practical importance, and I think the judgment of this Court should be sent to the Government of Bombay so that if they are so minded, they may address the Government of India on the subject with a view to determining whether legislation of any kind is necessary for the purpose of regulating jurisdiction in cases of this kind.
10. I agree.