Judgment

K. N. SAIKIA, J.

( 1 ) SPECIAL leave granted.

( 2 ) THE appellant Captain Subash Kumar was the Master of the Merchantship M. , V. Eamaco owned by Eamaco Shipping Co. (P.) Ltd. , Singapore, hereinafter called the ship. On 12-8-86 the ship went into distress due to the vessels hold Nos. 2 and 3 taking in water, the pumping operations being insufficient and though initially the appellant sent radio message for help he failed to launch the life boats and life crafts and to abandon the ship to enable M. V. Shoun World to pick-them up and due to the failure of motor life boats and life crafts, when the ship sank, only 11 out of 28 persons were rescued resulting in loss of life to the remaining persons. At about 18. 25 Hrs. that day Madras Radio, which was the communication center between the land and seafaring ships, informed the office of the Principal Officer, Mercantile Marine Department, Madras, District Madras, hereinafter called as principal Officer, that an urgent message had been received by the said Radio from the appellant and from that communication it was clear that the ship under the command of the appellant was posted at position 11 degrees 08 minutes North, 83 degrees 41 minutes East on 12th at 11. 30 Greenwich Meantime. The said message further indicated that the vessels hold Nos. 2 and 3 were taking in water and the pumpting out operation was not sufficient and it called the assistance from all ships in the vicinity. At 20. 28 Hrs. the Madras Radio again contacted the Principal Officer and said that the Radio had received SOS message (distress message) and he took necessary steps.

( 3 ) THE Principal Officer filed a complaint in Court of 14th Metropolitan Magistrate, Egmore, Madras-8 against the appellant for initiation of an inquiry proceeding under Section 363 of the Merchant Shipping Act, 1958 (Central Act No. 4 of 1958), hereinafter called the Act, complaining about the negligence of the appellant while he was the Master of the ship as aforesaid; and that at that time he was residing at Laxmi Niwas, 41, Marshal Road, Egmore. Madras-8 and further stating that the shipping casualty had occurred due to sheer negligence and gross incompetence on the part of the appellant in commanding the ship and the crew; and that the very fact that the life boats and life floats were not used and not even lowered so as to make use of that indicated that the appellant had not even thought about that which a Captain of the ship should have done, resulting in loss of the ship, the cargo and valuable lives of the sailors who had at no time doubted about the competency of the Master or revolted against him. The complaint accordingly said that the Magistrates Court by the provisions of Section 363 had got powers to make inquiry into the charges of incompetence or of misconduct of the appellant therein. It also said that the inquiry might be commenced in accordance with the provisions of the Act so as to cancel the certificate of competency of the Master, namely, the appellant, which had been granted by the Central Government; and that cancellation might be recommended under the Act after holding the aforesaid inquiry. The complaint also said that the appellant rendered himself liable to be proceeded against under the provisions of Part XII of the Act which envisaged various modes of investigation and inquiry; and u/ S. 363 the Court had powers to make an inquiry into the charges of incompetency or misconduct of the appellant.

( 4 ) ON 25-3-1988, the appellant received a notice stating that the inquiry proceedings were instituted against him before the 14th Metropolitan Magistrate under Section 363 of the Act. The appellant thereupon filed Cr. M. P. No. 2717 of 1988 in the High Court S. 482 of the Cr. P. C. stating that the proceedings were by an abuse of process of the Court and the Court had no jurisdiction to proceed with the complaint against the appellant when there was no negligence on his part. It was also stated that the