J.B. Koshy, J.

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. This Original Petition is filed to quash the above charges on the contention that in view of the provisions in S.361 of the Act, no criminal prosecution can be taken as there is an implied bar and criminal courts have no jurisdiction to deal with the matter and findings of the enquiry as per the Act. S.368 of the Act is relied on by the petitioners to that purpose which is as follows:

"368. Power to commit for trial and bind over witnesses:- Whenever, in the course of any such investigation or inquiry, it appears that any person has committed in India an offence punishable under any law in force in India, the court making the investigation or inquiry may (subject to such rules consistent with this Act as the High Court may from time to time make) cause him to be arrested, or commit him or hold him to bail to take his trial before the proper court, and may bind over any person to give evidence at the trial, and may, for the purposes of this section, exercise all its powers as a criminal court".

4. The above section only empowers the investigating court to arrest, commit and grant bail for trial of a person and bind over such person before the proper court and for that purpose the investigating court has got the power of a criminal court. Therefore, the above section is very clear that the investigating court investigating the matter under S.361 has no power for convicting any pe