Report No. 41
1.11. References to territorial water in Central Acts.-
The earliest reference in Indian legislation to territorial waters is to be found in section 4 of the Indian Fisheries Act, 1897. This Act originally extended to the whole of British India; now it extends to the whole of India excluding the territories which were formerly comprised in Part B States. Su.-section (1) of section 4 makes it an offence for any person to use dynamite or other explosive substance in any "water" with intent thereby to catch or destroy any fish that may be therein; and su.-section (2) explain.-
"In su.-section (1), the word 'water' includes the sea within a distance of one marine league of the sea coast; and an offence committed under that su.-section in such sea may be tried, punished and in all respects dealt with as if it had been committed on the land abutting on such coast."
According to British concepts of those days, the territorial waters of a State were only one marine league, or three nautical miles, wide; but presumably because of difficulties arising out of the Territorial Waters Jurisdiction Act (41 and 42 Vict., C. 73), it was considered necessary to make the position clear by means of this explanation.
In recent legislation, section 2(2) of the Merchant Shipping Act, 1958, provides for the applicability of the Act to any foreign ship while it is "within India, including the territorial waters thereof." The Customs Act of 1962 contains in section 2(27) a definition of India as including the territorial waters of India. Section 23 of, and item 14 in the Second Schedule to, the Extradition Act, 1962, refer to any offence "committed on board any vessel on the high seas, or any aircraft while in the air outside India or the Indian territorial waters, which comes into any port or aerodrome of India."
1.12. Territory of coastal State, district or su.-division includes its territorial waters.-
Since the territory of India comprises the territories of the States and the Union Territorie.-vide Article 1(3) of the Constitutio.-the territory of each of the States and Union Territories abutting on or surrounded by the sea must include the territorial waters adjacent to its coast. By the same reasoning, where the local jurisdiction of a court covers a sessions division, district or su.-division which has a se.-coast, it must be regarded as covering not only the land and internal waters of the sessions division, district or su.-division, but also the stretch of territorial sea adjacent to its coast. We think it is desirable to make this clear in an appropriate place in order to avoid any doubt or dispute over jurisdiction.1
1. See para/ 1.27 below.
1.13. Difficulty regarding Presidency town.-section 20.-
We notice in this connection that section 20 of the Code defines the local limits of a Presidency Magistrate's jurisdiction in the following terms.-
"Every Presidency Magistrate shall exercise jurisdiction in all places within the Presidenc.-town for which he is appointed, and within the limits of the port of such town and of any navigable river or channel leading thereto, as such limits are defined under the law for the time being in force for the regulation, of ports and por.-dues."
In the case of the Presidenc.-towns of Bombay and Madras, both of which have a sea coast, it would appear that the local jurisdiction of a Presidency Magistrate extends only to that part of the territorial sea adjacent to the Presidenc.-town which is within the limits of the port. The rest of the territorial sea, of which there must be a considerable extent both in Bombay and in Madras, would be outside the jurisdiction of the Presidency Magistrate and of any other Magistrates. (This difficulty does not arise in the case of Calcutta, as it is not on the sea coast).
Since the establishment of the City Sessions Courts in Bombay and Madras, the local jurisdiction of a Presidency Magistrate in either of these Presidenc.-towns is c.-extensive with that of the City Sessions Court. There is no reason why, as in the case of any other coastal district, this should not extend to the whole of the territorial sea pertaining to the "district"1 of Greater Bombay or Madras.
1. See section 7(4) of the Code, which provides that "every Presidenc.-town shall for the purpose of the Cod be deemed to be a district".
1.14. Saving provisions in section 1(2).-
The existing extent clause also contains two kinds of saving provisions. The first saves the operation of any special or local law and any special jurisdiction or power conferred and any special form of procedure prescribed, by any other law. The second excepts three categories of officials from the application of the Code, with a rider to the effect that the State Government may by notification extend any provisions of the Code to any of these categories.
1.15. First group of excepted persons.-
The first group of excepted persons consisted of the Commissioners and Deputy Commissioners of Police1 in the three towns of Calcutta, Madras and Bombay and the whole police force in the towns of Calcutta and Bombay. The Bombay Police Act, 1951, however, amended this provision by deleting the references to Bombay with the result that, since then, the Code applies to the police in that town, including the Commissioner of Police in the same way as it does to the police in the other parts of the State.
As regards the police in Calcutta, a number of notifications have been issued from time to time by the State Government under the proviso to section 1(2), applying a number of important sections of the Code, some with modifications and some without, to the Commissioner of Police and to the police force of the State. Among the sections so extended are sections 47 to 51, 53, 58, 102, 103, 151, 154, 156, 161 to 165, 167, 172, 173, 550 and 551. In Madras while the Code applies to the city police who are governed by the Madras City Police Act, 1888, it does not apply to the Commissioner and Deputy Commissioners of Police who are also governed by the same Act. No notification seems to have been issued under the proviso to section 1(2) of the Code extending any of its provisions to these police officers.
1. See definition of Commissioner of Police in section 4(1)(g).
1.16. Omission of clause (a) recommended.-
There does not seem to be any real or sufficient reason for this exception. It would be more logical and appropriate to leave the Code generally applicable to all police forces. If any special provisions inconsistent with the provisions of the Code are required for the police in the town of Calcutta or for the Commissioner and Deputy Commissioners of Police in Madras, they could be made in the relevant State Act. We would recommend the omission of clause (a) of section 1(2).
1.17. Second group of excepted persons.-
The second category of excepted,. persons was "heads of villages in the Presidency of Fort St. George". This territorial reference was changed by the Code of Criminal Procedure (Amendment) Act, 1951, to the State of Madras, ignoring the fact that certain parts of the former Presidency had been transferred to the Province of Orissa when the latter was formed in 1936. The reference was further changed by the Adaptation of Laws (Number 2) Order, 1956, to "the State of Madras as it existed immediately before the 1st November, 1956", the date of the larg.-scale r.-organisation of States.
The effect of this amendment was to take out of the purview of the saving provision, heads of villages in the territories transferred from the State of Andhra and Mysore in 1953. But heads of villages in the territories transferred from the State of Madras to Andhra Pradesh, Mysore and Kerala in 1956 and subsequently are apparently still excepted from the application of the Code.
1.18. Omission of clause (b) recommended.-
The reason for this exception appears to be that heads of villages in the areas where the Madras Villag.-Police Regulations of 1816 and 1821 (11 of 1816 and 4 of 1821) are in force have the power to try cases of a trivial nature and impose a mild punishment and also have certain polic.-powers under those Regulations. These being special and local laws, their provisions are already saved by section 1(2) of the Code and it appears unnecessary to except headmen of villages again from the general application of the Code. Clause (b) of the section could also be omitted without affecting the existing position.
1.19. Third group of excepted persons.-
The third category of excepted persons was "village polic.-officers in the Presidency of Bombay", and is at present "village polic.-officers in the State of Bombay as it existed immediately before the 1st November, 1956". This description covers all those parts of the States of Maharashtra, Gujarat and Mysore which went to make up the former State of Bombay. These village police officers are all governed by the Bombay Village Police Act, 1867, which is clearly a special law and a local law. There seems to be no real need for providing in clause (c) that nothing in the Code shall apply to these village police officers.
1.20. Section 1(2) revised.-
We accordingly propose that section 1(2) should be amended to read.-
"(2) It extends to the whole of India except the State of Jammu and Kashmir, the State of Nagaland and the tribal areas in the State of Assam; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force........"