Friday, June 29, 2012

Insult to Democracy

There is a report in Times of India that Queen Elizabeth of England did not get time for these last four months to meet our envoy. This is definitely a great insult to India. Queen should have known that we are no more under British rule. Since midnight of August 15th of 1947 we are on our own. She should be made aware that we are the greatest democracy in the world. And for that matter in the whole of Universe. Not only that we are almost number one country in the whole world. It is just a matter of days for the world to realise it and give the respect due to us. If we do not get respect we will demand and take it. And where is Britain ? No more Britannia rules the waves. It rules a land less than the size of our so many provinces. And the monarchy. On the way to the abyss of history.

Look. No kings, queens or princes and princesses ever traveled in bullet proof cars. They traveled in old ramshackle horse drawn vehicles with all the public gazing at them in awe. Our modern ministers travel in slick and sleek limousines with bullet proof body and glasses. No one look at awe.( Everyone curses.) When you people travel it is some gaily decorated sepoys with spears on guard. Our ministers and other sundry VIPs are accompanied by all different shades of cats. Where are we and where are you? Does this show how important we are.
In fact when our envoy landed the queen should have come to airport to receive such an important person. If you do not go to airport to meet Obama it is alright. After all he is just the president of a nation which will loose its number one position to us in a matter of days. And even after landing our envoy is denied audience. Why such an insult?

In future if you by mistake take a decision to come here we will get even with you. You will be searched at airport by our uncouth staff. Our president will never give you an audience. At the most we will send our peon of MEA to receive you and we will instruct him not to extend any courtesy at all.

Tuesday, June 26, 2012

Topsy Turvy: Reply to Dr.Ajay Balachandran in ET comments

Topsy Turvy: Reply to Dr.Ajay Balachandran in ET comments: Dr.Ajay Balachandran, You have written '  I did read Mr.Stimson's paper and even that paper does show instances of US courts extending thei...

Reply to Dr.Ajay Balachandran in ET comments

Dr.Ajay Balachandran,
You have written ' I did read Mr.Stimson's paper and even that paper does show instances of US courts extending their jurisdiction into other countries (anyway that is just the opinion of one person)
VKG .  Mr.Stimson has written the article titled 'Conflicts in Criminal Laws' So he will naturally give all aspects and different applications made by different countries.

You have written :  I had replied to your Indo-Pak question. If pakistan manages to arrest an Indian soldier who fires into pakistan territory and kills a pakistani, he will definitely be tried in pakistan. Because the Indian soldier (through the agent of the bullet) committed a crime in pakistan. It is another matter that India wont hand over the soldier to them

VKG:   It means it is not the law which is applied but it is might what plays the major role The same way India managed by subterfuge to get the ship in Indian waters.

You have written: Hafiz Saeed is being tried in Indian courts now because he conspired to kill Indians sitting in Pakistan. He never set foot on India to commit this offense, the conspiracy was completely done inside pakistan. And pakistan is refusing to hand him over to India. Do you have any doubt that if he is caught, he will be tried in India? We will definitely do that.

VKG  Case of Hafiz Saeed is different. It is a case of conspiracy and terrorism. In my opinion terrorism is sort of waging war against a nation. In such case the conspirator should be extradited to the affected nation as per extradition treaty. In this case of alleged shooting by Marines no such conspiracy or terrorism is involved. One of the learned and honourable judge has observed that the shooting can be viewed as a terrorism with which I cannot agree nor any independent person  who know the law will agree. These two are entirely different issues and cannot be compared.

You have written : *Another point is that Saeed is being tried in India, investigated in Pakistan and will probably be tried in the US for the same offense which happened in India. Read that with this situation (of the marines). *The key point is that people do get tried for the same offense twice. Whatever Mr.Simson argues, the world is not the way he wants it to be. 

VKG : People do many things but they all need not be as per law. We have our Rajas, Kalamadis, Kanimozhis et el who have done so many things which is not as per law. So if somebody is tried for the same offence twice it need not be as per the rule. But if I remember correctly Mr.Stimson has told that a person cannot be punished for the same offence twice. About trying I do not know. Unfortunately the world is not the way he wants to be. Because I think he is level headed person.

You have written : .Lets analyze the shooting case one more time using an example. Lets suppose a ship registered in Singapore (stolen earlier) carrying (allegedly) Somalian Pirates fires upon an Italian flag ship in International waters and kills people on board. The pirates dont board the Italian ship, but goes away. Would you (or the Italians) say that the case must be tried in Singapore? Or Somalia? Italians would definitely try the case in Italy if they manage to catch the pirates.
VKG: That is the issue. It comes under whose jurisdiction. Is it the shooting which takes precedence or death which takes precedence? That is what Supreme Court of India has to deal with

VKG : Laws governing piracy and mutiny on ships are different. A ship of any nation which is nearby to where the incident has happened can go for helping the captain and crew of a ship being attached by pirates or go and help the captain of the ship on which there has happened a mutiny by crew. The country whose flag the ship which has gone to help the ship in trouble takes over the charge of the ship. As far as I know later the trial of the pirates or mutinous crew can be done either by the country whose ship went for help or by the country whose ship was attacked by pirates or the crew mutinied. It is on the basis of this law only the Japanese ship which was attacked and taken over by Indonesian pirates was tried in Bombay.

You have written :  The principle which has to be followed here is that the from where the assailant shoots does not matter. He is extending his presence where the bullet lands. So it is the law of where the bullet lands that has to take precedence here (more than the fact that assailants were apprehended by Indian forces - who can automatically initiate proceedings)


You have written :  In short, the italian marines had boarded the Indian fishing boat through the agent of the bullets. So they must be tried in India. There is no legal basis in distinguishing this case from the scenario where (say) the marines board the fishing boat and shoot the fishermen at point blank range or stab them to death.

VKG : That is your view and only thing is that I do not agree with that view. Because I am of the opinion is 'pulling the trigger' by the marines or rather "alleged" pulling the trigger. It has not yet been established in a court of law that they shot and killed the fishermen. It is all police version. That pulling the trigger happened in Italian territory.

You have written :  As for Raval's opinion, eminent legal luminaries including VR Krishna Iyer hold different views. So he may have been influenced by Italy before he started the argument. The opinion of a lawyer does not matter here. The lawyer appearing for India must put forward India's view, not his.

VKG : When you engage a lawyer for representing your case, as regards the legal aspect, the lawyer tells the judge what are the relevant legal point connected with the case. He is not coming to the court to read out what you have written yourself and wanted to be told to the court. Raval has told the point what he thinks is correct. Since Kerala wanted something else he was changed to one who is more amenable. I don't dispute the greatness of Mr.VR.Krishna Iyer. But it is not necessary that he will not make any mistake at all. After all he is not God Almighty.

Sunday, June 24, 2012

Enrica Lexie--Random Thoughts


1.Bail for Marines.    Within 10 days of arresting the Marines police had got whatever information was possible to get from the Marines they had got. What was the necessity of keeping them for another 80 days more? When a sovereign nation takes responsibility to present them whenever necessary is it not sufficient enough to release them on bail? And finally when they were granted bail what was the necessity of two people who have assets worth one crore each from Kerala also to stand surety? Are the two citizens bigger surety than a sovereign nation?

2. Why the families of the fishermen who were killed should be blamed if they accept money from Italian Government? Government's main issue was the criminal aspect of the case. By giving compensation and the victims families accepting it can in no way affect the criminal case. It is only civil aspect which is concerned. The victims families were satisfied with the compensation and they have declared they don't have any more complaints. There was nothing wrong in either giving money or accepting it. If the poor families had not accepted it they would have to go as destitute till the case is finally settled which at the current pace would have taken years.

3. Why the ship was also kept so long after the inspection was over and all evidence taken and the suspected weapons taken why it was detained so long. The owners incur heavy loss when a ship is detained and the government is well aware of it.

4.  Lotus case has made a bad precedence. It is clear cut case of collision in high seas and flag country of the ship which made the collision should have jurisdiction. The decision in the case of German ship colliding with English ship was the right one- that is as per existing laws. Otherwise maritime laws should be re-written.

5. In the case of Prabhu Daya which collided with an Indian fishing boat and sank it, why India arrested the ship and crew. It was a Singapore flagged ship. But only thing was that the crew were Indian. Was it on that basis India took all the steps?

Friday, June 15, 2012

Topsy Turvy: Crime and Punishment

Topsy Turvy: Crime and Punishment: When we were all barbarians our criminal justice was done more on the basis of vendetta. An eye for an eye or an ear for an ear. Probably wh...

Crime and Punishment

When we were all barbarians our criminal justice was done more on the basis of vendetta. An eye for an eye or an ear for an ear. Probably when returned it could have been with some interest also added to the principal. With advance from the barbarian state to modern civilized state did not our criminal justice also advanced? Do we punish someone who has perpetrated a crime as a vendetta? Is not the modern cultured society dispense its justice system as a deterrent so that perpetrator will not repeat it again? A crime done against an individual is as much a crime to the society as well. Is it not why all the criminal cases are between the government and the perpetrator. The victim or the heirs of the victims do not have much voice in the case. They can only implead im the civil aspect of the case and not in the criminal aspect.
Why the society takes up the case? Because if the perpetrator may again do it against the society. He should be restricted from repeating it. So he has to be punished so that he understand that he has done a crime against the society and should not repeat it. It is not vendetta by the victim. It is to reform the criminal so that he is no danger to the society.
Which society should do this act of reforming the person who has done the criminal act? It is the society of which the individual who has done the crime is a part. It is not the victims side with whom he had only a casual contact. As long as a vendetta is an acknowledged system of criminal justice, the victim nor the society of which the victim is a part has no right to deal with the criminal aspect. Only the civil aspect where the victim or the victim's legal heirs can approach for appropriate compensation. So the society representing the victims cannot deal with the criminal case.
In the case of Enrica Lexie, when the two Italian Marines shot the two Indian fishermen, it is the Italian citizens who have committed the crime. Their sojourn in Indian territory is transitional. It is for very short while and in the normal case it cannot be expected that they will be repeating the same shooting again. India need not have any concern on that count.
On the other hand for Itally it is not so. These are two Marines who could be armed quite often. If they are trigger happy to shoot at anyone at the slightest provocation of suspicion they are dangerous to the Italian society. So it is Italy which should take precautionary steps that such things do not repeat.
And so I think it is Italy who should try the marines and not India.

Thursday, June 14, 2012

Topsy Turvy: Enrica Lexie- Shyam Kumar- View from Above

Topsy Turvy: Enrica Lexie- Shyam Kumar- View from Above: Shyam Kumar's comment on Jon Bellish. SKsays--  " Sec. 3 of the Indian Penal Code reads as follows: Sec. 3: Punishment for offences comm...

Topsy Turvy: Enrica Lexie -place of shooting and place of death...

Topsy Turvy: Enrica Lexie -place of shooting and place of death...: In Enrica Lexie case let us take an imaginary situation. Let one of the fishermen was standing near the edge of the boat and one shot hit h...

Enrica Lexie -place of shooting and place of death


In Enrica Lexie case let us take an imaginary situation. Let one of the fishermen was standing near the edge of the boat and one shot hit him on his legs and he falls down to the sea and is drowned. His death has occurred in the sea. Then which court has jurisdiction to indict? India or Italy. India cannot as the death occurred in the sea. India has no jurisdiction on international waters. It is Italian courts which can take up the case. That means the country in whose jurisdiction was the perpetrator of the crime was standing is the country which has to try the case. Since it is the position of jurisdiction, the jurisdiction cannot shift if the victim was in some other place. It is the place where the crime was initiated which is more important than where its result occurred.
That means Italy has to take up this case and not India.

Monday, June 11, 2012

Enrica Lexie points

1. Italian Marines shot and killed two Indian fishermen.

First they shot at the fishermen and due to its effect the two fishermen were killed. The first action was shooting. It was done while the Marines were in a ship under the flag of Italy. To shoot at someone with an intent to injure or kill has to be a crime anywhere. That act was done by two persons who were Italian citizens and standing on Italian on international waters as far as criminal jurisdiction is concerned and flying Italian flag. So they have to be tried by the Italian courts. In the case of Queen v. Keyne even though the German ship which collided with an English ship and consequently an English passenger died the verdict was equally divided the power of English court to try the German Captain even though the collision happened very much in English waters. So here since the event happened in international waters there cannot be any doubt about the jurisdiction of which court has to try the case. It is definitely Italian court.
It is the action which was against the law and hence the perpetrator  is to be punished. Even the prosecution is telling the shooting was unprovoked as the fishermen were unarmed and quite far. So to shoot at unarmed person(s) itself is crime. That crime happened in virtual Italian soil and Italian courts has full authority to try the criminal case. Indian courts has no authority. The aggrieved parties can file a civil suit for compensation. (I am not in position to tell where it can be filed as of now-whether in Indian courts or Italian courts) The criminal case is to be dealt by Italian court only. In US no court of a particular state will take up a case which falls under the authority of another state.
Here the aggrieved parties who had co-pleaded in the case has since withdrawn their plea as the money they got was sufficient for them and no civil suit will ensue further. Only the criminal case is there still to be settled and it should be done in Italian courts.

Friday, June 8, 2012

Sections 2 ,3 and 4 of IPC


Section 2 of IPC.   2. Punishment of offences committed within India.- Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which, he shall be guilty within Indian.


Indian Penal Code was written by First Indian Law Commission which was formed in 1834 and the whole thing completed in 1837 and submitted to Governor General in Council in 1837. 
At the time of writing where transportation and communication was far from advanced when a letter from England to India may take some six months to reach the members who had been entrusted to draft the IPC could have hardly imagined that a person sitting in Australia or some other place will commit an offence in England or India. So it is just natural to take it for granted that the offence and offender must be at the same place. It is only after the transportation was quicker after steam ships were normal and communication also consequently was quicker and then after telegraph was invented and cables were laid across the vast oceans were laid it was possible for someone sitting thousands of miles away could commit a crime at a distant place. At the time of writing the IPC the honourable members entrusted with that arduous task never had an inkling of suspicion that the offender will be far away from the place where the offence has taken place.
So the inherent meaning of this clause is everyone irrespective of his national status or caste or creed or religion or anything if an offence is committed in India is liable to be punished as per Indian laws and it is inherently implied that the offender was corporeally present at the place of offence. To interpret that even if the offender was at some other place is nothing but mis-interpreting the Code. It is separating the sense and the words and interpreting the words only.
Section 3 of IPC.  3. Punishment of 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.
Section 4 of IPC  4. Extension of Code to extra territorial offences.- The provisions if this Code apply also to any offence committed by- (1) any citizen of India in any place without and beyond India; (2) any person on any shop or aircraft registered in India wherever it may be.
Here IPC is crossing the border. But it is not a free bird that it can fly and settle anywhere. It goes to a specific target. The person who has committed an offence in a foreign land. A nation is bound to protect its citizens wherever they might be and also punish them wherever they might be. So if a person has committed a felony in a foreign land as a citizen he or she will be punished by Indian laws. IPC will not cross the border to punish a foreign citizen for an offence committed by him. If a foreigner commits a crime against a citizen of India as long as the person is in the foreign land IPC cannot do anything. But once that offender comes within the space where Indian laws prevail he or she can be punished for the offence.
IPC or CrPC or any other laws are interpreted to one's own convenience. Different judges give different interpretations. It is those differences in interpretations which helps many an accused and convicts also  many.
Till 1982 when United Nations has made laws relating to sea as per the UNCLOS the generally accepted  territorial sea limit was 3 miles. It was equivalent roughly to one league of length measurement. And this 3 miles limit was accepted for the purpose of protecting the land from fire or other attack from the sea. The cannon of that time could fire an iron ball to a maximum of 3 miles and so that limit was accepted.
Why this was quoted was when any persons write a law his outlook will be based on the facts prevailing at that period. When the IPC was written in the early half of 1830s those who were entrusted with that work would never have imagined that a crime could be committed remaining far away from the place where the crime has actually occurred. For them the perpetrator and the crime must have been always at the same place. If they had any suspicion of such thing happening they definitely would have added in Section 3 " any person anywhere" if foreign lands were also to be included. Section 2 is without any ambiguity as it states 'every person' as the incident is happening in inside India where its law run automatically. In Section 3 it is outside the reach of Indian law in general and it applies to only those who are liable to Indian laws. To me the law seems to be very clear and there is no scope to doubt about its intent. Inside India to each and every person. Outside India to those who are liable to Indian laws. 

Wednesday, June 6, 2012

Householder and his duties


Mr.Purohit, are you by any chance referring to my mail about the engine turning pit? For your kind information I am very free with my advises. As far as advises are concerned no parsimony. I could have given enough advises to Bill Gates about , not the engine pit but the 'shit pit'.
Just now I remembered that I have some advises or suggestion regarding our IPC. Do you know as per clauses 297 and 299 a householder vis a vis an intruder is very much at a disadvantageous position. As far as IPC is concerned the intruder has upper hand house holder is at the receiving end. Suppose a burglar opens the window, remove the grill, get inside and open all safes, almirahs and wardrobes and relieves the householder of all his valuables and dresses, and before calling it a day or to be precise calling it a night, goes to the kitchen and opens the refrigerator and gets a shock, an electric shock and not the shock of seeing no ice and water to mix a drink, the householder can get ready to get a shock, this time not electric but mental. The burglar can sue the householder for keeping a faulty refrigerator and giving electric shock to innocent burglars. The court will award the sentence in favour of the burglar. First the householder  have to bear all expenses for the treatment of the shocked burglar. Then he has to pay for the mental agony and physical agony the burglar had to undergo because of the faulty refrigerator. If he is asked to take rest for some time the householder has to pay for the losses incurred by the burglar as he was incapacitated from pursuing his occupation for the period. Everyone has to make a living. If a farmer do farming a thief has to do thieving and court  recognizes all professions at equal footing.
An advise to all. Keep your refrigerator always in good condition. You don't know when your nightly guest may be dropping in.

Enrica Lexie- Shyam Kumar- View from Above

Shyam Kumar's comment on Jon Bellish.

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.

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;
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)
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. 








Letter to Jon Bellish-Enrica Lexie


Mr.Jon Bellish, I have been following the Enrica Lexie case right from the beginning through news on internet. Only today while searching I got your post.
You have given that " The words “terror,” “terrorist,” or “terrorism” do not appear at all in the operative clauses of the SUA Convention, nor do they appear in any portion of India’s SUA Act. Thus Mr. Matthew’s argument that legal classification as a terrorist is a prerequisite to be charged under the SUA Act appears at odds with the text of the SUA Act itself and the Convention upon which it is based."
Sir, the SUA Act was made to deal with terrorism and piracy which has become very rampant for these last thirty or forty years. Hence is it necessary to specify that it is for dealing with terrorism. For other crimes there laws already existing.
Here when the Italian Marines shot at the boat St.Antony they had no intention of terrorism in their act. It is plain murder at sea. It was killing due to misunderstanding and it should be dealt with as such.
I was just thinking. A carpenters chisel is for cutting wood and shaping it into required objects. You can use for cutting vegetable also. But you don't use it for that purpose. Similarly SUA Act is for dealing with terrorism and hence it is used for dealing with terrorism and not for other criminal activities which are obviously not an act of terrorism.
Which country should try the marines should be decided as per international conventions for a murder at sea. Even though most of my fellow Indians feel that India has jurisdiction to try the case, I am of the opinion it is Italy which has the jurisdiction. The marines were on an Italian ship and from that ship the shots were fired. It is the act which is to be punished and not the result. So Italy should try the case. I am more convinced of my thinking is right because Mr.Haren Rawal, Additional Solicitor General appearing on behalf of the Government of India that India has no jurisdiction for which he was castigated and the charge of representing Centre was entrusted to another. Mr.Rawal could not have told this to the court unless has gone through the law and was convinced of the fact.
Guptan Veemboor