REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4167 OF 2012
(arising out of S.L.P. (Civil) No. 11942 of 2012)
M.T. ENRICA LEXIE & ANR. Appellant (s)
VERSUS
DORAMMA & ORS. Respondent(s)
J U D G M E N T
R.M. LODHA, J.
Leave granted.
2. We have heard Mr. K.K. Venugopal, learned senior counsel
for the appellants, Mr. Goolam E. Vahanvati, learned Attorney
General of India for respondent No. 6, and Mr. Gopal Subramaniam,
learned senior counsel for respondent Nos. 2 and 3. Despite
service, respondent No. 1 has not chosen to appear.
3. The vessel – M.T. Enrica Lexie – and M/s
Dolphin Tanker SRL (owner of the vessel) are in appeal aggrieved by
the order passed by the Division Bench of the Kerala High Court on
April 3, 2012 whereby the Division Bench set aside the judgment and
order of the Single Judge dated March 29, 2012.
4. The controversy arises in this way. On February 15, 2012
an First Information Report (FIR) was lodged at Neendakara Coastal
Police Station by one Fredy, owner of the Indian registered fishing
boat St. Antony. It was alleged in the FIR that at 4.30 p.m. (IST)
on that day while the fishing boat St. Antony was sailing through
the Arabian Sea, incriminate firing was opened by an Italian Ship -
M.T. Enrica Lexie (first appellant). As a result of firing from the
first appellant vessel, two innocent fishermen who were on board
the fishing boat St. Antony died and the other occupants of the
boat saved their lives as they were lying in reclining position on
the deck of the boat. On the basis of FIR, Crime No. 2/2012 under
Section 302 of the Indian Penal Code, (IPC) was registered.
Neendakara Coastal Police Station also informed the matter to the
Coast Guards and, accordingly, the first appellant vessel was
intercepted and brought to the Port of Cochin on February 16, 2012.
Two Marines who allegedly committed the offence were arrested on
February 19, 2012.
5. It is not necessary to go into details of the investigation
into the above crime. Suffice it to say that on February 26,
2012, the concerned Circle Inspector of Police issued a letter to
the Master of the first appellant vessel directing that the vessel
shall not continue her voyage without his prior sanction.
6. The stand of the first appellant is that she was on way
from Singapore to Egypt having 24 crew members on board. The vessel
also had on board six Marines personnel, i.e., Naval Military
Protection Squad (NMP Squad). The NMP Squad was
deployed on board the first appellant vessel by the Government of
Republic of Italy due to severe threat of Somalian pirates in the
Arabian Sea. The second appellant - owner of the vessel – is a
member of the Italian Ship Owner's Confederation. The NMP Squad was
on board to ensure efficient protection to the vessel because of
piracy and armed plundering as per the agreement between the
Ministry of Defence - Naval Staff and the Italian Ship Owner's
Confederation. The Master of the ship is in no way responsible for
choices relating to operations involved in countering piracy
attacks, if any; the Master of the ship cannot interfere with the
military activities undertaken by the NMP Squad for the defence of
the vessel, its crew and cargo in the face of pirate attacks and
the NMP Squad on board the vessel is always under the direct
command of the military of Republic of Italy.
7. According to the appellants, although all the agencies had
completed their respective investigations, none of them were giving
official clearance for the vessel to sail and that necessitated
them to file a Writ Petition before the High Court of Kerala for
appropriate directions and permission to the first appellant vessel
for sailing and proceeding with her voyage.
8. In response to the Writ Petition, counter affidavit was
filed by the Circle Inspector. The Single Judge, after hearing the
parties, allowed the Writ Petition filed by the appellants, issued
a writ of mandamus directing the present respondent Nos. 1 and 2 to
allow the first appellant vessel to commence her voyage on certain
conditions.
9. Being not satisfied with the judgment and order of the
Single Judge dated March 29, 2012, Doramma (wife of one of the
deceased fishermen), inter alia, filed Writ Appeal No. 679 of 2012.
The Division Bench of the Kerala High Court noted that
investigation in the matter was not yet complete and no charge-
sheet had been filed and now since proceedings had been initiated
by the Investigating Officer under Section 102(3) of the Code of
Criminal Procedure, 1973 (for short, 'Code'), the matter needed to
be considered by the concerned Judicial Magistrate exercising the
powers under Section 457 of the Code and the Single Judge was not
justified in allowing the Writ Petition and issuing the directions.
The Division Bench, accordingly, set aside the order of the Single
Judge and permitted the appellants to approach the jurisdictional
Magistrate with an application under Section 457 of the Code and
observed that the concerned Magistrate should dispose of the
application in accordance with the procedure after applying its
judicious mind to the facts of the case.
10. During the pendency of the matter before this Court,
certain events have intervened. In three Admiralty Suits – one
filed by the present respondent No. 1 - Doramma, the other by the
first informant Fredy, and the third by Abhinaya Xavier and Aguna
Xavier, settlements have taken place after impleadment of the
Republic of Italy as one of the parties to the proceedings. The
settlement with the present respondent No. 1 – Doramma and the
settlement with Abhinaya Xavier and Aguna Xavier took place on
April 24, 2012, whereas the settlement with Fredy took place on
April 27, 2012. All three settlements took place before Lok Adalat.
The Government of Kerala is seriously aggrieved by various clauses
of these three settlements. Mr. Gopal Subramaniam, learned senior
counsel for the Government of Kerala, vehemently contended that
these settlements were against public policy and the Indian laws.
He submitted that the Government of Kerala intends to challenge
these settlements in appropriate proceedings before appropriate
forum.
11. In the course of the hearing of this Appeal, an oral
application was made on behalf of the Republic of Italy for
intervention. We permitted the intervention of the Republic of
Italy, particularly in view of the statements made in the Appeal
that the NMP Squad comprising of six Italian Naval personnel on
board were always under the direct command of the Republic of Italy
and the Master of the vessel could not interfere with the military
activities undertaken by the Naval personnel on board the vessel.
The intervention by the Republic of Italy was also found by us
proper because of serious challenge by the Government of Kerala to
the three settlements entered into between the Republic of Italy
and the claimants-plaintiffs in the three Admiralty Suits.
12. Before we deal with the matter further, we may refer to
Section 102 of the Code which reads as follows :
“102. Power of police officer to seize certain property.-
(1) Any police officer may seize any property which may
be alleged or suspected to have been stolen, or which may
be found under circumstances which create suspicion of
the Commission of any offence.
(2) Such police officer, if subordinate to the officer in
charge of a police station, shall forthwith report the
seizure to that officer.
(3) Every police officer acting under sub-section (1)
shall forthwith report the seizure to the Magistrate
having jurisdiction and where the property seized is such
that it cannot be conveniently transported to the Court
or where there is difficulty in securing proper
accommodation for the custody of such property, or where
the continued retention of the property in police custody
may not be considered necessary for the purpose of
investigation, he may give custody thereof to any person
on his executing a bond undertaking to produce the
property before the Court as and when required and to
give effect to the further orders of the Court as to the
disposal of the same:
Provided that where the property seized under sub-
section (1) is subject to speedy and natural decay and if
the person entitled to the possession of such property is
unknown or absent and the value of such property is less
than five hundred rupees, it may forthwith be sold by
auction under the orders of the Superintendent of Police
and the provisions of sections 457 and 458 shall, as
nearly as may be practicable, apply to the net proceeds
of such sale.”
13. The police officer in course of investigation can seize any
property under Section 102 if such property is alleged to be stolen
or is suspected to be stolen or is the object of the crime under
investigation or has direct link with the commission of offence for
which the police officer is investigating into. A property not
suspected of commission of the offence which is being investigated
into by the police officer cannot be seized. Under Section 102 of
the Code, the police officer can seize such property which is
covered by Section 102(1) and no other.
14. After the Writ Petition was filed by the present appellants
before the Kerala High Court, during pendency thereof on March 26,
2012 a report under sub-section (3) of Section 102 of the Code was
filed by the Circle Inspector before the Chief Judicial Magistrate,
Kollam reporting to that court that the first appellant vessel has
been seized. To our specific question to Mr. Gopal Subramaniam,
learned senior counsel for the Government of Kerala, whether the
first appellant vessel was object of the crime or the circumstances
have come up in the course of investigation that create suspicion
of commission of any offence by the first appellant vessel, Mr.
Gopal Subramaniam answered in the negative. Mr.
Gopal Subramaniam, learned senior counsel for the Government of
Kerala, further stated that the detention of the first appellant
vessel was no longer required in the matter. In view thereof, the
order of the Division Bench in upsetting the order of the Single
Judge has to go and we order accordingly.
15. The question now remains, whether the order passed by the
Single Judge on March 29, 2012 can be allowed to stand as it is or
deserves to be modified.
16. Mr. Goolam E. Vahanvati, learned Attorney General, at the
outset, submitted that Union of India has the same position as has
been taken up by the Government of Kerala. He referred to the
short counter affidavit filed on behalf of the Union of India by P.
Sasi Kumar, Under Secretary to Government of India, Ministry of
Shipping. In para 6 of the said counter affidavit, it is stated
that the material evidence in relation to the first appellant
vessel itself has been collected during the preliminary inquiry for
the purposes of Sections 358 and 359 of the Merchant Shipping Act,
1958. The FIR lodged against the accused persons is being
investigated by the competent authorities of the State of Kerala
because law and order is a State subject.
17. Mr. Gopal Subramaniam, learned senior counsel for the
Government of Kerala, had already indicated that detention of the
first appellant vessel was no longer required. He did not have any
serious objection if the first appellant vessel was allowed to
commence her voyage. He, however, sought for the following
safeguards, viz., (i) the appellants must submit to the
jurisdiction of the Indian court/s and they must also clarify their
position about settlements in the Admiralty Suits arrived at
between the Republic of Italy and the claimants-plaintiffs; (ii)
for securing the presence of the six crew members, namely, Vitelli
Umberto (Master), Noviello Carlo (Master SN), James Mandley Samson
(Chief Officer), Sahil Gupta (2nd Officer),
Fulbaria (Seaman) and Tirumala Rao (Ordinary Sea Man) and four
Marines, namely, Voglino Renato (Seargeant), Andronico Massimo (1st
Corporal), Fontano Antonio (3rd Corporal) and Conte Alessandro
(Corporal), an undertaking must be given by the Master of the first
appellant vessel, the Managing Director of the owner of the first
appellant vessel and the Managing Director of the shipping agent,
namely, James Mackintosh & Co. Pvt. Ltd.; and (iii) it be clarified
that the interest of the Government of Kerala shall remain
unaffected by the settlements arrived at between the Republic of
Italy and the claimants-plaintiffs and the Government of Kerala
should be free to take appropriate legal recourse in challenging
these settlements.
18. Mr. K.K. Venugopal, learned senior counsel for the
appellants, in response to the submissions made by Mr. Gopal
Subramaniam, learned senior counsel for the Government of Kerala,
submitted that the appellants were not associated with the
settlements arrived at between the Republic of Italy and the
claimants-plaintiffs in the Admiralty Suits. He also submitted that
for securing the presence of the six crew members on board the
first appellant vessel, an undertaking shall be furnished by the
Master of the first appellant vessel, the Managing Director of the
owner of the first appellant vessel and Managing Director of the
shipping agent, namely, James Mackintosh & Co. Pvt. Ltd. He also
submitted that the appellants, in fact, have submitted to the
jurisdiction of the Indian courts and they maintain that position.
As regards, four Marines on board, Mr. K.K. Venugopal submitted
that the Marines being under the direct command of the military of
the Republic of Italy, the owner or the Master of the first
appellant vessel were not in a position to give any undertaking or
make any statement.
19. Since we have permitted Republic of Italy to intervene in
the matter, we wanted to know from Mr. Harish Salve,
learned senior counsel for the Republic of Italy, whether the
Republic of Italy was in a position to give any assurance to this
Court to secure the presence of four Marines, namely, Voglino
Renato (Seargeant), Andronico Massimo (1st Corporal), Fontano
Antonio (3rd Corporal) and Conte Alessandro (Corporal), as and when
required by the Investigating Officer or any Court or lawful
authority, Mr. Harish Salve handed over to us a written note
indicating the position of the Republic of Italy which reads as
follows :-
“1. The position of the Republic of Italy is that the
alleged incident took place outside Indian territorial
waters and the Union of India and the State of Kerala have
no jurisdiction to deal with the matter under Indian
municipal laws, including criminal laws, as well as under
international law; that the incident is between two
sovereign states, i.e., Republic of India and the Republic
of Italy and that dispute settlement that are provided by
international law and conventions.
2. The Republic of Italy filed a petition under
Article 32 and has also challenged the legal proceedings
initiated in Kerala by an appropriate proceeding in the
Kerala High Court. Without prejudice to its rights [and
obligations] under international law, and its contentions
of sovereign immunity including those raised in these two
petitions, and without accepting that the actions of the
Union of India or the State of Kerala are authorized by
law, the Republic of Italy is agreeable to give an
assurance to the Supreme Court of India that if the
presence of these marines is required by any Court or in
response to any summons issued by any Court or lawful
authority, the Republic of Italy shall ensure their
presence before an appropriate court or authority. This
would be subject to the right of the persons summoned to
challenge such summons/order before a competent court in
India.
3. On this assurance this Hon'ble Court may, if it
considers it appropriate, issue directions in respect of
the following :-
(a) The vessel shall be permitted to sail out of
India, and the marines shall sail on the vessel [together
with all equipments, arms and ammunitions on board] and
cross Indian territorial waters.
4. This assurance should not be considered as in any
manner detracting from the stand of the Republic of Italy
that its officers are entitled to sovereign immunity and
that proceedings in India under the Indian municipal laws
are illegal.
5. If in appropriate legal proceedings [including the
petition filed by the Republic of Italy in this Hon'ble
Court] it is declared that the proceedings in India are
illegal, then these assurances shall come to an end.”
20. In response to the above statement made by the Republic of
Italy, Mr. Goolam E. Vahanvati, learned Attorney General, submitted
that the Union of India did not accept the correctness of the
assurances made in the above statement and, in any case, it must be
clarified that the position taken by the Republic of Italy would in
no way prejudice the proceedings in this Court or in any other
Court or forum.
21. Mr. Gopal Subramaniam, learned senior counsel for the
Government of Kerala, vehemently opposed the above statement of the
Republic of Italy and submitted that the above statement was not
acceptable to the Government of Kerala. He further asserted the
right of the Government of Kerala to investigate into the crime and
prosecute the offenders for the death of two fishermen.
22. Pertinently, Mr. Harish Salve, learned senior counsel for
the Republic of Italy, also submitted that the settlements arrived
at between the Republic of Italy and claimants-plaintiffs could be
set aside by this Court in exercise of its powers under Article 142
of the Constitution of India. Mr. Harish Salve further submitted
that the payments under the settlements have been made by the
Republic of Italy to the claimants-plaintiffs not by way of
compensation in the proceedings initiated by them but by way of
goodwill and gesture.
23. We may make two things clear - (i) In the present Appeal,
we are not directly concerned with the correctness, legality or
validity of the settlements arrived at between the Republic of
Italy and claimants-plaintiffs. Having regard to certain clauses in
the settlements, we are of the view that insofar as the present
Appeal is concerned, these settlements deserve to be ignored and we
do so, and (ii) The limited question for consideration in this
Appeal is with regard to the voyage of the first appellant vessel
and, therefore, it is not necessary for us to dwell on the position
taken up by the Republic of Italy that the alleged incident took
place outside territorial waters and the Union of India and the
State of Kerala have no jurisdiction to deal with the matter under
municipal laws and the stout refutation to that position by the
Union of India and the State of Kerala and the strong assertion by
the Union of India and the State of Kerala that the offence of
murder of two Indian citizens was committed within the territorial
jurisdiction of India.
24. Most of the safeguards sought for by Mr. Gopal Subramaniam,
learned senior counsel for the Government of Kerala, have been
taken care of by the first appellant vessel and her owner. However,
for securing the presence of four Marines, namely, Voglino Renato
(Seargeant), Andronico Massimo (1st Corporal), Fontano Antonio (3rd
Corporal) and Conte Alessandro (Corporal), some difficulty remains.
25. While taking up its position as set out in the statement
handed over to us on behalf of the Republic of Italy, it is
expressly stated that the Republic of Italy is agreeable to give
assurance to this Court that if the presence of these 4 Marines is
required by any Court or in response to any summons issued by any
Court or lawful authority, the Republic of Italy shall ensure their
presence before the appropriate Court or such authority. This
assurance is subject to the right of the persons summoned to
challenge the same before a competent court in India. In our view,
the assurance given by the Republic of Italy to secure the presence
of these four Marines, namely, Voglino Renato (Seargeant),
Andronico Massimo (1st Corporal), Fontano Antonio (3rd Corporal)
and Conte Alessandro (Corporal), if required by any court or lawful
authority, fully meets the ends of justice and protects wholly the
interest of the Government of Kerala. In no way it affects the
Government of Kerala's right to proceed with the investigation and
prosecute the offenders.
26. Having regard to the above, we dispose of the present
Appeal by the following order :-
(1) Subject to the compliances by the appellants as noted
below, the Government of Kerala and its authorities shall
allow the first appellant vessel to commence her voyage :-
(a) The Master of the first appellant vessel, the
Managing Director of the owner of the first appellant
vessel and the Managing Director of the shipping agent,
namely, James Mackintosh & Co. Pvt. Ltd shall furnish
their undertakings to the satisfaction of the Registrar
General of the Kerala High Court that six crew members,
namely, Vitelli Umberto (Master), Noviello Carlo (Master
SN), James Mandley Samson (Chief Officer), Sahil Gupta
(2nd Officer), Fulbaria (Seaman) and Tirumala Rao
(Ordinary Sea Man), on receipt of summons/notice from
any court or by Investigating Officer or lawful
authority shall present themselves within five weeks
from the date of the receipt of such summons/notice and
shall produce the first appellant vessel, if required by
any court or the Investigating Officer or any other
lawful authority, within seven weeks from the receipt of
such summons/notice.
(b) The second appellant shall execute a bond in the sum
of Rupees Three Crores before the Registrar General of
the Kerala High Court for production of the first
appellant vessel and securing the presence of the above
six crew members as and when called upon by any court or
the Investigating Officer or any other lawful authority.
(2) The assurance given by the Republic of Italy that if the
presence of the four Marines, namely, Voglino Renato
(Seargeant), Andronico Massimo (1st
Corporal), Fontano Antonio (3rd Corporal)
and Conte Alessandro (Corporal), is required by any court or
lawful authority or Investigating Officer, the Republic of
Italy shall ensure their presence before such court or
lawful authority or Investigating Officer is accepted. Such
assurance shall, however, not affect the right of the above
four Marines to challenge such summons/notice issued by any
court or Investigating Officer or any other lawful
authority before a competent court in India.
27. It is clarified that the investigation into Crime No.
2/2012 registered at Neendakara Coastal Police Station shall not be
an impediment for commencement of the voyage by the first appellant
vessel subject to port and customs clearances in accordance with
law and upon furnishing the undertakings and bond as noted above.
28. The four Marines, namely, Voglino Renato (Seargeant),
Andronico Massimo (1st Corporal), Fontano Antonio (3rd Corporal)
and Conte Alessandro (Corporal), may sail on the vessel together
with all equipments, arms and ammunitions on board the first
appellant vessel other than those already seized by the
Investigating Officer.
29. No costs.
....................J.
(R.M. LODHA)
NEW DELHI; .....................J.
MAY 2, 2012. (H.L. GOKHALE)
