M.T. ENRICA LEXIE Vs DORAMMA .
Bench: R.M. LODHA,H.L. GOKHALE
Case number: C.A. No.-004167-004167 / 2012
Diary number: 12030 / 2012
Advocates: Vs
M. T. GEORGE
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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
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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
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– 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.
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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
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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
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:
“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
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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.
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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
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(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.
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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,
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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
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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
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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
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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
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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.
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(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
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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)