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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)