2012 (5) TMI 696 - SC - Indian Laws

Detention of appellant vessel - Held that - 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.

Issues Involved:
1. Legality of the detention of the vessel M.T. Enrica Lexie.
2. Jurisdiction of Indian authorities over the incident.
3. Validity of settlements reached between the Republic of Italy and claimants-plaintiffs.
4. Conditions for allowing the vessel to commence its voyage.
5. Assurance for the presence of Italian Marines involved in the incident.

Detailed Analysis:

1. Legality of the Detention of the Vessel M.T. Enrica Lexie:
The vessel M.T. Enrica Lexie and its owner, M/s Dolphin Tanker SRL, were aggrieved by the Kerala High Court's Division Bench order, which set aside the Single Judge's decision allowing the vessel to sail. The FIR lodged at Neendakara Coastal Police Station alleged that the vessel fired upon the Indian fishing boat St. Antony, resulting in the death of two fishermen. The vessel was intercepted and brought to Cochin Port, and the Circle Inspector issued a letter prohibiting the vessel's voyage without prior sanction.

The Supreme Court noted that the police officer could seize property under Section 102 of the Code of Criminal Procedure if it is suspected to be stolen or linked to the commission of an offense. However, the Government of Kerala conceded that the vessel was not the object of the crime, nor was there suspicion of its involvement in the offense. Consequently, the Division Bench's order overturning the Single Judge's decision was set aside.

2. Jurisdiction of Indian Authorities Over the Incident:
The Republic of Italy intervened, asserting that the incident occurred outside Indian territorial waters, and thus, Indian authorities lacked jurisdiction. They argued that the matter involved sovereign states and should be settled under international law. The Union of India and the State of Kerala refuted this, maintaining that the offense occurred within Indian jurisdiction. However, the Supreme Court did not delve into this jurisdictional dispute, focusing instead on the vessel's voyage.

3. Validity of Settlements Reached Between the Republic of Italy and Claimants-Plaintiffs:
Settlements were reached between the Republic of Italy and the claimants-plaintiffs, including Doramma and others, through Lok Adalat. The Government of Kerala contested these settlements, arguing they were against public policy and Indian laws. The Supreme Court clarified that it was not concerned with the correctness or legality of these settlements in the present appeal and chose to ignore them for the purpose of the appeal.

4. Conditions for Allowing the Vessel to Commence Its Voyage:
The Supreme Court imposed specific conditions for allowing the vessel to commence its voyage. The Master of the vessel, the Managing Director of the owner, and the Managing Director of the shipping agent were required to furnish undertakings to present six crew members upon summons and produce the vessel if required. Additionally, the owner had to execute a bond of Rupees Three Crores to ensure compliance.

5. Assurance for the Presence of Italian Marines Involved in the Incident:
The Republic of Italy provided an assurance to the Supreme Court that it would ensure the presence of the four Marines involved in the incident if required by any court or lawful authority. This assurance was accepted by the Court, subject to the Marines' right to challenge any summons or notice in a competent Indian court.

Conclusion:
The Supreme Court disposed of the appeal by allowing the vessel to commence its voyage, subject to compliance with the specified conditions and assurances. The investigation into the crime was not to impede the vessel's voyage, and the Marines were permitted to sail with the vessel. The Court emphasized that the Republic of Italy's assurance protected the interests of the Government of Kerala and did not affect its right to proceed with the investigation and prosecution.

← Previous Next →