TMI Blog2012 (5) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. - CIVIL APPEAL NO. 4167 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uad 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant 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 prelimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der :- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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