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TMI Blog2012 (5) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate 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 agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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