M.T. ENRICA LEXIE & ANR.versusDORAMMA & ORS.

                        [2012] 4 S.C.R. 174


A                   M.T. ENRICA LEXIE & ANR.
                               v.
                         DORAMMA & ORS.
                  (Civil Appeal No. 4167 of 2012)

                            MAY 2, 2012
B
             [R.M. LODHA AND H.L. GOKHALE, JJ.]

        Search and Seizure:

c       Power of police officer to seize certain property - Two
  Indian fishermen killed as a result of firing from an Italian ship
  - Letter issued by Kera/a Police to Master of the vessel not
  to continue her voyage without prior permission - Held:
  Admittedly, the vessel was not object of the crime nor have
0 any circumstances come up in the course of investigation that
  create suspicion of commission of any offence by the vessel
  - It has been further stated that the detention of the vessel
  was no longer required in the matter- Most of the safeguards
  sought for have been taken care of by the vessel and her
E owner - The assurance given by the Republic of Italy to
  secure the presence of the four Marines, if required by any
  court or lawful authority, fully meets the ends of justice and
  protects wholly the interest of the State Government - In no
   way it affects the State Government's right to proceed with the
  investigation and prosecute the offenders - The State
F Government and its authorities shall allow the vessel to
  commence her voyage subject to the directions given in the
  judgment - Code of Criminal Procedure, 1973 - s.102.

       On 15.2.2012, an FIR was lodged by the owner of an
G Indian fishing boat that as a result of indiscriminate firing
  from an Italian ship i.e. appellant no. 1, two of its
  fisherman died. During the course of investigation the
  Circle Inspector of the Kerala Police issued a letter to the
  Master of appellant no. 1 vessel not to continue her
H                                174
  M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS.           175


voyage without his prior permission. The vessel and its       A
owner filed a writ petition before the High Court. Their
stand was that the Master of the ship was in no way
responsible and could not interfere with the military
activities undertaken by the NMP Squad which was
directly under the command of the military of Republic of     B
Italy. The writ petition was allowed by the Single Judge
of the High Court permitting the vessel to commence her
voyage subject to certain conditions. On the appeal filed
by the wife of the one of the deceased fisherman, the
Division Bench of the High Court set aside the orders of      c
the single Judge and permitted the vessel and its owner
to approach the jurisdictional Magistrate with an
application u/s 457 CrPC. Aggrieved, the vessel and its
owner filed the appeal.

     Meanwhile three admiralty suits were filed by the        D
owner of the fishing boat and the heirs of the deceased
fishermen. Three settlements took place before Lok
Adalat. The State Government contended that the said
settlements were against public policy as also the Indian
laws and would be challenged in appropriate                   E
proceedings. The Republic of Italy was also permitted to
intervene.

    Disposing of the appeal, the Court

     HELD: 1. The police officer in the course of             F
investigation can seize any property u/s 102 CrPC 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      G
suspected of commission of the offence which is being
investigated into by the police officer cannot be seized.
Under s. 102 of the Code, the police officer can seize such
property which is covered by s.102(1) and no other. (para
13] (181-G-H; 182-A]                                          H
    176     SUPREME COURT REPORTS             [2012] 4 S.C.R.


A      1.2. It is the admitted case that the vessel was not
  object of the crime nor have any circumstances come up
  in the course of investigation that create suspicion of
  commission of any offence by the vessel. It has been
  further stated that the detention of the vessel was no
B longer required in the matter. In view thereof, the order
  of the Division Bench of the High Court in upsetting the
  order of the Single Judge is set aside. [para 14] [182-C-
    D]
        1.3. Two things are required to be made clear - (i) In
C the instant appeal, the Court is not directly concerned
  with the correctness, legality or validity of the settlements
  arrived at between the Republic of Italy and claimants-
  pla i ntiffs. Having regard to certain clauses in the
  settlements, insofar as the instant appeal is concerned,
D these settlements deserve to be ignored; and (ii) the
  limited question for consideration in this appeal is with
  regard to the voyage of the vessel and, therefore, it is not
  necessary for this Court to dwell on the position taken
  up by the Republic of Italy with regard to the jurisdiction
E of Indian authorities and courts. [para 23] [186-E-H; 187-
    A]
      1.4. Most of the safeguards sought for have been
  taken care of by the vessel and her owner. However, for
F securing the presence of four named Marines, 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
G 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. The
  assurance given by the Republic of Italy fully meets the
  ends of justice and protects wholly the interest of the
H State Government and in no way it affects its right to
  M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS. 177


proceed with the investigation and prosecute the                   A
offenders. [para 24, 25] [187 -B-F]
    1.5. The State Government and its authorities shall
allow the vessel to commence her voyage subject to the
directions given in the judgment. [para 26] [187-G]
                                                                   B
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4167 of 2012.
    From the Judgment & Order dated 03.04.2012 of the High
Court of Kerala at Ernakulam in W. A. No. 679 of 2012.
     Goolam E. Vahanvati, Attorney General, Indira Jaising,
                                                                   c
ASG, K.K. Venugopal, V.J. Mathew, Gopal Subramaniam,
Harish N. Salve, Suhail Dutt, Raghenth Basant, Vipin Varghese,
Ankur Talwar, Arjun Singh Bhati (for Senthil Jagadeesan), Harris
Beeran, Nishanth Patil, Prashant Patil, Supriya Jain, Rekha
Pandey, D.S. Mahra, M.T. George, K.T. Kavitha, P.V. Dinesh,        D
P.V. Vinod, Jaimon Andrews, P.P. Sandhu, Robin V.S.
Parameswaran Nair, Diljeet Titus, Abhixit Singh, Achint Singh
Gyani, Jagjit Singh Chhabra, Jaswant Perraya, Ankur
Manchanda for the apprearing parties.
                                                                   E
    The Judgment of the Court was delivered by
    R.M. LODHA, J. 1. 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      F
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 Mis Dolphin Tanker     G
SRL (owner of the vessel) are in appeal aggrieved by the or~er
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    H
    178      SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A 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 while the fishing boat St. Antony
  was sailing through the Arabian Sea, incriminate firing was
B 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
c 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
0
  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
E 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.
F 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 -
  is a member of the Italian Ship Owner's Confederation. The
G 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
H
  M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS.                 179
                [R.M. LODHA, J.]
involved in countering piracy attacks, if any; the Master of the    A
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.                                      B

    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    C
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,     D
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.

      9. Being not satisfied with the judgment and order of the     E
 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)   F
 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,           G
 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          H
    180       SUPREME COURT REPORTS               [2012] 4 S.C.R.


A   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
8
  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
C 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
D 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
E 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
F 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
G 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 :

H         "102. Power of police officer to seize certain property.-
   M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS. 181
                 [R.M. LODHA, J.]
     (1) Any police officer may seize any property which may          A
     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        8
     charge of a police station, shall forthwith report the seizure
     to that officer.

    (3) Every police o.fficer acting under sub-section (1) shall
    forthwith report the seizure to the Magistrate having
    jurisdiction and where the property seized is such that it        C
    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           D
    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:
                                                                      E
           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
                                                                      F
    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      G
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          H
    182       SUPREME COURT REPORTS                  [2012] 4 S.C.R.


A   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
8
  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, Kellam reporting to that
  court that the first appellant vessel has been seized. To our
C 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.
D 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.
E
         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,
F 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
G 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
H
  M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS.                   183
                [R.M. LODHA, J.]
authorities of the State of Kerala because law and order is a          A
State subject.

      17. Mr. Go pal 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
                                                                       8
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   C
securing the presence of the six crew r:nembers, 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) and four
Marines, namely, Voglino Renato (Seargeant), Andronico                 D
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 &             E
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           F
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              G
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              H
    184       SUPREME COURT REPORTS                 (2012) 4 S.C.R.


A  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
8 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.
c       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
D Renato (Seargeant), Andronico Massimo (1st Corporal),
  Fontane 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
E 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
F         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.
G
          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
H         international law, and its contentions of sovereign immunity
  M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS.                   185
                [R.M. LODHA, J.]
     including those raised in these two petitions, and without       A
     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            B
     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.                                                  c
     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      D
     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         E
    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]    F
    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          G
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
                                                                      H
    186      SUPREME COURT REPORTS                  [2012] 4 S.C.R


A   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
B 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.

c        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
0
    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
E 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
F 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 position taken up by the
  Republic of Italy that the alleged incident took place outside
G 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
H
  M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS.                   187
                [R.M. LODHA, J.]
Indian citizens was committed within the territorial jurisdiction      A
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          8
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     C
 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   D
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                 E
(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       F
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         G
     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      H
    188       SUPREME COURT REPORTS                 [2012] 4 S.C.R.


A                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
B                (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
c                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.
D
                 (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
E                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
F         presence of the four Marines, namely, Voglino Renato
          (Seargeant), Andronico Massimo (1st Corporal), Fontana
          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
G
          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.
H         27. It is clarified that the investigation into Crime No. 2/
  M.T. ENRICA LEXIE & ANR. v. DORAMMA & ORS.                189
                [R.M. LODHA, J.]
2012 registered at Neendakara Coastal Police Station shall         A
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.
                                                                   B
     28. The four Marines, namely, Voglino Renato
(Seargeant), Andronico Massimo (1st Corporal), Fontane
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 other than those
already seized by the Investigating Officer.                       C

      29. No costs.

RP.                                       Appeal disposed of.