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W.A. No. 678 of 2012 - Doramma Vs. M.T. Enrica Lexie, 2012 (2) KLJ 398 : 2012 (2) KHC 265

posted Apr 28, 2012, 9:34 AM by Law Kerala   [ updated Jun 7, 2012, 3:34 AM ]

Manjula Chellur, Ag. C.J.  & V. Chitambaresh, JJ.
W.A. No. 678 & 679 of 2012
Dated this the 3rd day of April, 2012
Head Note:-
Criminal Procedure Code, 1973 - Sections 102(3) and 457 - If a statute says that a particular thing has to be done in a particular manner, it has to be done in that manner or not at all. Therefore, in the light of Sec.102(3) report the only course open to the writ petitioner is to proceed under Sec.457 Cr.P.C.
For Petitioner : 
  • C. Unnikrishnan
  • P. Jesteen
  • L. Linton
  • S. Harikrishnan
  • V. Venugopalan Nair
  • Nidhi Balachandran
  • D. Jayakrishnan 
For Respondents : 
  • V.J. Mathew (Sr.)
  • Bijish B. Tom
  • Vipin P. Varghese
  • K.P. Dandapani (AG)
  • Roshan D. Alexander (GP)
  • K. Anand (SC)
  • P. Parameswaran Nair (ASG)

Manjula Chellur, Ag. C.J.

1. Heard the learned counsel for the appellants in W.A. Nos. 678 and 679 so also the counsel appearing for the first respondent, learned Assistant Solicitor General and learned Advocate General as well.

2. The writ petitioner claiming to be a foreign merchant oil tanker vessel named as "MT Enrica Lexie" which was presently anchored within the Cochin Port Trust limits was on its way from Singapore to Port Said in Egypt. On the unfortunate day of the incident, 15-02-2012 when the vessel was at a distance of 20.5 Nautical Miles off the coast of India beyond the territorial waters of India, the petitioner vessel alleges it came under provocation from a boat which prompted or led the Italian Naval Personnel/NMP Squad to fire into the water which ultimately killed two fishermen namely Mr.Valantine and Mr.Xavier on board in a fishing boat named as 'St.Antony'.

3. Subsequently, Crime No. 2 of 2012 came to be registered by the concerned Circle Inspector of Police for an offence punishable under Sec.302 IPC. Investigation is under progress which includes search of vessel, seizure of weapons from the vessel as apparent from the records. Apparently two persons of Marine Guards are in judicial custody which is also not in dispute. Meanwhile, Admiralty Suits came to be filed. In connection with the said suits as per the directions given pertaining to those matters, a cash security of Rs.3.10 Crores was given in order to safeguard the interest of the dependants of the victims in the attack on 15-02-2012 and the said deposit includes security towards claim of boat owner alleging damages being caused to the boat during the firing. When things stood as stated above, writ petition came to be filed before the learned Single Judge under Article 226 seeking the following reliefs:
"a) a writ of mandamus or any other appropriate writ, direction or order directing the respondents to grant permission to the 1st petitioner vessel, her Master and crew to sail from Cochin Port Limits and proceed with her voyage. 
b) a writ or any other appropriate writ, direction or order permitting the 1st petitioner vessel, her master and crew to sail from Cochin Port Limits and proceed with her voyage to comply with her contractual obligations. 
c) grant such other reliefs as Hon'ble Court deem fit and proper under the facts and circumstances of the case. 
d) cost of this petition."
4. The respondents in the writ petition were the concerned Investigating Officer of Coastal Police Station, Neendakara, Kollam; State of Kerala; Deputy Conservator, Cochin Port Trust; Mercantile Marine Department, and Union of India.

5. The writ petition came to be contested by the State as well as the Union of India. In those proceedings apart from the State, on behalf of Mercantile Marine Department, objection statement came to be filed by the Additional Solicitor General. Contention before the learned Single Judge was, by search of the vessel, incriminating articles, weapons and other connected articles were seized by the investigating officer, but the vessel was not allowed to leave the Port and there is no justification to withhold the sail of vessel as the relevant articles or documents or the alleged accused pertaining to the crime in question are already either seized or taken to custody. With these submissions, the writ petitioners sought for a direction or order to grant permission for sailing of the first petitioner vessel to proceed with its further voyage.

6. The State agitated the said writ petition by filing counter affidavit on 15-03-2012 contending that investigation is not yet completed mainly on account of non-co-operation of the writ petitioners for about 10 days after the incident, the investigating agency were not allowed to enter the vessel to proceed with the investigation, therefore they were not able to proceed with the investigation and they were able to enter the vessel only after taking permission from the Chief Judicial Magistrate, Kollam. They have also placed different aspects of the investigation like awaiting Ballistic report from the Forensic Expert etc. Paragraphs 4 & 5 of the counter affidavit is relevant which reads as under:
"4. It is true that Crime No. 2 of 2012 was registered under Sec.302 IPC by the Coastal Police Station, Neendakara, Kollam District and so far two Italian Naval Personnel are arrayed as accused and they were arrested on 19-02-2012. However, the further investigation in the matter could not be conducted for a period of 10 days due to the non-co-operation from the side of the petitioner and the crew of the ship. The investigating team was not allowed to enter the ship for seizing the weapons and other material objects used in the crime. Hence an application had to be moved before the Chief Judicial Magistrate Court, Kollam for issuance of a search warrant. Thereafter, an application was moved by the Italian Government officials seeking for permission to be present during the search. That application was allowed by the chief Judicial Magistrate Court by order dated 23-02-2012, a true copy of which is produced as Annexure I. In fact, the investigating team was allowed to enter the ship only on 25-02-2012 on the strength of search warrant issued by the Chief Judicial Magistrate Court, Kollam. The material objects including the fire arms used for the commission of the offence was forwarded to the Chief Judicial Magistrate Court, Kollam for behind the same to the Forensic Laboratory, Thiruvananthapuram for ballistic and forensic examination. The petitioner and the officials of the Italian Government opposed the same and made an application before the Chief Judicial Magistrate Court for permitting the representative of the Government of Italy to be present during the forensic examination. The matter was heard and a final order was passed by the Chief Judicial Magistrate Court only on 02-03-2012 whereby two of the representatives of Italy were allowed to observe the entire ballistic and forensic examination. A true copy of the said order is produced herewith as Annexure II. 
5. In this connection, it is pertinent to submit that it is very much crucial on the part of the investigation to establish the commission of the offence by the persons presently arrayed as accused. In case, the forensic report reveals that there has been any tampering with regard to the fire arms used for the commission of the offence, necessarily further investigation will have to be conducted inside the vessel for seizing other material objects and evidences, for which the presence of the vessel at Kochi is required. The report from the Forensic Laboratory is expected to be received within 14 days from today and only thereafter a decision can be taken with regard to the further course of investigation to be carried out in relation to the above crime. The implication of the master of the ship shall also depend on the materials collected in further investigation. Therefore, at present, the stage has not come whereby it can be said that the investigation is concluded. Since the investigation is ongoing, the presence of the vessel within the territorial jurisdiction of this Hon'ble Court is very much required. Moreover, the investigating office has also requested respondents 3 & 4, the Coast Guard and the Customs Department to intimate as to whether further detaining of the ship is required at their instance."
7. So far as Mercantile Marine Department, paragraphs 8 and 9 they proceeded to say as under :
“8. Reportedly, this Hon'ble Court has released the vessel on payment of security of Rs. 3.1 /Crores in compliance with the order dated 28-02-2012 in M.F.A. Nos. 33 and 34 of 2012 read with order dated 23-02-2012 in L.A. No. 97 of 2012 in C.M.C (Indigent O.P.) No. 17 of 2012 in unnumbered Admiralty Suit of 2012, order dated 22-02-2012 in I.A. No. 91 of 2012 in C.M.C (Indigent O.P.) No. 16 of 2012 in unnumbered Admiralty Suit of 2012, and order dated 27-02-2012 in I.A. No. 596 of 2012 in C.M.C (Indigent O.P.) No. 2012 in unnumbered Admiralty Suit of 2012 vide its certificate dated 02-03-2012.
9. It is submitted that the Director General of Shipping/Mercantile Marine Department, Kochi has no objection to release the vessel as it is felt that the vessel need not be held back any further for preliminary Investigation conducted by the fourth respondent since all evidences from the ship have been taken. However, the vessel may be released on the condition that the owners of the vessel shall present Master/Crew/Security Guards of M.T. Enrica Lexie before any competent authority or court in India in order to pursue the investigation further, if so required, at owner's cost."

8. The learned Single Judge ultimately after referring to the arguments advanced by the parties to the proceedings and referring to the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283 proceeded to allow the writ petition. Paragraph 7 reads as under:
"7. In our view, the powers under Sec.451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely: 
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation; 
2. Court or the police would not be required to keep the article in safe custody; 
3. If the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 
4. This jurisdiction of the court to record evidence should be exercised promptly so that thee may not be further chance of tampering with the articles."
9. W.A. No. 679 of 2012 is filed by one Doramma, wife of one of the deceased persons challenging the order of the learned Single Judge. So far as W.A. No. 678 of 2012, it is filed by the dependents of the other victim complaining non-passing of interim orders in W.P.(C) No. 6520 of 2012 by the learned Single Judge. So far as W.P. (C) No. 6520 of 2012, the writ petition is still pending.

10. The learned counsel for the appellant in W.A. No. 679 of 2012 Mr. Unnikrishnan submits, in view of proceedings under Sec.102(3) of Cr.P.C, the learned Single Judge ought not to have entertained the writ petition allowing the same once report under Sec.102(3) was submitted. In support of his contentions he places reliance on Indrakumar Vs. State of Maharashta, 1989 Crl.L.J 1439 and also on Karthikeyan Vs. Deputy Commissioner of Excise, 2011 (1) KLT 334 to contend, once the jurisdictional Magistrate Court is seized of the matter in the light of report under Sec.102(3) Cr.P.C. by the investigating agency, this Court should allow the Magistrate Court to proceed with the matter in accordance with the Statute.

11. Supporting the arguments of Mr. Unnikrishnan, Mr. Basil Attipetty placing reliance on Art.51 of the Constitution vehemently argues that whatever order the Court passes the Court should keep in mind the Philosophy under Art.51 of the Constitution, but at the same time the Court should ensure that proceedings have to be followed in strict compliance so far as the investigation into the killing of two innocent fishermen and the culprit cannot be allowed to get away from the clutches of law.

12. The appellant in W.A. No. 678 of 2012 though not a party directly connected to the writ petition, also supports the contentions raised by Mr. Unnikrishnan.

13. In response to the contentions raised by the appellant, learned Senior Counsel Sri. V.J. Mathew representing the writ petitioner brought to our notice several documents right from Ext.P1 to P10 and also certain portions of the judgment of the learned Single Judge. According to him, whatever was required on the part of the writ petitioner it was complied with and once the investigation is under progress, especially in the light of the fact that alleged accused being in judicial custody and seizure of incriminating articles, there is no requirement of the vessel for further investigation and even otherwise, the writ petitioner is ready to abide by any of the conditions that may be imposed to allow the first petitioner to proceed with voyage. According to him, vessel is withheld on the high seas for 49 days, the owner has to suffer loss apart from the hardship and inconvenience caused to the persons who are on Board in the vessel on high seas. He further contends, till writ petition was filed, there was no progress under Sec.102(3) of Cr.P.C and only to scuttle the proceedings before the learned Single Judge at the fag end of the proceedings, just before the conclusion of the arguments, the State came with an argument that already proceedings under Sec.102(3) Cr.P.C are complied, therefore it is only jurisdictional Magistrate who can entertain an application under Sec.457 Cr.P.C. According to him, such stand of the State was rightly found fault with by the learned Single Judge and therefore the learned Single Judge was justified in allowing the writ petition under Art.226 in the circumstances because the writ petition came to be filed when no report under Sec.102(3) Cr.P.C was in existence. It is only to put a stumbling block such proceedings came to be exercised during the pendency of the writ petition and therefore there was no justification to stress upon the provisions of Sec.457 Cr.P.C.

14. As against this, the learned Advocate General pressed into service paragraphs 4 and 5 of the objection statement as stated above explaining the stages of investigation and the obstacles they had to face in the investigation. It was contended that after the incident on 15-02-2012 for about 10 days there was non co-operation on the part of the writ petitioners to proceed with the investigation; therefore, there was some delay in entering the vessel and seizing weapons which could happen only after securing permission from the jurisdictional Magistrate. It was further contended that as early as on 26-02-2012, as indicated in Ext.P1, concerned Police informed the owner of the vessel not to proceed with the voyage, therefore the investigating agency was alert and did its best what, it could do at every stage of the investigation. According to him, there was no delay even bringing to the notice of the learned Single Judge what was the investigation done by them and what was happening as the writ petition came up for admission only on 09-03-2012 and the counter came to be filed on 15-03-2012. According to the learned Advocate General, in spite of Ext.P7 directing the writ petitioner to secure no objection from the Director General of Police, Kerala, the writ petitioners have not approached the concerned authority seeking permission to leave the sea waters at Cochin. In view of report under Sec.102(3) Cr.P.C, the only recourse open to the writ petitioner was to approach the jurisdictional Magistrate, which apparently was done by the writ petitioner is the stand of Government and therefore they also support the contention of the appellant and further submit they were also contemplating to file an appeal.

15. In reply, the learned Senior counsel Mr. V.J. Mathew categorically denies the allegation of non-co-operation on the part of the writ petitioners and its crew and according to the learned Senior Counsel, as per Ext.P5, immediately after Ext.P1 they have submitted an application on 02-03.2012 to permit the vessel to leave the seawater's at Cochin.

16. We have gone through the judgment of the learned Single Judge. We have also gone through the two citations relied upon by Mr. Unnikrishan appearing in one of the writ appeals and also Exts. P1 to P10. Ext.P1 is dated 26-02-2012 addressed to the Master of the vessel directing them not to continue voyage without the prior sanction of the investigating team as the investigation is in progress. This information to the Master of the vessel was as early as on 26-02-2012. Another relevant document is Ext.P7 dated 03-03-2012, which reads as under:
"With reference to the above, you are requested to ensure clearance from District Police Chief, Kocht City, Dy. Inspector General of Coast Guard, Fort Kochi and MMD, W/Island, Cochin -682 009."
17. As per this letter the writ petitioner was directed to secure clearance from District Police Chief, Cochin City, Deputy Inspector General of Coast Guard, Cochin and Mercantile Marine Department, Wellington Island, Cochin. According to the learned Senior Counsel Mr. V.J. Mathew, they had already approached the investigating officer; therefore, they did not again approach the concerned Police as the District Police Chief was not the authority who could have given permission to them as the investigating officer was the Circle Inspector concerned.

18. When we glance through the stages or dates on which the applications, counter affidavits and the correspondence with reference to the above matter, we note, by 15-03-2012 objection statement of the State came to be filed emphasizing the importance why the vessel should be here for the purpose of completion of the investigation. Admittedly no charge sheet is filed as on today. Apparently on 26-03-2012 itself prior to the pronouncement of judgment on 29-03-2012, the report under Sec.102(3) Cr.P.C was filed before the jurisdictional Magistrate by the investigating agency. Sec.457 Cr.P.C reads as under:
"457. Procedure by police upon seizure of property.-(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit , respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. 
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
19. The question is whether the learned Judge was justified to proceed with the writ petition and pass the impugned judgment in the light of Sec.102(3) proceedings already initiated by the investigating agency. The time between the date of objection statement and the report under Sec.102(3) Cr.P.C is about 10 days. The investigation is still pending. The Ballistic Report or Forensic Expert report is awaited so far as the weapons and other articles seized by the investigating agency. Whether the vessel is required throughout the investigation and subsequently for the purpose of trial or enquiry it is a matter to be considered by the Court, which has jurisdiction to consider the same under Sec.457 Cr.P.C. It is up to the investigating agency to say that they do not need the vessel in question for completion of the investigation. Even if they require or need the vessel for completion of the investigation, the Judicial Magistrate exercising the powers under Sec.457 Cr.P.C can look into the matter and then decide the issue either by allowing the application for release of the property to the applicant or can reject the same. The Criminal Procedure Code contemplates what should be done after disposal of the matter before the Magistrate under Sec.457 Cr.P.C. The question is whether the learned Judge could have passed this order in view of Sec.457 Cr.P.C.

20. As rightly pointed out by the learned counsel Mr. Unnikrishnan which is also supported by the learned Advocate General, in view of Sec.457 a special procedure contemplated covering the subject matter, can this Court acting under Art.226 could have exercised the jurisdiction under Article 226? The Court which has jurisdiction to consider the controversy is the jurisdictional Magistrate before whom the investigating officer has to report the stages of investigation. Specific provisions are made in the Cr.P.C. right from Sec.451 to 458 how the property involved in a criminal case has to be dealt with. The provision relevant for the purpose of present case is Sec.457, which is narrated above. As the investigating officer as early as on 26-02-2012 requested the Master of the vessel not to proceed with the voyage and in the light of Ext.P7 issued by the Port Trust, unless there was a clearance from the concerned authorities, the Master could not have moved the vessel. Especially in the light of Sec.102(3) proceedings already initiated, the question of deviating from the procedure contemplated under Cr.P.C. would not arise. Whether the report under Sec.102(3) was done prior to the writ petition or during the pendency of the writ petition; the fact remains, there is already a report under Sec.102(3) Cr.P.C. In that view of the matter, the Court concerned must be allowed to apply its judicious mind to the facts of the case and then proceed with the matter as contemplated under Sec.457 Cr.P.C. It is well settled as stated in the judgment reported in 2011 (1) KLT 334 (supra), if a statute says that a particular thing has to be done in a particular manner, it has to be done in that manner or not at all. Therefore, in the light of Sec.102(3) report the only course open to the writ petitioner is to proceed under Sec.457 Cr.P.C.

21. Accordingly, we are of the opinion, the judgment of the learned Single Judge deserves to be set aside. All the contentions are kept open. W.A. No. 679 of 2012 is allowed. The Writ Petitioner is permitted to approach the jurisdictional Magistrate with an application under Sec.457 Cr.P.C. within a week from the date of receipt of a copy of this judgment. Thereafter the learned Magistrate shall dispose of the application within a week after giving an opportunity to the State and others concerned. The learned jurisdictional Magistrate shall apply its judicious mind to the facts of the case in the light of the above observations having regard to all the facts and circumstances and dispose of the same in accordance with the procedure. W.A. No. 678 of 2012 is dismissed.