MASSIMILANO LATORRE AND OTHERS versus UNION OF INDIA AND OTHERS on 15 June 2021

1. In an unfortunate incident which took place on 15.02.2012, twoHfishermen who were onboard the boat “St. Antony” registered in India, namely, Valantine @ Jelestine, aged 44 years and Ajeesh Pink, aged 20years, while fishing off the coast of Kerala, were fired at from a passingship (an Italian Vessel M.V. Enrica Lexie), due to which the aforesaidtwo fishermen died. An FIR being Crime No. 2 of 2012 came to beregistered against petitioner nos. 1 & 2 herein for offence punishableunder Section 302 IPC and other offences under IPC. That the aforesaidvessel which was registered in Italy was reportedly sailing from Singaporeto Egypt. That during the investigation two Italian Marines – petitionernos. 1 & 2 herein were identified as the ones who had fired at the fishingboat. Petitioner Nos. 1 & 2 were apprehended by the police and producedbefore the learned Chief Judicial Magistrate, Kollam. Petitioner Nos. 1& 2 challenged the jurisdiction of the State of Kerala and the CircleInspector of Police, Kollam, District Kerala to register the FIR, to conductthe investigation or to arrest and produce the Italian Marine Naval officialsbefore the Magistrate by filing Writ Petition No. 4542 of 2012 before theHigh Court of Kerala at Ernakulam. That the petitioners filed Writ PetitionNo. 135 of 2012 under Article 32 of the Constitution of India before thisCourt seeking directions to respondent no.1 to take all steps to securethe interest of petitioner nos. 1 & 2 herein – Italian Military Naval officialsand makeover their interest to petitioner no. 3 herein. That petitionerno.3 herein – Republic of Italy made ex-gratia payment of compensationto the legal heirs of the deceased persons in the month of April, 2012.This Court also passed an order in S.L.P.(Civil) No. 11942 of 2012 dated2.5.2012 allowing the vessel to sail away, subject to certain terms andconditions along with all 24 crew members. Vide order dated 9.5.2012,this Court in Article 32 writ petition passed an order directing the Stateof Kerala to consider the representation of the Republic of Italyconcerning the shifting of petitioner nos. 1 & 2 Military Naval officialsto a safe house. Thereafter chargesheet came to be filed againstpetitioner nos. 1 & 2 herein on 18.05.2012 for the offences punishableunder Sections 302, 307, 427, 34 of the Indian Penal Code and Section 3of Suppression of Unlawful Activities Act. The learned Chief JudicialMagistrate committed the case to the learned Court of Sessions, Kollam.Thereafter, by the impugned judgment and order dated 29.05.2012, thelearned Single Judge of the High Court dismissed Writ Petition No. 4542of 2012, inter alia, upholding the assumption of the jurisdiction by theState of Kerala and the concerned Circle Inspector of Police at Kollam.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Kerala at Ernakulam in dismissing AB

C

D

EF

G

H

AWrit Petition No. 4542 of 2012, the chargesheeted accused – ItalianMarine officials and the Republic of Italy have preferred the presentspecial leave petition.

3. It is the case of the petitioners that India and Italy having signedand ratified the 1982 United Nationals Convention on the Law of theBSea (UNCLOS) agreed to settle the dispute concerning the incident inquestion, in terms of the binding dispute resolution mechanism providedunder Annex VII of the UNCLOS.

In consequence of the Provisional Measures Order dated 24August 2015 passed by the International Tribunal for the Law of the SeaC(ITLOS) requiring both Italy and India to suspend all court proceedings,this Court by its order dated 26.08.2015, as modified by order dated2.9.2015, recording the agreement of both the parties, stayed till furtherorders all proceedings in the pending matters. By its order dated 6.3.2017,this Court required that the award passed by the Arbitral Tribunalconstituted under Annex VII of the UNCLOS be placed on the recordDof this Court. That thereafter Annex VII Arbitral Tribunal has deliveredits award dated 21.05.2020, importantly the Arbitral Tribunal in its awarddated 21.05.2020 has duly recorded Republic of Italy’s commitment thatfollowing the award, Italy will resume its criminal investigation in theevents of 15.02.2012 and that both India and Italy will cooperate withEeach other in pursuit of that investigation. That under the award, theRepublic of Italy had agreed to the amount of INR 100,000,000 (INR100 million) to be paid by Italy as total compensation under all the fourheads of compensable loss identified by the Arbitral Tribunal’s award,excluding the amount of INR 21.7 million already paid by Italy to thefamilies of the victims. It appears that during the course of theFproceedings, the Ministry of External Affairs, Government of India videits Note Verbale No. WI(A)/415/06/2012 dated 26.11.2020 emphasisedthe implementation of the award dated 21.05.2020 of the Arbitral Tribunalconstituted under Annex VII of the 1982 UNCLOS concerning theincident in question.G4. The Union of India has filed I.A. No. 58644 of 2020 for anappropriate direction to dispose of the proceedings in conformity withthe award dated 21.05.2020. The aforesaid application came up forhearing before this Court on 9.4.2021. Learned counsel appearing onbehalf of the Republic of Italy submitted that amount of compensationHpayable in terms of the award dated 21.05.2020 will be deposited by the

Republic of Italy with the Union of India in the particular account to bespecified by the Ministry of External Affairs. This Court directed thatafter the amount is received by the Union of India, the same shall bedeposited in this Court within a period of one week. It is reported thatthereafter the Republic of Italy deposited the amount of Rs.10,00,00,000/- (Rupees Ten Crores only) with the Republic of India. It is reportedthat thereafter the Union of India has transferred a sum of Rs.10,00,00,000/- (Rupees Ten Crores only) into the bank account of theRegistry of this Court. That pursuant to the order passed by this Court,the heirs of the deceased fishermen are also impleaded in the presentproceedings. The Government of Kerala has also placed on record theletter addressed to the Foreign Secretary of Ministry of External Affairs,Union of India that the Government of Kerala have consulted thedependents/victims of the Enrica Lexie incident through the DistrictCollectors concerned and informed that the Italian Government hasoffered a compensation of Rs. ten crores out of which State Governmentproposes to disburse Rs. four crores to the dependents of each deceasedand Rs. Two crores to the owner of the boat – St. Antony. It was alsomentioned in the said letter that the legal heirs of each deceased and theowner of the boat have agreed to the proposal and consented in writingto accept the amount of compensation offered to them. In light of theabove, it is prayed to dispose of the present proceedings and to quashthe criminal proceedings in exercise of the powers under Article 142 ofthe Constitution of India.

5. We have heard Shri Tushar Mehta, learned Solicitor General ofIndia, Shri Sohail Dutta, learned senior counsel appearing on behalf ofthe Republic of Italy and the petitioners, Shri K.N. Balagopal, learnedsenior counsel appearing on behalf of the State of Kerala and ShriUnnikrishnan, learned counsel appearing on behalf of the heirs of thedeceased.

5.1 Learned counsel appearing on behalf of the respective partieshave stated at the bar that their respective clients – Republic of Italy,Union of India, State of Kerala and the heirs of the deceased fishermenand the owner of the boat have agreed to accept the award dated21.05.2020 of the Arbitral Tribunal. All of them have prayed to disposeof the present proceedings and quash the criminal proceedings in thelarger interest of the victims and the heirs of the deceased, moreparticularly when the long-drawn dispute is being settled amicably.

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

A6. Having heard the learned counsel appearing on behalf of therespective parties and considering the fact that the Arbitral Tribunalconstituted under Annex VII of UNCLOS has delivered its award dated21.05.2020 under which the Republic of Italy has agreed to pay thecompensation of Rs. Ten crores, over and above the amount of ex-gratia amount already paid and that the Arbitral Tribunal has also dulyBrecorded Republic of Italy’s commitment that following the award Italywill resume its criminal investigation into the incident of 15.02.2012 andnow the Republic of Italy has deposited the amount of Rs. Ten Croreswith the Union of India and thereafter the Union of India has transferredthe said amount to the Registry of this Court and the State of Kerala asCwell as the heirs of the deceased fishermen and even the owner of theboat which was damaged have agreed to accept the award and eventhe Union of India has also accepted the award dated 21.05.2020 passedby the Arbitral Tribunal constituted under Annex VII of UNCLOS andwhen the long-drawn proceedings are coming to an end and we aresatisfied that the amount of compensation of Rs. Ten Crores over andDabove the ex-gratia amount of compensation already paid to the heirs ofthe deceased fishermen offered and deposited by the Republic of Italy,deposited pursuant to award dated 21.05.2020 passed by the ArbitralTribunal can be said to be a reasonable amount of compensation andcan be said to be in the interest of heirs of the deceased, we are of theEview that this is a fit case to close all the proceedings in India includingcriminal proceedings in exercise of powers under Article 142 of theConstitution of India.

However, at the same time, while disbursing the amount ofcompensation to the heirs of the deceased fishermen, i.e, Rs. Four CroresFto the dependents/heirs of each deceased, their interest is also requiredto be protected so that the amount of compensation paid to them is notfrittered away, by investing the amount in the name of the dependents/heirs of each deceased in a Fixed Deposit in a nationalised bank forsome time and they will be paid the periodical interest accrued thereon.G7. In view of the above and for the reasons stated above and inexercise of the powers under Article 142 of the Constitution of India, wedispose of/close the present proceedings by directing as under:

(a) FIR No.2/2012 of Coastal PS, Neendakara, Kollam, Keralare-registered as FIR No. R.C. No. 04/2013/NIA/DLI datedH4 April 2013, under Sections 302, 307, 427 read with Section 34 of the Indian Penal Code, 1860 and Section 3 of theSuppression of Unlawful Acts Against Safety of MaritimeNavigation and Fixed Platforms on Continental Shelf Act,2002 registered by the National Investigation Agency, NewDelhi, and all proceedings emanating therefrom includingthe proceedings pending before the Ld. Special DesignatedCourt, Patiala House Courts, New Delhi are herebyquashed; (b)The Bail-Bonds dated 2 June 2012 executed by ChiefMaster Sergeant Massimiliano Latorre and Sergeant MajorSalvatore Girone as also Mr. Vishal Talwar and Mr. VikasTalwar who stood as Sureties, in connection with theaforementioned FIR before the Ld. Special DesignatedCourt, Patiala House Courts, New Delhi and the Ld.Registrar General of this Court are hereby discharged;

(c) The Ld. Registrar General of this Court shall release theoriginal Bank Guarantees bearing Nos.0071IGFIN000618and 0071IGFIN000418, both dated 11 June 2018 for Rs.Two Crores each, issued by the UCO Bank, Kollam Branch,extended through Letters of Extension Nos. UCO/KOLLAM/BG/02/2020-21 and UCO/KOLLAM/BG/01/2020-21 dated 28 May 2020, given on behalf of the twoSureties, Mr. Vikas Talwar and Mr. Vishal Talwar; (d)All pending matters before this Hon’ble Court including (1)the Special Leave Petition (C) No. 20370 of 2012, (2) WritPetition (C) No. 236 of 2014, (3) Writ Petition (C) No. 919of 2014 and all pending I.As in the said proceedings aredisposed of with no order as to costs.

(e) As per the award dated 21.05.2020 and even as agreed bythe learned senior counsel appearing on behalf of theRepublic of Italy, learned Solicitor General appearing onbehalf of the Union of India and the learned senior counselappearing on behalf of the State of Kerala, now the Republicof Italy shall resume its criminal investigation in the eventsof 15.02.2012 and it is further directed that the Union ofIndia, Republic of Italy and the State of Kerala shallcooperate with each other in pursuit of that investigation.

A

B

C

D

E

F

G

H

A8. We also further direct that the amount of Rs. Ten Crores nowlying with the Registry of this Court be transferred to the High Court ofKerala, out of which Rupees Four Crores be paid to the heirs of eachdeceased and Rs. Two crores be paid to the owner of the boat – St.Antony. We request the Hon’ble Chief Justice of the Kerala High Courtto nominate a Judge to pass appropriate order of disbursement/investmentBof the amount to be paid to the heirs of each deceased (Rupees FourCrores each) so as to protect the interest of the heirs and ensure that thecompensation is duly received by the heirs and not diverted/misappropriated. The order of disbursement/investment be passed afterhearing the heirs of each deceased and appropriate order be passed,Cprotecting the best interest of the heirs of each deceased. The remainingamount of Rs. Two Crores be paid to the owner of the boat – St. Antonyby an account payee cheque.

D

Ankit Gyan

Proceedings disposed of with directions.

E

F

G

H