A Division Bench of the Kerala High Court on Tuesday set aside a single judge's order allowing the Italian ship, M.T. Enrica Lexie, detained off Kochi following the killing of two fishermen by two Italian navy marines on board the ship, to sail out of the Indian waters and continue its voyage.

A Bench comprising Acting Chief Justice Manjula Chellur and Justice V. Chitambaresh passed the verdict while allowing an appeal filed by a legal heir of one of the killed fishermen against the order. The single judge had directed the police to permit the ship to continue its voyage on furnishing a bond for Rs. 3 crore and an undertaking before the Deputy Conservator, Cochin Port Trust that the vessel, master, and the crew would be produced as and when required by the authorities concerned.

The court held that in view of the seizure report filed under 102(3) of the Criminal Procedure Code by the police before the magistrate court concerned, the proper course for the ship agent would have been to proceed under Section 457 seeking to release the vessel from the custody of the police. In fact, the writ petition on seeking permission to release the vessel should not have been entertained. The court observed that it was well settled that when a statute had prescribed certain procedures, they should be followed.

The Bench also allowed the ship agent to file an application under Section 457 before the magistrate court concerned in a week from the receipt of the judgment and also ordered the magistrate to dispose of the application in accordance with the law in a week from the date of filing of the same.

“Apply mind to facts”

It asked the magistrate court to apply its mind to the facts and circumstances of the case while dealing with the application.

The court observed that as the investigation officer as early as February 26 requested the master of the vessel not to proceed with the voyage in the light of the seizure report filed before the magistrate court, the question of deviating from the procedure contemplated under the provisions of the Criminal Procedure Code did not arise. When the seizure report was filed, prior or during the pendency of the writ petition, the magistrate court must be allowed to apply its mind to the facts of the case and then proceed with the matter as contemplated under Section 457.

According to the court, whether the ship was required during the investigation or for trial or any inquiry was a matter to be decided by the magistrate court concerned at the relevant point of time.

It was up to the investigation officer to say whether the vessel was needed or not for completing the investigation.

Even if the presence of vessel was required, the magistrate court could look into the matter and allow or reject the application filed under Section 457 for release of the vessel.

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