In a setback to Italian marines facing charges of killing two Indian fishermen, the Supreme Court today held that they should be tried by the Centre and turned down their government's plea that Indian courts had no jurisdiction in the case.
The apex court said that the marines, Massimiliano Lattore and Salvatore Girone on board
'Enrica Lexie', accused of shooting dead two Indian fishermen off the coast of Kerala in February last year, will be shifted to Delhi and be under the 'custody' of the Supreme Court till the Centre constitutes a special court to hold their trial.
The bench said that Italian Embassy will arrange for their stay and it will monitor their movements. It said that all the conditions imposed on them by the Kerala court, while granting them bail will remain till the special court is set up and the marines will mark their presence atleast once a week before the Chankyapuri police station.
A bench of Chief Justice Altamas Kabir and Justice J Chelameswar said that if the accused fired at the fishermen on the misunderstanding that they were pirates then the they will not be tried for murder charges and only Article 100 of UNCLOS (United Nations Convention on the Law of the Sea) would be applicable which is to be decided by the court after going through all the evidence.
"Whether the accused acted on the misunderstanding that the Indian fishing vessel was a pirate vessel which caused the accused to fire, is a matter of evidence which can only be established during a trial. If the defence advanced on behalf of the accused is accepted, then only will the provisions of Article 100 of the Convention become applicable to the facts of the case," the bench said.
The bench rejected the plea of the Italian government and the two accused marines that Indian courts have no jurisdiction in the case and they should be tried in an Italian court.
"The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country," the bench said.
"Undoubtedly, the incident took place within the Contiguous Zone over which, both under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India is entitled to exercise rights of sovereignty," the bench said.
The apex court, however, said that the Kerala government has no jurisdiction to prosecute the two foreign marines and it is to be done by the Centre in a special court to be set up after consulting the
"Admittedly, the incident took place at a distance of about 20.5 nautical miles from the coastline of the State of Kerala, a unit within the Indian Union. The incident, therefore, occurred not within the territorial waters of the coastline of the State of Kerala, but within the Contiguous Zone, over which the State Police of Kerala ordinarily has no jurisdiction," the bench said.
It said Kerala has no jurisdiction over the Contiguous Zone and even if the provisions of the Indian Penal Code and the Code of Criminal Procedure Code were extended to the Contiguous Zone, it did not vest with Kerala the powers to investigate and, thereafter, to try the offence.
Justice Chelameswar, who wrote a separate but concurring judgement, said that the provisions of the IPC can be invoked for offences committed "beyond the territory of India by its citizen or on any ship or aircraft registered here, irrespective of its location, by any person not necessarily a citizen".
"This court on more than one occasion held so on the ground that the rights emanating from those two Articles (14 and 21) are not confined only to or dependent upon the citizenship of this country. As a necessary concomitant, this country ought to have the authority to apply and enforce the laws of this country against the persons and things beyond its territory when its legitimate interests are affected," he said.
The present case does not involve any collision between the Italian Vessel and the Indian Fishing Vessel, it said.