New Delhi, Jan. 18: The Supreme Court today shifted the trial of two Italian marines accused of killing two Indian fishermen from Kerala to a court in Delhi, holding that the state had no jurisdiction and only the Centre had the power, if any, to do so under international law.
The court, allowing the appeal of the Italian government, said the marines should be shifted to New Delhi and cannot leave India without the permission of the special court to be set up soon.
Last February, mariners Massimilliano Latore and Salvatore Girone had mistaken two fishermen for pirates and shot them off the Kerala coast, triggering a diplomatic row.
On May 29, Kerala High Court had ruled that the Italians were liable to be tried before a Kerala court, following which Italy moved the top court questioning the state's jurisdiction. It also argued that India had no jurisdiction in the case as the killing had occurred in international waters.
The top court today said that submissions by India and Kerala that the Indian fishing vessel had set out from Kollam district and returned there after the incident was not reason enough to entitle the state to probe the case.
"… the cause of action for the filing of the FIR occurred outside the jurisdiction of Kerala police under Section 154 CrPC," the court said.
"The FIR could have been lodged at Neendakara police station (in Kerala's Kollam), but that did not vest Kerala police with jurisdiction to investigate into the complaint. It is the Union of India, which was entitled in law to take up the investigation and to take further steps in the matter."
The bench said Italy had, from the very beginning, asserted its right to try the marines. It had even started proceedings in Italy under penal provisions that could result in a 21-year jail term for the duo, if convicted.
"In such a scenario, the state of Kerala, as one of the units of a federal unit, would not have any authority to try the accused who were outside the jurisdiction of the state unit," the court said.
The bench said the case came under Article 100 of the UN Convention on Laws of Sea (UNCLOS), which provides that all states shall co-operate to the fullest extent possible in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state.
It said under Article 97 of the UNCLOS, no penal or disciplinary proceeding could be instituted against any person in service of the ship, except before the judicial or administrative authorities either of the flag state or of the state of which the person is a national.
"In this case, the Italian vessel, MV Enrica Lexie, was flying the Italian flag. It may be recalled that St Antony (the Indian fishing vessel) was not flying an Indian flag at the time when the incident took place," the court said.
It said India was entitled under its domestic law and the public international law to exercise rights of sovereignty upto 24 nautical miles from the baseline on the basis of which the width of territorial waters is measured.
"The incident of firing… 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."