HC dismisses Italy's plea; says courts can try marines

In a setback to efforts by Italy to secure release of its two marines charged with murder of two Indian fishermen, the Kerala high court on Tuesday turned down its plea for quashing an FIR against them, holding that they were liable to penal jurisdiction of Indian courts.

Terming the killing of fishermen by the marines on board 'Enrica Lexie' in February off Kerala coast as "brutal" and "cruel", Justice P S Gopinathan said the accused were not entitled to sovereign immunity and also imposed a cost of Rs 1 lakh on them.

The shooting was 'cruel' and 'brutal' and hence it can be inferred that they (marines) did so on their own. "Shooting cannot be said to be an act of sovereign function and the marines are not entitled to sovereign immunity," it said.

Dismissing the petition filed by Italian Consul General in Mumbai Giampalo Cuttilo and marines -- Latore Massimilliano and Salvatore Girone, Justice Gopinathan imposed a cost of Rs 1 lakh on the two accused, payable within two weeks.

The petitioners, who had also sought a stay on all further proceedings in the case pending before a Kollam court, contended that the Kerala police had no authority to conduct the probe and courts in India have no jurisdiction as the incident occurred beyond the Indian territorial waters.

Rejecting the contention, the court said Kerala police has jurisdiction to investigate the case and courts have the jurisdiction to try the case and it was not an invasion.

"The marines are liable to the penal jurisdiction of Indian courts and police was right in registering a case and proceeding with investigation irrespective of the fact that they were on board a foreign vessel," the court held.

The high court made it clear that the trial court shall consider the contentions of the marines untrammeled by the observations in its judgment.

In its 60-page judgment, the court said the state practice also indicates that in appropriate cases, coastal states can exercise jurisdiction over the vessel in contiguous zone.

"As long as vessel is engaged in innocent passage, she cannot be interdicted, but when passage hinders the security of the state, the state cannot be asked to remain a mute spectator," it said.

The court said as per a 1981 notification, state can exercise its penal laws within the Exclusive Economic Zone -- 200 nautical miles from the coast.

"The vessel is not owned by the Republic of Italy. It is a private vessel engaged on commercial activity. There is nothing on record to show that the Italian marines were allowed 'absolute freedom' to shoot and kill any person. They were under command of the captain," the court pointed out.

It said there was no material to show that the marines were under the control of the Italian navy. "There is nothing on record to show that captain gave instructions to shoot," court said.

The marines, arrested on February 19 and in judicial custody, have been charged with murder of fishermen Valentine alias Jalestine and Ajesh Binki, who had put out to sea from the Needakara coast in Kollam.

The court also directed the relatives of the two fishermen to deposit Rs 10,000 as cost, criticising their dependents for wasting the court's precious time. It pointed out that they first impleaded themselves in the case to oppose quashing of FIR and later withdrew their contentions after reaching an understanding under which the two families received Rs one crore each as compensation from the Italian government.

Justice Gopinathan said the court was refraining from imposing heavy cost in view of loss suffered by them and considering they are women.