A Bench of Supreme Court has directed the special court, which will be set up to try the Italian marines, to dispose off the matter in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Cr.P.C. and most importantly, the provisions of United Nations Convention on the Law of the Sea (UNCLOS) 1982, where “there is no conflict between the domestic law and UNCLOS 1982.”
The Bench said “The pending proceedings before the Chief Judicial Magistrate, Kollam, shall stand transferred to the Special Court to be constituted in terms of this judgment and it is expected that the same shall be disposed of expeditiously.”
The Bench said this would not prevent the petitioners from invoking the provisions of Article 100 of UNCLOS 1982 and the question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused. It said “If it is found that both the Republic of Italy and the Republic of India have concurrent jurisdiction over the matter, then these directions will continue to hold good.”
In his judgment the CJI said “while India is entitled both 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, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes.
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. However, the same is subject to the provisions of Article 100 of UNCLOS 1982.”
The CJI said “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 the State of Kerala ordinarily has no jurisdiction The submission made on behalf of the Union of India and the State of Kerala to the effect that with the extension of Section 188A of the Indian Penal Code to the Exclusive Economic Zone, the provisions of the said Code, as also the Code of Criminal Procedure, stood extended to the Contiguous Zone also, thereby vesting the Kerala Police with the jurisdiction to investigate into the incident under the provisions thereof, is not tenable. The State of Kerala had 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 the State of Kerala with the powers to investigate and, thereafter, to try the offence.”
The CJI said “The Union of India which was entitled in law to take up the investigation and to take further steps in the matter. The Republic of Italy has, in fact, from the very beginning, asserted its right to try the two marines and has already commenced proceedings against them in Italy under penal provisions which could result in a sentence of 21 years of imprisonment if the said accused are 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.”