Chief Justice of the Delhi High Court D. Murugesan has recommended that the Chief Metropolitan Magistrate (CMM) Court, Patiala House, be designated as a special court to try the two Italian marines accused of killing two fishermen off the Kerala coast in February last year.
The proposal was sent to the Delhi government at its request. The CMM court would try the case in accordance with the Supreme Court’s January 18 judgment, Justice Murugesan told The Hindu .
After the Delhi government gives its concurrence to the proposal, the Centre is expected to forward it to Chief Justice of India Altamas Kabir for his consent. Once the process of consultation with the CJI is completed, steps will be taken for notifying the CMM court. Then a special public prosecutor will be appointed to conduct the trial daily.
However, it is still not clear whether the Central Bureau of Investigation or the Delhi government will be the prosecuting agency.
On January 18, a Bench headed by the CJI held that Kerala had no jurisdiction to investigate the February 15, 2012 incident and only the Union of India could conduct the probe and trial of the marines. The court asked the Centre to set up a special court in consultation with the CJI.
After the special court is set up, the First Information Report registered in Kerala will be transferred to it. The court will dispose of the matter in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Criminal Procedure Code, and most importantly, the United Nations Convention on the Law of the Sea (Unclos) 1982, wherever “there is no conflict between the domestic law and Unclos…”
The charge sheet pending before the Chief Judicial Magistrate, Kollam, will be transferred to the special court, which will hear afresh the question of framing of charges, as the earlier charges were quashed by the Supreme Court. However as the charge sheet and other documents are in Malayalam, they are to be translated into English before the proceedings begin.
The marines are free to invoke the provisions of Article 100 of the Unclos and raise the question of jurisdiction of the Union of India to investigate the incident, and of India courts to try them. According to the January 18 judgment: “If it is found that both the Republic of Italy and the Republic of India have concurrent jurisdiction over the matter, the directions issued in the… judgment will continue to hold good.”
