Even as a Division Bench of the Kerala High Court on Tuesday directed the agent of the Italian vessel, M.T. Enrica Lexie, to furnish a bank guarantee or demand draft for Rs. 3 crore against the compensation claims, a single judge asked counsel for Italy to produce the documents relating to the registration of a crime against the naval marines in Rome.
The Bench comprising Justice Thottathil B. Radhakrishnan and Justice C.T. Ravikumar made it clear that on furnishing a bank guarantee or demand drafts for the amount to the Registrar General of the High Court, the vessel could be allowed to sail out. However, the court clarified that this order would not stand in the way of the vessel being detained in any other litigation or as required by the police authorities in connection with any pending investigation.
The court issued the order on appeals filed by Doramma, Abhinaya Xavier and Aguna Xavier, relatives of the fishermen shot dead by the marines. Their appeals challenged a single judge's directive to deposit a bank guarantee of Rs. 25 lakh against the claim.
When Italy's petition seeking to quash the first information report (FIR) registered against the marines in connection with the killing of the two fishermen was taken up for hearing, Justice P.S. Gopinathan asked counsel to produce the records relating to the registration of crime against the marines in Rome along with their English translations.
Counsel, while contending that India had no jurisdiction to register a case against the marines, submitted that a criminal case had already been launched in Italy against them. A directive was sought not to remand the marines in judicial custody and to keep them in the custody of the defence forces or the police.
To a query of the court as to why they were afraid of remanding the accused in judicial custody, counsel submitted that they were military personnel deputed for duty. The judge told counsel that he could not agree with this contention and said that they might be treated only as guards on board a merchant vessel. He said the State would ensure that the accused would be safe in the custody of the police.
In a writ petition, Italian Consul General Giampaolo Cutillio and the arrested marines, Massimilano Latorre and Salvatore Girone, pointed out that under the principles of international law and conventions, including the United Nations Convention on the Law of the Sea (UNCLOS) to which India was already a signatory, Indian courts had no jurisdiction to register a crime in connection with the alleged incident.
The court adjourned for further hearing on March 1.