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Updated: June 12, 2012 15:54 IST

Shooting occurred practically in Indian waters, marines should face Indian laws: HC

Special Correspondent
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Italian marines Massimiliano Latorre (left) and Salvatore Girone being produced at a court in Kollam on Friday.
PTI Italian marines Massimiliano Latorre (left) and Salvatore Girone being produced at a court in Kollam on Friday.

Brutal murder can in no way be "masqueraded as discharge of sovereign function"

The Kerala High Court on Tuesday held that the two marines charged with shooting to death two fishermen from onboard an Italian ship off the State coast are liable to be prosecuted for murder in accordance with the provisions of the Indian Penal Code and other laws of the country.

Justice P.S. Gopinathan was dismissing a writ petition filed by Italian Consul-General Giampaolo Cutillio and marines Massimilano Latorre and Salvatore Girone, challenging the first information report filed against the duo. The court also imposed on the accused litigation costs of Rs.1 lakh each.

The court observed that the February 15, 2012 shooting occurred within the contiguous zone (CZ), which also overlaps the exclusive economic zone (EEZ). This position was not disputed by the petitioners. Therefore, it could safely be concluded that the incident happened within the CZ/EEZ.

(As per the Territorial Waters Act, the CZ is an area beyond and adjacent to the territorial waters for a distance of 24 nautical miles (NM) from the nearest point of the baseline, while the EEZ has been defined as an area beyond and adjacent to the territorial waters up to a limit of 200 nautical miles from the baseline.)

The court also found that IPC provisions had been extended to the CZ/EEZ. For any incident taking place in the CZ/EEZ of India, provisions of the IPC and the Criminal Procedure Code would apply as if it had occurred within the territory of India.

The petitioners should be dealt with in accordance with the IPC provisions for the offence committed under Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (SUA Act) in the CZ/EEZ as if such act had been committed in India, the court said.

No record was produced to show that the marines had intimated the captain of any piracy threat or that he recorded the same before the marines fired upon the fishing boat. Nor was there any document to show that the master had activated the ship alert security system or any other signal was sent to the Italian Marine Rescue Coordination Centre (MRC).

The judge also dismissed the argument that the fishing boat was fired upon to avert an attempted piracy. Shooting to death two unarmed fishermen on board their boat was a clear case of brutal murder without any provocation, the court said.

As for the argument that the marines would be prosecuted in Italy, where a criminal case had been registered against them, the court said there was a total lack of bona fides in this plea.

The incident could be treated only as a case of brutal murder and could in no way be “masqueraded as a discharge of the sovereign function.” Besides, the firing was not an act in exercise of sovereign functions. “It was neither an action in defence of the state nor one in defence of the vessel but a private, illegal, and criminal act,” the court said.

It also imposed costs of Rs.10,000 on the two sisters of one of the killed fishermen for wasting the court's time in hearing their petition seeking to implead themselves in the case.

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Let's look at the matters from a broader perspective:
i) persons killed; property damaged - out at sea;
ii) three or four armed forces vessels/aircraft coercively detain/abduct alleged "killers";
iii) clans men of those killed - who are Judges/Lawyers/Politicians/ mobs/thousands of armed forces personell insist - that their pathway of dispute resolution is the ONLY pathway to "JUSTICE";

Nonsense !

from:  Topi
Posted on: Jun 1, 2012 at 20:23 IST

Setting apart the technicalities of the law, I have not clearly understood the motive, or the reason for the shooting. Was the Italian vessel threatened at any point? Or to be more precise, was the Italian vessel perceived to have been threatened at any point? Was the shooting done in cold blood? This was probably an avoidable incident, and while it turned out to be tragic for the Indian fishermen, it looks like a case of mistaken identity, further heightened by the tensions of Somalian piracy in the Indian ocean.
.
I only want to believe that most personnel from the armed forces do not open fire indiscriminately on civilian populations. I will certainly be held guilty of not being "real" if I pursue that argument vigorously.
.
The whole incident just leaves me sad.

from:  Ramesh
Posted on: May 31, 2012 at 08:09 IST

Instead of Italian .if Indians has done the crime what court verdict
will be ? Is there any involvement with minister A.K.Antony to relese
these Italians ?

from:  Hariharan.D
Posted on: May 30, 2012 at 19:51 IST

Mr.Rajaguru, it will be an attack on a sovereign nation by another and
is equivalent to declaration of war. We should send our navy and catch
the culprits. This is not an attack of that type. Here there was no
intention of destroying the vessel or anything. It was an alleged
shooting at two civilians due to mistaken identity.

from:  vkguptan
Posted on: May 30, 2012 at 18:50 IST

The court accepts and evidence show that the shooting occurred not within the territorial limit of 12 miles from the coastline, but in the maritime economic zone of 200 miles. the question to be answered is whether Indian law extended to 200 miles? I am very sure that there is international law and precedent on this subject. This case needs to be tried immediately and judgement passed.

from:  Ashok Bhagat
Posted on: May 30, 2012 at 18:48 IST

Mr VKGupdan,

It was fortunate that your family member was not the victim of that bullet.
If such would be the scenario then I can bet the complete reversal of your stand over the issue.
You would not have been in the situation of finding the content of any IPC section then sir......

from:  aditya
Posted on: May 30, 2012 at 17:30 IST

If the marines can be tried as per Indian Law with stringent conditions, why not the KASAB for harsher punishment. But rather he has been the official guest of Indian Government. We should put thought about that.

from:  satyajit
Posted on: May 30, 2012 at 17:23 IST

The court has taken a carefully thought out step. Almost a hundred
years ago a certain general Dyre felt that he could use Indians for
target practice and mascaraed Indians in the 100s in a cowardly act .
This general was hailed as a hero in colonial Britain.

It is ironic that some in Europe still feel this way about our country
and our countrymen. For the first time since independence we have sent
a strong message that Indians are not sitting ducks for some
European's escapade with an automatic weapon.

We may be poor but our lives are just as important to us as theirs are
to them.

from:  Govind
Posted on: May 30, 2012 at 16:56 IST

Mr VKGupdan,

If the marines in an Italian flaged carrier shot at an Indian facility on shore, lets say fired a missle at one of our nuke facilities, under which laws do you prefer trying him under?

from:  Rajaguru R
Posted on: May 30, 2012 at 16:52 IST

Dear vkguptan,

The firing happened in a ship that has a Italian flag, but the murder (death) happened in a boat that's clearly governed by Indian law. The question now is what is the crime. Is it the shooting or the killing? I think killing is the crime. This means that they should be tried in Indian soil.

from:  Nachiappan
Posted on: May 30, 2012 at 16:24 IST

The High Court has clarified a number of important matters, and it is
to be commended for that. However, the issue of the Contiguous Zone is
what will make the case one with far-reaching consequences, perhaps at
the international level, and therefore I think that this lawsuit
should have been heard by a larger Bench. This issue about the
legality of the registration of the FIR should go on to the Supreme
Court before the actual case against the marines proceeds. To the best
of my knowledge the CZ is a contentious issue in International
Maritime Law and there are no clear-cut procedures about jurisdiction
in that zone. The unilateral extension by India of its criminal
jurisdiction into the CZ might not be legally sustainable. The issue
should be given the importance it deserves rather than baying for the
blood of the "white murderers". We, being Indians, should ensure that
the International Law, which we have accepted, is followed in letter
AND in spirit.

from:  Aritra Gupta
Posted on: May 30, 2012 at 14:43 IST

Section 3 of IPC reads : Sec. 3: Punishment for offences committed
beyond but which by law may be tried within India:Any person liable by
any Indian law to be tried for an offence committed beyond India shall
be dealt with according to the provisions of this Code for any act
committed beyond India in the same manner as if such act had been
committed within India.What the sentence 'any person liable by any
India law to be tried within India'. Does it not mean that this
section is applicable to anyone bound by Indian laws? If such a person
commits a crime beyond India's land boundary to be
tried............... It is not applicable to anyone who is not bound
by Indian laws. Italian marines are not bound by Indian laws. Italian
Marines committed a crime in an Italian flagged ship which is as good
as committing a crime in Italian soil. It is a wonder how this is
interpreted as a crime to be tried in Indian courts.I could not get any attributes in IPC that it applies to all. The law
as given in IPC is applicable to only those who are bound by Indian
laws.
When a foreign citizen is in India then it will apply to him also as
the local law should apply to all. In this case the Marines were not in Indian soil or something equivalent to Indian soil. So the Indian law cannot be applied to
them. Or it seems to me.

from:  vkguptan
Posted on: May 30, 2012 at 13:47 IST

Now we have some much needed clarity in this case with regard to where the shooting has actually occurred, in Indian waters or outside of it, and what is the basis of Italy's position. As the counsel for these two marines has not disputed the fact that the incident has happened inside India's maritime boundary and there is proof to suggest that no distress call was sent out, it becomes clear that it was a shoot and scoot operation that was undertaken. The marines perhaps could not imagine that they would be held accountable. I only wish that justice is done to the family of the victim.

from:  Mukul Dutta
Posted on: May 30, 2012 at 12:01 IST
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