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

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

May 29, 2012 05:32 pm | Updated July 24, 2016 12:21 am IST - Kochi

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

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

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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