MASSIMILANO LATORRE Vs. UNION OF INDIA

JUDGEMENT

(1.) In an unfortunate incident which took place on 15.02.2012, two fishermen who were onboard the boat "St. Antony" registered in India, namely, Valantine @ Jelestine, aged 44 years and Ajeesh Pink, aged 20 years, while fishing off the coast of Kerala, were fired at from a passing ship (an Italian Vessel M.V. Enrica Lexie), due to which the aforesaid two fishermen died. An FIR being Crime No. 2 of 2012 came to be registered against petitioner nos. 1 and 2 herein for offence punishable under Section 302 IPC and other offences under IPC. That the aforesaid vessel which was registered in Italy was reportedly sailing from Singapore to Egypt. That during the investigation two Italian Marines - petitioner nos. 1 and 2 herein were identified as the ones who had fired at the fishing boat. Petitioner Nos. 1 and 2 were apprehended by the police and produced before the learned Chief Judicial Magistrate, Kollam. Petitioner Nos. 1 and 2 challenged the jurisdiction of the State of Kerala and the Circle Inspector of Police, Kollam, District Kerala to register the FIR, to conduct the investigation or to arrest and produce the Italian Marine Naval officials before the Magistrate by filing Writ Petition No. 4542 of 2012 before the High Court of Kerala at Ernakulam. That the petitioners filed Writ Petition No. 135 of 2012 under Article 32 of the Constitution of India before this Court seeking directions to respondent no.1 to take all steps to secure the interest of petitioner nos. 1 and 2 herein - Italian Military Naval officials and makeover their interest to petitioner no. 3 herein. That petitioner no.3 herein -Republic of Italy made ex-gratia payment of compensation to the legal heirs of the deceased persons in the month of April, 2012. This Court also passed an order in S.L.P.(Civil) No. 11942 of 2012 dated 2.5.2012 allowing the vessel to sail away, subject to certain terms and conditions along with all 24 crew members. Vide order dated 9.5.2012, this Court in Article 32 writ petition passed an order directing the State of Kerala to consider the representation of the Republic of Italy concerning the shifting of petitioner nos. 1 and 2 Military Naval officials to a safe house. Thereafter chargesheet came to be filed against petitioner nos. 1 and 2 herein on 18.05.2012 for the offences punishable under Sections 302, 307, 427, 34 of the Indian Penal Code and Section 3 of Suppression of Unlawful Activities Act. The learned Chief Judicial Magistrate committed the case to the learned Court of Sessions, Kollam. Thereafter, by the impugned judgment and order dated 29.05.2012, the learned Single Judge of the High Court dismissed Writ Petition No. 4542 of 2012, inter alia, upholding the assumption of the jurisdiction by the State of Kerala and the concerned Circle Inspector of Police at Kollam.

(2.) Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Kerala at Ernakulam in dismissing Writ Petition No. 4542 of 2012, the chargesheeted accused - Italian Marine officials and the Republic of Italy have preferred the present special leave petition.

(3.) It is the case of the petitioners that India and Italy having signed and ratified the 1982 United Nationals Convention on the Law of the Sea (UNCLOS) agreed to settle the dispute concerning the incident in question, in terms of the binding dispute resolution mechanism provided under Annex VII of the UNCLOS.