Writ Petition (Civil) No. 135 of 2012 (Under Article 32 of Constitution of India). Case: Republic of Italy thr. Ambassador and Ors. Vs Union of India (UOI) and Ors., [Alongwith Special Leave Petition (Civil) No. 20370 of 2012]. Supreme Court (India)
| Case Number | Writ Petition (Civil) No. 135 of 2012 (Under Article 32 of Constitution of India) |
| Counsel | For Appellant: Gourab K. Banerji, A.S.G., Harish N. Salve, Suhail Dutt and V. Giri, Sr. Advs., Diljeet Titus, Viplav Sharma, Baljit Singh Kalha, Ujjwal Sharma, Abhixit Singh, Achint Singh Gyani, Ankur Manchanda, Jagjit Singh Chhabra, Raghav Shankar, Jaswant Perraye, S.A. Haseeb, Parul Kumar, Sahil Tagotra, Jhuma Sen, Supriya Jain, D.S. Mahra, B... |
| Judges | Altamas Kabir, C.J.I. and J. Chelameswar, J. |
| Issue | Code of Criminal Procedure (CrPC), 1973 - Sections 154, 179, 183, 188, 188A; Indian Penal Code, 1860 - Sections 2, 4, 4(1), 4(2), 34, 188A, 302, 307, 427; Constitution of India - Articles 1, 14, 21, 32, 143(1), 226, 245, 245(1), 245(2), 246, 249, 250, 253, 297, 297(3); Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed... |
| Citation | 2013 (1) KLT 367 (SC), 2013 (1) SCALE 462, ILR 2013 (1) Ker 719, JT 2013 (2) SC 1, 2013 (4) SCALE 578, 2013 (4) SCC 721, 2014 (1) WBLR 526 (SC) |
| Judgement Date | January 18, 2013 |
| Court | Supreme Court (India) |
Judgment:
Altamas Kabir, C.J.I.
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The past decade has witnessed a sharp increase in acts of piracy on the high seas off the Coast of Somalia and even in the vicinity of the Minicoy islands forming part of the Lakshadweep archipelago. In an effort to counter piracy and to ensure freedom of navigation of merchant shipping and for the protection of vessels flying the Italian flag in transit in International seas, the Republic of Italy enacted Government Decree 107 of 2011, converted into Law of Parliament of Italy No. 130 of 2nd August, 2011, to protect Italian ships from piracy in International seas. Article 5 of the said legislation provides for deployment of Italian Military Navy Contingents on Italian vessels flying the Italian flag, to counter the growing menace of piracy on the seas. Pursuant to the said law of Parliament of Italy No. 130 of 2nd August, 2011, a Protocol of Agreement was purportedly entered into on 11th October, 2011, between the Ministry of Defence - Naval Staff and Italian Shipowners' Confederation (Confitarma), pursuant to which the Petitioner Nos. 2 and 3 in the writ Petition, who are also the Petitioner Nos. 1 and 2 in the Special Leave Petition, were deployed along with four others, as "Team Latorre", on board the "M.V. Enrica Lexie" on 6th February, 2012, to protect the said vessel and to embark thereon on 11th February, 2011, from Galle in Sri Lanka. The said Military Deployment Order was sent by the Italian Navy General Staff to the concerned Military Attaches in New Delhi, India and Muscat, Oman. A change in the disembarkation plans, whereby the planned port of disembarkation was shifted from Muscat to Djibouti, was also intimated to the concerned Attaches.
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While the aforesaid vessel, with the Military Protection Detachment on board, was heading for Djibouti on 15th February, 2012, it came across an Indian fishing vessel, St. Antony, which it allegedly mistook to be a pirate vessel, at a distance of about 20.5 nautical miles from the Indian sea coast off the State of Kerala, and on account of firing from the Italian vessel, two persons in the Indian fishing vessel were killed. After the said incident, the Italian vessel continued on its scheduled course to Djibouti.
When the vessel had proceeded about 38 nautical miles on the High Seas towards Djibouti, it received a telephone message, as well as an e-mail, from the Maritime Rescue Co-ordination Centre, Mumbai, asking it to return to Cochin Port to assist with the enquiry into the incident. Responding to the message, the M.V. Enrica Lexie altered its course and came to Cochin Port on 16th February, 2012. Upon docking in Cochin, the Master of the vessel was informed that First Information Report (F.I.R.) No. 2 of 2012 had been lodged with the Circle Inspector," Neendakara, Kollam, Kerala, Under Section 302 read with Section 34 of the Indian Penal Code (Indian Penal Code) in respect of the firing incident leading to the death of the two Indian fishermen. On 19th February, 2012, Massimilano Latorre and Salvatore Girone, the Petitioner Nos. 2 and 3 in Writ Petition No. 135 of 2012, were arrested by the Circle Inspector of Police, Coastal Police Station, Neendakara, Kollam, from Willington Island and have been in judicial custody ever since.
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On 20th February, 2012, the Petitioner Nos. 2 and 3 were produced before the Chief Judicial Magistrate (C.J.M.), Kollam, by the Circle Inspector of Police, Coastal Police Station, Neendakara, who prayed for remand of the accused to judicial custody.
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The Petitioners thereupon filed Writ Petition No. 4542 of 2012 before the Kerala High Court, under Article 226 of the Constitution, challenging the jurisdiction of the State of Kerala and the' Circle Inspector of Police, Kollam District, Kerala, to register the F.I.R. and to conduct investigation on the basis thereof or to arrest the Petitioner Nos. 2 and 3 and to produce them before the Magistrate. The Writ Petitioners prayed for quashing of F.I.R. No. 2 of 2012 on the file of the Circle Inspector of Police, Neendakara, Kollam District, as the same was purportedly without jurisdiction, contrary to law and null and void. The Writ Petitioners also prayed for a declaration that their arrest and detention and all proceedings taken against them were without jurisdiction, contrary to law and, therefore, void. A further prayer was made for the release of the Petitioner Nos. 2 and 3 from the case.
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Between 22nd and 26th February, 2012, several relatives of the deceased sought impleadment in the Writ Petition and were impleaded as Additional Respondents Nos. 4, 5 and 6.
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During the pendency of the Writ Petition, the Presenting Officer within the Tribunal of Rome, Republic of Italy, intimated the Ministry of Defence of Italy on 24th February, 2012, that Criminal Proceedings No. 9463 of 2012 had been initiated against the Petitioner Nos. 2 and 3 in Italy. It was indicated that punishment for the crime of murder under Section 575 of the Italian Penal Code is imprisonment of at least 21 years.
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After entering appearance in the writ petition, the Union of India and its Investigating Agency filed joint statements therein on 28th February, 2012, on behalf of the Union of India and the Coast Guard, with the Kerala High Court, along with the Boarding Officers Report dated 16th- 17th February, 2012, as an annexure. On 5th March, 2012, the Consul General filed a further affidavit on behalf of the Republic of Italy, annexing additional documents in support of its claim that the accused had acted in an official capacity. In the affidavit, the Consul General reasserted that Italy had exclusive jurisdiction over the writ Petitioners and invoked sovereign and functional immunity.
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The Kerala High Court heard the matter and directed the Petitioners to file their additional written submissions, which were duly filed on 2nd April, 2012, whereupon the High Court reserved its judgment. However, in the meantime, since the judgment in the Writ Petition was not forthcoming, the Petitioners filed the present Writ Petition under Article 32 of the Constitution of India on 19th April, 2012, inter alia, for the following reliefs:
(i) Declare that any action by all the Respondents in relation to the alleged incident referred to in Para 6 and 7 above, under the Code of Criminal Procedure or any other Indian law, would be illegal and ultra vires and violative of Articles 14 and 21 of the Constitution of India; and
(ii) Declare that the continued detention of Petitioners 2 and 3 by the State of Kerala is illegal and ultra vires being violative of the principles of sovereign immunity and also violative of Article 14 and 21 of the Constitution of India; and
(iii) Issue writ of Mandamus and/or any other suitable writ, order or direction under Article 32 directing that the Union of India take all steps as may be necessary to secure custody of Petitioners 2 and 3 and make over their custody to Petitioner No. 1.
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During the pendency of the said Writ Petition in this Court, the Kerala State Police filed charge sheet against the Petitioner Nos. 2 and 3 herein on 18th May, 2012' Under Sections 302, 307, 427 read with Section 34 Indian Penal Code and Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, hereinafter referred to as 'the SUA Act'. On 29th May, 2012, the learned Single Judge of the Kerala High Court dismissed Writ Petition (Civil) No. 4542 of 2012 on two grounds. The learned Single Judge held that under the Notification No. SO 67/E dated 27th August, 1981, the entire Indian Penal Code had been extended to the Exclusive Economic Zone and the territorial jurisdiction of the State of Kerala was not limited to 12 nautical miles only. The learned Single Judge also held that under the provisions of the SUA Act, the State of Kerala has jurisdiction upto 200 nautical miles from the Indian coast, falling within the Exclusive Economic Zone of India.
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Aggrieved by the aforesaid judgment of the Kerala High Court, the Petitioners filed Special Leave Petition (Civil) No. 20370 of 2012, challenging the order of dismissal of their Writ Petition by the Kerala High Court.
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As will be evident from what has been narrated hereinabove, the subject matter and the reliefs prayed for in Writ Petition (Civil) No. 4542 of 2012 before the Kerala High Court and S.L.P.(C) No. 20370 of 2012 are the same as those sought in Writ Petition (Civil) No. 135 of 2012.
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Accordingly, the Special Leave Petition and the Writ Petition have been heard together.
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Simply stated, the case of the Petitioners is, that the Petitioner Nos. 2 and 3, had been discharging their duties as members of the Italian Armed Forces, in accordance with the principles of Public International Law and an Italian National Law requiring the presence of armed personnel on board commercial vessels to protect them from attacks of piracy. It is also the Petitioners' case that the determination of international disputes and responsibilities as well as proceedings connected therewith, must necessarily be between the Sovereign Governments of the two countries and not constituent elements of a Federal Structure. In other words, in cases of international disputes, the State units/governments within a federal structure, could not be regarded as entities entitled to maintain or participate in proceedings relating to the sovereign acts of one nation against another, nor could such status be conferred upon them by the Federal/Central Government. It is also the case of the writ Petitioners that the proceedings, if any, in such cases, could only be initiated by the Union at its discretion. Consequently, the arrest and continued detention of the Petitioner Nos. 2 and 3 by the State of Kerala is unlawful and based on a misconception of the law relating to disputes between two sovereign nations.
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Appearing for the writ Petitioners, Mr. Harish N. Salve, learned...
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