REPUBLIC OF ITALY & ORS.versusUNION OF INDIA & ORS.

                        [2013] 5 S.C.R. 466


A                  REPUBLIC OF ITALY & ORS.
                                    v.
                     UNION OF INDIA & ORS.
             (Writ Petition (Civil) No. 135 of 2012 etc.)
                          APRIL 26, 2013
B
           [ALTAMAS KABIR,CJI., ANIL R. DAVE AND
                   VIKRAMAJIT SEN , JJ.]                              \
        International Law - Incident of killing of two fishermen by
c two marines of Italy - At the distance of 20.5 nautical miles
  from the Indian sea-coast, off the coastline of the State of
  Kera/a - Initiation of Criminal proceedings against the marines
  by the Sate of Kera/a - Writ Petition by Republic of Italy and
  SLP by the two marines questioning the jurisdiction of
D Republic of India and the State of Kera/a to investigate and
  try the case - Supreme Court disposed of the Petitions
  holding that the State of Kera/a had no jurisdiction to
  investigate and try the case and Union of India had jurisdiction
  to proceed with the investigation and trial until it was proved
E that Article 100 of UNCLOS, 1982 was applicable to the case
  - Direction was given to Union of India to set up Special Court
  to try the case and to dispose of the same in accordance with
  the provisions of the Maritime Zones Act, 1976, /PC, Cr.P.C.
  and provisions of UNCLOS, 1982 - Matter mentioned before
  supreme Court stating that Government of India received a
F
  communication from the Embassy of Italy which indicated that
  the Government of Italy had decided not to return the accused
  marines to India to stand trial - Court after giving certain
  directions enquired as to what steps were taken to constitute
  the Special Court - The Court was informed that National
G Investigation Agency was appointed to take-over the
  investigation - Handing-over the investigation to the National
  Investigation Agency was opposed by the accused marines -
  Held: Supreme Court cannot be called upon to decide as to

H                               466
 REPUBLIC OF ITALY & ORS. v. UNION OF INDIA &               467
                    ORS.
which would be the agency to investigate - It is for the Central    A
Government to take decision in the matter - As the Central
Government has duly taken steps in terms of the directions
given in the main judgment, it is left to the Central Government
to take further steps in the matter.
                                                                    B
    CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
135 of 2012.

    Under Article 32 of the Consitution of India.
                               WITH
                                                                    c
SLP (C) No. 20370 of 2012.

    Goolam E: Vahanvati, AG, Siddharth Luthra, Mukul
Rohatgi, Suhail Dutt, Diljeet Titus, Viplav Sharma, Jagjit Singh
Chhabra, Ujjwal Sharma, Ninad Laud, Achint Singh Gyani,             D
Sulabh Sharma, S.A. Haseeb, Anoopam Prasad, B. Krishna
Prasad, Rekha Pandey, S.S. Rawat, Supriya Juneja, Arjun
Diwan, D.S. Mahra, Ramesh Babu M.R., Sushrut Jindal for the
appearing parties.

     The order of the Court was delivered by                        E

                             ORDER

     ALTAMAS KABIR, CJI. 1. These proceedings are ~:i
offshoot of the judgment delivered by this Court on 18th January,
2013, disposing of Writ Petition (Civil) No.135 of 2012 filed by    F
the Republic of Italy through its Ambassador in India and the
two marines who had been arrested by the Kerala Police in
connection with the killing of two Indian fishermen on board an
Indian fishing vessel at a distance of 20.5 nautical miles from
the Indian sea-coast off the coastline of the State of Kerala.      G
While the Special Leave Petition was filed by the two marines
challenging the dismissal of their Writ Petition No.4542 of 2012
by the Kerala High Court rejecting their prayer for quashing of
FIR No.2 of 2012 on the file of the Circle Inspector of Police,
Neendakara, Kollam District, Kerala, as being without               H
    468     SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A jurisdiction, the Writ Petition (Civil) No.135 of 2012 was• also
  filed for much the same reliefs. Both the matters were, therefore,
  taken up together for hearing and were disposed of together
  on 18th January, 2013.

       2. While disposing of the two matters, this Court held that
8
  the State of Kerala had no jurisdiction to investigate into the
  incident and that till such time it is proved that the provisions
  of Article 100 of UNCLOS, 1982, applied to the facts of this
  case, it is the Union of India which alone has the jurisdiction to
C proceed with the investigation and trial of the Petitioner Nos.2
  and 3 in the Writ Petition. We, accordingly, directed the Union
  of India, in consultation with the Chief Justice of India, to set-
  up a special Court to try this case and to dispose of the same
  in accordance with the provisions of the Maritime Zones Act,
  1976, the Indian Penal Code, the Code of Criminal Procedure
D and the provisions of UNCLOS 1982. It was further directed that
  the proceedings before the ,Chief Judicial Magistrate, Kollam,
  would stand transferred to the Special Court to be constituted
  in terms of the judgment, upon the expectation that the trial
  wquld be conducted expeditiously. Liberty was given to the
E Petitioners to re-agitate the question of jurisdiction once the
  evidence was adduced on behalf of the parties.

        3. On 14th March, 2013, the matter was mentioned by the
  learned Attorney General, on basis of Note Verbale No.89/635
F dated 11th March, 2013, received by the Ministry of External .
  Affairs, Government of India, from the Embassy of Italy in New
  Delhi, whereby it was indicated that the Government of Italy had
  decided not to return the accused marines to India to stand trial
  for the offences alleged to have been committed by them.
G Pursuant to the directions given on that date, the matter was
  again listed on 2nd April, 2013, and the learned Attorney
  General was requested by the Court to indicate what steps had
  been taken for constitution of a separate Court to try the two
  Italian marines separately on a fast track basis, in order to
  dispose of the matter as quickly as possible. The matter was
H
 REPUBLIC OF ITALY & ORS. v. UNION OF INDIA &                469
          ORS. [ALTAMAS KABIR,CJI.]
then listed again on 22nd April, 2013, when the learned              A
Attorney General informed the Court that pursuant to the
directions of this Court in its judgment dated 18th January,
2013, the Government of India, in the Ministry of Home Affairs,
had appointed the National Investigation Agency created under
the National Investigation Agency Act, 2008, to take over the        B
investigation on the basis of FIR No.2 of 2012 dated 29th
August, 2012, Coastal PS Neendakara, Kallam. The case was
re-registered at PS NIA, New Delhi as Case No.RC-04/2013/
NIA/DU under Sections 302, 307, 427 read with Section 34 of
the Indian Penal Code and Section 3 of The Suppression of            c
Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002. The learned Attorney
General submitted that the case is under investigation by the
National Investigation Agency, and such investigation would be
completed shortly.                                                   D

     4. The submissions made by the learned Attorney General
were vehemently opposed by Shri Mukul Rohatgi, learned
Senior Advocate, on behalf of the accused mainly on the ground
that by handing over the investigation to the National
Investigation Agency, the Government was also altering the           E
forum before which the matter could be heard. Furthermore, by
entrusting the investigation to the National Investigation Agency,
the investigating authorities were being permitted to invoke the
provisions of the Suppression of Unlawful Acts Against Safety
of Maritime Navigation and Fixed Platforms on Continental            F
Shelf Act, 2002, which provides for death penalty in regard to
cognizance being taken on any of the scheduled offences .. Mr.
Mukul Rohtagi, learned Senior Advocate, who appeared for the
Petitioners, urged that since the provisions of the aforesaid Act
had not been included in the original charge-sheet, the              G
investigating authorities could not be permitted to take recourse
to the same, especially when directions had been given by this
Court in the judgment dated 18th January, 2013, that the case
was to be tried under the provisions of the Maritime Zones Act,
    4 70      SUPREME COURT REPORTS                    [2013] 5 S.C.R.


A   1976, the Indian Penal Code, the Code of Criminal Procedure
    and the provisions of UNCLOS 1982.

         5. Mr. Rohtagi submitted that since the National
    Investigation Agency could only try the Scheduled Offences,
    referred to in the Act, the investigation could not, in any event,
8
    be taken up under the National Investigation Agency Act, 2008.

          6. Having heard the learned Attorney General for India and
    Mr. Mukul Rohtagi for the Petitioners, we do not see why this
    Court should be called upon to decide as to the agency that is
C . to conduct the investigation. The direction which we had given
    in our judgment dated 18th January, 2013, was in the context
    of whether the Kerala Courts or the Indian Courts or even the
    Italian Courts would have the jurisdiction to try the two Italian
    marines. It was not our desire that any particular Agency was
D to be entrusted with the investigation and to take further steps
    in connection therewith. Our intention in giving the direction for
    formation of a special Court was for the Central Government
    to first of all entrust the investigation to a neutral agency, and,
    thereafter, to have a dedicated Court having jurisdiction to
E conduct the trial. Since steps have been duly taken for the
    appointment of a Court of competent jurisdiction to try the case,
    the Central Government appears to have taken steps in terms
    of the directions given in our judgment dated 18th January,
    2013. It is for the Central Government to take a decision in the
F matter.

         7. If there is any jurisdictional error on the part of the Central
    Government in this regard, it will always be open to the accused
    to question the same before the appropriate forum.

G       8. We, therefore, take note of the steps taken by the
    Central Government pursuant to the directions given in our
    judgment dated 18th January, 2013, and leave it to the Central
    Government to take further steps in the matter.

           9. In addition to the above, we sincerely hope that the
H
 REPUBLIC OF ITALY & ORS. v. UNION OF INDIA &                 471
          ORS. [ALTAMAS KABIR,CJI.]
investigation will be completed at an early date and the trial will   A
also be conducted on a day-to-day basis and be completed
expeditiously as well.

     10. The terms and conditions regarding bail, as were
indicated in our Order dated 18th January, 2013, will continue
                                                                      B
to remain operative in the meantime.

K.K.T.                                      Matters disposed of.