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.
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.
In an effort to companynter 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, companyverted into Law of Parliament of Italy No.130 of 2nd August, 2011, to protect Italian ships from piracy in International seas.
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 P.C. in respect of the firing incident leading to the death of the two Indian fishermen.
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.
A further prayer was made for the release of the Petitioner Nos.2 and 3 from the case.
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 number limited to 12 nautical miles only.
Accordingly, the Special Leave Petition and the Writ Petition have been heard together.
Article 5 of the said legislation provides for deployment of Italian Military Navy Contingents on Italian vessels flying the Italian flag, to companynter the growing menace of piracy on the seas.
On 29th May, 2012, the learned Single Judge of the Kerala High Court dismissed Writ Petition Civil No.4542 of 2012 on two grounds.
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.
A change in the disembarkation plans, whereby the planned port of disembarkation was shifted from Muscat to Djibouti, was also intimated to the companycerned Attaches.
The said Military Deployment Order was sent by the Italian Navy General Staff to the companycerned Military Attaches in New Delhi, India and Muscat, Oman.
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.
However, in the meantime, since the judgment in the Writ Petition was number 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 Declare that any action by all the Respondents in relation to the alleged incident referred to in Para 6 and 7 above, under the Criminal Procedure Code or any other Indian law, would be illegal and ultra vires and violative of Articles 14 and 21 of the Constitution of India and Declare that the companytinued 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 Art.
14 and 21 of the Constitution of India and 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.
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, companytrary to law and null and void.
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 companyduct investigation on the basis thereof or to arrest the petitioner Nos.2 and 3 and to produce them before the Magistrate.
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 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.
Responding to the message, the M.V. Enrica Lexie altered its companyrse and came to Cochin Port on 16th February, 2012.
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.
After the said incident, the Italian vessel companytinued on its scheduled companyrse to Djibouti.
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 companyst off the State of Kerala, and on account of firing from the Italian vessel, two persons in the Indian fishing vessel were killed.
In the affidavit, the Consul General reasserted that Italy had exclusive jurisdiction over the writ petitioners and invoked sovereign and functional immunity.
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.
The Writ Petitioners also prayed for a declaration that their arrest and detention and all proceedings taken against them were without jurisdiction, companytrary to law and, therefore, void.
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.
