Italy moves apex court for marines' custody, government flip-flops

New Delhi, April 20 (IANS) As Italy Friday moved the Supreme Court to secure custody of its two marines arrested in Kerala for allegedly killing two Indian fishermen, the government told the court that the state government had no jurisdiction to detain the ship as the incident took place outside Indian territorial waters.

The bench of Justice R.M. Lodha and Justice H.L. Gokhale was told by Additional Solicitor General Harin Rawal that Kerala Police has no jurisdiction in detaining the ship as it was in international water, 20.5 nautical miles off the coast while Indian territory extends to only 12 nautical miles.

Rawal said that in the instant case the "international law will apply", pointing out that the entire case was beyond India's jurisdiction. This stand was in sharp contrast to the earlier stand taken by External Affairs Minister S.M. Krishna asserting Indian jurisdiction.

The changed position was assailed by the court.

Describing it as "unfortunate", the court said: "We don't expect such a stand of the central government. It is unfortunate that when persons killed are within Indian territory."

Earlier, Kerala government counsel M.T. George told the court that the state government was not opposed to the release of the Italian vessel but it had reservation on releasing the ship as directed by the high court as conditions imposed by it were not acceptable to the state.

"Once the ship is allowed to go it will enter into international waters and it will become difficult to secure its presence," he noted.

George said the matter is under investigation, let the bond for the release of the vessel be filed before the magistrate's court.

The court said it would keep the concerns of the Kerala government in mind while passing the order, but in a poser to the counsel, asked that if a person fires from the moving train and his suitcase is found from the train, does train become an article of offence?

"Can the train be seized for the investigation? Same is the case with the ship. How ship is associated with the crime of murder," the court asked, hearing a petition by MT Enrica Lexie's owners challenging the order of a division bench of Kerala High Court detaining the Italian ship.

Acting on a petition by Goramma, widow of one of the killed fishermen, the division bench had stayed the single judge order directing police to permit the ship to go.

The court reissued the notice to Goramma as she has not responded to the earlier notice issued by the court April 10.

The Marines were posted on cargo ship M.V. Enrica Lexie when they killed the two fishermen, mistaking them to be pirates.

The Italian government in its petition moved through its ambassador in New Delhi urged the apex court to direct India to make over the custody of its two marines, Chief Master Sergeant Massimilano Latorre and Sergeant Salvatore Girone, to the Italian government.

The petition said the continued detention of the two Italian Marines by Kerala Police was illegal and ultra vires as it was violative of the principle of sovereign immunity and also violative of Articles 14 and 21 of the Indian Constitution.

The two Marines had allegedly mistaken Indian fishermen Ajesh Binki, 25, and Gelastine, 45, as sea pirates and shot them dead Feb 15, off Alappuzha in Kerala.

Latorre and Girone have been in judicial custody since Feb 20 and are currently lodged at the Thiruvananthapuram Central Prison.