Two Italian marines were arrested by the Kerala police in connection with the killing of Indian fishermen on board a fishing vessel 20.5 nautical miles off the Kerala coast. The Supreme Court held that the state of Kerala had no jurisdiction to investigate the incident and that, until such time it was proved that art 100 of UNCLOS applied, it was the respondent, the Union of India, which had sole jurisdiction to proceed with investigation and trial. The Court directed the respondent to set up a special Court to try and dispose of the case in accordance with the Maritime Zones Act 1976, the Indian Penal Code, the Code of Criminal Procedure, and UNCLOS. It further directed that the proceedings would be transferred to this special Court. Liberty was given to the appellant, the Republic of Italy, to raise the question of jurisdiction once evidence was adduced on the parties’ behalf. See Republic of Italy v Union of India (CMI1477).

Pursuant to the Court’s direction, the Indian Ministry of Home Affairs appointed the National Investigation Agency (NIA) to take over the investigation. The respondent informed the Court that the case was under investigation by the NIA, and would be completed shortly. The appellant argued that that, by handing over the investigation to the NIA, the respondent was altering the forum before which the matter could be heard. Furthermore, the NIA was permitted to invoke the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002, which provided for the death penalty to be applied in any of the scheduled offences. The appellant argued that, since the Act had not been included in the original charge-sheet, the investigating authorities were not be permitted to take recourse to its provisions in the light of the Court’s directions.

Held: Appeal dismissed.

The Court did not see why it should be called upon to decide as to the agency that is to conduct the investigation. The Court’s direction was in the context of which courts had the jurisdiction to try the two Italian marines. It was not its desire that any particular agency was to be entrusted with the investigation. The Court direction for the formation of a special Court was for the respondent to entrust the investigation to a neutral agency and thereafter to have a dedicated Court to have jurisdiction to conduct the trial. Since steps had duly been taken on the terms of the Court’s directions, it is for the respondent to take a decision in the matter. If there is any jurisdictional error on the respondent’s part, it is open to the appellant to question this before the appropriate forum.