The Supreme Court made clear to the Centre on Friday that it would not pass any order on the plea seeking closure of cases against two Italian marines, accused of killing two Indian fishermen, without hearing the victims' families who should be given adequate compensation.
A bench headed by Chief Justice S A Bobde allowed the Centre to file within a week an application making the victims' family members as parties to its plea seeking closure of Italian Marines case.
Solicitor General Tushar Mehta informed the bench, also comprising Justices A S Bopanna and V Ramasubramanian, that Italy has assured the Indian government that it would prosecute the Marines there as per law.
When the bench insisted that adequate compensation should be paid to the kin of victims, Mehta said Centre will ensure that maximum compensation is given to them.
The bench said it appreciates the steps taken by Italy to prosecute these marines but the court is on the issue of adequate compensation. "We want that adequate compensation be paid to the victims' family".
The top court referred to the case against the marines pending before the special court and said that without applying for withdrawal of prosecution of case how the Centre can come and seek its closure.
Mehta replied that the top court had earlier said that proceedings on the special court be kept in abeyance.
The bench said, "You can apply for withdrawal of prosecution. The victims' families will have the right to oppose it. The victims' families are not even a party here."
It said, "We will not pass any order without the victims' family being heard, and allowed the Solicitor General to implead family members of the victims as party in its closure application."
At the outset, Mehta referred to the 'unfortunate incident' of killing of two Indian fishermen and said earlier there were two issues -- one was whether Indian government have the right to prosecute these marines and the other regarding compensation to kin of victims.
He referred to the recent ruling of the Permanent Court of Arbitration at the Hague which held that India is entitled to get compensation in the case but can't prosecute the marines due to official immunity enjoyed by them.
"You are here after the tribunal's award. You have accepted it and you are not questioning it anywhere," the bench observed.
It said there is 'legal difficult' as this does not take care of the adequate compensation which is required to be paid to the family members of victims.
"I can bring the family members here," Mehta told the bench, adding that the government will ensure that maximum compensation is paid to them.
"That (payment of adequate compensation) must happen before we pass order," the bench said, adding, "You will have to bring the cheque here in this court and close the matter."
The top court has listed the matter for hearing after four weeks.
On July 3, the Centre moved the top court seeking closure of judicial proceedings against the two Italian marines accused of killing Indian fishermen, off the Kerala coast.
In February 2012, India had accused two Italian marines, Salvatore Girone and Massimiliano Latorre, on board the MV Enrica Lexie -- an Italian flagged oil tanker -- of killing two Indian fishermen who were on a fishing vessel in India's Exclusive Economic Zone.
The Centre said the arbitration under United Nation Convention on the Law of Sea, which was instituted on a request from Italy, has delivered its Award on May 21, 2020.
It said the Tribunal upheld the conduct of Indian authorities with respect to the incident and highlighted the material and moral harm suffered by the Indian fishermen on board the St. Antony on February 15, 2012.
"It held that the actions of the Italian Marines breached India's freedom and right of navigation under UNCLOS Article 87(1)(a) and 90," the application said, adding, as argued by India, the Tribunal observed that, in principle, India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the Marines.
It said the Tribunal took note of the commitment expressed by Italy to resume its criminal investigation into the events of February 15, 2012 and decided that India must take necessary steps to cease to exercise its criminal jurisdiction over the marines.
"The Tribunal decided that India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of St. Antony".
Latorre, who had suffered a brain stroke on August 31, 2014, was first granted bail and allowed by the apex court on September 12, 2014 to go to Italy for four months and after that, extensions for his stay have been granted to him.
In Italy, Latorre had to undergo a heart surgery after which the top court had granted him extension of his stay in his native country.
On September 28, 2016, the apex court had allowed Latorre to remain in his country till the international arbitral tribunal decided the jurisdictional issue.
On May 26, 2016, Girone was also granted bail with conditions and allowed by the top court to go to his country till the jurisdictional issue was decided.
The complaint against the marines was lodged by Freddy, the owner of fishing boat 'St Antony' in which two Kerala fishermen were killed when marines opened fire on them allegedly under misconception that they were pirates.
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