Two Italian marines accused of killing two Indian fishermen off Kerala coast in 2012 will not be prosecuted under the stringent anti-piracy SUA law that attracts death penalty as maximum punishment, the Centre on Monday told the Supreme Court.
The Centre told the court that the contentious issue between India and Italy on slapping Suppression of Unlawful Acts Against Safety of Maritime Navigation And Fixed Platforms on Continental Shelf Act against the marines has been resolved as it has decided to go by opinion of the law minister, according to which provisions under the anti-piracy law are "not attracted" in this case.
Appearing before a bench headed by Justice B S Chauhan, Attorney General G E Vahanvati said the government has accepted the law minister's view.
The Italian government, however, opened a new front against the Centre by questioning the jurisdiction of the National Investigation Agency to investigate the case, saying that the agency cannot probe offences under the Indian Penal Code.
Senior advocate Mukul Rohatgi, appearing for the Italian government, submitted, "NIA cannot investigate IPC offences. Entire probe has been done by NIA which does not have sanction of law to proceed in the case."
The Centre, however, opposed the plea and submitted that the agency can probe any case on the direction of the court.
The bench after hearing both the sides agreed to adjudicate the matter and allowed the Italian government to file an application regarding the issue of jurisdiction of NIA within a week.
The Centre was asked to respond a week after the filing of application by the Italian government.
The bench was hearing a petition filed by the Italian government challenging invoking of anti-terrorism law SUA, saying it is against the order of the apex court which allowed proceedings only under the Maritime Zone Act, IPC, CrPC and UNCLOS.
The joint petition, filed by Italian Ambassador Daniele Mancini along with Italian marines Massimiliano Latorre and Salvatore Girone, also sought direction to the Centre to expedite the proceedings in the case or discharge the marines.
The petition has said invoking SUA "would tantamount to the Republic of Italy being termed a terrorist state and acts of its organs, which were in repression of piracy, as being deemed as acts of terrorism, which is wholly untenable and unacceptable in the facts and circumstances of this case and in keeping with the comity of nations and international cooperation".
The case pertains to the killing of two Indian fishermen allegedly by Latorre and Girone on board ship ‘Enrica Lexie' off Kerala coast on February 15, 2012.
The two officers contended that they had apprehended a piracy attack. The marines were arrested on February 19, 2012.
The petition has said that the draft protocol of 2005 to the SUA convention expressly excludes the applicability of the convention to activities undertaken by the military forces of a State in the exercise of their official duties.
"The purported attempt by the Centre to unilaterally invoke the provisions of SUA is contrary to and in wilful disregard of the directions of this court," the petition has said, adding that they came to know about the issue of invoking SUA on the basis of an application filed by NIA in the trial court.
It has contended that one year has passed since the apex court directed an expeditious hearing in the case but the Centre has failed to implement the order and the charge sheet has so far not been filed in the case.
"The petitioners have been detained in India for the last two years without any criminal case against them being started and the Centre has in fact failed to present any final report against them for almost one year despite the direction of the apex court to try and dispose of the case on a fast track basis," the petition has said, adding that the accused be allowed to return to Italy till the proceedings begin.
On January 18, last year, the Supreme Court had directed the central agency to probe the case against the marines and directed the Centre to set up a special court to conduct the trial on a day-to-day basis after the charge sheet is filed.