New Delhi: Confusion prevails over the laws under which the Italian marine duo, accused of killing two Kerala fishermen, are to be prosecuted amid indications that the high-profile case may be handed over to CBI from NIA.
Government sources said as per the assurance given by India to Italy, the marines will not be given death sentence and hence the stringent Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 slapped against the duo will be dropped.
Under this Act, offence of murder is punishable only with death sentence.
However, if Massimiliano Lattore and Salvatore Girone are not prosecuted under this law, the National Investigation Agency, which has been assigned to investigate the case, cannot probe it as the agency is mandated to investigate only scheduled offences.
Therefore, sources said, if the stringent law is dropped, the NIA will have to give away the case and the case has to be handed over to another federal investigating agency -- most probably CBI -- for prosecuting the duo under IPC and CrPC.
Sources said no decision has been taken on it yet as both Home Minister Sushilkumar Shinde and Home Secretary R K Singh are away in Russia on a bilateral visit.
A decision on the issue is expected only after April 16 when the Centre will give its submission on the case before Supreme Court.
On March 22, after the return of the marines from Italy, External Affairs Minister Salman Khurshid had told Parliament that India has given an assurance to that country that the two will not face death penalty nor will they be liable for arrest if they return by the deadline set by the Supreme Court.
India had given the assurance after clarifications were sought by Italy on death penalty which was a "concern" to that country.
Khurshid had also said, "...According to well-settled Indian jurisprudence, this case would not fall in the category of matters which attract death penalty, that is to say the rarest of rare cases. Therefore, there need not be any apprehension in this regard."
Home Secretary Singh had also said that the assurance given by New Delhi to Rome will be honoured.
NIA has filed an FIR before a special NIA court booking the marines under sections 302 (murder), 307 (attempt to murder), 427 (mischief) along with section 34 (common intent) of IPC and the 2002 Maritime Act.
The Supreme Court had on January 18 said the marines on board 'Enrica Lexie', accused of killing the two fishermen in February last year, be shifted to Delhi and be under the 'custody' of the apex court till the Centre constitutes a special court to hold their trial.
The incident had taken place at a distance of about 20.5 nautical miles from the coastline of Kerala and, therefore, it had not occurred within the territorial waters of the coastline of Kerala state but within the Contiguous Zone over which the state police of Kerala ordinarily has no jurisdiction, the court had said.
The Italian government had a fortnight ago reversed its earlier decision not to send back to India the two marines who had gone to Italy to cast votes in elections there.
Italy had reneged on its assurance to the Supreme Court on sending back the marines but later gave in after the Indian government and the apex court took a firm stand with New Delhi warning that ties with Rome could be downgraded.