The central government appears to have tied itself in knots in the case involving the trial of the two Italian marines accused of killing two Indian fishermen off the Kerala coast in February 2012.
‚ÄúWhen we discuss the issue of prosecuting the Italian marines and the problems therein, we just waste time. It should never have been an issue at all,‚Äù says an exasperated Union home ministry official who has attended many meetings on how the case could be dealt with.
The official concedes that the ministry tied its hands right at the outset when it handed the case over to the National Investigation Agency (NIA), a specialised anti-terror agency created in the wake of the 26/11 Mumbai attacks.
The Supreme Court wanted the case to be investigated by any federal agency and it could have been the CBI as well, the official pointed out.
‚ÄúBut since the case was handed over to the NIA and the agency didn‚Äôt want its jurisdiction in the case challenged, it applied the stringent SUA (Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002) that can be punishable by death. The SUA is mainly an anti-terror law and is one of the scheduled offences under the NIA Act that governs the working of the anti-terror agency,‚Äù the official said.
‚ÄúThe NIA officials were not happy with the home ministry‚Äôs decision to have them investigate the case. They would have liked the case to be probed by any other agency,‚Äù said a source.
MHA sources say that prime facie it seemed the two marines on board the Enrica Lexie opened fire on the Indian fishing boat thinking they were being attacked by pirates. So, did the marines follow the procedure before opening fire? In other words, was it a case of murder or culpable homicide not amounting to murder?
‚ÄúRegular sections of the Indian Penal Code would have been sufficient to try the two marines,‚Äù the home ministry official said.¬† But the NIA had no option but to invoke section 3 of the SUA in the case as two Indian fishermen died in the shooting.
Invoking section 3, however, was not in consonance with the assurance given by the external affairs ministry to the Italian government about not making out a case that invites the death penalty.
Meanwhile, the marines moved the apex court. ‚ÄúAs the matter is being heard in the Supreme Court and the next date of hearing is February 3, the attorney general has sought time from the court to find a way ahead in the case. We will wait for the outcome of the hearing before filing charges,‚Äù said an NIA official.
Home ministry officials don‚Äôt agree. ‚ÄúWhy is the NIA assuming that the court will frame charges against the two marines under the SUA, and later hold them guilty as well? Let the court first decide whether it‚Äôs a case punishable by the death sentence or not,‚Äù said the home ministry official.
Interestingly, there is no legal bar on the NIA to file charges as it has been accorded sanction by the home ministry to prosecute the two marines.