Confusion prevailed on Wednesday over who will probe the killing of two Kerala fishermen allegedly by two Italian marines and what charges will be slapped against the accused as External Affairs Ministry and Home Ministry expressed conflicting views over it.
While the Home Ministry has been maintaining that the case has been handed over to National Investigation Agency following the Supreme Court's ruling that Kerala government has no jurisdiction to prosecute the marines, the External Affairs Ministry said "no formal notification" on who will probe the matter has been issued so far.
Official spokesperson of MEA Syed Akbaruddin said "there is no formal decision on which investigating agency will conduct the probe. No formal notification has been issued so far".
According to Home Ministry officials, they have not yet received the exact text of the communication given by New Delhi to Rome giving clarification on the death sentences given to the murder accused
MHA officials said if any assurance has been given to Italy that prosecutors will not press for death sentence against the marines -- Massimiliano Lattore and Salvatore Girone --, it will be duly honoured.
Officials said if any assurance was given to Italy on not providing death sentence, then the marines could be tried under Section 302 (murder) of the Indian Penal Code or IPC Section 304 (culpable homicide not amounting to murder).
Since the case is not a rarest of rare case, even after murder conviction of the marines under Section 302, they will not be given capital punishment.
In that case, the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002 will not be slapped against the marines under which offence of murder is punishable with death sentence.
There is also no clarity whether NIA will have to conduct the probe from the beginning or if it can take over the case from Kerala Police as the Supreme Court has not clarified on it.
Because of all this confusion, no case has been registered by NIA yet.
The apex court had on January 18 said the marines onboard the merchant ship Enrica Lexie, accused of shooting dead the two fishermen in February last year, be shifted to Delhi and be under the 'custody' of the Supreme Court till the Centre constitutes a special court to hold their trial.
"The incident of firing from the Italian vessel on the Indian vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country," the bench had said.
Commenting on the delay in constitution of the special court to try the marines, Akbaruddin said the court has to be "unique which does not follow a pattern previously and therefore, we have to be cautious and careful and act with circumspection" as it was open to various legal interpretation and questioning.
He also said it has to be established after a "rigorous and well-thought" process.
The incident took place at a distance of about 20.5 nautical miles from the coastline of Kerala and, therefore, it occurred not 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 Indian government and the apex court took a firm stand with New Delhi warning that ties with Rome could be downgraded.
