NEW DELHI: As the controversy surrounding prosecution of Italian marines under the SUA Actrages, it now emerges that the home ministry, perhaps, ignored crucial opinion that NIA could have investigated the case under sections of Indian Penal Code (IPC) despite this being out of its mandate. Sources said this was possible as the marines case was a special one handed over by the Supreme Court.
However, having given the sanction now, the ministry has tied itself in knots being left with options of either withdrawing the sanction based on legal opinion or working a way out through the court to drop the charges, sources said. In both cases, the ministry is likely to have egg on its face having granted sanction in the first place.
The MHA last Friday gave sanction to NIA to prosecute the two Italian marines, accused of killing two Kerala fishermen in February 2012, under Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act (SUA). Under the Act, if the marines are convicted, they are sure to be hanged as the Act provides only death penalty for causing death.
This has caused a diplomatic row with Italy which has been saying that India had promised that the marines would not face death. Even the foreign ministry is furious at the development as minister Salman Khurshid had given a guarantee on the floor of Parliament. Attorney general G E Vahanvati on Monday sought time from SC to resolve the issue.
Sources in the home ministry say that during discussions over the case, legal opinion had been expressed that it was not necessary to invoke SUA for the case to be investigated by NIA (which is supposed investigate only scheduled offences) as the case had been given to the agency based on SC order (of January 18, 2013) that the case be given to a federal agency.
"In such a situation it could have been argued that NIA had jurisdiction over the case even under section 302 of IPC as it was an extra-ordinary case due to court order," said an official privy to the discussions. Under IPC sections death penalty is at the discretion of the court and not mandatory.
Interestingly, Kerala police, which investigated the case earlier, had also invoked SUA in its chargesheet. It, however, temporarily withdrew it because of jurisdictional issues pending sanction from the home ministry. However, before the sanction could come the case was transferred out of its hands by the apex court.
NIA on its part has been confident of its case and application of SUA. Contrary to contentions of Italian government that invocation of SUA on marines has equated Italy to a terrorist state, sources say, the Act nowhere mentions that it is applicable only to pirates or terrorists irrespective of under what convention it has been framed.
However, having given the sanction now, the ministry has tied itself in knots being left with options of either withdrawing the sanction based on legal opinion or working a way out through the court to drop the charges, sources said. In both cases, the ministry is likely to have egg on its face having granted sanction in the first place.
The MHA last Friday gave sanction to NIA to prosecute the two Italian marines, accused of killing two Kerala fishermen in February 2012, under Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act (SUA). Under the Act, if the marines are convicted, they are sure to be hanged as the Act provides only death penalty for causing death.
This has caused a diplomatic row with Italy which has been saying that India had promised that the marines would not face death. Even the foreign ministry is furious at the development as minister Salman Khurshid had given a guarantee on the floor of Parliament. Attorney general G E Vahanvati on Monday sought time from SC to resolve the issue.
Sources in the home ministry say that during discussions over the case, legal opinion had been expressed that it was not necessary to invoke SUA for the case to be investigated by NIA (which is supposed investigate only scheduled offences) as the case had been given to the agency based on SC order (of January 18, 2013) that the case be given to a federal agency.
"In such a situation it could have been argued that NIA had jurisdiction over the case even under section 302 of IPC as it was an extra-ordinary case due to court order," said an official privy to the discussions. Under IPC sections death penalty is at the discretion of the court and not mandatory.
Interestingly, Kerala police, which investigated the case earlier, had also invoked SUA in its chargesheet. It, however, temporarily withdrew it because of jurisdictional issues pending sanction from the home ministry. However, before the sanction could come the case was transferred out of its hands by the apex court.
NIA on its part has been confident of its case and application of SUA. Contrary to contentions of Italian government that invocation of SUA on marines has equated Italy to a terrorist state, sources say, the Act nowhere mentions that it is applicable only to pirates or terrorists irrespective of under what convention it has been framed.
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