Five months after the Centre dropped anti-piracy charges against the two Italian marines, facing trial for killing two fishermen off the coast of Kerala in February 2012, the Supreme Court will hear on Monday their plea challenging the jurisdiction of NIA to prosecute them.
However, senior advocate Mukul Rohatgi, present Attorney General (AG), will not appear for the Centre in the case as he was representing the marines and the Republic of Italy before.
Talking to dna, the government's senior most law officer Rohatgi said, "I cannot appear in the case now. I don't know which law officer would be engaged by the government in the case."
The second senior most law officer Ranjit Kumar is likely to represent the government before the bench headed by Chief Justice RM Lodha. When contacted Kumar, however, said, "he has not got any instruction from government so far."
Earlier, former AG, GE Vahanvati had informed the apex court about central government's decision that SUA will not be attracted in this case that would have seen them being sentenced to death. SUA only provides for death penalty while IPC provides death or life imprisonment for murder charges.
Seeking the court to discharge the sailors, Rohtagi had questioned the jurisdiction of the NIA after the previous UPA government had decided to drop the SUA charges against them saying, "if SUA goes NIA can not probe the cases under IPC."
Two Italian sailors Massimiliano Latorre and Salvatore Girone, part of a military security team protecting a privately-owned cargo ship, claim that they mistook the fishermen for pirates and fired warning shots into the water during the incident in February 2012, off the coast of Kerala state.
The Indian government had handed over the investigation to National Investigating Agency (NIA) which functions as the nation's counter-terrorism law enforcement agency.
The NIA had registered a first information report (FIR) on April 4, 2012 charging the two marines with "murder by firing" under Section 302 (murder), 307 (attempt to murder) and 427 (mischief) of the Indian Penal Code (IPC) and also Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002 (SUA).
India invoked SUA to back claims that it had the jurisdiction to try the marines here. Italy, however, had had strongly opposed India invoking the law, arguing that it would amount to treating the men as "terrorists" and it recalled its ambassador to New Delhi in protest against the delay in the two-year-old case.
After flip-flop, the Centre had informed the apex court that the accused would not be tried under the stringent anti-piracy law that would have seen them being sentenced to death.
Meanwhile, the top court also stayed the criminal trial against the marines before the Special Court here.