A bench of Chief Justice Altamas Kabir, Justice Anil R Dave and Justice Vikramajit Sen deferred the pronouncement of its order which was listed Thursday, as it wanted the presence of Attorney General CE Vahanvati in the court.
As Chief Justice Kabir said that the order would be pronounced in the presence of the Attorney General, Additional Solicitor General Indira Jaisingh told the court she could address any query that the court may like answered.
However, the court said that it would pronounce its order on the Italian plea when Attorney General Vahanvati is present.
Earlier, the order was to be pronounced Monday; the matter was deferred to Thursday, and then to Friday.
The Italian government has contended that if convicted, its two marines would face death sentence, a mandatory punishment if a person is convicted under the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act (SUA), 2002.
On March 22, after the return of the marines from Italy, External Affairs Minister Salman Khurshid told parliament that India had offered Italy an assurance that its marines, Massimiliano Lattore and Salvatore Girone, would not get the death penalty if they returned by the deadline set by the Supreme Court.
Khurshid said the case did not fall in the category of "rarest of rare cases" that attracts the death penalty in India, so there was no fear of that.
However, the Italian government and the marines moved the apex court after the two security detail were booked under the SUA and investigation was entrusted to the National Investigation Agency (NIA).
In the course of the last hearing of the case April 16, senior counsel Mukul Rohtagi had assailed the NIA for invoking the SUA, under which, he noted, "death is answered by death"." The SUA has a mandatory death penalty, he said.
Section 3(g)(1) of the SUA says that the offender who causes death to any person, (he) shall be punished with death. The section deals with the offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc. and provides for punishments.
On Feb 15, 2012, the two marines, posted on security duty aboard an Italian-registered oil tanker, Enrica Lexie, mistaking a boat of fishermen for pirates, shot and killed two Indian fishermen, Ajay Binki and Gelastine.
The incident occurred about 20.5 nautical miles off the coast of Kerala.
The case was initially tried in Kerala. The Italians have been contesting the jurisdiction of Indian courts in the matter, saying the incident occurred in international waters. The trial then shifted to the apex court, which has now deferred its judgment twice.