A Bench of Justices Abhay S Oka and Augustine George Masih suggested that a courtroom could be established within the jail to address the issue.
NEW DELHI: On Thursday(21st Nov), the Supreme Court proposed the possibility of setting up a temporary courtroom in jail for the physical cross-examination of terror convict Yasin Malik, who is facing two cases for kidnapping and murder, currently pending trial in a Jammu court.
While the Jammu court had requested his physical presence, authorities raised concerns about the security risks of transferring Malik from jail to Jammu.
A Bench of Justices Abhay S Oka and Augustine George Masih suggested that a courtroom could be established within the jail to address the issue.
In an interesting turn of events, Malik appeared physically in the Supreme Court during a July 2023 hearing after informing jail authorities of his intention to attend. Justice Dipankar Datta recused himself from the case shortly after. Following this, SG Mehta sent a strongly worded letter to the Home Secretary, Ajay Bhalla, highlighting a serious security breach due to Malik’s presence in the Supreme Court.
Solicitor General Tushar Mehta stated, “We don’t want to take him to Jammu.” due to security concerns. However, Justice Abhay Oka expressed concerns about conducting cross-examinations online due to connectivity issues in Jammu.
In response, Mehta assured, “Let me look into it. One thing is clear from the photos – he is the man, in Pakistan.”
Justice Oka highlighted that
“Ajmal Kasab was given a fair trial in India, to which Mehta remarked, “We are ready to represent, but he is refusing.”
The Solicitor General (SG) highlighted that Malik, currently serving a life sentence in Tihar Jail in another case, has not engaged a lawyer for the present petition. The SG also noted a prior instance where Malik physically appeared in the Supreme Court, raising security concerns.
In response, Justice Oka suggested that Malik could be permitted to appear virtually for the proceedings.
The Bench was hearing an appeal filed by the Central Bureau of Investigation (CBI) challenging the Jammu court’s order, which required Yasin Malik’s physical presence during trial proceedings.
Representing the CBI, Solicitor General (SG) Tushar Mehta reiterated that the central agency did not wish to transport Malik, who is currently incarcerated in Tihar Jail, to Jammu and Kashmir.
Justice Oka then asked, “But how can the cross-examination be done via video conferencing?”
In response, the SG suggested,
“If Malik insists on appearing personally, the trial could be moved to Delhi. He is not just another terrorist; the government cannot follow the standard procedure in such cases. He has frequently traveled to Pakistan and even shared the stage with Hafeez Saeed. There have even been trials conducted in jail, such as in Gujarat.”
The Supreme Court allowed the CBI to include all the accused in the case as respondents and scheduled the next hearing for November 28.
The Jammu special court had ordered Malik’s physical appearance for the cross-examination of witnesses in two cases: the 1989 abduction of Rubaiya Sayeed, the daughter of former Jammu and Kashmir Chief Minister Mufti Muhammad Sayeed, and the killing of four IAF personnel.
The CBI had challenged this order, and the Supreme Court stayed the ruling after issuing a notice in April of the previous year.
Recently, Malik had also approached the Delhi High Court, seeking medical treatment at AIIMS, claiming that authorities were preventing his physical production in court under the guise of an order issued under Section 268 (which restricts the removal of prisoners) of the CrPC.
He has requested the High Court to revoke this order and direct authorities to produce him physically when required in court.
Background
On May 24, 2022, a trial court sentenced Yasin Malik to life imprisonment after finding him guilty under the stringent Unlawful Activities (Prevention) Act (UAPA) and the Indian Penal Code.
Malik had admitted to the charges, including those under the UAPA, leading to his conviction and life sentence.
Challenging the sentence, the NIA argued that a terrorist should not receive a life sentence solely for pleading guilty and avoiding trial. The agency sought to enhance the sentence to the death penalty, asserting that allowing “such dreaded terrorists” to escape capital punishment by pleading guilty would undermine the sentencing policy and provide terrorists a loophole to evade the death penalty.
