CBI Files Application In Supreme Court To Transfer Trial Against Yasin Malik From Jammu To Court In Tihar Jail

The Central Bureau of Investigation has filed an application in the Supreme Court seeking the transfer of the trial of the case involving Kashmiri separatist Yasin Malik from Jammu to a court facility within Tihar jail, where he is currently lodged.

Malik need not be physically produced before the court in Jammu for trial as Tihar jail has a functional court with video-conferencing facilities, the Solicitor General of India informed the Court on Thursday (November 28).

A bench comprising Justice Abhay S Oka and Justice Augustine George Masih was hearing the appeal filed by the CBI against an order passed by the Jammu trial court to physically produce Yasin Malik in the trial pertaining to the killing of four Indian Air Force personnel in 1989.

SG Tushar Mehta informed the bench that a transfer application has been filed. Also, another application has been filed to amend the petition and the cause-title to add the other co-accused as parties in the appeal. Last week, the bench had expressed that all accused and not just Yasin Malik must be heard before the trial is transferred.

"I have filed applications for amending the cause title. Placed on record the fact that there already exists a fully functional court in the jail with all the facilities of video conferencing also if needed. And in the past proceedings have taken place in that," SG Mehta told the bench today.

The bench amended the amendment application and issued notice to the accused added as additional respondents. The bench also issued on the transfer application filed by the CBI. The matter will be heard next on December 18.

What happened in the previous hearing?

The Court earlier orally observed that even terrorist Ajmal Kasab was given a fair trial.

The CBI raised security concerns regarding Malik's physical production for trial. Solicitor General of India Tushar Mehta, appearing for the CBI, informed the Court that Malik could not be transported to Jammu. He also cited concerns over the safety of witnesses, noting that one witness had already been assassinated.

The Solicitor General stated that Malik, currently serving a life sentence in Tihar Jail for a separate case, was “playing tricks” by refusing to engage a lawyer and insisting on personal appearances in court. Referring to a photograph of Malik alongside Hafiz Saeed, founder of the terrorist organization Lashkar-e-Taiba, Mehta emphasized that Malik was not an ordinary criminal but had traveled to Pakistan multiple times to meet Saeed.

Justice Oka expressed concern over the feasibility of cross-examination being conducted online due to poor connectivity in Jammu. He also inquired whether a trial could be conducted within the jail premises as an alternative to transporting Malik. The bench further emphasized that all accused persons in the matter must be heard before passing any orders.

The Solicitor General pointed out that Malik had not engaged legal counsel even for the current petition. He highlighted a prior incident where Malik appeared physically in the Supreme Court, raising security concerns. Justice Oka suggested that virtual appearances could be allowed in Supreme Court proceedings instead.

The bench adjourned the matter to the following Thursday, granting the CBI permission to amend its petition to implead all accused persons as respondents.

In July 2023, the Supreme Court judges were shocked to see Tihar jail authorities producing Malik physically before the bench for the hearing in the matter. The CBI's counsel then informed the Court that Malik was brought by the jail authorities upon misinterpretation of the Apex Court's order. Stating that it was a security issue, SG Mehta had then assured that administrative measures would be taken to ensure that the instance was not repeated. Justice Dipankar Datta recused from hearing the matter.

In April 2023, the Supreme Court had stayed the operation of impugned orders of the 3rd Additional Sessions Judge, Jammu (TADA/POTA) whereby Malik's physical appearance was sought for cross-examination of witnesses in relation to the killing of four IAF personnel; abduction of Rubaiya Sayeed, daughter of Mufti Muhammad Sayeed in 1989.

In May 2022, a NIA Court sentenced Malik to life imprisonment for charges of conspiracy, waging war against the state, terror funding etc. after he pleaded guilty. The NIA has appealed to the Delhi High Court seeking death sentence for him.

Case no. –SLP(Crl) No. 5526-5527/2023

Case Title – CBI v. Mohd Yasin Malik