'In Our Country, Even Ajmal Kasab Was Given Fair Trial' : Supreme Court To CBI In Yasin Malik's Case

Even terrorist Ajmal Kasab was given a fair trial, orally observed the Supreme Court, while hearing an appeal filed by the CBI against an order for the physical production of Kashmiri separatist Yasin Malik to a Jammu court for the trial in the case related to the killing of 4 IAF personnel in 1989.

Citing security concerns, the Central Bureau of Investigation (CBI) has taken exception to the direction for the physical production of Malik. Solicitor General of India Tushar Mehta told a bench comprising Justice Abhay S Oka and Justice Augustine George Masih that Malik could not be taken to Jammu for the trial. The safety of the witnesses was also a matter of concern, the law officer added.

The SG stated that Malik was "playing tricks" by insisting that he would appear personally without engaging a lawyer. Flashing a photograph of Malik sharing dias with Hafiz Saeed -Pakistani militant and founder of terrorist organisation Lashkar-e-Taiba - the SG emphasised that Malik was not an ordinary criminal.

 "But how cross-examination will be done online? Hardly any connectivity is there in Jammu," Justice Oka wondered. SG reiterated that Malik was not "just another terrorist" and had travelled to Pakistan many times to meet Hafiz Saeed. "We, as in the government, cannot go by the book in such cases," SG said.

"In our country, a fair trial was given even to Ajmal Kasab," Justice Oka said while asking the SG to get instructions on how many witnesses were there in the trial. SG said that it was Malik who was refusing legal representation. "Witnesses will need security, one of the witnesses was assassinated," SG added.

Justice Oka asked if the option of having a trial in the jail could be explored. The judge further said that all the accused persons in the matter need to be heard before passing an order.

The SG said that even in the present petition, Malik has not engaged a lawyer. In one instance, Malik, who is serving life sentence in Tihar jail in another case, appeared physically in the Supreme Court in the petition, raising security concerns, SG Mehta pointed out. Justice Oka said that he could be allowed to appear virtually in the Supreme Court proceedings.

Ultimately, the matter was adjourned till next Thursday allowing the CBI to amend the 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 Title: CBI v. Mohd Yasin Malik SLP(Crl) No. 5526-5527/2023]