Yasin Malik Can't Be Physically Produced In Jammu Court : Supreme Court Allows Him To Examine Witnesses Via VC From Tihar Jail
The Supreme Court on Friday (April 4) ruled against the physical production of Kashmiri separatist Yasin Malik before a Jammu Court for the trial of the cases related to the assassination of four Indian Air Force officials and the kidnapping of Rubayya Sayid in 1989. Instead, the Court directed that Malik(who has chosen not to engage an advocate to represent him) be allowed to cross-examine...
The Supreme Court on Friday (April 4) ruled against the physical production of Kashmiri separatist Yasin Malik before a Jammu Court for the trial of the cases related to the assassination of four Indian Air Force officials and the kidnapping of Rubayya Sayid in 1989. Instead, the Court directed that Malik(who has chosen not to engage an advocate to represent him) be allowed to cross-examine the witnesses in the case through Video Conferencing facilities from Tihar jail.
The Court noted that the Central Government has passed an order in December 2024 under Section 303 of the Bharatiya Nagarik Suraksha Sanhita and the Unlawful Activities (Prevention) Act restricting the movement of Malik from the National Capital Territory of Delhi for one year.
In view of this prohibitory order, the Court held that his physical production before the Jammu Court was not appropriate. The Court further noted from the reports of the Registrar General of the Jammu & Kashmir & Ladakh High Court as well as the Delhi Jail Superintendent that both the trial court and Tihar Jail have Video Conferencing facilities.
The Court further noted that Section 530 of the BNSS allows the use of VC facilities for the examination of the witnesses. The High Court has also framed guidelines providing that video conferencing facilities can be used in criminal trials.
In this backdrop, the bench set aside the trial court's order for the physical production of Malik. The bench also clarified that it has not observed anything on the merits of the matter.
A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan was hearing a petition filed by the Central Bureau of Investigation challenging the Jammu Court's order to produce Yasin Malik before it for trial in a case related to the assassination of four Indian Air Force officials in 1989.
The CBI, represented by Solicitor General Tushar Mehta, stated that there were security concerns regarding the physical production of Yasin Malik.
Today, Yasin Malik, appearing virtually before the bench from Tihar Jail, asserted that he was not a "terrorist" and was only a "political leader". Justice Oka at this point told him that the bench was not deciding the merits of the case and was only on the issue whether he should be allowed to cross-examine witnesses through Video Conferencing.
Malik said that he was replying to the CBI's argument that he could not be physically produced before the Jammu Court as he was a "dreaded terrorist." ": "But CBI's objection is that I am a security threat. I am responding to that. There is not a single FIR against me and my organisation supporting or providing any kind of hideout to any militant. There are FIRs against me but they are all related to my non-violent political protests," Malik said.
"We are not deciding the issue whether you are a terrorist or a political leader. The only issue is whether you should be permitted to cross-examine the witnesses by video conference," Justice Oka reiterated.
Background
The CBI has challenged the Jammu trial court's order requiring Malik's physical production for trial. The agency has cited security concerns, including the assassination of a witness, as reasons for opposing Malik's transportation to Jammu. Solicitor General Tushar Mehta, appearing for the CBI, has described Malik as a high-risk individual, referencing his alleged ties with Hafiz Saeed, founder of the terrorist organization Lashkar-e-Taiba, and his multiple visits to Pakistan.
During an earlier hearing, the Court raised concerns about the feasibility of conducting cross-examinations online due to connectivity issues in Jammu. The Court suggested exploring the possibility of conducting the trial within the premises of Tihar Jail as an alternative.
In January, the Supreme Court directed the High Court of Jammu & Kashmir & Ladakh to take immediate steps to install proper video-conferencing facilities in the Court in Jammu, which is holding the trial against Malik.
Thereafter, the Solicitor General informed the Court that the CBI had filed an application to amend its petition and add the co-accused as parties in the appeal. Notice was issued to the additional respondents and on the CBI's transfer application.
The Solicitor General also raised concerns about Malik's refusal to engage a lawyer and his insistence on personal appearances, describing it as an attempt to "play tricks."
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.
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
