Delhi High Court Issues Notice On NIA’s Plea Seeking Death Penalty For Yasin Malik In Terror Funding Case

The Delhi High Court on Monday issued notice on a plea moved by National Investigation Agency seeking death penalty for Kashmiri separatist leader Yasin Malik who was convicted in connection with a terror funding case.

A division bench of Justice Siddharth Mridul and Justice Talwant Singh issued notice to Yasin Malik through the concerned Tihar Jail Superintendent and listed the matter for hearing on August 09.

Solicitor General Tushar Mehta, representing the NIA, argued that propagating one region to be separated from the country makes the case "rarest of rare".

"Any terrorist can come here and do terrorist activities, and court will say since he has pled guilty, I will give him life (sentence) and not capital," Mehta said, adding this way everyone will avoid trial.

Mehta also submitted that Yasin Malik is responsible for killing four IAF personnel in Rawalpora, Srinagar and kidnapping of Dr. Rubaiya Sayeed, the daughter of then Union Minister Mufti Mohammed Sayeed. He said that it is a “rarest of rare case” deserving death sentence.

“You get training from Pakistan and then you plead guilty and be in jail to be rescued later, this is thus a statutory appeal under NIA Act which lies for sentence also,” Mehta said.

Mehta also added that after the kidnapping of Sayeed, four terrorists had to be released who planned the 26/11 Mumbai terror attacks.

“Your lordships may recall, because of this kidnapping (of Rubaiya Sayeed), four dreaded terrorists were required to be released and they masterminded the 26/11 Bombay attacks,” he said.

As Mehta submitted that the charge under section 121 of Indian Penal Code (waging war against the Government of India) is made out against Malik which is punishable with death, the bench questioned NIA on specific charges against Malik and those to which he pleaded guilty.

The court asked NIA to point out where such acts of killing and kidnapping are mentioned in the order framing charge passed by the trial court.

“Is that in so far as the chargesheet refers to causing death of public functionaries and abducting the individual to force the government to do something, where is that in the order on charge?,” Justice Mridul asked NIA.

Adding to this, Justice Singh said: “Chargesheet it is there, where is it in order? We are not talking about chargesheet. We are talking about specific charges.”

The court then passed over the matter for allowing NIA to being relevant documents on record indicating charges against Malik. “You take a passover, but what we want to know is....In the chargesheet, those accusations have been levelled...the order on charge doesn't mention those allegations.”

After the matter was taken up again, Mehta told court that there is a specific reference to section 15 of UAPA in the trial court order. 

“And also for section 121 of IPC, there is specific reference. There are more than one references to secessionist and terrorist acts which gives rise to death penalty,” Mehta said.

After hearing Mehta, the court issued notice on NIA’s plea and also on the application seeking condonation of delay in refiling of the appeal.

“In view of the circumstance that Yasin Malik, the sole respondent in this appeal, has inter alia pleaded guilty to a charge under section 121 IPC which provides for alternate death sentence, we issue notice to him in both the application and appeal through jail superintendent,” the court said, while also issuing production warrants for Yasin Malik.

As the court listed the matter for hearing in August, Mehta said: “I am obliged because your lordships otherwise anyone can plead guilty and avoid death sentence and in future someone can take them back.”

Mehta further said that Yasin Malik pleaded guilty “very tactfully” to which Justice Mridul commented “That may be his constitutional right.”

However, Mehta added: “If Osama Bin Laden was tried here, he would have been permitted to plead guilty....”

Justice Mridul then orally said: “We can't compare this gentleman to Osama Bin Laden because he nowhere stood trial.”

“Possibly USA was right,” the SGI then said to which Justice Mridul said that court cannot comment on anything which may affect the country’s foreign relations.

SPP Akshai Malik and Advocates Akshay Sehgal and Khawar Saleem also appeared for NIA.

Malik was sentenced to life imprisonment by a special NIA court in May last year. He had pleaded guilty in the case and did not contest to the charges against him.

While awarding him life sentence, Special Judge Praveen Singh had observed that the crime failed the test of rarest of rare case as held by the Apex Court.

The judge had also rejected Malik's submission that he had followed Gandhian principle of non violence and was spearheading a peaceful non violent struggle.

"However, the evidence on the basis of which charges were framed and to which convict has pleaded guilty, speaks otherwise. The entire movement was planned to be a violent movement and large scale violence ensued is a matter of fact. I must observe here that the convict cannot invoke the Mahatma and claim to be his follower because in Mahatma Gandhi's principles, there was no place for violence, howsoever high the objective might be," the special judge had said.

The court had framed charges against Malik and others under Unlawful Activities Prevention Act (UAPA) in the case, in March last year.

Others who were charged and claimed trial were Hafiz Muhammad Saeed, Shabbir Ahmad Shah, Hizbul Mujahideen Chief Salahuddin, Rashid Engineer, Zahoor Ahmad Shah Watali, Shahid-ul-Islam, Altaf Ahmad Shah @ Fantoosh, Nayeem Khan, Farooq Ahmad Dar @ Bitta Karate.

However, the Court had discharged three men namely Kamran Yusuf, Javed Ahmad Bhatt and Syeda Aasiya Firdous Andrabi.

Title: STATE (NATIONAL INVESTIGATION AGENCY) v. MOHD YASIN MALIK