Supreme Court issues notice to Yasin Malik, others on CBI's plea to transfer trial in two cases

A bench of Justices Abhay S Oka and Augustine George Masih issued notice to Malik and other accused and directed them to file a response by December 18.

The Supreme Court today (November 28) sought a response from Jammu and Kashmir separatist leader Yasin Malik and others on a plea by the Central Bureau of Investigation to transfer the trial in two cases from Jammu to New Delhi.

During the proceedings, Solicitor General Tushar Mehta told the bench that Malik need not be physically taken to Jammu court for trial in the kidnapping case as Tihar jail has a court with video-conferencing facilities.

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

The matter has been posted for the next hearing on December 18 (Wednesday).

The top court was hearing a CBI plea against the September 20, 2022 order of a Jammu trial court that directed Malik, serving life term in Tihar jail, to be produced before it physically to cross-examine the prosecution witnesses in the kidnapping case of Rubaiya Sayeed, daughter of politician Mufti Mohammad Sayeed.

Observing that even Mumbai terror attack convict Ajmal Kasab was given a fair trial, the bench had earlier said that it could order trial to take place inside the jail besides asking the judge to come to the national capital for the proceedings.

Mehta had said Malik physically appearing in the Supreme Court had raised security concerns previously. In 2023, Mehta wrote to then Union Home Secretary Ajay Kumar Bhalla flagging a serious security lapse after Malik was brought to the Supreme Court to appear in a case.

Malik, serving life sentence in a terror-funding case, was brought to the high-security apex court premises in a prison van escorted by armed security personnel without the court's permission.

Yasin Malik was threat to national security and cannot be allowed to be taken outside Tihar jail premises: CBI 

Voicing surprise at his presence, Mehta informed the apex court there was a procedure for high-risk convicts to be allowed into the courtroom to argue their case personally. The CBI said Malik, the top leader of the Jammu and Kashmir Liberation Front, was a threat to national security and could not be allowed to be taken outside the Tihar jail premises.

The apex court on April 24, 2023, issued notices on the CBI's appeal following which the incarcerated JKLF chief wrote a letter to the registrar of the Supreme Court on May 26, 2023 seeking permission to appear in person to plead his case.

An assistant registrar took up his request on July 18, 2023 and said the apex court would pass necessary orders -- a decision the Tihar jail authorities reportedly misconstrued to allow Malik to appear and argue his case.

Mehta referred to the CBI's contention in its appeal against the trial court order to bring Malik to Jammu for in-person examination of the witnesses in the kidnapping case, and said under Section 268 of the CrPC a state government may direct certain people to not be shifted from the confines of a prison.

On September 20, 2022, a special TADA court in Jammu directed Malik to be physically produced before it on the next hearing for him to cross-examine prosecution witnesses in the kidnapping case.

The CBI challenged the trial court order before the Supreme Court as appeals in TADA cases are only heard by the top court. Rubaiya Sayeed was abducted near Lal Ded Hospital in Srinagar on December 8, 1989 and freed five days later after the then BJP-backed V P Singh government at the Centre released five terrorists in exchange.

Sayeed, who now lives in Tamil Nadu, is a prosecution witness of the CBI, which took over the case in the early 1990s. Malik is lodged in Tihar jail after he was sentenced by a special NIA court in May, 2023 in a terror-funding case.

(With PTI inputs)