“Even Ajmal Kasab got a fair trial”: SC remarks in Yasin Malik case

Even Ajmal Kasab received a fair trial in our country, the Supreme Court observed on Thursday, hinting that it may set up a courtroom in Tihar Jail for the trial of J&K separatist leader Yasin Malik in a kidnapping case.

A bench comprising Justices Abhay S. Oka and Augustine George Masih was hearing a CBI plea challenging a Jammu court’s September 20, 2022 order directing that Malik, who is serving a life sentence in Tihar Jail, be brought before the court to be physically brought before him to cross-examine prosecution witnesses in the kidnapping case of Rubaiya Sayeed, daughter of politician Mufti Mohammad Sayeed.

However, the jury noted: “How should the cross-examination be carried out online? There is hardly any connectivity in Jammu…In our country, even Ajmal Kasab was given a fair trial and legal assistance was given to him in the Supreme Court.” The bench directed Solicitor General Tushar Mehta, representing the CBI, to issue instructions on the total number to receive witnesses in the case.

Citing security concerns, Mehta said Malik could not be brought to Jammu for trial.

The judicial officer accused Malik of “playing a prank” because he requested a personal appearance and did not hire a lawyer. Mehta said Malik was no ordinary criminal and showed an alleged photo of Malik sharing the podium with terrorist Hafiz Saeed.

The top court said it may order the trial to be held in prison and also ask the judge to come to the national capital for the trial.

However, the Court noted that all defendants in the matter had to be heard before issuing an order.

Mehta said Malik’s physical appearance at the Supreme Court had previously raised security concerns.

The judges said Malik could appear virtually in the Supreme Court proceedings and posted the matter on November 28.

The CBI has since been directed to amend its petition and appoint all the accused as respondents.

In 2023, Mehta wrote to then Union Home Minister Ajay Kumar Bhalla, pointing out a “serious security lapse” after Malik was taken to the Supreme Court to appear in a case.

Malik, who is serving a life sentence in a terrorist financing case, was taken to the high-security Supreme Court compound in a prison van without the court’s permission, accompanied by armed security guards.

Mehta expressed surprise at his presence and told the Supreme Court that there was a procedure to allow high-risk convicts to enter the courtroom to argue their case in person.

The CBI said Malik, the top leader of the Jammu and Kashmir Liberation Front, posed a threat to national security and should not be taken out of the Tihar jail premises.

The Supreme Court issued notices on the CBI’s appeal on April 24, 2023, following which the jailed JKLF chief wrote a letter to the Registrar of the Supreme Court on May 26, 2023, seeking permission to appear in person to present his case.

A deputy registrar took up his application on July 18, 2023, saying the high court would issue necessary orders – a decision that Tihar jail authorities reportedly misinterpreted to allow Malik to appear and plead his case .

Referring to the CBI’s contention in its appeal against the court’s order to bring Malik to Jammu for personal questioning of the witnesses in the kidnapping case, Mehta said under Section 268 of the CrPC, a state government can direct certain persons not to do so from the Borders of a prison relocated.

On September 20, 2022, a special TADA court in Jammu directed to produce Malik in person at the next hearing so that he could examine prosecution witnesses in the kidnapping case.

The CBI has challenged the court order in the Supreme Court as appeals in TADA cases are heard only by the top court.

Rubaiya was kidnapped near Lal Ded Hospital in Srinagar on December 8, 1989 and released five days later after the then BJP-backed Vice President Singh government at the Center released five terrorists in return.

Mufti, who now lives in Tamil Nadu, is a prosecution witness with the CBI, which took over the case in the early 1990s.

Malik is lodged in Tihar Jail after being convicted by a special NIA court in a terror financing case in May 2023.