The NIA Wednesday moved the Delhi High Court seeking permission to produce virtually from jail Kashmiri separatist leader Yasin Malik in a terror funding case in which it has sought death penalty for him.
The application is listed for hearing before a bench of Justices Siddharth Mridul and Anish Dayal on August 3.
The high court had on May 29 issued a warrant for production of Malik, who is serving life term in the case in Tihar jail, on August 9 when NIA's plea for enhancement of sentence is listed for hearing.
In an application seeking modification of the order, the investigating agency said Malik was a “very high risk prisoner” and it was imperative to not physically produce him in court in order to maintain public order and safety.
It also said that as per an order passed by the Home Ministry, Malik cannot be “moved from the Tihar Jail” and shall "not be taken out of the jurisdiction of NCT of Delhi".
“Respondent/Convict Yasin Malik has been lodged in the Tihar Jail, New Delhi under the category of very high risk prisoners and thus, the present Application is in relation to a heavy security issue. Therefore, it is imperative that the Respondent/Convict Yasin Malik is not physically produced before this Hon'ble Court in order to maintain public order and safety,” the application said.
Stating that grave prejudice would be caused to the State as well as the society if the request is not accepted, the application said, “Hon'ble Court may graciously be pleased to modify the Order dated 29.05.2023 passed by this Hon'ble Court to the effect that the Respondent Yasin Malik be produced through the video conferencing facility from Tihar Jail, New Delhi”.
Recently, the presence of the jailed separatist leader in the Supreme Court had created a flutter, prompting Solicitor General of India Tushar Mehta to flag a "serious security lapse” to Union Home Secretary Ajay Kumar Bhalla.
Malik apparently appeared before the top court on July 21 in connection with the CBI's appeal against a September 20, 2022 order of a trial court in Jammu in the 1989 kidnapping of Rubaiya Sayeed, the daughter of then Union home minister Mufti Mohammad Sayeed.
He was brought to the high-security apex court premises in a prison van escorted by armed security personnel without the court's permission.
Later that week, the Department of Delhi Prisons suspended four officials over Malik's physical appearance before the top court and ordered an inquiry into the lapse.
On May 29, the high court had issued notice to Malik on NIA's plea seeking death penalty for him in the terror funding case and said, “Let warrants of production be issued against Mr. Yasin Malik, before this Court on the next date of hearing. List on 09.08.2023.”
On May 24, 2022, the trial court had awarded life imprisonment to the JKLF chief after holding him guilty of various offences under the stringent anti-terrorism law-the Unlawful Activities (Prevention) Act (UAPA), and the IPC.
Malik had pleaded guilty to the charges, including those under the UAPA, and was convicted and sentenced to life imprisonment.
Appealing against the sentence, the NIA has said a terrorist cannot be awarded life sentence only because he has pleaded guilty and chosen not to go through trial.
While seeking enhancement of the sentence to death penalty, the NIA has said if such "dreaded terrorists are not given capital punishment on account of pleading guilty, there would be complete erosion of the sentencing policy and terrorists would have a way out to avoid capital punishment".
A life sentence, the NIA has asserted, is not commensurate with the crime committed by terrorists when the nation and families of soldiers have suffered loss of lives, and that the trial court's conclusion that Malik's crimes did not fall within the category of the “rarest of the rare cases” for grant of death penalty is “ex-facie legally flawed and completely unsustainable”.
The agency has emphasised that it has been proved beyond reasonable doubt that Malik spearheaded terrorist activities in the Kashmir Valley, and with the help of dreaded foreign terrorist organisations, had been “masterminding, planning, engineering and executing armed rebellion in the Valley in an attempt to usurp the sovereignty and integrity of a part of India”.
“Not giving capital punishment to such dreaded terrorist will result in miscarriage of justice, as an act of terrorism is not a crime against society but it's a crime against the entire nation; in other words it's an act of 'external aggression', 'an act of war' and an 'affront to the sovereignty of nation',” the NIA plea said.
The trial court, which rejected the NIA's petition for capital punishment, said the crimes committed by Malik struck at the "heart of the idea of India" and were intended to forcefully secede Jammu and Kashmir from Union of India.
It had, however, noted the case was not the “rarest of rare” to warrant death penalty.
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