'Ingenuity' Is Not A Constitutional Right Of Just Lawyers: Delhi HC Issues Notice To Yasin Malik On NIA's Plea Seeking Death Penalty

A Special NIA Court in Delhi had sentenced Malik to life imprisonment after he was convicted in connection with a terror funding case. Malik had pleaded guilty in the case.

A division bench of Justice Siddharth Mridul and Justice Talwant Singh, observed,

“In view of the circumstance that Mohd. Yasin Malik, the sole respondent has inter alia pleaded guilty to a charge under Section 121 IPC...In this appeal, respondent has pleaded guilty inter alia to a charge held against him under the provision Section 121 IPC which provides for an alternate death sentence, we issue notice to him in both the applications and appeal to be served through the Jail Superintendent, Tihar Jail...In the meantime, the Registry is directed to requisition the Trial Court’s record so as to be available for perusal of this Court".

At the outset, Solicitor General Tushar Mehta appearing for NIA submitted that the case squarely falls in the rarest of rare category, and while pleading guilty can not avoid the requisite punishment for the alleged offence. Thus should be granted death sentence, as Malik is accused for kidnapping Dr. Rubaiya Sayeed and killing 4 Air Force Personnel.

“Your lordship would recall, because of this kidnaping, 4 dreaded terrorist were required to be released, and they masterminded 26/11 Bombay Attack”, argued Mehta before the bench.

To that then the bench asked for the specific charge in the order.

“We understand, but when the individual is formally charged, the charge has to be ascribed. What is that charge, what is it that he did?”, asked Justice Mridul.

After which, the bench granted some time to look for the specific charge.

Mehta then submitted, “So far as those 4 individuals are concerned, there seems to be no specific discussion on that, but Section 15 UAPA read with 120B is there, and Section121 (IPC) which is again death penalty, there is a specific reference. There are more than one reference of secessionist and terrorist acts, which gives rise to a death sentence”.

“This is an appeal. I can even challenge non framing of a particular charge…”, he further submitted before the Court.

"Of course you can, I am not saying you can’t", replied Justice Mridul.

Then Mehta further went on to read from the order contending, "There is a series of discussion that he crossed over, got training, came here, organized this stone pelting, and organized other arsons rooting, damaging properties etc".

"Please come to the order on charge", said Justice Mridul. To which Mehta read Section 121 IPC.

"We have read 121, but the charge framed against him is under 121-A, where is the charge against 121?", asked Justice Mridul.

"121-A is penal provision. Section 121 is the definition and 121-A is the punishment for the offence", replied Mehta.

While the bench was dictating the order, Mehta requested the bench to condone the delay.

"It does not matter, this we will have to condone. But not in this manner, we will hear it and condone it. These are not matters where delay is an impediment in any case. If you were to appear before this court more frequently, you would know that we never dismiss on the ground of delay", answered Justice Mridul.

"Let the accused of this kind know that he will have to face...he can not be technical”, contended Mehta.

"He is pleading guilty", said Justice Mridul.

To which, however Mehta responded saying, "He is pleading guilty, milords, very tactfully".

"That may be his constitutional right. Ingenuity is not a constitutional right of just lawyers Mr. Solicitor. It is a right of the litigant", said Justice Mridul in response.

"By this standard, if Obama Bin Laden would have been tried here, he would have been permitted to plead guilty, and I would be questioned on limitation",  Mehta answered.

"The point is that we can’t compare this gentleman with Osama Bin Laden, because he never stood trial anywhere", said Justice Mridul.

"That is precisely where I am driving at, possibly USA was right", Mehta again submitted in chain of continuation.

However, the bench while denying to make any comment on the subject matter said, "No Mr. Solicitor we will not comment on that. The Courts are not required to comment on factual…on the foreign relations".

In the case of killing of the IAF personnel, charges were framed against Malik, Ali Mohammed Mir, Manzoor Ahmed Sofi alias Mustafa, Javed Ahmed Mir alias 'Nalka', Showkat Ahmed Bakshi, Javed Ahmed Zargar and Nanaji in March 2020. During the trial, Rubaiya Sayeed identified Malik as one of the kidnappers.

Cause Title: State (NIA) v. Mohd. Yasin Malik