The Supreme Court today suggested that Kashmiri separatist Yasin Malik's trial in a case related to the killing of Indian Air Force Personnel be shifted to a jail in Delhi, after the State expressed security concerns in transporting him to Jammu And Kashmir.

Malik has maintained that he wishes to personally cross examine the witnesses testifying against him in the case. The Solicitor General of India Tushar Mehta informed the Court that the State has security apprehensions in taking Malik to Jammu, the place of trial, and suggested that if Malik is adamant about his request, then the trial should be shifted to Delhi. “That also creates problems, the shifting of trial,” Justice Justice Abhay S. Oka remarked.

One option in such circumstances, Justice Oka said, is to “set up a courtroom in the jail. We’ll request the Judge to sit there and record evidence.” “In Delhi?,” the SGI immediately sought clarification, to which Justice Oka replied in the affirmative. Mehta said he is agreeable to the Court’s suggestion, adding that he was aware of an instance of trial being held in jail in Gujarat. The Bench also asked the SGI to find out the number of witnesses in the case, adding that they would have to be given security. "We'll give them," Mehta replied promptly.

“In our country, fair trial was even given to Ajmal Kasab,” Justice Oka said, referring to the only terrorist part of the 2008 Mumbai attacks captured alive. Kasab was held guilty of charges including of murder, carrying arms and explosives and waging war against India and was later hanged to death.

Dictating the Order, the Bench comprising Justice Oka and Justice Augustine George Masih said, “We permit the Petitioner to amend the petition for impleading the (other) accused, if any, by incorporating averments and prayers,” giving the CBI a week to file the amended petition and posting the matter for further hearing on next Thursday, on November 28.

The case against Malik relates to the killing of four Indian Air Force officials in an attack in January 1990 in Srinagar Rawalpora. A special Terrorist and Disruptive Activities (TADA) Court in Jammu is hearing the matter. In September 2021, the Court issued a production warrant for Malik to appear physically, which the CBI has assailed before the Supreme Court. "Court says cross examining through video conferencing is not conducive and therefore he should be brought personally." Mehta said about the special TADA Court's Order.

At one point in today's hearing, the Bench asked who was appearing for Malik. Mehta said Malik insists on appearing in person and pointed to a 2023 hearing in which Malik physically appeared before a Bench of Justice Surya Kant and Dipankar Datta. In that hearing on July 21, 2023, Justice Dipankar Datta recused from hearing the case, without citing any reason.

Mehta said Malik has, in the past, shared dais with Hafiz Saeed to emphasise the security concerns of the State and that “he is not yet another terrorist.” The SGI stated that Malik’s request to personally cross examine witnesses is a “card up his sleeve” and that the State was willing to provide an advocate to represent him, but “he is refusing... We (the State) cannot go by the book in such cases.”

Earlier, the special court in Jammu had offered legal aid to Yasin Malik, but he turned it down and insisted on his physical appearance in the hearing.

Cause Title: Central Bureau of Investigation v. Mohd. Yasin Malik [SLP(Crl) 5526-5527/2023]

Justice Abhay S.OkaJustice Augustine George MasihYasin Malik

Tushar Kohli