The Supreme Court today was informed by the Central Bureau of Investigation (CBI) that they have filed an application for shifting Kashmiri separatist Yasin Malik's trial in two cases to a jail in Delhi. Malik is facing trial in one case related to the killing of Air Force personnel, and one for the abduction of the daughter of a former Jammu & Kashmir Chief Minister in 1989.

Solicitor General of India Tushar Mehta told the Court that a courtroom with all facilities, such as video conferencing, already exists in the jail in Delhi where Malik is lodged and that judicial proceedings have previously been held in that courtroom. Mehta informed the Court that the CBI has moved two applications before the Court. One asks for the transfer of trial to the jail in Delhi and the other one for amending the memo of parties and the cause title.

A two-Judge Bench comprising Justice Abhay S. Oka and Justice Augustine George Masih issued notice to Malik, seeking his response by December 14.

Malik has maintained that he wishes to personally cross-examine the witnesses testifying against him in the case. In the last hearing on November 21, Mehta had 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.

In such circumstances, Justice Oka suggested, one option is to “set up a courtroom in the jail. We’ll request the Judge to sit there and record evidence.” Mehta had said he was agreeable to the suggestion. Justice Oka additionally remarked, “In our country, fair trial was even given to Ajmal Kasab,” referring to the only terrorist part of the 2008 Mumbai attacks captured alive.

The first case against Malik relates to the killing of four Indian Air Force officials in an attack in January 1990 in Rawalpora in district Srinagar. 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.

The second relates to the abduction of Rubaiya Sayeed in 1989, the daughter of the then Union Home Minister Mufti Mohammad Sayeed.

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

In the last hearing on November 21, 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.”

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

Justice Abhay S.OkaJustice Augustine George Masih

Tushar Kohli