SRINAGAR JKLF chief Yasin Malik and five other accused will face trial in Jammu in two nearly 30-year-old cases relating to attack on IAF at Rawalpora here and kidnapping of Rubiya Syed daughter of then home minister of India Mufti Mohammad Sayeed as Jammu and Kashmir High Court dismissed petitions, seeking transfer to Srinagar.
In a 27-page judgement, Justice Sanjay Kumar Gupta also vacated an order by a single bench of the high court which had stayed trial against Malik in 1995, besides observing that the October 25, 2008 order of special TADA court of Jammu allowing Malik’s petition for shifting trial to Srinagar was not correct.
“…from bare perusal of contents of petitions and relief sought therein, one can definitely come to conclusion that petitioners (Malik) have sought transfer of their cases from designated court Jammu to additional court at Srinagar, which is not permissible under law,” Justice Gupta said in his order.
Malik is presently lodged in Tihar jail in New Delhi after being arrested by the NIA in a case related to financing of terror and separatists organisations.
One case pertained to 25 January 1990 attack on Air Force employees at Rawalpora here, in which two Air Force employees were killed and 40 others including a lady received serious injuries. The other case was regarding kidnapping of former Dr. Rubiya Sayeed daughter of Mufti Mohammad Sayeed while she was going in a Tata Mini Bus from Lala-Ded Hospital here to her house at Nowgam, and taken to some unknown place by some unknown militants travelling in the same mini bus.
The CBI probed both the cases and filed the charge sheet regarding IAF attack on 31.08.1990 under Section 120-B read with Section 302 RPC, Sections 3 and 4 of TADA Act and Section 27 of the Arms Act against Muhammad Yaseen Malik and five others before the designated TADA Court 3rd Additional Sessions Judge Jammu.
Regarding Rubiya Sayeed kidnapping case, the CBI filed charge sheet on 18.09.1990 under Section 120- B read with Sections 364, 368, 109 and 34 RPC, Section 3 (1) TADA and Section 27 of Arms Act before the designated court under the TADA Act 3rd Additional Sessions Judge (TADA Cases) Jammu.
During the pendency of the trial before the court of 3rd Additional Sessions Judge (TADA) Jammu, a petition on 25.10.2008 was filed on behalf of the accused persons under SR0-168 dated 01.05.1990 read with SRO 70 dated 05.02.1991,seeking transfer of the case to the designated court at Srinagar. The CBI filed objections and opposed the application which came to be rejected by an order dated 20.04.2009. The order dated 20.04.2009 was challenged before the high court and prayer was made for quashing it.
The order was challenged on the several grounds including the one that the Final Report under Section 173 Cr.P.C was presented in the Designated Court at Jammu on 24.11.1990 and that on the date SRO 168 dated 01.05.1990 held the field and there was no other Designated Court in the State of Jammu and Kashmir and, therefore, the respondents had no choice but to present the Criminal case in the Designated Court.
The petitioners said vide Notification No. S.O.551(E) dated June 17,1995 the case was transferred by Central Government under Sub Section (2) of Section 11 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 with the concurrence of the Chief Justice of India, to the Designated Court at Ajmer in the State of Rajasthan. Some of the petitioners called in question the Notification of the Central Government in OWP Nos.221/1995 and 222/1995. Other accused persons whose cases were also investigated by Central Bureau of Investigation (CBI) and order of transfer in their case was also issued, filed similar petitions before the high Court being OWP Nos.223/1995, 224/1995 and 227/1995. The Petitions remained pending in court till 1998 when vide Order dated 23.04.1998 the Court, relying on the decision taken by the respondents in those writ petitions not to press for the trial of the cases outside the State’, declared the petitions as having become in fructuous.
The petitioners further submitted that no such procedure, prescribed by Section 11 of TADA for transfer of a case from one , designated court to the other with the concurrence of the Chief Justice of India, was followed when the cases were brought back from Designated Court Ajmer to the ‘Designated Court Jammu’.
The petitioners say that their cases are to be tried by the Designated Court at Srinagar as the Designated Court at Jammu had the jurisdiction under proviso to SRO 168 to assign/allot the cases to the Additional Judge of the Designated Court at Srinagar but now it cannot proceed of its own with the cases in view of SRO 128.
After hearing both the parties, the court held the challan in the present cases were presented before designated court at Jammu, after issuance of SRO 168, because there was no other designated court in Jammu and Kashmir at that time. It further appears that again State Govt. vide SRO no.70 dated 05.02.1991 in terms of section 9 of Act appointed Additional Judge Designated with the concurrence of the Chief Justice of the High Court; but there was specifically mention in SRO that the Additional Judge will hold its sitting at Srinagar for transacting such business as may be allotted/assigned to him by the Judge of the Designated Court, the court said, adding, In this way argument of counsel for petitioners that by creation of Additional Designated court at Srinagar, the jurisdiction of designated court at Jammu is ousted, is not tenable.
Further, the court said, in terms of section 9 (8) of Act, additional designated court has to perform the work which was to be assigned by designated court. Also in terms of SRO 70, wherein it has been specifically mentioned that additional designated court at Srinagar shall deal with business, which shall be allotted by Designated court at Jammu, the court said.
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