New Delhi- The presence of jailed JKLF chief Yasin Malik, serving a life term in Tihar jail, in a packed courtroom created a flutter in the Supreme Court on Friday.
Malik, who is in jail following his conviction and life sentence in a terror funding case, was brought to the high-security apex court premises in a prison van escorted by armed security personnel without the court’s permission.
He walked into the courtroom to the utter surprise of all present.
Voicing surprise at his presence, Solicitor General Tushar Mehta told a bench of Justices Surya Kant and Dipankar Datta that there was a procedure for high-risk convicts to be allowed into the courtroom to argue their case personally.
The bench was hearing a CBI appeal against the September 20, 2022 order of a trial court in Jammu in the 1989 kidnapping case of Rubaiya Sayeed, the daughter of then union home minister Mufti Mohammad Sayeed, allowing Malik to personally appear in court and cross-examine the witnesses.
The CBI had told the court that Malik, the top leader of the Jammu and Kashmir Liberation Front, was a threat to national security and cannot be allowed to be taken outside the Tihar jail premises.
The apex court had on April 24 issued notices on CBI’s appeal following which the incarcerated JKLF chief wrote a letter to the registrar of the Supreme Court on May 26 seeking permission to appear in person to plead his case.
An assistant registrar took up his request on July 18 and said the apex court would pass necessary orders, a decision the Tihar jail authorities apparently misconstrued that Malik had to be presented before the apex court to argue his case.
When Mehta pointed at Malik’s presence in the courtroom, the bench said it had not granted him permission or passed any order allowing him to argue his case in person.
Justice Kant said Justice Datta has recused himself from the matter and it will now be placed before Chief Justice D Y Chandrachud for listing it before an appropriate bench. Justice Datta did not give any reason for recusing himself from the case.
“It is a heavy security issue. He (Malik) has been brought to court because of callous approach of jail authorities and necessary steps will be taken to ensure this does not happen in future. He is a national threat. He is a huge security threat to others,” Mehta said.
He said Malik was brought to the court due to “misinterpretation” of some order.
Additional Solicitor General SV Raju, who also appeared for the CBI, said the court may clarify and pass necessary orders to ensure such an incident doesn’t happen again.
After Justice Kant said in-person argument by an accused was not a problem anymore with the apex court allowing virtual hearing these days, Mehta contended the CBI was ready to allow Malik to argue via video conference but he was refusing to appear virtually.
Mehta referred to the CBI’s contention in its appeal against the trial court order to bring Malik to Jammu for in-person examination of the witnesses in the Rubaiya Sayeed kidnapping case, and said under section 268 of the CrPC a state government may direct certain people to not be shifted from the confines of a prison.
The bench then asked Mehta to present his arguments before another bench that will be constituted after Justice Datta’s recusal, and listed the matter after four weeks.
According to the office report of the case uploaded on the apex court website, Malik had submitted a letter on May 26 along with an affidavit through the superintendent of Tihar jail requesting to be allowed to be present in the Supreme Court to present his case personally.
An assistant registrar of the apex court had on July 18 said Malik’s letter and affidavit can be placed before the bench concerned for necessary orders. The assistant registrar’s decision was probably misinterpreted as the go ahead for Malik’s physical appearance before the court though no such permission was granted by the court.
On September 20, 2022, a special TADA court in Jammu had directed that Malik be produced before it physically on the next date of hearing so he can be given an opportunity to cross examine the prosecution witnesses in the Rubaiya Sayeed kidnapping case.
The CBI challenged this order of the trial court directly before the Supreme Court as appeals in TADA cases can only be heard in the top court.
Rubaiya Sayeed was abducted from near Lal Ded Hospital in Srinagar on December 8, 1989. She was freed five days later after the then BJP-backed V P Singh government at the Centre released five terrorists in exchange.
Now living in Tamil Nadu, Sayeed is listed as a prosecution witness by the CBI, which took over the case in early 1990.
Malik is lodged in Tihar jail after he was sentenced by a special National Investigation Agency (NIA) court in May last year in a terror funding case.
Serious Security Lapse
Solicitor General of India Tushar Mehta wrote to Union Home Secretary Ajay Kumar Bhalla on Friday flagging a “serious security lapse” after Jammu Kashmir Liberation Front (JKLF) chief Yasin Malik, serving life term in Tihar jail, was brought to the Supreme Court for attending a case proceeding.
“It is my firm view that this is serious security lapse. A person with terrorist and secessionist background like Yasin Malik who is not only a convict in terror funding case but has known connections with terror organisations in Pakistan could have escaped, could have been forcibly taken away or could have been killed,” Mehta wrote.
He said that even the security of the Supreme Court would have been put to a serious risk if any untoward incident were to happen.
Mehta highlighted that there is an order passed by the Ministry of Home Affairs with regard to Malik under section 268 of the Criminal Code of Procedure which prevents the jail authorities to bring the said convict out of the jail premises for security reasons.
“In any view of the matter so long as the order under section 268 of CrP Code subsists, jail authorities had no power to bring him out of jail premises nor did they have any reason to do so,” he said, adding, “I consider this to be a matter serious enough to once again bring it to your personal notice so that suitable action/steps can be taken at your end.”
In his letter, Solicitor General Mehta gave details of the incident and said that on Friday everyone was shocked when news was received that the jail authorities are bringing Malik personally to appear before the apex court “as per his desire to appear as party in person”.
“I had telephonically intimated you about this fact. However, by that time Yasin Malik had already reached the precincts of the Supreme Court of India,” he said.
The top law officer said that neither the court had summoned his personal presence nor was any permission taken from any authority of the apex court in this regard.
“When I enquired from the officer who was in-charge of the security of Yasin Malik in the Supreme Court, the only thing he could show me was a printed notice in a general format of the Supreme Court which is sent with regard to every party to any matter in the court. The said printed notice informs the recipients of the notice to appear before the court either in person or through an authorised advocate.
“This is not either the permission of the Supreme Court to bring a convict facing an order under section 268 of CrPC to come out of jail nor it is requiring mandatory personal presence of the recipient of the order,” he wrote.
Mehta said the jail authorities must be receiving hundreds of such orders/notices daily and have never construed any such order requiring personal presence of either any accused or any convict much less a convict having an order under section 268 of CrPC operating against him.
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