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Synopsis

The Jail Superintendent of Tihar Jail on Thursday moved the Delhi High Court seeking permission to produce Jammu Kashmir Liberation Front (JKLF) terrorist Yasin Malik from jail through video conferencing in a plea filed by the National Investigation Agency (NIA) seeking the death penalty for him. Malik was sentenced to life imprisonment in connection with a terror funding case.

The division bench of Justice Siddharth Mridul and Justice Anish Dayal will hear the application filed by the Jail Superintendent of Tihar Jail on August 7. 

“Furthermore, it is submitted that the Respondent/Convict Yasin Malik has been lodged in the Tihar Jail, New Delhi under the category of very high risk prisoners and thus, the present Application is in relation to a heavy security issue. Therefore, it is imperative that the Respondent/Convict Yasin Malik is not physically produced before this Hon’ble Court in order to maintain public order and safety," the Jail Superintendent said in the application.

Notably, on July 21, Solicitor General of India (SG), Tushar Mehta had written to the Home Secretary Ajay Kumar Bhalla about terrorist Yasin Malik being brought to Supreme Court premises for a personal appearance, even though there was an order passed under Section 268 of the Criminal Procedure Code, preventing the jail authorities from bringing Malik out of the jail premises.

"Even the security of the Supreme Court would have been put to serious risk if any untoward incident were to happen," SG Tushar Mehta had written.

It is to be noted that on May 29, the High Court had directed the Jail Superintendent of Tihar Jail: "Let Warrants be issued for the production of Yasin Malik on the next date of hearing. Let him be produced before the court physically". 

The NIA in its appeal for the death penalty for Malik stated that the NIA court while not applying the “theory of deterrence” in the right spirit, held that the present case does not fall within the category of the “rarest of the rare cases” and sentenced the JKLF Terrorist to life imprisonment instead of sentencing him for the death penalty.

“The appellant NIA is constrained to file the present appeal challenging the legality of the sentence imposed by the Special Court and praying for enhancement of the same to capital punishment… it has now been proven beyond reasonable doubt that the respondent accused over decades has been indulging and spearheading terrorist activities in the valley and with the help of dreaded foreign terrorist organizations, having interest inimical to India, has been masterminding, planning, engineering and executing armed rebellion in the valley in an attempt to usurp the sovereignty and integrity of a part of India”, the plea stated.

The plea also stated that it has been proven beyond reasonable doubt that the offences committed by Malik were ex-facie acts of “external aggression”, brazenly planned and executed by “acts of waging war against the nation" whereby “internal disturbance” was created through raising and using trained armed militia within the state and by helping trained terrorist, raised in enemy states, to infiltrate the borders of India to participate and catalyze such internal disturbances.

It further stated that the NIA Court’s ground that the present case did not fall within the category of the rarest of the rare cases was ex-facie legally flawed and completely unsustainable. It also stated that if such dreaded terrorists are not given capital punishment only on the ground that they have pleaded guilty, then the same will result in complete erosion of the sentencing policy of the country.

“Not giving capital punishment to such dreaded terrorists will result in miscarriage of justice, as, an act of terrorism is not a crime against society but it’s a crime against the entire nation; in other words, it’s an act of external aggression, an act of war and an affront to the sovereignty of nation”, the plea stated.

The JKLF Terrorist was convicted on May 19, 2022, in connection with Jammu & Kashmir terror funding and secessionist activities case. The sentence was pronounced on May 25, 2022. NIA Judge Praveen Singh sentenced Mailk to life imprisonment and imposed a fine of Rs. 10 lakhs.

On May 10, the flag bearer of JKLF pleaded guilty before the NIA court to all charges under the Unlawful Activities (Prevention) Act.

Case Title: State (National Investigation Agency) v. Mohd. Yasin Malik