NEW DELHI: The Supreme Court on Friday expressed displeasure on the personal appearance of separatist leader and Jammu Kashmir Liberation Front chief Yasin Malik before it in the absence of a court order. “There is some problem. We will not be able to hear the matter on merits. There is no order by us that he will appear,” said a bench of Justices Surya Kant and Dipankar Datta, taking serious objection to the incident.
Malik, who is in jail following his conviction and life sentence in a terror funding case, was brought to the high-security SC premises in a prison van, escorted by armed security personnel. He walked into the courtroom surprising all.
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, daughter of then Union home minister Mufti Mohammad Sayeed, which allowed Malik to personally appear in court to cross the witnesses.
The SC had on April 24 issued notices on CBI’s appeal, following which Malik wrote a letter to the SC registrar 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 SC would pass necessary orders. Tihar jail authorities apparently misconstrued this as Malik was to be presented before the SC.
When Solicitor General Tushar Mehta emphasised that Malik is a high-risk prisoner who can’t be taken out of jail, the SC said it has not passed an order to produce him. Justice Datta has recused himself from the matter and it will now be placed before CJI D Y Chandrachud for listing it before another bench.
The Delhi Prisons Department on Friday ordered an inquiry into the lapse.
Mehta flags ‘serious security lapses’
Solicitor General of India Tushar Mehta on Friday wrote to Union Home Secretary Ajay Kumar Bhalla stating that Yasin Malik’s appearance in SC was a matter of grave security lapse. “A person with terrorist background like him could have escaped, been forcibly taken away or could have been killed,” Mehta wrote.
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 an 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 an 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.
On September 20, 2022, a special TADA court in Jammu 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.