CBI's Plea On Yasin Malik's Physical Production For Witness Examination: SC Directs Registrar General Of J&K HC To Investigate & Upgrade VC System
|The Supreme Court was hearing a plea by the Central Bureau of Investigation (CBI) challenging a Jammu Court's Order requiring the physical production of Yasin Malik for witness examination in a case related to the killing of four Indian Air Force (IAF) personnel.
The Supreme Court on Monday heard a plea by the Central Bureau of Investigation (CBI) challenging a Jammu court order requiring the physical production of Yasin Malik for witness examination in a case related to the killing of four Indian Air Force (IAF) personnel.
Malik, currently serving a sentence in Tihar Jail after his conviction in a terror funding case, has resisted appearing via video conferencing (VC).
The Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan deliberated on the matter.
The CBI has sought to transfer the trial to Tihar Jail, citing logistical and security concerns about transporting Malik to Jammu.
During the hearing, Justice Oka inquired whether all other co-accused in the case were on bail.
To this, Solicitor General (SG) Tushar Mehta appearing for CBI, confirmed that Malik is the only accused in custody.
The Bench explored the possibility of conducting the trial through video conferencing.
Counsel for the co-accused noted improvements in the audio-visual facilities in the Jammu court.
However, SG Mehta argued that Malik has refused to participate in VC hearings, prompting Justice Oka to request evidence of such refusal. Mehta submitted, "Yasin Malik does not want to engage a lawyer. He wants to be present physically."
Mehta read from the Trial Court Judge's order, which noted that the video conferencing system in the Jammu court was not functioning properly.
Justice Oka emphasized that effective cross-examination via VC is essential and directed the Registrar General of the Jammu and Kashmir High Court to investigate and upgrade the system.
"We have perused the observations made by the judge. At two places he has recorded that the video conference system in his court is not functioning properly. We direct Registrar General of High Court of Jammu and Kashmir to look into what is stated by the learned judge and take immediate steps for installing a proper system through which hearing can be conducted by using video medium or video conference. The system should be such that there can be effective cross examination by using the system," the Bench ordered.
The Court ordered the Registrar General to submit a report on the improvements by February 17, with the matter scheduled for further hearing on February 21. "The Registrar General (RG) to do the needful and submit a report to this court after deputing any expert to examine the newly installed system. The report should be submitted by 17th of February. List on 21st of February," it said.
Additionally, the Court directed the Registrar in charge of IT at the Delhi High Court to inspect the VC facilities in Tihar Jail and evaluate whether they are adequate for enabling Malik to effectively cross-examine witnesses remotely. "We direct the registrar in-charge of Information Technology (IT) for computers of the Delhi High Court to visit the facility in Tihar Jail with the view to find out whether the facilities are good enough to enable the first respondent to cross examine witnesses in the trial," the Court ordered.
Accordingly, the Court scheduled the matter for hearing on February 21.
Previous Court Proceedings
Pertinently, on November 28, 2024, the Court was informed by the SG 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 had also 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. Accordingly, the Court had issued notice to Malik.
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]