Supreme Court Allows Yasin Malik To Cross-Examine Witnesses Via Video Conference, Denies Request For Physical Appearance
|The Court noted that the Central Government had extended restrictions on Malik's movement outside of the NCT of Delhi and Tihar Jail, and did not want to move him while the Prohibitory Order was still in operation.
The Supreme Court today decided the issue of whether Yasin Malik should be permitted to appear physically to cross-examine prosecution witnesses or via video conferencing, without delving into the merits of the case or the allegations against him.
The case is related to the killing of four Indian Air Force (IAF) personnel. Malik, the Jammu and Kashmir Liberation Front (JKLF) chief, is currently lodged in Tihar Jail, serving a sentence in a terror funding case.
The Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan observed, "In view of Section 530 of the Bharatiya Nagrik Suraksha Sanhita 2023, it is permissible to record examination of witnesses in the trials by electronic mode..."
Referring to the Central Government’s order dated December 11, 2024, which extended the restriction on Yasin Malik’s movement outside Tihar Jail and the NCT of Delhi for another year, the Court added, "As the Prohibitory Order is in operation it will not be appropriate to move the First Respondent out of Tihar Jail.”
Solicitor General Tushar Mehta appeared for the Central Bureau of Investigation (CBI), while Yasin Malik appeared virtually from Tihar Jail.
Senior Advocate M.A. Goni represented the rest of the Respondents.
Appearing from the Tihar Jail, Malik requested the Court’s permission to make submissions for seven minutes. He submitted, “They have not allowed me to argue… they are declaring me a terrorist… I am not a terrorist, I am a political leader.”
The Court immediately clarified the limited scope of the hearing, and stated, “Mr Malik, we are not deciding the issue whether you are a terrorist or a political leader. The issue is very limited — in what manner you can cross-examine the prosecution witnesses… it is the only issue we are deciding."
Malik submitted that the government’s objection to his physical production before the Terrorist and Disruptive Activities (TADA) Jammu, was based on the claim that he posed a security threat. He argued that there was not a single FIR against him or his organization for providing support or shelter to militants. He added that any FIRs registered after the 1994 ceasefire only related to non-violent political protests.
The Bech referred to the reports submitted by both the Registrar General of the Jammu & Kashmir & Ladakh High Court, as well as the Superintendent of Tihar Jail. The Court also perused a report from the Registrar (IT) of the Delhi High Court, noting that, "He himself has tested the video conferencing facility from the Central Jail No. 7, Tihar. He noted that Malik had appeared before several courts in Delhi as well as Jammu and Kashmir from Tihar through the aforementioned VC facility."
The Court also referred to the Central Government’s order dated December 11, 2024, which extended the restriction on Malik’s movement outside of Tihar Jail and the NCT of Delhi for a further period of one year.
The Court recorded, "The first respondent has made submission through VC and invited our attention to the assertion made by the appellant which contain allegation against the first respondent. We have made it very clear to the first respondent that it is not necessary for us to go into any allegations against the first respondent especially since the Trial court is seized of the matter. As the prohibitory order is in operation, it will not be appropriate to move the first respondent out of Tihar Jail."
The Court further observed that proper video conferencing facilities are available both in Tihar Jail and in the Trial court, and further referring to Section 530 of the BNSS, stated, "It is permissible to record examination of witnesses in the Trials by electronic mode by use of electronic communication by use of audio-video."
The Court further relied on a Notification dated February 11, 2020, issued by the High Court of Jammu & Kashmir, which laid down guidelines for recording evidence through video linkage. Specifically, Clause 1.4 of the guidelines allowed the use of video conferencing in all matters where the witness is located intra-state or overseas.
The Court directed Yasin Malik to cross-examine prosecution witnesses via video conferencing from Tihar Jail, directing the Trial court to follow all safeguards under the Notification and further clarified that if Malik appointed a lawyer in the future, his appearance would continue to be through video conference.
Previous Hearing
On March 7, the Court initially scheduled the hearing for March 24 but later postponed it to April 4 at Malik's request, citing the conclusion of Ramzan.
It is to be noted that on February 21, the Supreme Court had permitted the virtual appearance of separatist leader Yasin Malik in the case. The Court had directed that Malik be informed of the order and appear virtually for the proceedings. It had ordered the jail superintendent of Tihar Central Prison to ensure Malik’s presence through video conferencing on March 7.
On January 20, the Supreme Court had 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.”
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.
Background
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 offered Yasin Malik legal aid, but he turned it down and insisted on his physical appearance in the hearing.
On November 21, Mehta said Malik has, in the past, shared the dais with Hafiz Saeed to emphasize 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.”
Consequently, the Court modified the impugned order and partially allowed the appeal, concluding, "We make it clear that we have made no implication on prosecution allegations against the first respondent or any other accused".
Cause Title: Central Bureau of Investigation v. Mohd. Yasin Malik [SLP(Crl) 5526-5527/2023]