New Delhi, 21 Nov

Even Ajmal Kasab was given a fair trial in our country, the Supreme Court on Thursday remarked and indicated it may set up a courtroom inside Tihar Jail for the trial of J&K separatist leader Yasin Malik in a kidnapping case.

A bench of Justices Abhay S Oka and Augustine George Masih was hearing a CBI plea against the 20 September, 2022 order of a Jammu trial court that directed Malik, serving life term in Tihar jail, to be produced before it physically to cross-examine the prosecution witnesses in the kidnapping case of Rubaiya Sayeed, daughter of politician Mufti Mohammad Sayeed.

The bench, however, remarked, "How will cross-examination be done online? There is hardly any connectivity in Jammu... In our country, a fair trial was given even to Ajmal Kasab and legal assistance was given to him in the high court."

The bench told Solicitor General Tushar Mehta, representing the CBI, to take instructions on the total number of witnesses in the case. Mehta pointed out security concerns and said Malik couldn't be taken to Jammu for the trial.

The law officer accused Malik of "playing tricks" for having asked to appear personally and not engaging a lawyer. Mehta said Malik was not an ordinary criminal and showed a purported photograph of Malik sharing the dais with terrorist Hafiz Saeed.

The top court said it could order trial to take place inside the jail besides asking the judge to come to the national capital for the proceedings. The bench, however, noted all the accused persons in the matter had to be heard before it passes an order.

Mehta said Malik physically appearing in the Supreme Court had raised security concerns previously. The bench said Malik could be allowed to appear virtually in the apex court proceedings and posted the matter on 28 November.

The CBI in the meantime has been directed to amend its petition and implead all accused persons as respondents.

In 2023, Mehta wrote to then Union Home Secretary Ajay Kumar Bhalla flagging a "serious security lapse" after Malik was brought to the Supreme Court to appear in a case. Malik, serving 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.

Voicing surprise at his presence, Mehta informed the apex court there was a procedure for high-risk convicts to be allowed into the courtroom to argue their case personally.

The CBI said 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 on 24 April, 2023, issued notices on the CBI's appeal following which the incarcerated JKLF chief wrote a letter to the registrar of the Supreme Court on 26 May, 2023 seeking permission to appear in person to plead his case.

An assistant registrar took up his request on 18 July, 2023 and said the apex court would pass necessary orders -- a decision the Tihar jail authorities reportedly misconstrued to allow Malik to appear and argue his case.

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 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.

On 20 September, 2022, a special TADA court in Jammu directed Malik to be physically produced before it on the next hearing for him to cross-examine prosecution witnesses in the kidnapping case.

The CBI challenged the trial court order before the Supreme Court as appeals in TADA cases are only heard by the top court.

Rubaiya was abducted near Lal Ded Hospital in Srinagar on 8 December, 1989 and freed five days later after the then BJP-backed VP Singh government at the Centre released five terrorists in exchange. Mufti, who now lives in Tamil Nadu, is a prosecution witness of the CBI, which took over the case in early 1990s. Malik is lodged in Tihar jail after he was sentenced by a special NIA court in May, 2023 in a terror-funding case.