The Delhi high court on Monday issued a notice to separatist leader Yasin Malik, who is currently serving a life term, on a plea by the National Investigation Agency seeking death penalty for him in a terror funding case.
A bench of Justices Siddharth Mridul and Talwant Singh also issued warrants for production of Malik before it on August 9.
Solicitor General (SG) Tushar Mehta, who appeared on behalf of the National Investigation Agency (NIA), argued that the accused indulged in terrorist and secessionist activities and should be awarded death penalty by treating the matter as a ”rarest of rare” case.
Mehta stated that Malik committed the "sensational" killing of four IAF officers and even kidnapped the daughter of then home minister Mufti Mohammad Sayeed which led to the release of four dreaded criminals who masterminded the 26/11 attack in Mumbai in 2008.
”In view of the ground that Yasin Malik, sole respondent in this appeal, has inter alia pleaded guilty to a charge under IPC section 121 (waging war against the Government of India) which provides for an alternate death sentence, we issue notice to him... to be served through the jail superintendent,” the court ordered.
Let warrants be issued for his production on the next date of hearing, it added.
The court also issued notice to Malik on NIA's application seeking condonation of delay in "re-filing" the present appeal.
Mehta urged the court to condone the delay, saying "technicalities" should not have a bearing in matters such as the present one.
On May 24, 2022, a trial court in New Delhi had awarded life imprisonment to Jammu Kashmir Liberation Front chief Malik after holding him guilty for various offences under the stringent Unlawful Activities (Prevention) Act (UAPA) and the IPC.
Malik had pleaded guilty to the charges, including those under the UAPA, and he was convicted and sentenced to life imprisonment.
Before the high court, SG Mehta said the NIA's plea was an appeal against the sentencing order as he emphasised that a terrorist cannot be awarded life sentence because he has pleaded guilty and chosen not to go through trial.
Such a tactic by an accused to avoid death penalty, he said, cannot be allowed when he knows that facing trial would lead to imposition of capital punishment.
"Any terrorist can come here, do terrorist activities, plead guilty and court says since he has pleaded guilty, I give him only life term and not capital punishment," said Mehta, adding that even Osama bin Laden would have been permitted to plead guilty here and that "possibly the USA was right" in its dealing with the Al Qaeda founder.
The court responded that there could be no comparison between Malik and Laden as the latter never faced trial and it would not comment on matters affecting foreign relations.
During his submissions, Mehta said Malik crossed over to Pakistan for training, was coordinating stone pelting and spreading "rumours" on social media about oppression by security forces.
"If this is not 'rarest of rare' when someone is continuously, by armed rebellion, killing army people and propagating one region of the nation as separate, there can never be rarest of case. This is rarest of rare case (for awarding a death penalty)... If this is not, what could be," he said.
Mehta said even in the trial court order, the judge has observed that there was "no reformation" even though Malik claimed to have "given up guns in 1994 but he never expressed regret for the violence".
The court asked the NIA to bring its attention to the law commission report on death penalty in its submissions in the matter. It also directed that the trial court record be brought before it.
In its plea before the high court for enhancement of the sentence to death penalty, the NIA has said if such ”dreaded terrorists” are not given capital punishment on account of pleading guilty, there would be complete erosion of the sentencing policy and terrorists would have a way out to avoid capital punishment.
A life sentence, the NIA has asserted, is not commensurate with the crime committed by terrorists when the nation and families of soldiers have suffered loss of lives, and that the trial court's conclusion that Malik's crimes did not fall within the category of the ”rarest of the rare cases” for grant of death penalty is ”ex-facie legally flawed and completely unsustainable”.
The agency has emphasised that it has been proved beyond reasonable doubt that Malik spearheaded terrorist activities in the Valley and with the help of dreaded foreign terrorist organisations, had 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”.
”Not giving capital punishment to such dreaded terrorist will result in miscarriage of justice, as, an act of terrorism is not a crime against society, but it is a crime against the entire nation; in other words it is an act of ’external aggression', ‘an act of war' and an ‘affront to the sovereignty of nation',” the plea has said.
The trial court, which had rejected the NIA's plea for capital punishment, had said the crimes committed by Malik struck at the "heart of the idea of India" and were intended to forcefully secede Jammu and Kashmir from the Union of India.
It had, however, noted that the case was not the ”rarest of rare”, warranting death penalty.
The maximum punishment for such an offence is death penalty.
The life term was awarded for two offences -- section 121 and section 17 (raising funds for terrorist act) of the UAPA.
According to the Supreme Court, life imprisonment means incarceration till the last breath unless the sentence is commuted by the authorities.
The court had awarded Malik 10-year jail term each under sections 120 B (criminal conspiracy), 121-A of IPC and sections 15 (terrorism), 18 (conspiracy for terrorism) and 20 (being member of terror organisation) of the UAPA.
It had also awarded five-year jail term each under sections 13 (unlawful act), 38 (offence related to membership of terrorism) and 39 (support given to terrorism) of the UAPA.
The court had framed the charges against Kashmiri separatist leaders, including Farooq Ahmed Dar alias Bitta Karate, Shabbir Shah, Masarat Alam, Mohammed Yusuf Shah, Aftab Ahmad Shah, Altaf Ahmad Shah, Nayeem Khan, Mohammed Akbar Khanday, Raja Mehrajuddin Kalwal, Bashir Ahmad Bhat, Zahoor Ahmad Shah Watali, Shabir Ahmad Shah, Abdul Rashid Sheikh and Naval Kishore Kapoor.
A charge sheet was also filed against Lashkar-e-Tayiba (LeT) founder Hafiz Saeed and Hizbul Mujahideen chief Syed Salahuddin, both of whom have been declared proclaimed offenders in the case and are living in Pakistan.
