NEW DELHI: The Supreme Court on Thursday said even terrorist Ajmal Kasab was given a fair trial, while hearing a CBI's plea opposing separatist leader Yasin Malik's plea to be physically present before a court in Jammu and Kashmir to cross-examine witnesses in the case.
A bench of Justices Abhay S Oka and Augustine George Masih asked the CBI to explore option of setting up a court in jail to allow Malik cross examine witnesses in a case against him.
Supreme Court Cites Ajmal Kasab’s Trial in Debate Over Fairness for Yasin Malik
Solicitor General Tushar Mehta for the CBI submitted that Malik has often travelled to Pakistan and shared the dais with Hafiz Saeed.
He is “just not another terrorist” and the CBI "cannot go by the book in such cases", Mehta said.
The court, however, said no person cross-examines on video conference.
Mehta contended that the court had said that it was not conducive to allow Yasin Malik’s physical appearance in the matter.
“We do not want to take him to Jammu and Kashmir because of the offence in which he has been convicted,” he said.
The court cited connectivity issue. Mehta insisted that there is connectivity. He said that the trial can be shifted if he is adamant that he personally wants to cross-examine.
Mehta showed a picture of Malik and UN-proscribed terrorist Hafiz Saeed sharing the dais.
“This person, the man (Malik) who shares the dais with Hafiz Saeed. There are security concerns. He (Malik) is not just another terrorist," he said.
CBI Opposes Yasin Malik’s Physical Appearance, SC Suggests Jail Courtroom Setup
The bench asked Mehta, "how do you say that if a party or accused, who is appearing in person, wants to cross-examine he will not be allowed?"
“That was the card up his sleeve. We can also make some remedy available before the court,” Mehta said.
The bench asked him to take instruction on how many witnesses are there in the trial.
“In our country, a fair trial was even given to Ajmal Kasab…lawyer was appointed to represent him in the high court,” the bench said.
Mehta said the government is ready to represent him but Malik is refusing it. “These are tricks, therefore, we cannot go by the book in such cases,” he said.
The court said one of the options is to set up a courtroom in jail.
"We will request the judge to sit there and record evidence,” the bench said.
Mehta said if it happens in Delhi then he is ready.
“Right now, I am ready. That happened in terrorist cases in Gujarat, and we had trials in jail. And, one of the witnesses was killed," Mehta said.
The bench said the only question is that witnesses need security. Mehta agreed to it.
Mehta asked the court to schedule the matter for further hearing after two weeks’. The bench said Malik can appear before the apex court virtually.
“Are there any accused in the trial, they would have to be heard. Just find out whether all the accused are parties,” the bench asked Mehta.
Mehta sought to place backgrounds of the case, if the court allowed.
The bench said logistically it has to be worked out, so many witnesses would have to be brought.
“We need to be two steps ahead of them. They can fail ten times but we cannot fail even once,” Mehta said.
The bench asked Mehta to take instructions, and he can amend the present CBI’s petition.
Mehta said he could either amend the present petition or move a fresh petition.
“We permit the petitioner (CBI) to implead all the accused in the case as party respondents. Amended petition to be filed within one week,” the bench said.
The apex court fixed the matter for further hearing next Thursday.
The CBI was aggrieved with the orders of a special court, Jammu, which issued a production warrant for the physical appearance of Malik for cross-examination. Malik’s physical appearance was sought for cross-examination of witnesses’ connection with the killing of four IAF personnel and the abduction of Rubaiya Sayeed, daughter of Mufti Muhammad Sayeed in 1989.
Malik has been serving a life term sentence in Tihar Jail after being convicted in a terror funding case.
