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Probe ordered into Tihar Jail’s security lapse after Yasin Malik shows up in Supreme Court

Jammu Kashmir Liberation Front (JKLF) chief Yasin Malik at the Supreme Court.

Srinagar: Over an urgent communication from the Union Home Secretary A.K. Bhalla, a high level inquiry has been ordered into detained JKLF chairman Yasin Malik’s ‘unwarranted’ physical appearance at the Supreme Court in Delhi on Friday.

A statement issued by the Tihar Jail authorities said: “Today i.e. on 21/07/2023, Yasin Malik was produced physically in the Hon’ble Supreme Court in the matter SLP No. 5526-5527/2022 Titled CBI Vs. Yasin Malik, by the officials of Central Jail no. 7 (Tihar) and prima facie observed that it was lapse on the part of concerned Jail officials. D.G (Prisons) has ordered a detailed inquiry in the matter to be conducted by Dy. Inspector General (Hqtr) (Prisons) Shri Rajiv Singh to fix the responsibility of erring officials. Report to be submitted within three days to DG Prisons”.

Sources said that upon learning about Yasin Malik’s presence at the Supreme Court, Solicitor General of India Tushar Mehta spoke to the Union Home Secretary over telephone and told him that the Ministry of Home Affairs had barred Malik’s physical appearance in any court of the country under Section 268 of Criminal Code of Procedure. He pointed out to Mr Bhalla that Malik’s passage from Tihar Jail to Supreme Court was a serious violation of the MHA order which warranted disciplinary action.

Mr Mehta also sent a written communication to the Union Home Secretary. Mr Mehta wrote that Yasin Malik, a convict under Unlawful Activities (Prevention) Act and facing allegation of terrorism in his earlier activities in Jammu and Kashmir had been produced by the Tihar Jail authorities in the court of Justice Surya Kant and Justice Dipankar Datta during the hearing on SLP titled Central Bureau of Investigation versus Yasin Malik.

“As you must be aware that there is an order passed by the Ministry of Home Affairs with regard to the said Mr Yasin Malik under Section 268 Criminal Code of Procedure which prevents the jail authorities to bring the said convict out of the jail premises for security reasons”, Mr Mehta elaborated.

“Today everyone was shocked when news was received that the jail authorities are bringing Mr Yasin Malik personally to appear before the Hon’ble Supreme Court as per his desire to appear as party in person. I had telephonically intimated you about this fact. However, by the time Mr Yasin Malik had already reached the precincts of the Supreme Court of India”, Mr Mehta recorded.

“Neither the Court had summoned his personal presence nor was any permission taken from any authority of the Supreme Court of India in this regard. When I enquired from the officer who was incharge of the security of Mr Yasin Malik in the Supreme Court, the only thing he could show me was a printed notice in a general format of the Supreme Court which is sent with regard to every party to any matter in the Court.

Mr Mehta added: “The said printed notice informs the recipients of the notice to appear before the Court either in person or through an authorised Advocate. This is neither the permission of the Hon’ble Supreme Court to bring a convict facing an order under Section 268 of CrP Code to come out of jail nor it is requiring mandatory personal presence of the recipient of the order”. He wrote that the jail authorities must be receiving hundreds of such notices daily and the same could not be construed as an order essentially for personal appearance.

“It is my firm view that this is a serious security lapse. A person with terrorist and secessionist background like Mr Yasin Malik who is not only a convict in terror funding case but has known connections with terror organisations in Pakistan, could have escaped, could have been forcibly taken away or could have been killed”, Mr Mehta added.

“Even the security of the Supreme Court also would have been put to a serious risk if any untoward incident were to happen. In any view of the matter, so long as the order under Section 268 of CrP Code subsists, jail authorities had no power to bring him out of the jail premises nor did they have any reason to do so. I consider this to be a matter serious enough to once again bring it to your personal notice so that suitable action/ steps can be taken at your end”, the Solicitor General wrote to the Home Secretary.

The high-level inquiry into the security lapse of the Tihar Jail authorities was ordered immediately after Mr Mehta’s written communication was received in the MHA.

A former ‘commander-in-chief’ of the outlawed terror organisation JKLF, Yasin Malik has been convicted in a designated court of the National Investigation Agency (NIA) in a terror funding case of 2017 in which he pleaded guilty to all the charges levelled against him. He has been awarded multiple imprisonments and fines including a life imprisonment. A group of over a dozen former terrorists and separatist leaders are contesting the same charges in the NIA court in New Delhi.

In a designated TADA court for CBI cases in Jammu, Malik is required to be questioned and is also entitled to hold the prosecution witnesses to counter-examination in two particular cases of 1989 and 1990. He is a prime accused in the kidnapping of the then Union Home Minister Mufti Mohammad Sayeed’s daughter, Dr Rubaiya Sayeed, in December 1989 and the killing of four Indian Air Force (IAF) personnel in January 1990. Both the cases have been investigated by the CBI and challan has been filed in TADA court in 1990.

During the proceedings of the hearing, Malik declined to speak to the witnesses through video conference from Tihar Jail. He insisted that he would cross-examine the witnesses only during his personal appearance in the court which was granted after several sessions of hearing. The CBI contended that Malik was barred from appearing personally under Section 268 of CrPC. It has filed SLP in the Supreme Court with the same argument.

Also read: High Court issues notice to JKLF chief Yasin Malik on death penalty plea filed by NIA