Delhi HC issues notice to Yasin Malik on NIA’s death penalty plea in terror case

New Delhi, May 29:
The Delhi High Court issued a notice to separatist Yasin Malik, who is currently serving a life sentence, on Monday in response to the National Investigation Agency's plea for seeking death penalty in a terror funding case.
On August 9, a bench of Justices Siddharth Mridul and Talwant Singh issued warrants for Malik's appearance before it.
Solicitor General (SG) Tushar Mehta, representing the National Investigation Agency (NIA), argued that the accused engaged in terrorist and secessionist activities and should be sentenced to death as a “rarest of rare” case.
According to Mehta, Malik committed the “sensational” killing of four IAF officers and even kidnapped the daughter of then-home minister Mufti Mohammad Sayeed, which resulted in the release of four dreaded criminals responsible for the 26/11 Mumbai attack in 2008.
“In light of the fact that Yasin Malik, the sole respondent in this appeal, has pleaded guilty to a charge under IPC section 121 (waging war against the Government of India), which provides for an alternate death sentence,” the court ordered.
Let warrants be issued for his arrest on the next hearing date, it added.
The court also served notice on Malik on the NIA's application for condoning the delay in “re-filing” the current appeal which Mehta argued that “technicalities” should not be considered in cases like this one.
On May 24, 2022, a trial court in New Delhi sentenced Jammu Kashmir Liberation Front chief Malik to life imprisonment after finding him guilty of various offences under the stringent Unlawful Activities (Prevention) Act (UAPA) and the IPC.
Malik pleaded guilty to all charges, including those under the UAPA, and was found guilty and sentenced to life in prison.
Before the high court, SG Mehta stated that the NIA's plea was an appeal against the sentencing order, emphasising that a terrorist cannot be sentenced to life in prison simply because he pleaded guilty and chose not to go for trial.
He stated that such a strategy by an accused to avoid the death penalty cannot be tolerated when he knows that facing trial will result in the imposition of capital punishment.
“Any terrorist can come here, do terrorist activities, plead guilty, and the court says since he has pleaded guilty, I give him only life term and not capital punishment,” Mehta said, adding that even Osama bin Laden would have been allowed to plead guilty here and that “possibly the USA was right” in dealing with the Al Qaeda founder.
The court responded that there could be no comparison between Malik and Laden because the latter was never tried, and that it would not comment on foreign policy matters.
“There can never be a ‘rarest of rare' case when someone is continuously, by armed rebellion, killing army people and propagating one region of the nation as separate.” This is the rarest of rare cases (for a death penalty)… “If this isn't it, what else could it be?” he wondered.
Even though Malik claimed to have “given up guns in 1994 but he never expressed regret for the violence,” according to Mehta, the judge noted in the trial court order that there was “no reformation.”
The court directed the NIA to include a reference to the Law Commission's report on the death penalty in its submissions in the case. It also ordered that the trial court record be presented to it.
In its petition the NIA stated that if such “dreaded terrorists” are not sentenced to death because they pleaded guilty, the sentencing policy will be completely undermined, and terrorists will have a way out to avoid capital punishment.
The NIA claims that a life sentence is not commensurate with the crime committed by terrorists when the nation and families of soldiers have lost lives, and that the trial court's conclusion that Malik's crimes did not fall into the category of the “rarest of the rare cases” for death penalty is “ex-facie legally flawed and completely unsustainable.”
The agency has emphasised that it has been proven beyond reasonable doubt that Malik spearheaded terrorist activities in the Valley and 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” with the help of dreaded foreign terrorist organisations.
“Not executing such dreaded terrorist will result in a miscarriage of justice, because an act of terrorism is not a crime against society, but 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 the nation,” the plea stated.
The trial court, in rejecting the NIA's request for the death penalty, stated that Malik's crimes struck at the “heart of the idea of India” and were intended to forcefully separate Jammu and Kashmir from the Union of India.
It had, however, stated that the case was not the “rarest of rare” and thus did not warrant the death penalty.
The death penalty is the maximum penalty for such an offence.
The life sentence was imposed for two offences under the UAPA: section 121 and section 17 (raising funds for terrorist acts).
According to the Supreme Court, life imprisonment means incarceration until death, unless the authorities commute the sentence.
The court sentenced Malik to ten years in prison under sections 120 B (criminal conspiracy), 121-A of the IPC, and sections 15 (terrorism), 18 (conspiracy for terrorism), and 20 (membership in a terror organisation) of the UAPA.
It had also imposed five-year prison sentences under UAPA sections 13 (unlawful act), 38 (offence related to membership in terrorism), and 39 (support given to terrorism).
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 were among those charged.
A charge sheet was also filed against Hafiz Saeed, the founder of the Lashkar-e-Tayiba (LeT), and Syed Salahuddin, the chief of the Hizbul Mujahideen, both of whom have been declared proclaimed offenders in the case and are currently living in Pakistan.