Delhi HC lists for hearing in February NIA plea for death penalty to Kashmiri separatist Yasin Malik

New Delhi: The Delhi High Court Tuesday listed for hearing on February 14 a plea by the National Investigation Agency (NIA) seeking death penalty for Kashmiri separatist leader Yasin Malik in a terror funding case. The court directed that Malik, who had pleaded guilty to the charges, shall join the court proceedings virtually.

Noting that none appeared on behalf of Malik, the Jammu and Kashmir Liberation Front (JKLF) chief currently serving a life term in the case, a bench of Justices Suresh Kumar Kait and Shalinder Kaur adjourned the matter until February 14 next year.

On May 29, the high court had issued notice to Malik on NIA's plea seeking death penalty for him in the terror funding case and sought his presence before it on the next date.

Subsequently, the jail authorities had filed an application seeking permission for his virtual appearance on the grounds that he was a “very high risk prisoner” and it was imperative to not physically produce him in court to maintain public order and safety.

The request was allowed by the high court.

A trial court here had awarded life sentence to Malik in the case on May 24, 2022 after pronouncing him guilty of various offences under the stringent Unlawful Activities (Prevention) Act (UAPA) and the IPC.

Malik had pleaded guilty to the charges, including those under anti-terror law UAPA.

Appealing against the sentence, the NIA has emphasised that a terrorist cannot be awarded life sentence only because he has pleaded guilty and chosen not to go through trial.

While seeking enhancement of the sentence to death penalty, the NIA has said if such dreaded terrorists are not handed capital punishment only because they pleaded guilty, there will be complete erosion of the sentencing policy and terrorists would have a way out to avoid capital punishment.

A life sentence, the NIA asserted, is not commensurate with the crime committed by terrorists when the nation and families of soldiers have suffered loss of lives and 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’s a crime against the entire nation; in other words it’s 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, 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.

Malik was awarded life term for two offences - section 121 (waging war against government of India) of IPC 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 also awarded Malik 10-year jail term each under sections 120 B (criminal conspiracy), 121-A (conspiracy to wage war against the government of India) of IPC and sections 15 (terrorism), 18 (conspiracy for terrorism) and 20 (being member of terror organisation) of UAPA.