Decks were cleared Thursday for the trial of JKLF chief Yasin Malik in Jammu in two nearly 30-year-old cases relating to killing of IAF personnel and the Rubiya Syed kidnapping, with the Jammu and Kashmir High Court striking down a 2008 order that had transferred their hearing to Srinagar.
In a 27-page judgement, Justice Sanjay Kumar Gupta also vacated an order by a single bench of the High Court, which had stayed trial against Yasin Malik in 1995, besides observing that the October 25, 2008 order of special TADA court of Jammu allowing Malik’s petition for shifting trial to Srinagar was not correct.
“…from bare perusal of contents of petitions and relief sought therein, one can definitely come to conclusion that petitioners (Malik) have sought transfer of their cases from designated court Jammu to additional court at Srinagar, which is not permissible under law,” Justice Gupta said in his order.
The court observed that statutory provisions provided in TADA Act, petition under Article 226 of the Constitution of India read with section 103 of Constitution of Jammu and Kashmir against any order passed by the Designated Court under the TADA Act is not required to be entertained by the Court.
“It cannot be disputed that this Court has jurisdiction under Article 226 to protect the fundamental rights or legal rights, but when there is an alternative and efficacious remedy available to that person, there is a self-imposed restriction to the effect that this Court may not interfere and direct a party to resort to alternative remedy,” it said.
The judge said TADA Act provides for a complete machinery to challenge an order passed by the Designated Court and the remedy provided by that Act must be followed.
Justice Gupta further observed that in case High Court entertains any petition against order of Designated Court established under TADA, then very scheme and object of the Act and intendment of parliament would completely be defeated and frustrated.
Malik is presently lodged in Tihar jail in New Delhi after being arrested by the NIA in a case related to alleged militancy and separatist funding.
The two cases relate to killing of Indian Air Force officers on January 25, 1990 in the outskirts of Srinagar city and kidnapping of then union home minister Mufti Mohammed Sayeed’s daughter in 1989.
Two chargesheets were filed by the CBI in August and September 1990 against Malik before the designated TADA court in Jammu.
In 1995, he was granted a stay on trial by a single bench of the Jammu and Kashmir High Court as there was no TADA court in Srinagar.
In 2008, Malik approached the special court saying that the trial could be shifted to Srinagar as he was facing lot of problems of security in view of the Amarnath row– an agitation which had divided people of Kashmir and Jammu on religious lines over the issue of leasing out land to outsiders during the annual Amarnath pilgrimage.
CBI counsel Monika Kohli argued before the high court that the agency had opposed transfer of cases to Srinagar which was rejected. She also informed the court that petitions challenging the order of TADA court were filed with the high court but the same could not be heard so far.
During the pendency of trial in this case as well, an application was filed by the accused persons seeking transfer of the case to the designated TADA Court at Srinagar. The CBI filed objections and opposed the application, which was rejected by the order dated April 20, 2009.
Highlighting the CBI objections, Kohli also informed Justice Gupta that the TADA court is Srinagar had been abolished and the designated court in Jammu was given jurisdiction throughout the state with headquarters at Jammu in May 1990.
Rejecting the argument of Malik’s counsel Zaffar Shah as “not tenable”, the court vacated the stay granted by the single bench as also the order of TADA court of 2008.