Justice Amit Sharma Recuses Himself from Hearing NIA’s Appeal for Death Penalty Against Yasin Malik

Justice Amit Sharma of the Delhi High Court recused himself on Thursday from hearing the National Investigation Agency’s (NIA) appeal seeking the death penalty for Kashmiri separatist leader Yasin Malik in a terror funding case.

Previously, the predecessor bench had sought Yasin Malik’s response to the NIA’s appeal, describing it as a “rarest of rare case.”

The appeal was listed for hearing before the Division Bench of Justice Prathiba M Singh and Justice Amit Sharma. Upon taking up the matter, Justice Amit Sharma recused himself from hearing the case. The bench has now scheduled the hearing for 9 August before a different bench of the Delhi High Court.

In May 2023, the NIA appealed to the Delhi High Court, challenging a court order that awarded life imprisonment to Yasin Malik, a separatist leader from Jammu and Kashmir, in a terror funding case.

Previously, the predecessor bench of Justice Siddharth Mridul and Justice Talwant Singh had issued a notice to Yasin Malik through the Jail Superintendent, as Malik is lodged in Tihar Jail. He was the sole respondent in the appeal, noted the court.

The court had also issued a notice regarding the NIA’s application for the condonation of delay in filing the appeal and summoned the trial court record in the matter.

Appearing for the NIA, Solicitor General Tushar Mehta submitted that Yasin Malik is responsible for killing four IAF personnel and kidnapping Rubaiya Sayeed. He also noted that four terrorists released after the kidnapping masterminded the 26/11 Mumbai attacks.

Solicitor General Tushar Mehta further submitted that Malik crossed over to Pakistan in the 1980s to receive weapons training. ISI helped him become the head of the JKLF.

In its appeal, the NIA argued that not giving capital punishment to such dreaded terrorists simply because they pleaded guilty would erode the country’s sentencing policy and create a loophole for terrorists to avoid capital punishment after committing acts of war against the state.

The NIA further stated that due to the acts of war committed by such terrorists, the nation has lost valuable soldiers, causing irreparable damage to their families and the entire nation.

The NIA also emphasised that Malik had been indulging in and spearheading terrorist activities in the valley for decades, collaborating with foreign terrorist organisations to mastermind, plan, and execute armed rebellion in an attempt to usurp the sovereignty and integrity of India.

In its appeal before the Delhi High Court, the NIA characterised Malik’s actions as “external aggression,” brazenly planned and executed acts of waging war against the nation. These actions created internal disturbances by raising and using trained armed militia within the state and assisting trained terrorists from enemy states to infiltrate India’s borders to further such disturbances.

On 25 May 2022, the trial court judge sentenced JKLF leader Yasin Malik to life imprisonment in the terror funding case, noting that there was no reformation of Malik. While Malik may have given up the gun in 1994, he never expressed regret for the violence committed before that year.

The trial court noted that when Malik claimed to have renounced violence after 1994, the Indian government took him at face value, giving him opportunities to reform and engage in meaningful dialogue. The court also noted that the crime’s seriousness was heightened by foreign involvement and the guise of a peaceful political movement.

The trial court concluded that the manner of the crime and the weaponry used failed the test of a rarest of rare case. While sentencing Malik to life imprisonment, the court also imposed a fine of over Rs 10 lakh. Malik was sentenced to life imprisonment twice: once for waging war against the nation and once under UAPA Section 17 for raising funds for terrorist acts.

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