Jammu wing of J&K HC to hear Yasin Malik plea to transfer TADA cases to Srinagar court

The Jammu Wing of the Jammu & Kashmir High Court will hear and decide the writ petitions filed by Yasin Malik seeking the transfer of the cases against him under the Terrorist and Disruptive Activities (Prevention) Act [TADA] and Arms Act to a TADA Court in Srinagar..The order was pronounced by Chief Justice of the J&K High Court Justice Gita Mittal in applications filed by the Central Bureau of Investigation (CBI) seeking the transfer of the writ petitions to the Jammu wing..The challenge against the rejection of Malik’s transfer plea will now be adjudicated by the Jammu Wing of the J&K High Court..The cases pertain to the killing of four Air Force Personnel in Srinagar in 1990 and the kidnapping of Rubiya Syed, daughter of then Home Minister Mufti Mohammad Syed..After the investigation into the two incidents was completed, a chargesheet was filed by the CBI before the designated TADA Court at Jammu. During the pendency of trial in both the cases, Yasin Malik and other accused persons sought transfer of the cased to a designated TADA court at Srinagar instead..The transfer application was rejected by the TADA Court of Jammu through an order dated April 4, 2009..Aggrieved by the rejection, Malik and others filed two identical applications before the then Chief Justice of the High Court seeking permission to file two writ petitions before the Srinagar Wing of the High Court..The permission was granted by the Chief Justice in terms of Circular No.6 of 2010 passed by the High Court..Subsequently, two writ petitions against the 2009 orders passed by the TADA Court, Jammu, were filed before the Srinagar Wing of the High Court of Jammu & Kashmir and notice was issued. Eventually, a stay on the trial was also granted by the High Court in November 2009..Against this factual backdrop, the CBI moved applications in the writ petitions in 2018, seeking transfer of the writ petition to the Jammu Wing of the High Court for disposal under law..CBI argued that the petitioners, i.e Yasin Malik and other accused were influential persons who were able to delay the trial for a decade. It was further argued that since that the matters pertained to chargesheets filed before the designated TADA Court at Jammu, and that the orders under challenge were also given by a Jammu TADA Court, the matter fell entirely within the jurisdiction of Jammu Wing of the High Court..On the other hand, Malik and others argued that the writ petitions were filed in the Srinagar Wing after due permission was obtained from the then Chief Justice of the High Court..It was also contended that CBI has acquiesced the maintainability of the writ petition before the Srinagar Wing as no transfer application was filed for nine years till 2018..After hearing the parties, the High Court sided with the contentions put forth by the CBI..The Court stated that the proviso to Circular 6 of 2010 had a limited purpose of enabling filing the proceedings in a Wing of the High Court other than to which it relates. All other steps including hearing, consideration and decision had to be by the Wing to which it relates..Observing that the writ petitions arose out of the criminal proceedings at Jammu which is within the jurisdiction of the Jammu Wing of the High Court, the Court held that they could be heard and decided only by the Wing to which the matters relate i.e., the Jammu Wing..Rejecting the objection with respect to acquiescence by CBI, the Court said that even if it is accepted that CBI consented to the writ petitions being heard by the Srinagar Wing, such adjudication would be without the authority of law and completely without jurisdiction..The Court, therefore, deemed it appropriate to transfer the writ petition to the Jammu Wing of the High Court..It, nonetheless, clarified that nothing in the order was an expression of opinion on the factual background giving rise to the registration of the cases or any aspect of the trial. The writ court and the trial court should, therefore, proceed in the matter uninfluenced by observations recorded in this order, it said..Accordingly, the Registrar Judicial, Srinagar has been directed to take immediate steps in the matter for conveying the records to the Jammu Wing, ensuring that no delay results in the hearing of the matters..CBI was represented by ASGI TM Shamsi..Yasin Malik and others were represented by Senior Advocates ZA Shah and ZA Qureshi along with advocates IA Sofi, A Hanan and Rehana..Read the Judgment below..Bar & Bench is available on WhatsApp. For real-time updates on stories, Click here to subscribe to our WhatsApp.