Excelsior Correspondent
Srinagar, Mar 13: High Court today transferred the cases pertaining to kidnapping of Rubaya Sayeed, daughter of the then Union Home Minister, Mufti Mohammad Sayeed, and killing of five Air Force men to Jammu court.
Allowing the plea filed by Central Bureau of Investigation for transferring the two cases pending before the Srinagar Wing of High Court to Jammu wing, the Court of Chief Justice Gitta Mittal directed the registry to send the records of two cases to Jammu Wing for hearing and decision.
“The Registrar Judicial, Srinagar, shall take immediate steps in the matter for conveying the records to the Jammu Wing in terms of Circular/ Guidelines No.94 dated 07.12.2018 ensuring that no delay results in the hearing of the matters”, CJ directed.
Chief Justice further directed the Registrar Judicial Jammu to inform counsels for the parties in the writ petitions regarding the listing of the case.
By passing the judgment the Chief Justice decided two applications which have been filed by the Central Bureau of Investigation (CBI), seeking transfer of two petitions filed by Chairman J&K Liberation Front Muhammad Yaseen Malik along with other to the Jammu Wing of the High Court as well as vacation of the interim order dated 26th November, 2009 passed in both the cases.
Both the petitions filed by the Malik and Others are with regard to an incident pertains to killing of five Air Force employees and kidnapping of daughter of the then Union Home Minister Mufti Mohammad Syed.
After issuance of notification by State Government as also by Government of India the investigation of both the cases was handed over by the Central Bureau of Investigation.
The case was registered by the CBI and on completion of investigation, a charge sheet was filed on 31st August, 1990 under Section 120-B read with Section 302 RPC of RPC, Section 3 and 4 of TADA Act and Section 27 of the Arms Act against Muhammad Yaseen Malik and five others, before the designated TADA Court at Jammu.
Senior Advocate Z A Shah on behalf of the Malik and others submitted that CBI has acquiesced in the orders granting permission and no application was filed for nine years. These applications ought therefore to be rejected.
However, the attention of the court was drawn to the counter affidavits to the writ petitions which were filed as back as on 23rd March, 2010 by the CBI in which CBI counsel has pointed out the specific objection about the maintainability of both the writ petitions.
Referring the High Court rules, Chief Justice said, it is settled position that by virtue of Rule 23 of the Jammu and Kashmir High Court Rules, 1999, the Chief Justice of this High Court is amply empowered to transfer cases from one Wing of the Court to another.
Court further said that it cannot be denied that TADA is a special enactment and the statute has to be strictly followed and power of transfer of cases would have to abide by the applicable statutes. However, court said, it is not necessary to consider the prayer in the present applications for transfer of the petitions and these submissions.
“Before me it is an admitted position that trial of the cases was pending before the court of competent jurisdiction which has been assigned the powers to try the cases under the TADA Act by virtue of a specific delegation and assignment”, Chief Justice said.
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