Sentence Yasin Malik
Sentence Yasin Malik
RC-10/2017/NIA/DLI
25.05.2022
ORDER ON SENTENCE
ARVEEN SINGH
ATTESTED SINGH Dat
2022.05.25
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Malik was convicted for offences
punishable u/s 120B IPC, 121 IPC,
121A IPC, 13 UAPA r/w 120B
IPC, 15 UAPA r/w 120B IPC, 17
UAPA, 18 UAPA, 20 UAPA, 38 UAPA
and 39 UAPA.
4. Today, the matter is listed for deciding the quantum of
sentence to be awarded to the convict.
5. In view of the judgment of Hon'ble Delhi High Court in
Vishal Yadav v. State of Govt of UP in Crl. A. 910/2008,_socio
economic report of the convict was called for.
. The socio economic report of convict Mohd. Yasin Malik
reflects that the convict owns a three storey residential house at
Maisuma Lal Chowk, Srinagar where his mother and divorced sister
alongwith her 02 sons used to reside. With regard to social status of
convict, it is submitted that the convict was acting as JKLF Chairman
and was an influential person. He had a number of supporters within
his locality before declaration of JKIF as banned organization. It is
further submitted that the family of convict consists of 11 members
including his mother, wifc, 03 sisters, onc daughter, two nephew and
three maternal uncles
7. In order to further find the chances of
rcformation, the
court had summoncd convict's conduct report from the jail. Further in
view of judgment of
Karan v. State of NCT of Delhi in Crl. A.No.
352/2020, an affidavit detailing the asscts and income of convict was
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kanals of land in Rs.20 lacs and from that money, he had bought a
shop for the son of his sister. He has stated that he has no bank
account or investments.
Arguments:
10. Sh. Nccl Kamal, Id. Sr. PP for NIA, during the course of
arguments on sentencc, has drawn the attention of the court to various
paras of order on charge where the allegations against the convict and
findings of the court on those allegations had been given. He has
contended that the acts of the convict had led to severe chaos and
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in the valley and had resulted in loss of numerous lives and
1unrest
ur
121 IPC and 121A IPC whercby he had been found to have waged war
UOI. The convict has not denied these allegations and chose
against
not to contest these allcgations. He has further contended that it has
deterrent and to
punishment awardcd to the convict should serve as a
terrorist organization
set an example to prevent others from joining
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she convict. He further contends that the maximum punishment for
waging war against UOI is death and State sccks death sentence for
offences u/s 121 IPC and similarly, seeks maximum punishment for
other offences for which convict has been convicted. FHe has further
contended that the mitigating circumstances which are to be
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contended that ther arc
allegations that sincc the arrest
no
of thec
convict and during his
conlinement, he had engaged in any of the
activities which he had
for been convicted and
thus,
preventiveeven if
theory is applicd, the incarceration of
the convict can serve that
purpose and there is no
requirement of extinguishing the life of
convict for preventing
re-commission of these offences. He has further
contended that even for the
purpose of deterrence, maximum
punishment need not be awarded to the convict as it is the own case
of
NIA that apart from this case
and onc more case in pending Srinagar,
there is no other criminal case
pending against the convict. The
convict has not been convicted in the case at
Srinagar. Therefore, for
the offences for which he had
voluntarily plcaded guilty and had been
convicted by the court, theory of deterrence cannot be stretched to the
extent that he has to be made an example. IHe has further contended
that convict is not a habitual offender as there are only two cases
against him. He has further contended that while
awarding punishment
to the convict, the age of the convict, mental
convict and state of
social and cconomic status of convict nced to bc considered by the
court by drawing and balance and then award just punishment. He has
contended that demand of death scntencc is highly unjustified as the
case of thc convict docs not fall into the catcgory of rarest of the rare
case. He has furthcr contended that the fact that convict himself has
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nleaded guilty should be taken into consideration and as a pointer
contended that since then there is no evidence against him that in the
last 28 ycars, he had provided any hidc out to any militant or had
provided any logistic support to any terrorist organization. He has
further contendcd that many a times, it has been raiscd that he had a
meeting Prime Minister Manmohan Singh but he had not only met one
Prime Minister. All the Prime Ministers from the time of Sh. V.P Singh
till Sh. Atal Bihar Vajpayee had cngaged with him and had given him
a political platform. Government of India had provided him all the
platforms to cxpress his opinion in India as well as outside and
government cannot be considered to be a fool to give an opportunity
to a person who was cngaged in terrorist acts. Ile has further
t i o n aS
l es
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contcnded that it has been allegcd that he was cngaged in acts of
Eindings
13. I have considered the rival submission and perused the
record very carcfully.
14. The prosccution has demanded the maximum penalty as
provided and the ld. Amicus Curiac for convict has prayed for
minimum sentence.
15. The prosecution has based its claim on the deterrent
theory of punishment and has contended that undue leniency towards
convict necd not be shown and that a message necds to be sent to the
society that in such cases, law shall deal with the offenders wit a
heavy hand so that others who are considering to take the same path
think twice before acting upon such idca.
16. On the other hand, Ld. Amicus Curiac has contended that
convict necd not be made an example for the socicty and that there are
strong chances of the convict being reformed as is visible from his
conduct during his jail and fact that during his incarceration, he has
not been found to be involved in any activities for which he has been
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convicted. The convict himsell has indircctly stressed upon the
reformative theory and his chances of reformation when he claimed
that since giving up arms in the year 1994, he has not been found to be
that the fact that the convict is reforming has been recognized by the
governmcnt of India which has given platforms to the convict to
propagate his idcas.
17. It has not been well settled that while awarding sentence
the court has to consider aggravating and mitigating circumstances in
also been now well settled that there is no straight jacket formula for
awarding sentcnce based upon any individual theory of punishment
and that cach case has to be decidcd on its own facts and
circumstanccs.
18. The Hon'ble Apex court in Stateof Madhyapradesh vs
Mehtab.(Cri.Appealno.290/2015.dated13.02.2015) has observed
that, "we find forcc in the submission it is the duty of the court to
award just sentencc to a convict against whom charge is proved.
While mitigating and aggravating circumstance may be given due
weight, mechanical reduction of sentence to the period already
undergone cannot be appreciatcd. Sentence has to be fair not only to
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the accused but also the victim and the socicty,"
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rclevant influcnce in determination of scntencing the crime
docr. The court has to take into consideration all aspects
including social interest and consciousncess of the society
for award of appropriate sentence."
22. The crimes for which convict has been convicted are of
very serious nature. These crimes were intended to strike at the heart
of the idca of India and intendcd to forcefully sccede J&K from UOI.
The crime bccomcs more serious as it was committed with the
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engagcd and given him platiorms to express his idcas, reflects that
person.
24 I havcconsidered this contention.
25. Admittedly, the convict had been engaged in violent
terrorist activities prior to 1994.The claim of the convict is that he
gave up the gun in the year 1994 and thereafter, he was recognized as
a legitimate political player which is evident by the fact that the
government of India has been engaging with him and had been
providing him the platforms to express his opinions. On the face of it.
it seems to be a vcry sound argument which would give an impression
that convict has alrcady reformed. IHowever, in my opinion, there was
no reformation of this convict. It may be correct that the convict may
have given up the gun in the ycar 1994, but he had never expressed
any regret for the violence he had committed prior to the year 1994. It
is to be noticed that, when he claimed to have given up the path of
violence after the ycar 1994, the government o f India took it upon its
face value and gave him an opportunity to reform and in good faith,
tried to engagc in a mcaningful dialogue with him and as admitted by
him, gavc him cvcry platform to express his opinion. llowever, as
discussed in thc order on chargc, the convict did not desist from
violence. Rather, betraying the good intentions of government he took
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a different path to orchestrate violence in the guise of political
struggle. The convict has claimed that hc had followed Gandhian
observe here that the convict cannot invoke the Mahatma and claim to
place for violence, howsocver high the objective might be. It only took
one small incident of violencc at Chauri Chaura for the Mahatma to
call off the entire non coopcration movement but the convict despite
violence.
26. I accordingly find that in the present case, the primary
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arguments above, the prosecution has sought death sentence and it has
been contended on behalf of accused by Ld. Amicus Curiae that the
case does not call for the highest penalty provided under law.
31. It is correct that section 121 IPC provides for punishment
of death sentence in case a person is proved to have committed an
offence punishable u/s 121 IPC and the convict has been convicted for
the offence u/s 121 IPC.
because the offence provides for capital punishment, the same cannot
be handed over to the convict in a routinc manner or as a matter of
rule.
33. InBachchan Singh v. State of Punjab, AIR 1980 SC
898, Hon ble Supreme Court while interprcting sections 354 (3) and
235 (2) Cr.P.C had hcld that the extreme penalty of death (1) need not
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exception. seems
at the circumstances
of the crime, lifc imprisonment
looking
and (4) for arriving upon
inadequate and it
rcmains as the only option
to be imposcd, the court
the conclusion regarding the cxtreme penalty
circumstances in
is required to consider the aggravating and mitigating
aggravating and mitigating
order to strike a just balance between
circumstances.
elaborated
reiteratcd and further
34. The said principle was
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Sentence can be awarded. However, it can only be done when the case
of the convict falls within the criteria as laid down by Hon'ble
Supra)
37. In the prescnt casc, the mannerin which the crime was
committed was in the form of conspiracy whereby there was an
crime in question would fail the test of rarest of rare case as laid down
by Hon'ble Supreme Court. Ld. Sr. PP for NIA has tried to impress
upon the court that while awarding sentence court should consider that
the convict was responsible for the genocide of Kashmiri Pundits and
their exodus. However, I find that as this issuc is ncither before this
court, nor has been adjudicated upon and thus court cannot allow itsclf
to be swaycd by this argument.
39. I accordingly find that this case docs not call for awarding
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1
convict
imprisonment. A fine of Rs. 10,000/ is also imposed upon
and in default of payment, he shall further undergo simple
41. Us 121AIPC
10
The convict is sentenced to rigorous imprisonment
years. A fine of Rs.I0,000/- is also imposed upon convict and in
default of payment, he shall further undergo simple imprisonment
for a period 06 months.
42.U/s 13 UAPAr/wsection120B PC
The convict is sentenced to rigorous imprisonment 05
years. A fine of Rs.5,000/- is also imposed upon convict and in
default of payment, he shall further undergo simple imprisonment
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44. Us 17 UAPA
Financing is the backbone of any operation including
terrorist activities. In the prescnt case, the order on charge specifies
how funds were raised and how they were reccived from Pakistani
unrest where under the guise of public protests, paid terror activities of
stone pelting and arson at mass scale were committed. Had there been
no such funding for the convict to conspire to commit thesc acts and to
years.
46. Icre I must observe that l'm mindful of the mandate of
Sec. 63 1PC that fine imposcd upon the convict should not be
cxcessive and therefore, I find it necessary to give reasons for
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terror
47 The convict has been convicted for offence of
charge, convict was a
funding u/s 17 UAPA. As detailed in order on
received.
50.
U/s 38 UAPA
The convict is sentenced to rigorous imprisonment 05
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years. A fine of Rs.5,000- is also imposed upon convict and in
cost.
igitally signed
YARVN
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Announced in open court
today on 25.05.2022. (Parveen Singh)
Special Judge (NIA)
(This order contains 20 pages ASJ-03, New Delhi Dist..
and cach page bears my signatures.) Patiala Housc Court. N. Delhi.
Adiditional
New
Sessions Judge-03
Delhi District, N. D.
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