26 Feb 2022 4:02 PM GMT
On Friday, the Supreme Court held that even for protected witnesses declared so under Section 173(6) of the Code of Criminal Procedure, 1973 ("Cr.P.C.) read with Section 44 of the Unlawful Activities (Prevention) Act, 1967 ("UAPA"), the accused can exercise their right under Sections 207 and 161 of the Cr.P.C to obtain copies of their redacted statements which would ensure that the identity...
On Friday, the Supreme Court held that even for protected witnesses declared so under Section 173(6) of the Code of Criminal Procedure, 1973 ("Cr.P.C.) read with Section 44 of the Unlawful Activities (Prevention) Act, 1967 ("UAPA"), the accused can exercise their right under Sections 207 and 161 of the Cr.P.C to obtain copies of their redacted statements which would ensure that the identity of the witness not disclosed.
A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh allowed an appeal assailing the order of the Jammu & Kashmir and Ladakh High Court, which had set aside the trial court's directions to provide statements of the protected witnesses to the accused after the Special Public Prosecutor redacts the sensitive portions therein.
An FIR was filed under provisions of UAPA and Arms Act, 1959 against some accused persons at Qazigund Police Station. Eventually, the National Investigation Agency ("NIA") took up the matter and FIR was re-registered. The appellant was arrested in the said FIR and a second supplementary charge sheet was filed arraying the appellant as one of the accused. The State Police ("respondent") filed an FIR without naming the accused and later filed another chargesheet in which the appellant was named the sole accused. After charges were framed, the respondent filed an application under Section 44 UAPA read with Section 173(6) of the Cr.P.C before the trial court seeking declaration of five witnesses as protected witnesses and for certain documents to be excluded from the documents to be provided to the accused. Considering the sensitivity of the case, the trial court on 01.06.2021 allowed the application and the statements of the said witnesses were kept in a sealed cover along with other concerned documents.
The appellant filed an application under Section 207 of Cr.P.C. before the trial court seeking redacted copies of statements of the protected witnesses. The respondent objected to it stating that the issue in the said application had been decided on 01.06.2021 and revisiting the same would amount to review, which is not permissible. It was contended that the right of the accused under Section 207 Cr.P.C. to be supplied with all material was not an absolute right. On 11.09.2021, the trial court upheld the right under Section 207 and allowed the application. On appeal, the High Court passed order in favour of the respondent accepting its contention that the revisiting amounted to review and no such power or review was provided in Cr.P.C.
Contentions raised by the appellant
The Counsel appearing for the appellant placed reliance on Mohd. Hussain v. State (GNCTD) (2012) 2 SCC 584, to argue that the accused has a statutory right under Sections 207 and 161 of the Cr.P.C to be provided with the statement of the witnesses in order to mount an effective defence. Emphasis was laid on Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 and Jahid Sheikh v. State of Gujarat (2011) 7 SCC 762, wherein the Apex Court had held that the right under Sections 207 and 208 Cr.P.C. was absolute. The Court was urged to strike a balance between the components of fair trial and requirements to conceal identity of witnesses under special laws. It was contended that the application filed by the respondent and the application filed by the appellant were separate proceedings and the second application was not in the nature of review. It was pointed out that appeal against interlocutory orders being barred under Section 21 of the NIA Act, the respondent's appeal before the High Court was not maintainable.
Contentions raised by the respondent
The Counsel appearing on behalf of the respondent relied on Atul Shukla v. State of M.P. And Anr. (2019) 17 SCC 299 to, primarily, contend that the trial court did not have the power to review. It was asserted that in view of the imminent threat to the life of the witnesses and their family members it was necessary to protect some crucial particulars.
Analysis by the Supreme Court
The Court noted that under Section 173 Cr.P.C., in the normal course of trial, all statements of prosecution were to be disclosed to the accused. However, the portion of the statement which was not relevant or its disclosure was not in public interest, can be requested to be taken out of the copies to be granted to the accused. Section 207, which deals with supply of copies of police reports and other documents to the accused, mandates a Magistrate to furnish documents including statements to the accused. However, portions of the same can be requested by the police officer to be excluded. On perusal of Section 44 of the UAPA Act, which deals with protection of witnesses, the Court was of the view that its objective is that the portion of the testimony of the witness which discloses identity should not be handed over to the accused. The Court found the order of the trial court dated 11.09.2021was fair and reasonable as it directed the portions disclosing occupation and identity of the protected witnesses to be redacted by the Special Public Prosecutor.
"Thus, a wide discretion has been given and that too for the Special Public Prosecutor to take a call. There could thus have hardly been a grievance raised by the prosecution in this regard."
Considering that the two applications were filed at two different stages of the proceedings, the Court noted the application filed seeking witness statements was not in exercise of power of review. It was further observed by the Court that the order dated 11.09.2021 being an interlocutory order could not have been challenged before the High Court in light of the bar in Section 21(1) of the NIA Act.
"We believe that the order dated 11.09.2021 is both fair and reasonable for the prosecution and defence while protecting the witnesses and not depriving the defence of a fair trial with the disclosure of the redacted portion of the testimony under Section 207 of the Cr.P.C."
Case Name: Waheed-Ur-Rehman Parra v. Union Territory of Jammu and Kashmir
Citation: 2022 LiveLaw (SC) 216
Case No. and Date: Criminal Appeal No.237 of 2022 | 25 Feb 2022
Corum: Justices Sanjay Kishan Kaul and M.M. Sundresh
Authored By: Justice Sanjay Kishan Kaul
Counsels for the Appellant : AOR, Mr. Shadan Farasat, Advocates, Mr. Shariq J. Reyaz, Ms. Shourya Dasgupta, Mr. Bharat Gupta, Mr. Hafsa Khan, Ms. Tanvi Tuhina, Mr. Aman Naqvi.
Counsels for the Respondent: AOR, Ms. Taruna Ardhendumauli Prasad, Advocate, Ms. Deepika Gupta.
Code of Criminal Procedure - Sections 173(6), 161, 207- Unlawful Activities (Prevention) Act, 1967 - Section 44 - Even for protected witnesses declared so under Section 173(6) CrPC read with Section 44 UAPA, the accused can exercise their right under Sections 207 and 161 of the Cr.P.C to obtain copies of their redacted statements which would ensure that the identity of the witness not disclosed.
Code of Criminal Procedure - Sections 173(6) - Unlawful Activities (Prevention) Act, 1967 - Section 44 -National Investigation Agency Act, 2008 -Section 17 - The objective of Section 44, UAPA, Section 17, NIA Act, and Section 173(6) is to safeguard witnesses. They are in the nature of a statutory witness protection. On the court being satisfied that the disclosure of the address and name of the witness could endanger the family and the witness, such an order can be passed. They are also in the context of special provisions made for offences under special statutes. (Para 24)
Click here to read/download the judgment