Double Bench of the Supreme Court of India has held that, "Accused is entitled to the copy of Protected Witness's statement with identity redacted."
The Bench was hearing a Petition titled WAHEED-UR-REHMAN PARRA versus UNION TERRITORY OF JAMMU & KASHMIR has observed that, "The occasion for the appellant/accused to come in and seek redacted statements under Section 207 of the Cr.P.C. arose when the trial was to commence and the appellant was of the view that in order to plead an appropriate defence there should be full disclosure minus the redacted portion so that the testimonies of those witnesses could be utilised without disclosing their identities or their place of residence."
The Court further observed that, "This is not, in our view, an exercise of the power of review but the exercise of powers at two different stages of proceedings under two different provisions. The plea of the prosecution of this being a review power is,
thus misplaced. There is no doubt that the power of review is not available with the trial court and the question was whether the exercise of the power by the trial court under the two separate provisions vide orders dated 01.06.2021 and 11.09.2021 can at all be said to be the power of review in the latter order. The answer to this is clearly in the negative."
In Para 26 of the Judgment, the Court observed that, "We may also note another aspect arising from there being no appeal against an interlocutory order. This aspect somehow has not been dealt with by the High Court possibly because it opined that the latter order amounted to a review of the earlier order. The appellant had not challenged the earlier order dated 01.06.2021 and could not have done so. Similarly the latter order could not have been challenged in appeal by the respondents, being in the nature of an interlocutory order given the provisions of Section 21(1) of the NIA Act."
Finally, while allowing the appeal, the court held that, "Having said so, we also come to the order passed by the trial court on 11.09.2021 which has been cautiously worded. The order has not only permitted redaction of the address and particulars of the witnesses which could disclose their identities but has further observed as noted aforesaid that even other relevant paras in the statement which would disclose their occupation and identity could be redacted. 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. On query to the learned counsel for the
respondent as to how this order can in any manner prejudice or have the propensity to disclose the identity of the witnesses or their families with the possibility of harm being caused to them, there has really been no
answer. 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."
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.237 OF 2022
(Arising out of SLP (Crl.) No.9031/2021)
WAHEED-UR-REHMAN PARRA …Appellant
Versus
UNION TERRITORY OF JAMMU & KASHMIR …Respondent
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. The moot point arising for consideration in the present appeal is
whether in the case of certain witnesses being declared as protected
witnesses in the exercise of powers under Section 173(6) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’), read
with Section 44 of the Unlawful Activities (Prevention) Act, 1967
(hereinafter referred to as the ‘UAPA’) by the trial court, can the defence
seek recourse to the remedy under Section 207 and Section 161 of the Cr.P.C. for obtaining copies of redacted statements of these protected
witnesses.
Background:
2. A First Information Report (for short ‘FIR’), being FIR No.5/2020,
was registered on 11.01.2020 under Sections 18, 19, 20, 38 & 39 of the
UAPA read with Sections 7/25 of the Arms Act, 1959 (hereinafter
referred to as the ‘Arms Act’) and Sections 3/4 of the Explosive
Substance Act, 1908 (hereinafter referred to as the ‘ES Act’) against one
Syed Naveed Mushtaq and others at P.S. Qazigund. The National
Investigation Agency (for short ‘NIA’) took up the investigation into this
FIR under Section 6(4) read with Section 8 of the NIA Act and the FIR
was re-registered as RC/01/2020/NIA/JMU on 17.01.2020. The
appellant herein was arrested in the said FIR on 25.11.2020 and the NIA
filed the second supplementary chargesheet in the FIR before the Court
of 3rd Additional Sessions Judge, Jammu (Special Judge NIA Act) on
22.03.2021 arraying the appellant as accused No.11 in the said
supplementary chargesheet.
3. On 22.12.2020, the respondent filed FIR No.31/2020 under
Sections 13, 17, 18, 38, 39, 40 of the UAPA read with Sections 120-B, 121, 121-A and 124-A of the Indian Penal Code, 1860 (hereinafter
referred to as the ‘IPC’) at P.S. CIK, Srinagar without naming the
appellant. On the same set of allegations and evidence as that of the NIA
chargesheet, the respondent filed another final report/chargesheet in the
case arising out of FIR No.31/2020 before the Special Judge (NIA Act),
Srinagar where the appellant was arraigned as the sole accused. The
charges were framed against the appellant on 20.7.2021.
4. The respondent herein moved an application under Section 44 of
the 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 marked as D-1 to be excluded from the documents to
be provided to the accused. The trial court vide order dated 01.06.2021
allowed the application filed by the respondent herein, observing that in
view of the sensitivity of the case, it appeared that there was a threat to
the life and property of the witnesses and their families. Consequently
keeping in view the scope and object of Section 44 of the UAPA, the
statements of prosecution witnesses marked as A-1 to A-5 were kept in a
sealed cover in view of their declaration as protected witnesses. In
addition, the documents marked as D-1 (which were also in a separate sealed cover) were excluded from other documents and were placed in a
sealed cover along with the statements of protected witnesses.
Trial Court Proceedings:
5. An application under Section 207 of the Cr.P.C. was filed by the
appellant before the trial court praying for a redacted copy of the
statements of protected witnesses A-1 to A-5. This was resisted by the
respondents herein on the ground that the said application was not
maintainable for the reason that whether copies of such statements
needed to be furnished to the accused already stood decided by the trial
court in terms of its order dated 01.06.2021. It was contended that
Section 207 Cr.P.C. was conditional upon Section 173 Cr.P.C. and could
not supersede it. The right of the accused to be supplied with all material
as envisaged under Section 207 Cr.P.C. could thus not be inferred to be
absolute, which was quite evident from the reading of clause (iii) of
Section 207 Cr.P.C.. In addition it was contended that there was no
power of review under the provisions of the Cr.P.C. and the prayer of the
appellant would amount to seeking review of the earlier order dated
01.06.2021.
6. The trial court vide order dated 11.09.2021 allowed the application of the appellant while observing that in view of Section 44, UAPA, and
Sections 207 and 173(6), Cr.P.C., it was amply clear that the prosecution
was duty bound to provide the copies of the statements of protected
witnesses A-1 to A-5 to the accused in order to provide a fair trial.
Further, the order dated 01.06.2021 passed by the trial court did not
restrict or inhibit the powers of the trial court under the aforementioned
Sections. It was opined that the object of the application of the
prosecution was with the sole purpose of declaring the witnesses A-1 to
A-5 as protected witnesses and nowhere did the order opine that the
accused were precluded from obtaining the copies of the statements of
those protected witnesses.
The High Court Proceedings:
7. The respondents preferred an appeal before the High Court on the
ground that the order dated 11.09.2021 would be in conflict with the
earlier order dated 01.06.2021 and would negate the very purpose which
was sought to be served in terms of the earlier order. It was further
contended that this was essentially a review power which was sought to
be exercised, and was procedurally and jurisdictionally not within the
competence of the trial court. On the other hand, the appellant pleaded that no appeal was maintainable arising from an interlocutory order.
8. The High Court of Jammu & Kashmir and Ladakh vide impugned
order dated 11.10.2021 allowed the appeal, observing that in the light of
Sections 17 & 44 of the UAPA it was clear that the legislature was fully
aware of the existence of the general safeguards provided under Section
173(6) Cr.P.C. and found it fit to give additional safeguards as mentioned
in the said provisions. The High Court opined in favour of the
respondents, stating that the trial court having allowed the plea of
protected witnesses and directing their testimonies to be kept in a sealed
cover, permitting copies of redacted statements would amount to
revisiting and reviewing its own orders, which was not permissible. The
same would also expose the protected witnesses to vulnerability.
The Legal Position:
9. In order to appreciate the controversy we would first set forth the
legal position.
10. The initial exercise of the power by the trial court was under
Section 173(6) of the Cr.P.C. Chapter XII of the Cr.P.C. deals with
“Information to the police and their powers to investigate”. Section 173
refers to “Report of police officer on completion of investigation”. The relevant provisions of Section 173 Cr.P.C. read as under:
“173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay. xxxx xxxx xxxx xxxx (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.”
11. In the normal course of trial, all statements of prosecution
witnesses would have to be disclosed to the accused. Section 173(6) is
an exception to the said provision. This is applicable in two
eventualities, viz.,
a. Statement is not relevant to the subject matter of the proceedings.
b. Its disclosure to the accused is not essential in the interests of justice or expedient in the public interest.
It goes on to further state that such part of the statement be appended in a note requesting the Magistrate to exclude “that part from the copies” to be granted to the accused and disclose the reasons for making such a request.
12. A perusal of the application filed would show that the reason for
the same as set out by the Investigating Officer (for short ‘IO’) was that it
was a high profile case and would attract high public and media
attention, apart from some dreaded terrorist organisation(s) being part of
the conspiracy and the consequent investigation against them. There was
perceived to be an imminent danger to the life and property of such
witnesses and, thus, in the interest of justice and in the interest of these
witnesses they were required to be declared as protected witnesses. In
terms of Section 44 of the UAPA, copies of their statements ought to be
excluded from the copies to be provided to the accused and be kept in a
sealed cover.
13. We now turn to the second provision, which is Section 44 of the
UAPA, which deals with “protection of witnesses” and reads as under:
“44. Protection of witnesses.—(1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the court so desires.
(2) A court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.
(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a court may take under that sub-section may include—
(a) the holding of the proceedings at a place to be decided by the court;
(b) the avoiding of the mention of the name and address of the witness in its orders or judgments or in any records of the case accessible to public;
(c) the issuing of any directions for securing that the identity and address of the witness are not disclosed;
(d) a decision that it is in the public interest to order that all or any of the proceedings pending before such a court shall not be published in any manner.
(4) Any person, who contravenes any decision or direction issued under sub-section (3), shall be punishable with imprisonment for a term which may extend to three years, and shall also be liable to fine.”
14. In terms of sub-section (2) of Section 44 of the UAPA, if the
public prosecutor in relation to such witness pleads as aforesaid, then a
court on an application if satisfied that the life of such witness is in
danger, may, for reasons to be recorded in writing, take such measures as
it deems fit for keeping the “identity and address of such witness secret.” We, thus, may say that the whole objective is that if from the testimony
of the witness, their location and identity can be deciphered, that portion
of the testimony should not be handed over. We are observing this in the
context of the prayer made by the accused before the trial court, where he
sought only the redacted statements of protected witnesses. We may also
simultaneously note that the order of the trial court dated 11.09.2021
permitted the same with a clear direction that the documents be delivered
after expunging the identity (name and address of the protected
witnesses) and relevant paras in their statements which disclosed their
occupation and identity. Thus, it went as far as to leave it to the Special
Public Prosecutor to take a call on what would be taken as relevant paras
in their statement which would disclose their occupation and identity,
apart from redaction of their names and addresses.
15. We may also note that Section 17 of the NIA Act is in pari materia
with the aforesaid provision.
16. Section 161 of the Cr.P.C. deals with the “examination of
witnesses by police” while Section 207 Cr.P.C. deals with the aspect of
“supply to the accused of copy of police report and other documents.”
This Section falls in Chapter XVI dealing with “commencement of proceedings before Magistrates” and reads as under:
“207. Supply to the accused of copy of police report and other documents. – In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.”
17. A reading of the aforesaid provision would show that it mandates a
Magistrate, by using the word “shall”, without delay to furnish copy of
what is specified therein, which would include statements recorded under
sub-section (3) of Section 161 of all persons. The first proviso, however,
carves out an exception that the Magistrate, in respect of clause (iii), after
considering the reasons given by the police officer for the request, direct
that a copy of that part of the statement or of such portion thereof as the
Magistrate thinks proper, shall be furnished to the accused.
The Rival Contentions:
18. Learned counsel for the appellant contended that the accused has a
statutory right to get a copy of the witnesses’ statements in order to
confront the witness during the course of trial in accordance with
Sections 161 and 207 of the Cr.P.C. and relied upon the judgment of this
Court in Mohd. Hussain v. State (GNCTD)(2012) 2 SCC 584, to emphasise that the
accused has a right under the said provisions to receive copies of
witnesses’ statements in order to mount and effective defence.
Additionally, in Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi)(2010) 6 SCC 1, it was opined that the right of the accused to receive the documents and statements submitted before the court was absolute and
must be adhered to. This was treated as a part of the requirement of a fair
disclosure in a fair trial. In Jahid Sheikh v. State of Gujarat (2011) 7 SCC 762 13 , this Court
expressed a similar view with the conclusion that it was the duty of the
Sessions Court to supply copies of the chargesheet and all relevant
documents relied upon by the prosecution under Sections 207 and 208
Cr.P.C., and the same could not be treated as an empty formality.
19. Learned counsel for the appellant requested this Court to strike a
balance, so as to not compromise fair trial in cases where special laws
require concealment of the identity of witnesses. The counsel for
appellant sought to justify the direction of the trial court as a very
reasonable one, leaving it to the SPP himself to redact the appropriate
information so as to safeguard the witnesses and their identities.
20. On the aspect of a review power being exercised by the trial court,
which was not within its jurisdiction, it was urged that the first direction
to designate certain witnesses as protected witnesses was in the absence
of the accused. That was a distinct nature of proceedings. Those
proceedings could not take away the right of an accused to be supplied
with witness statements as the objective was only to protect the witnesses and not to take out the whole statement out of the purview of Section 207
of the Cr.P.C. The second order dated 11.9.2021 was to fulfil the
mandate of Section 207 of the Cr.P.C., subject to the precautions to be
taken in that behalf.
21. Lastly it was sought to be urged that no appeal was maintainable
before the High Court appeals against interlocutory orders are barred
under Section 21 of the NIA Act, which would equally apply to the
prosecution and the defence. To appreciate the contentions, we are
reproducing Section 21(1) of the NIA Act, which provides an exception
to interlocutory orders and reads as under:
“21 Appeals. - (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.”
22. Interestingly, a Division Bench of the Kerala High Court in D. Subair T.P. & Ors. v. Union of India (2021) 1 KLT (SN 17), has opined on a similar issue by giving similar terms to the accused as the trial court in its order dated 11.09.2021. However, the discretion to redact portions of the statement has been left to the trial court instead of the Special Prosecutor. No judgment of this Court under these provisions has been brought to our notice.
23. On the other hand learned counsel for the respondent resisted the appeal essentially on the ground that the power of review was not available with the trial court (Atul Shukla v. State of M.P. & Anr. (2019) 17 SCC 299). It was urged that in view of the charges levelled against the appellant, it was expedient in public interest for certain facts to be excluded from disclosure as there was an imminent threat to the life and safety of witnesses and their families.
Conclusion:
24. On a conspectus of the aforesaid legal position and the limited contours of the facts required for determination of the issue, we are of the view that the provisions of Section 173(6) of the Cr.P.C. read with Section 44 of the UAPA and Section 17 of the NIA Act stand on a different plane with different legal implications as compared to Section 207 of the Cr.P.C. We say so as the first order was passed at the threshold. There was no notice to the accused. 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. These considerations weighed with the trial court while passing the order dated 01.06.2021, and even the appellant has no quibble with the same.
25. The occasion for the appellant/accused to come in and seek redacted statements under Section 207 of the Cr.P.C. arose when the trial was to commence and the appellant was of the view that in order to plead an appropriate defence there should be full disclosure minus the redacted portion so that the testimonies of those witnesses could be utilised without disclosing their identities or their place of residence. This is not, in our view, an exercise of the power of review but the exercise of powers at two different stages of proceedings under two different provisions. The plea of the prosecution of this being a review power is, thus misplaced. There is no doubt that the power of review is not available with the trial court and the question was whether the exercise of the power by the trial court under the two separate provisions vide orders dated 01.06.2021 and 11.09.2021 can at all be said to be the power of review in the latter order. The answer to this is clearly in the negative.
26. We may also note another aspect arising from there being no appeal against an interlocutory order. This aspect somehow has not been dealt with by the High Court possibly because it opined that the latter order amounted to a review of the earlier order. The appellant had not challenged the earlier order dated 01.06.2021 and could not have done so. Similarly the latter order could not have been challenged in appeal by the respondents, being in the nature of an interlocutory order given the provisions of Section 21(1) of the NIA Act.
27. Having said so, we also come to the order passed by the trial court on 11.09.2021 which has been cautiously worded. The order has not only permitted redaction of the address and particulars of the witnesses which could disclose their identities but has further observed as noted aforesaid that even other relevant paras in the statement which would disclose their occupation and identity could be redacted. 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. On query to the learned counsel for the respondent as to how this order can in any manner prejudice or have the propensity to disclose the identity of the witnesses or their families with the possibility of harm being caused to them, there has really been no answer. 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.
28. The result of the aforesaid is that the impugned judgment of the High Court dated 11.10.2021 is set aside and the impugned order of the trial court dated 11.09.2021 is restored.
29. The appeal is allowed leaving the parties to bear their own costs.
………………………J.
[Sanjay Kishan Kaul]
....……………………J.
[M.M. Sundresh]
New Delhi.
February 25, 2022
Tags:
Judgment