w w w . L a w y e r S e r v i c e s . i n



T.P. Subair @ Subu & Others v/s Union of India, Represented by National Investigating Agency, Kochi & Others


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    CRL.A. Nos. 837, 1107, 1206 & 1207 of 2019

    Decided On, 09 December 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A. HARIPRASAD & THE HONOURABLE MR. JUSTICE N. ANIL KUMAR

    For the Appearing Parties: M. Ajay, Special Public Prosecutor, K.S. Madhusoodanan, P.C. Noushad, M.M. Vinod Kumar, P.K. Rakesh Kumar, K.S. Mizver, M.J. Kirankumar, E.A. Haris, V.T. Raghunath, C. Rajalakshmi, Vipin Narayan, Vishnu Babu, Advocates.



Judgment Text


Common Judgment:

Hariprasad, J.

1. Primacy of witnesses in the adjudication of disputes, especially in the dispensation of criminal justice, is a well known fact recognised from time immemorial. Dharma Sasthras postulate that credible witnesses are the most important element from the point of view of oral evidence. A witness, according to Shukra Neethi, is a person other than the party, who has some knowledge of the transaction in dispute. Saintly jurist Manu said a person becomes a witness because he has either seen or heard something relevant. Kautilya @ Chanakya, ancient Indian teacher, philosopher, economist, jurist and royal advisor, in his Arthasasthra, a text dated to roughly between 2nd and 3rd century BCE, in Book III, concerning law, deals with the importance of witnesses in trials. Importance of taking oath by a witness is also dealt with therein.

2. Jeremy Bentham (1747-1832), an English philosopher, jurist and social reformer, said:

“Witnesses are eyes and ears of justice”. If the witnesses themselves are incapacitated or prevented from acting as eyes and ears of justice, trial becomes nugatory, worthless, trivial and meaningless. That may even sacrifice the sublime concept known as fair trial.

3. State of affairs existed during ancient times have drastically changed now. As long as the relevancy of oral evidence remains to be legally recognized in the realm of adjudication, especially in criminal cases, pre-eminence of the witnesses will continue. A genuine and truthful witness coming forward to depose in a criminal case should be regarded as an enlightened and responsible citizen, who has immense sense of public duty. He deserves to be respected and protected.

4. Variegated questions, relating to witness protection arising in these cases should be answered on the basis of well established sublime principles in this regard.

5. We shall deal with these appeals together notwithstanding they arise out of two proceedings in two Sessions Cases pending before the Special Court for trial of NIA Cases, Ernakulam (hereinafter referred to as “Special Court”). Crl.Appeal Nos.837 of 2019 and 1107 of 2019 arise out of Crl.M.P.No.86 of 2017 in S.C.No.2/2017/NIA. Crl.Appeal Nos.1206 of 2019 and 1207 of 2019 arise out of a common order passed by the Special Court on Crl.M.P.Nos.91 of 2019 and 93 of 2019 in S.C.No.2/2018/NIA. Crl.Appeal No.837 of 2019 is preferred by original accused Nos.39, 41, 44 and 45 in S.C.No.2/2017/NIA. Crl.Appeal Nos.1107 of 2019, 1206 of 2019 and 1207 of 2019 are preferred by the Union of India through the National Investigation Agency (in short, “NIA”).

6. Facts relating to the appeals preferred from orders in S.C.No.2/2017/NIA, shortly stated, are as follows: Accused 39, 41, 44 and 45 were not available for the first round of trial since they absconded at that time. Hence, case against them was split up and is pending trial at present. In an earlier trial, held against the then available accused, as many as 97, out of 300 witnesses examined, turned hostile allegedly under threat, fear and intimidation by the absconding accused. According to NIA, the accused at present facing trial as well as the accused who stood trial in the earlier case are members of Popular Front of India (PFI). In the further investigation conducted by NIA against the accused herein and others, 10 fresh witnesses, who had till then feared to depose, came forward to do so. NIA would state this was partly due to the fact that the agency has now arrested all the accused except one. The accused persons are involved in grave crimes registered under the provisions of the Indian Penal Code, 1860 (in short, “IPC”) and Unlawful Activities (Prevention) Act, 1967 (in short, “UA(P) Act”). According to NIA, the witnesses are under threat to lives and limbs and NIA acceded to the request of the witnesses to take necessary steps to protect their identity.

7. NIA filed Crl.M.P.No.74 of 2017 before the Special Court requesting the statements, recorded under Sections 161 and 164 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) of the witnesses referred to as protected witnesses A to J, furnished to the Special Court in a sealed cover, should not be supplied to the accused and the identity of those ten witnesses should also be protected. Further, from the statements of CWs 333 and 334 recorded under Section 161 Cr.P.C. identity of one of the protected witnesses would be revealed. NIA, therefore, submitted that it had furnished copy of the statements recorded under Section 161 Cr.P.C. of those witnesses with that part of the statement relating to the identity of protected witnesses blackened out. That application was allowed by the Special Court as per order dated 01.06.2017.

8. Accused herein filed Crl.M.P.No.86 of 2017 in the renumbered case (S.C.No.2/2017/NIA) before the Special Court praying that statements of all the witnesses recorded should be furnished to them. According to them, Section 17 of the National Investigation Agency Act, 2008 (in short, “NIA Act”) and Section 44 of the UA(P) Act only relate to protection of the name and address of the witnesses and not their statements. They also requested for supplying the entire statements recorded under Section 161 Cr.P.C. from CWs 333 and 334. Still further, they requested for copies of the first charge and two supplementary charge sheets filed by NIA. NIA filed written objections before the Special Court. By the impugned order dated 24.06.2019, the Special Court passed an order in the following manner:

“1.The request of the petitioners to supply copies of statements of witnesses A to J in Annexure I-A to the supplementary final report No.3 dated 01.06.2017, who were accorded the status of protected witnesses by this court by the order dated 01.06.2017 in Crl.M.P.No.74/2017, is rejected.

2. The prosecution shall furnish copies of statements, if any, of witnesses, other than the protected witnesses, recorded under Section 164 Cr.P.C., copies of statements under Section 161 Cr.P.C.of CW333 and 334 without darkening any portion of it and also copy of the final report dated 10.01.2011 and supplementary final reports dated 18.01.2013 and 12.04.2013.

3. The direction contained in serial No.2 shall be complied within one month.” Feeling aggrieved by the final outcome in the matter, both sides have preferred appeals.

9. Crl.Appeal Nos.1206 of 2019 and 1207 of 2019 are preferred by NIA against the common order passed by the Special Court directing them to furnish copies of statements of witnesses recorded under Section 161 Cr.P.C., mentioned as A to L in the final report, to accused Nos.1, 2 and 5 who are facing trial in S.C.No.2/2018/NIA. These appeals relate to Crime No.1010 of 2017 originally registered by Valapattanam Police Station, Kannur against five identified accused and others under Sections 38 and 39 of the UA(P) Act. Later, investigation of the case was taken over by NIA. According to NIA, the accused persons are active workers of PFI and they have proclivity to ISIS ideologies. NIA apprehends that the accused will scuttle the trial against them even by ending the lives of witnesses. According to them, very few witnesses are willing to speak against the accused. Therefore, NIA preferred Crl.M.P.No.87 of 2018 in the above case requesting the court to pass necessary orders for protecting the identity and address of those witnesses as provided under Section 44 of the UA(P) Act and Section 17 of the NIA Act as there is threat to lives of the witnesses during and after the proposed trial. 1st accused filed Crl.M.P.No.91 of 2019 requesting the court not to examine the protected witnesses without furnishing their name and address and copy of the statements recorded. 2nd accused filed Crl.M.P.No.93 of 2019 requesting to furnish copy of the statements of witnesses cited as CWs 2 to 13 (witnesses A to L in the final report). NIA strongly opposed those applications. Despite their opposition, the court below directed them to furnish statements of witnesses A to L mentioned in the final report to the said accused. Hence the investigating agency has preferred two appeals challenging the common order. 10. Heard Sri.M.Ajay, Special Public Prosecutor for NIA (in short, “Public Prosecutor”) and Sri.K.S.Madhusoodanan for the appellants in Crl.Appeal No.837 of 2019 and Sri.V.T.Raghunath and Sri.Vipin Narayanan, learned counsel appearing for the respondents in the appeals preferred by the NIA.

11. Sri.K.S.Madhusoodanan contended that the appellants in Crl.Appeal No.837 of 2019 are prevented from raising a plea of discharge on account of non-furnishing of the statements of 10 witnesses shown in Annexure-1A. According to him, it is an indefeasible right of an accused under Section 227 Cr.P.C. to invite the court's attention to record of the case and the documents submitted therewith. Further, the accused has a right to be heard, if he has a plea of discharge. This right will be negated, if the statements of witnesses A to J shown in Annexure-1A were not given.

12. Learned counsel for the respondents in the appeals filed by NIA would contend that the order impugned in Crl.Appeal Nos.1206 of 2019 and 1207 of 2019 suffer from no illegality or irregularity and in order to have fair trial, statements of those protected witnesses recorded under Section 161 Cr.P.C., are essential to shape their defence. Therefore the statements should be given to them before starting evidence in the case. It is also argued by the learned counsel that unless the statements of all the witnesses, on whom the prosecution intend to rely, were not furnished to them, they will find it difficult to formulate their defence and effectively cross examine the witnesses. Hence, they would contend that no interference is warranted in the impugned order passed in S.C.No.2/2018/NIA.

13. Per contra, learned Public Prosecutor contended that it is the duty of the justice delivery system to see that all the true and relevant evidence are brought before the court. The witnesses must be provided with a congenial atmosphere to depose true facts without fear for their lives or limbs. Any sort of intimidation, threat, coercion, etc. exerted on them would tend to adversely affect the truthfulness and quality of evidence, which in turn would pollute the stream of justice.

14. There cannot be any dispute that the principle “fair trial” in a criminal prosecution must be viewed from the side of the accused as well as prosecution. Besides, the witnesses are also entitled to be treated fairly. That is also a concomitant of fair trial. No doubt, the accused persons should get a full opportunity to defend the case advanced against them. All lawful means are permitted to be adopted by the accused to challenge the prosecution case. But, at the same time, no court can approve the conduct of any accused, if he indulges in threatening, coercing, intimidating or in any manner exerting pressure on the witnesses so as to shut out evidence and to keep away true facts from the court. Prosecution is also entitled to have an opportunity to place all the relevant matters before the court in order to help it to arrive at the correct conclusion. It is an unassailable principle that the prosecution has no right or duty to procure any evidence by hook or by crook to see that an accused is punished. At the same time, prosecution should be given full opportunity to place all the relevant materials honestly and truly collected by them in the course of investigation. Needless to point out that the purpose of a fair trial is not only to find out the truth, but also to arrive at a justiciable conclusion.

15. Learned Public Prosecutor submitted that NIA finds it very difficult to zero in on witnesses and on the fear of retaliation by the accused, they seldom speak the truth. If at all they agree to tell the truth and co-operate in the trial of the case, they demand full protection from various threats posed by the accused. Hence, it is contended that the statements of witnesses in such cases should not be lightly considered as in any other criminal case. It is further contended that a police officer is not duty bound to record the statement of a witness. Section 161(3) Cr.P.C. only mandates that if the police officer chooses to record, it must be a true statement. According to him, in cases involving allegations of terrorism and anti-national activities, the courts should take a pragmatic view. In the light of these contentions, we deem it appropriate to mention certain relevant provisions to appreciate the contentions raised by the contesting parties. Section 161 Cr.P.C. deals with examination of witnesses by police in the following terms:

“161. Examination of witnesses by police.- (1) Any police officer making an investigation under this Chapter or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:

Provided that statement made under this subsection may also be recorded by audio-video electronic means.

Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.”

Under this Section a police officer making an investigation can examine a person acquainted with the facts of the case and reduce the statement made by such person into writing. Fundamental principles that the statements recorded under this Section can only be used to contradict a witness as provided under Section 162 Cr.P.C. and the words “any person” occurring in the Section includes an accused person too are unchallengeable. Likewise, Section 161(3) gives a police officer an option to record true statement of a witness whom he had examined orally. This option must have been given to him because, normally, he might have examined many persons in the course of an investigation and all of them might not have furnished relevant information regarding the matters under investigation. Hence the investigating officer can apply his discretion to decide whether the statements of such witnesses are to be recorded or not.

16. Section 162 Cr.P.C. reads thus:

“162. Statements to police not to be signed – Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.

Explanation.- An omission to state a fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”

The principles embodied in the Section are wholesome and they ensure that no statement made to a police officer, which is reduced to writing, be signed by the person who makes it and that no such statement or any record of such a statement, whether in a police diary or otherwise or any part of such statement or record, shall be used for any purpose other than those stated in the Section. First proviso to the Section clearly shows that when any witness is called for by the prosecution in an enquiry or trial, whose statement has been reduced into writing as mentioned in Section 162(1) Cr.P.C., any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution also, to contradict such witness in the manner provided under Section 145 of the Indian Evidence Act, 1872 (in short, “Evidence Act”). It further says that when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but, only for the purpose of explaining any matter referred to in his cross examination. Indisputable proposition is that the statements under Section 161 Cr.P.C. cannot be used for corroboration of evidence of a witness in court. However, in a criminal trial, recording statement by the investigating officer by examining orally any person found to be acquainted with the facts and circumstances of the case is extremely important. Likewise, in the better interest of the accused, some restrictions are imposed by the proviso to Section 162(1) Cr.P.C. regarding the us of such statements.

17. Sri.K.S.Madhusoodanan, Sri.V.T.Raghunath and Sri.Vipin Narayanan, learned counsel appearing for the accused, contended in unison that unless statements of the witnesses recorded under Section 161 Cr.P.C. are provided to them either for claiming discharge or for cross examining all the prosecution witnesses by properly shaping up a defence, the accused will suffer irreparable prejudice. According to them, denial of such statements will tantamount to thwarting a fair trial.

18. There cannot be a dispute that in an adversarial system, which we follow in this country, the accused has every right to understand beforehand the nature of allegations made by the prosecution against them and also the materials on which they intend to prove their guilt during trial. Nevertheless, in cases of this nature, whether NIA could claim a right to withhold certain materials from the accused for a limited time is the question to be answered. No doubt, such materials cannot be permanently withheld by the agency. Generally speaking, the argument raised by the learned counsel as above is well founded. Can there be any exceptions? We shall consider.

19. Section 227 Cr.P.C. deals with discharge in a trial before a Court of Session. It reads as follows:

“Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

On a plain reading of the Section, it is discernible that Judge has to peruse the record of the case and the documents submitted therewith at the time of hearing the submissions of the accused and prosecution for considering whether prima facie there is any ground for proceeding against the accused. If the Judge finds no prima facie case, he shall discharge the accused and record his reasons for so doing. It is axiomatic that appreciation of evidence on record at this stage is impermissible. At the stage of framing charge, what the court has to see is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be enquired into. It is trite, at the stage of framing charge, the test of prima facie case has to be applied and if there is ground for presuming that the accused has committed the offence, the court can justifiably say that a prima facie case against him exists and framing of charge is justified therefor. The contention by the learned counsel for the accused that they are entitled to get copies of the statements of witnesses recorded by the investigating officer under Section 161 Cr.PC. for establishing that there is no prima facie case may look reasonable at the first blush. But, to what extent it can be allowed in cases of this nature is to be decided.

20. Incidentally, our attention is drawn to Section 207 Cr.P.C. which says that in any case where the proceeding has been instituted on a police report, the Magistrate (contextually the Special Judge) shall, without delay, furnish to the accused, free of cost, a copy of each of the following:-

(i) police report;

(ii) first information report recorded under Section 154;

(iii) the statements recorded under Section 161 (3) of all persons whom the prosecution proposes to examine as its witnesses, subject to the restrictions provided therein.

It is pertinent to note that in Section 207(iii), the rights/privileges conferred on the police officer conducting investigation to exclude the statements referred to in Section 173(6) Cr.P.C. have been recognized. We shall amplify the scope of Section 173(6) Cr.P.C. in the succeeding paragraphs. Besides, the accused, under Section 207 Cr.P.C., is further entitled to:

(iv) confessions and statements recorded under Section 164; and

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.

21. Section 209 Cr.P.C. specifically states that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by a Court of Session, he shall commit the case, after complying with the provisions under Section 207 or Section 208 Cr.P.C., as the case may be, to the Court of Session. Even though committal proceedings are not required for trial of the offences under the UA(P) Act and offences scheduled to NIA Act for the reasons mentioned infra, we find that the accused persons are entitled to get copies of the statements of witnesses recorded by the investigating officer under Section 161(3) Cr.P.C. subject to the exceptions provided under Section 173(6) Cr.P.C. and the relevant provisions under the aforementioned special Statutes.

22. Going by the definition of “court” in Section 2(d) of the UA(P) Act, it is a criminal court having jurisdiction, under Cr.P.C., to try offences under the Act and includes a Special Court constituted under Section 11 or Section 22 of the NIA Act.

23. Section 11 of the NIA Act deals with power of the Central Government to constitute Special Courts. Sub-section (1) says that the Central Government shall, by notification in the official Gazette, for the trial of scheduled offences, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. Sub-section (3) says that a Special Court shall be presided over by a Judge to be appointed by the Central Government on recommendation of the Chief Justice of the High Court. By virtue of Sub-section (4), NIA has been authorised to make an application to the Chief Justice of the High Court for appointment of a Judge to preside over the Special Court. Sub-section (7) of Section 11 of the NIA Act clearly says that a person shall not be qualified for appointment as a Judge or an additional Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State. 24. Section 22 of the NIA Act deals with power of the State Government to constitute Special Courts. Provisions in Section 11 above mutatis mutandis apply to the Special Courts constituted by the State Government under Section 22.

25. It is therefore amply clear from the above provisions that the Special Court is a Court of Session presided over by a Sessions Judge. Chapter XVIII of the Cr.P.C. deals with trial before a Court of Session. Sections 225 to 237 are included in this Chapter. Section 16(1) of the NIA Act specifically provides that a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. Notable distinction is that in the case of a Sessions Court, it can take cognizance of a case only on a committal as provided under Section 193 Cr.P.C., but in the case of a Special Court under the NIA Act, it has the power to take cognizance of any offence under the Act without a committal of the case and by virtue of interlinking this Act with UA(P) Act, any offence under the latter enactment as well.

26. Learned Public Prosecutor placed reliance on Section 173(6) Cr.P.C. as an enabling provision for withholding certain statements, if it is found to be essential for a fair trial. Similarly, he placed reliance on Section 17 of the NIA Act and Section 44 of the UA(P) Act. For clarity, we shall extract the aforementioned provisions:

Section 173 Cr.P.C. :

“Report of police officer on completion of investigation.-

x x x x x

(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.

x x x x x”

Section 17 of NIA Act:

“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 Special Court so desires.

(2) 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, if the Special Court 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 Special Court may take under that sub-section may include.-

(a) the holding of the proceedings at a place to be decided by the Special Court;

(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public;

(c) the issuing of any directions of security that the identity and address of the witnesses are not disclosed; and

(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 with fine which may extend to one thousand rupees.”

Section 44 of UA(P) Act :

“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 subsection 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.”

27. It will be strikingly clear, if we read Section 173(6) Cr.P.C., that it recognises the right of a police officer (investigating officer), if he is of opinion that any part of any statement is not relevant to the subjectmatter 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, to exclude that part of the statement from the copies to be granted to the accused. It is required that he should append a note requesting the Magistrate to exclude that part of the statement from the copies to be granted to the accused and he should state his reasons for making such request. The legislature has conferred discretion on the police officer to request the court as to which of the statements should be excluded from the copies to be granted to the accused. On a reading of Sub-section (7) of Section 173 Cr.P.C., it will be clear that where the police officer investigating the case finds it convenient so to do, he shall furnish to the accused copies of all or any of the documents referred to in Sub-section (5). This also reaffirms his right provided under Sub-section (6) of Section 173 Cr.P.C. No where in Section 173 Cr.P.C. the court's power to reject the request of a police officer, as provided in Section 173(6) Cr.P.C., is mentioned. Clause (iii) of Section 207 Cr.P.C. albeit saying that the statements recorded under Section 161(3) of all persons whom the prosecution proposes to examine as witnesses shall be furnished to the accused free of cost, consciously excludes the statements falling under Section 173(6), indicating thereby the right claimable by a police officer is a valuable one. The accused at the stage of trial may suffer prejudice on account of exclusion of such statements and therefore the court may exercise its power, at that stage, to direct the prosecution to handover such statements to ensure a fair trial. However, that will not confer a right on the accused to claim such statements before hand.

28. When we read Section 17(2) of the NIA Act and Section 44(2) of the UA(P) Act, we find that those provisions recognise the right of a witness and the Public Prosecutor, in addition to the power exercisable by the court suo motu, to take measures as the court deems fit for keeping the identity and address of such witness secret. To exercise this right, a witness or the Public Prosecutor has to file an application to the court requesting it to keep the identity and address of such witness secret. Even without any application, the court can do it suo motu. What is required is that the court must be satisfied that the life of such witness is in danger and the reasons therefor are to be recorded in writing. It will be clear from these provisions that unlike in Section 173(6) Cr.P.C. they do not speak of a right of the police officer to make a request to the court to take measures for keeping the identity and address of such witness secret.

29. Nevertheless, legal logic in these provisions can only be similar to that in Section 173(6) Cr.P.C. In our view, in order to avoid any serious prejudice to an accused, the court may during the stage of inquiry, if it finds compelling reasons, furnish copies of the statements of such witnesses by effacing/masking all the details which may tend to reveal their identity including the names and addresses. In some situations, even if the identity of one vulnerable witness is masked, it may result in disclosing the identity of another similar witness from his statement. In that event, that aspect in his statement also should be masked/covered. At the time of examination of such witness, the accused will have a right to know the identity of the person who is going to speak against him, as such details may be required for effectively cross examining the witness. In a given case, the accused may try to establish that the person speaking against him was not present at the scene of occurrence or he is falsely deposing on account of a previous enmity, so on and so forth. However, at the stage of investigation or inquiry, the accused cannot, as of right, claim full disclosure of the identity of such witnesses in the light of the aforementioned specific provisions.

30. All the above provisions are part of a scheme intended to screen the identity of witnesses who are vulnerable for one reason or the other. On a perusal of the provisions in Section 173 of the Code of Criminal Procedure, 1898 (in short, “old Code”), it can be seen that subject to certain variations in the arrangement of Sub-sections and phraseology employed, most of the contents therein are reproduced in the present Section 173 Cr.P.C. Sub-section (6) in the present Code could be seen worded in a slightly different manner in Sub-section(5) of Section 173 of the old Code. This right, exercisable by an investigating officer, had been recognized even in the old Code. We find that the earlier provision in the old Code in this regard has been clarified in the present Code by splitting it into various parts. Important fact to be kept in mind at this juncture is that Cr.P.C. is mainly intended for trial of offences under IPC. Many other penal Statutes adopt the procedure under Cr.P.C. by specially including appropriate provisions in the Statute itself. We find such provisions in the NIA Act and UA(P) Act. General provision contained in Section 173(6) Cr.P.C. apply to trial of offences under IPC and they stand modified by special enactments like NIA Act and UA(P) Act. It is therefore clear that even in a criminal case registered for offences under IPC, the investigating officer is empowered to request the court to withhold certain statements from the accused, if it is inexpedient in the public interest or if it is not essential to be given to the accused in the interest of justice. Hence, we cannot hold a view that Section 17 of NIA Act and Section 44 of the UA(P) Act are abhorrent provisions.

31. Before adverting to the provisions under UA(P) Act and NIA Act, we may refer to Section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 - in short “TADA” (which was later repealed by the provisions in the Repealing and Amending Act, 2001 which came into force on 03.09.2001) and Section 30 of the Prevention of Terrorism Act, 2002 - in short “POTA” (which was later repealed by the provisions in the Prevention of Terrorism (Repeal) Act, 2004 which came into force on 21.12.2004). We shall extract the said provisions for completion of the discussion as we have to deal with certain decisions rendered under the aforementioned enactments too.

Section 16 of TADA –

“Protection of witnesses.- (1) Notwithstanding anything contained in the Code, the proceedings under this Act may be held in camera if the Designated Court so desires.

(2) A Designated Court may, on an application made by a witness in any proceedings before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret.

(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Designated Court may take under that subsection may include.-

(a) the holding of the proceedings at a place to be decided by the Designated Court :

(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public:

(c) the issuing of any direction for securing that the identity and addresses of the witnesses are not disclosed :

(d) 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 direction issued under sub-section (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.”

Section 30 of POTA:

“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 Special Court so desires.

(2) A Special 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 Special Court may take under that sub-section may include –

(a) the holding of the proceedings at a place to be decided by the Special Court;

(b) the avoiding of the mention of the names and addresses of the witnesses 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 witnesses 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 one year and with fine which may extend to one thousand rupees.”

These provisions on one hand and Section 17 of the NIA Act and Section 44 of the UA(P) Act on the other hand will clearly show the yearning or hankering shown by the legislature to protect genuine witnesses so as to create a congenial atmosphere for them to depose the truth fearlessly.

32. On a close examination of the safeguards in the above Statutes, arranged in chronological order, viz., Section 44 of the UA(P) Act, Section 16 of the TADA, Section 30 of the POTA and Section 17 of the NIA Act, we can see the conscious application of mind by the legislature for giving protection to vulnerable witnesses. All the above provisions will make it clear that the legislature was fully aware of the existence of the general safeguards provided under Section 173(6) Cr.P.C. Having considered its existence, the legislature deemed it fit to give additional safeguards as mentioned in the said provisions. In Subsection (2) of Section 44 of the UA(P) Act, it is mentioned that 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. Sub-section (3) mentions about the particular steps that may be taken by the court, without prejudice to the generality of the provisions of Sub-section (2), to screen the name and address of the witness from the orders or judgments or in any records of the case accessible to the public.

33. Similarly, Section 16 of the TADA also contained provisions to safeguard the interests of witnesses. Here also the legislature had shown concern for keeping the identity and address of any witness secret. In the subsequent enactment, viz., POTA, in Section 30 an identical safeguard had been provided.

34. Coming to Section 17 of the NIA Act, which is the most recent one in the category, notable changes have been made in the wording. As in the above cases, Section 17(1) also says that notwithstanding anything contained in the Cr.P.C., the proceedings under the Act may, for reasons to be recorded in writing, be held in camera, if the Special Court so desires. Sub-section (2) says that 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, if the Special Court 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. What is discernible from this provision is the legislative concern about the protection of a vulnerable witness, if the life of such witness is in danger. It was also thought fit to keep the identity and address secret. In our view, the words “identity” and “address” are wide enough to take in not only the name and address of a witness, but also other relevant aspects like his native place, his profession or any other special feature which may tend to pinpoint the witness to the accused. The expression “identity and address” will have to be understood in the facts and circumstances available in each case.

35. Witness Protection Programmes in India, when compared to jurisdictions prevailing in other countries, are not fully developed. For example, Canada, a short period ago, amended its witness protection legislation, viz., Witness Protection Programme Act, 1996 in 2012 with a view to promote law enforcement by facilitating protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters. Witness Protection Programme in the United States of America known as “Witness Security Programme” is run by the United States Department of Justice and is executed by United States Marshal Service (U.S.Marshal Service). The U.S.Marshal Service looks after the safety, health and security of prosecution witnesses and their immediate family members, if there is danger to their lives.

36. Law Commission of India in 198th report had given specific guidelines in Part I regarding Witness Identity Protection and in Part II about Witness Protection Programmes. In Annexure-I, a draft Bill titled “The Witness (Identity) Protection Bill, 2006 was also appended. It can be seen therefrom (Section 10 of the Bill) that the Law Commission had recommended to pass a protection order in a given case, if the need of such protection order outweighs the general right of the accused to know the identity of the witnesses. However, no law is enacted in this regard so far.

37. Supreme Court, by invoking Article 21 of the Constitution of India, in Mahender Chawla v. Union of India (2019 (1) KLT 277), approved the Witness Protection Scheme, 2018 placed by the Central Government before the Court. Those aspects shall be dealt with in the succeeding paragraphs.

38. Learned counsel for the accused persons placing reliance on Bimal Kaur Khalsa v. Union of India and others (1988 Cri.L.J. 869) contended that the stand taken by NIA in these cases cannot be justified. That was a decision rendered by the Full Bench of Punjab and Haryana High Court wherein virus of some of the provisions of TADA had been challenged. The Court, after considering various challenges levelled against TADA, held in paragraph 105 as follows:

“105. The main accuser of an accused being the witness who is deposing against him and accusing him of the commission of the crime within the witnesses' presence or hearing, the accused has to be afforded full opportunity of cross-examining the witness to show that what he had stated was not a fact as he had neither seen nor heard anything, he being not present at the scene of the occurrence or the witness was not a truthful witness, in that he had been so pronounced by the court at earlier occasions when he had appeared as a witness or that the witness was inimical to the accused or his family and, therefore, his testimony be taken with a pinch of salt and be not accepted at its face value. If the accused would not be disclosed the address and identity of the prosecution witness, then how would he be able to instruct his counsel to effectively crossCrl. examine such a witness and bring out the truth in court and thereby defend himself against the false accusation.”

In paragraphs 112 to 114, following principles are laid down:

“112. It would be seen from the perusal of the aforesaid provisions of sub-sec.(2) of S.16 of the Act that the Legislature has left the matter to the discretion of the court. The court in exercise of its discretion in the matter shall on the one hand try to ensure that a witness is able to depose in court free from all mental constraint and fear, it would also at the same time ensure that the accused is put in a position to effectively cross-examine the witness.

113. Neither the court nor the government can ensure total safety to a prosecution witness or to the investigator or the court or any other government functionary. A witness deposing in a criminal trial supposedly does so from a sense of public duty, which enlightened citizenship enjoins. One has to perform the public duty even at some risk to oneself. Within the aforementioned constraint, the court can take such steps as may stop the dissemination of the information regarding the address and identity of a prosecution witness by ensuring that his name and address and the identity are not given publicity by the media; that in public record he is merely mentioned as PW1, PW2 and PW3 etcetera and the documents identifying as to who are PW1, PW2 and PW3 etcetera are kept confidential in sealed cover by the court barring access of the same to the public. The court would also be within its right to allow the shielding of a witness from public gaze when he is brought to the court room where of course he would be made to depose openly and not from behind the purdah and in any case, where the trial is in open court, the identity of the witness shall not be screened from the accused, his counsel and the court.

114. Since, it has been left to the court to decide upon as to how to keep the identity and address of any witness secret so while doing so it would act in a manner as to ensure to the accused effective opportunity of crossexamining the witness by seeing to it that the name and address and identity of the witness are disclosed to him well before the start of the trial.”

It was concluded by holding that the impugned provisions in TADA could not be considered to contain a procedure that could be held to be unreasonable, unjust and unfair.

39. The above decision was considered by the Supreme Court in Kartar Singh and another v. State of Punjab and another ((1994) 3 SCC 569). That was also a case filed challenging virus of various provisions in TADA. Supreme Court, on an elaborate consideration of various aspects involved in the challenge and taking note of the decision in Bimal Kaur Khalsa's case (supra), observed as follows:

“290. Therefore, in order to ensure the purpose and object of the cross examination, we feel that as suggested by the Full Bench of the Punjab and Haryana High Court in Bimal Kaur, AIR 1988 P & H 95, the identity, names and addresses of the witnesses may be disclosed before the trial commences; but we would like to qualify it observing that it should be subject to an exception that the court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially of the potential witnesses whose life may be in danger.”

40. Even though learned Public Prosecutor contended that the ratio in Bimal Kaur Khalsa's case (supra) was not fully approved by the Supreme Court in Kartar Singh's case (supra), we are unable to agree with that submission, especially when we refer to the observations made by the apex Court in paragraph 290 and in the concluding paragraph 368 of the judgment.

41. In this regard, the decision rendered by Supreme Court in Government of Karnataka v. Smt.Gowramma ((2007) 13 SCC 482), may be relevant to understand the precedential value of a decision. It says:

“(9) Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the wellsettled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See : State of Orissa v. Sudhansu Sekhar Misra (AIR 1968 SC 647) and Union of India and Ors. v. Dhanwanti Devi (1996 (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495, Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.”

This principle has been followed religiously by this Court in umpteen decisions.

42. Principle of law declared by the Supreme Court in People's Union for Civil Liberties and another v. Union of India ((2004) 9 SCC 580) is noteworthy. We shall quote paragraph 61.

“61. Keeping secret the identity of witness, though in the larger interest of the public, is a deviation from the usual mode of trial. In extraordinary circumstances we are bound to take this path, which is less travelled. Here the Special Courts will have to exercise utmost care and caution to ensure fair trial. The reason for keeping identity of the witness has to be well substantiated. It is not feasible for us to suggest the procedure that has to be adopted by the Special Courts for keeping the identity of witness a secret. It shall be appropriate for the courts concerned to take into account all the factual circumstances of individual cases and to forge appropriate methods to ensure the safety of individual witness. With these observations we uphold the validity of Section 30.”

The Supreme Court made the observations while considering the constitutional validity of various provisions in POTA.

43. We shall once again deal with the observations in Mahender Chawla's case (supra). Different facets of witness protection were considered in the decision. Precedents touching on this subject were also elaborately considered therein. Rights claimable by the prosecution vis-avis the accused were considered in detail. After considering the need and justification for a witness protection scheme, the Supreme Court delineated the scope of the scheme to be put in place. Consequently, the Central Government submitted the Witness Protection Scheme, 2018 for the court's approval. The Scheme has been made a part of the judgment. Witnesses have been classified into three categories as per threat perception –

Category A : where the threat extends to life of witness or his family members, during investigation or trial or thereafter.

Category B : where the threat extends to safety, reputation or property of the witness or his family members, during the investigation or trial or thereafter.

Category C : where the threat is moderate and extends to harassment or intimidation of the witness or his family member's, reputation or property, during the investigation or trial or thereafter.

Clause 7 prescribes the types of protection measures to be taken. Clause 7(e) says that in an appropriate case, concealment of identity of the witness may be done by referring to him/her with a changed name or alphabet.

44. On a careful scrutiny of the provisions in the Scheme, we do not find any particular provision relating to supply of copies of the statements of witnesses recorded by the investigating officer under Section 161(3) Cr.P.C. to the accused. But, we notice a residuary provision in Clause 7(o), which says that any other form of protection measures considered necessary can be given to a witness. It is a general provision enabling the courts to tackle the problems arising in each case.

45. We find various provisions in the Scheme relating to filing an application before the competent authority defined in Clause 2(c) and the types of protection measures to be ordered by the competent authority and also the steps for protection of identity, including the change of identity and relocation of witnesses.

46. After considering the Scheme in its entirety, the Supreme Court directed thus:

“35. We, accordingly, direct that:

(i) This Court has given its imprimatur to the Scheme prepared by respondent No.1 which is approved hereby. It comes into effect forthwith.

(ii)The Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit.

(iii) It shall be the 'law' under Article 141/142 of the Constitutio

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n, till the enactment of suitable Parliamentary and/or State Legislations on the subject. (iv) In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019. The Central Government should also support this endeavour of the States/Union Territories by helping them financially and otherwise.” 47. No material is placed nor any argument is advanced before us showing that the competent authority envisaged under the Scheme has been put in place in the State. We are called upon to consider sustainability of the apprehension raised by the prosecution in these cases regarding issuance of copies of statements, given by protected witnesses, to the accused, recorded by the investigating officer under Section 161(3) Cr.P.C., for which no specific provision is seen made in the Scheme. 48. Learned Public Prosecutor produced in a sealed cover the copies of statements of witnesses to be examined in S.C.No.2/2017/NIA as witnesses A to J and also the statements of CWs 333 and 334 recorded by the investigating officer under Section 161(3) Cr.P.C. The request made by the accused to supply copies of the statements of witnesses A to J in the supplementary final report dated 01.06.2017 was rejected by the Special Court. Aggrieved by the rejection, the accused have preferred Crl.Appeal No.837 of 2019. On the other hand, the Special Court directed the prosecution to furnish the copies of statements of witnesses numbered as CWs 333 and 334 without darkening any portion and also copy of the final report dated 01.01.2011 and supplementary final reports dated 18.01.2013 and 12.04.2013. NIA challenges the direction to provide the statements of CWs 333 and 334 in its entirety without blackening any part to hide the identity of one of the protected witnesses. Challenge raised by NIA in Crl.Appeal Nos.1206 of 2019 and 1207 of 2019 is against the order passed by the Special Court directing NIA to furnish copies of statements of witnesses A to L, recorded under Section 161(3) Cr.P.C. mentioned in the final report, to accused Nos.1, 2 and 5 who are facing trial in S.C.No.2/2018/NIA. All these statements are produced by NIA in a sealed cover. We have perused those statements. On a plain reading of them, it can be seen that the identity of the witnesses questioned by the investigating officers are clearly revealed therefrom. Not only the identity of the witnesses deposed, but the identity of some other protected witnesses are also seen revealed from the testimony of some witnesses. Hence, we find basis in the apprehension raised by NIA. Having regard to the facts and circumstances in these cases and also considering the legal principles emerging from the decisions mentioned above, especially the law declared by the Supreme Court in Kartar Singh, People's Union for Civil Liberties and Mahender Chawla, we dispose of the appeals in the following manner: I. In Crl.Appeal No.837 of 2019 and 1107 of 2019, arising out of S.C.No.2/2017/NIA before the Special Court for NIA Cases, we direct the learned Judge, Special Court for NIA Cases to supply copies of the statements of witnesses A to J in Annexure-1A to the supplementary final report No.3 dated 01.06.2017 after blackening/darkening all the aspects in the statements which may tend to reveal the identity of any of the protected witnesses. Likewise, we also direct the learned Judge, Special Court for NIA Cases to furnish copies of the statements of witnesses other than the protected witnesses, recorded under Section 164 Cr.P.C., and copies of statements recorded under Section 161 Cr.P.C. of CWs 333 and 334 only after blackening/darkening all portions of the statements revealing the identity of the protected witnesses. Learned Judge shall also furnish to the accused the copies of final report dated 10.01.2011 and supplementary final reports dated 18.01.2013 and 12.04.2013 only after blackening/darkening all portions in them which may result in revealing the identity of the protected witnesses. NIA is permitted to file blackened/darkened copies of the above records before the Special Court in two weeks from today for issuing them to the accused. II. In Crl.Appeal Nos.1206 of 2019 and 1207 of 2019 arising out of S.C.No.2/2018/NIA, we issue the following directions considering the stage of the case. (i) Judge, Special Court for NIA Cases shall consider the facts and circumstances in the above case and decide whether the statements of protected witnesses can be given to the accused after completing the recording of evidence of other witnesses. (ii) In case, the above course, if adopted, would cause prejudice to the accused, then the Judge, Special Court for NIA Cases shall consider whether, in the facts and circumstances of the case, the protected witnesses can be examined in one go after completing the recording of evidence of all other witnesses, excluding the investigating officer. (iii) If the above mentioned course is not adoptable in the peculiar facts and circumstances of the case, then the Judge, Special Court for NIA Cases may consider whether the chief examination of all the witnesses, including the protected witnesses, be taken one after the other and the cross examination on them deferred for a couple of days so as to enable the accused to formulate a specific defence and then cross examine all the witnesses on a day to day basis peremptorily. We make it clear that Judge, Special Court for NIA Cases shall apply his judicial discretion to the facts and circumstances in each case to forge appropriate methods to ensure the safety of individual witnesses as it is not possible to suggest a straight jacket procedure that has to be uniformly adopted by the Special Court for keeping the identity of the witnesses secret. The Judge, Special Court may hear the parties in S.C.No.2/2018/NIA, if he deems fit, before passing orders thereon. Appeals are disposed of accordingly. All pending interlocutory applications will stand closed.
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