S.207 CrPC - Accused can be given copy of protected Witness's Statement with Identity Redacted: SC

EXERCISE OF POWER BY THE TRIAL COURT UNDER TWO SEPARATE PROVISIONS VIDE TWO DIFFERENT ORDERS CANNOT BE SAID TO BE THE POWER OF REVIEW IN LATTER ORDER: SC

Cause Title: Waheed-Ur-Rehman Parra v. Union Territory of Jammu and Kashmir

Case Number: Criminal Appeal No. 237/2022 (Arising out of SLP (Crl.) No. 9031/2021

Judgment Date: 25/02/2022

Quorum: Justice Sanjay Kishan Kaul and M.M. Sundresh

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

To View/Download Judgment: Waheed-Ur-Rehman Parra v. Union Territory of Jammu and Kashmir

Background of the Case

FIR No. 5/2020 was registered against one Syed Naveed Mushtaq and Others at P.S. Qazigund on 11.01.2020 under Sections 18, 19, 20, 38 and 39 of UAPA read wit Sections 7 and 25 of the Arms Act, 1958 and Sections 3 and 4 of the Explosive Substance Act, 1908.The National Investigation Agency 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 was arrested in the said FIR on 25.11.2020 and the NIA filed the second supplementary chargesheet in the FIR before the III Additional Sessions Judge, Jammu (Special Judge NIA Act) on 22.03.2021 arraying the appellant as accused No. 11 in the said supplementary chargesheet.

On 22.12.2020, the respondent filed FIR No. 31/2020 under Sections 13, 17, 18, 38, 39 and 40 of UAPA Act read with Sections 120B, 121, 121A and 124A of the Indian Penal Code, 1860 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 31/2020 before the Special Judge, Srinagar where the appellant was arrayed as the sole accused. The charges were framed against the appellant on 20.07.2021.

The respondent moved an application under Section 44 of UAPA read with Sections 173(6) of CR.P.C sought for 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 Investigating Officer set out 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. The trial court vide its order dated 01.06.2021 allowed the application in lieu of the sensitivity of the case and threat to the life and property of the witnesses and their families. The statements of the prosecution witnesses marked as A1 to A5 were kept in sealed cover and the documents marked as D1 were excluded from other documents and placed in a sealed cover.

A) Trial Court Proceedings

An application under Section 207 of Cr.P.C was filed by the appellant for a redacted copy of the statements of protected witnesses A1 to A5. The respondents resisted the same on the following grounds:

a) The application is not maintainable as the same was already decided through the previous trial court order dated 01.06.2021.

b) Section 207 Cr.P.C was conditional upon Section 173 Cr.P.C and could not supersede it. The accused does not have absolute right to be supplied with all materials.

c) There was no power of review under the provisions of Cr.P.C and the prayer south by the appellant would amount to review of the earlier order.

The trial court vide its order dated 11.09.2021 allowed the application filed by the appellant and held that the prosecution was duty bound to provide the copies of the statements of protected witnesses A1 to A5 to the accused in order to provide a fair trial. It was held that the order dated 01.06.2021 does not restrict or inhibit the powers of the trial court under the aforesaid Sections. It was opined that the object of the previous application was to declare the protected witnesses and not to preclude the appellant from obtaining the copies of the statements of those protected witnesses.

B) High Court Proceedings

The respondent preferred an appeal before the Honourable High Court of Jammu and Kashmir on the ground that the order dated 11.09.2011 would be in conflict with the order dated 01.06.2021 and would negate the very purpose which was sought to be served in the earlier order. It was further contended that this was essentially a review power which was sought to be exercised but was procedurally and jurisdictionally not within the competence of the trail court. The appellant pleaded that no appeal was maintainable arising from an interlocutory order.

The High Court through its impugned order dated 11.10.2021 allowed the appeal and held 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 Sections 17 and 44 of UAPA. The High Court stated that the trail 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.

Moot Question/ Issue

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, read with Section 44 of the Unlawful Activities (Prevention) Act, 1967 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?

Findings of the Court

The Honourable Supreme Court of India observed that the provisions of Section 173(6) of Cr.P.C read with Section 44 of UAPA and Section 17 of NIA Act stand on a different plane with different legal implications as compared to Section 207 of Cr.P.C. In the first order no notice was given to the accused. The objective of Section 44 of UAPA, Section 17 of NIA Act and Section 173(6) of Cr.P.C is to safeguard witnesses and they are in the nature of a statutory witness protection. On satisfaction of the Court that the disclosure of name and address of the witness would endanger the family and witness, then an order of special protection can be passed and the trail court weighed these considerations in order dated 01.06.2021 and even the appellant has no quibble with the same. (Para 24)

The occasion for the appellant to come in and seek redacted statements arose when the trial was to commence and 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 an exercise of review but exercise of powers at two different stages of proceedings under two different provisions. There is no doubt that the power of review is not available with the trial court and the exercise of power by the trial court under separate provisions in two different orders cannot be said to be the power of review in the latter order. (Para 25)

The Honourable Apex Court also dealt with the aspect arising from there being no appeal against an interlocutory order which was not dealt by the Honourable High Court. The Court observed that the appellant had not challenged the order dated 01.06.2021 and could not have done so. Similarly, being in the nature of an interlocutory order given the provisions of Section 21(1) of the NIA Act. (Para 26)

“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 trail with the disclosure of the redacted portion of the testimony under Section 207 of the Cr.P.C. (Para 27)

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. (Para 28)

The appeal is allowed leaving the parties to bear their own costs. (Para 29)

Cases Referred

1. Mohd. Hussain v. State (GNCTD), (2012) 2 SCC 584.

2. Sidharta Vashisht @ Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.

3. Jahid Sheikh v. State of Gujarat, (2011) 7 SCC 762.

4. D. Subair T.P and Others v. Union of India, (2021) 1 KLT (SN 17)

5. Atul Shukla v. State of M.P and Another, (2019) 17 SCC 299.