Waheed-Ur-Rahman Parra vs. Union Territory of Jammu & Kashmir

Contents

Facts of the Case
Relevant provisions
Trial Court Findings
High Court Findings
Supreme Court Findings
Judgement
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About the Author

Harikrishnan, a law student. He is a participant of LJRF munsiff magistrate examination training programme. (More details at the bottom)

FACTS OF THE CASE

A FIR was registered in the name of Syed Noved Mushtaq and other at Qazigund Police station and later NIA, (National Investigating Agency) took over the investigation they re-registered the FIR on 17.01.2020. A second supplementary charge sheet was filed on 22.3.2021 before the Court of 3^rd Additional Sections Judge showing the appellant as accused number 11. The respondent filed FIR under support of Sections 13, 17, 18, 38, 39, 40 of UAPA Act, read along with Section 120-B, 121, 121-A and 124-A of IPC at Police Station Srinagar on the same set of evidence and allegations as that of NIA charge sheet, before the Special Judge. Later the respondent herein moved an application under section 44 of the UAPA read with Section 173(6) of the Cr.PC before the trail Court seeking declaration of five witnesses as protected witnesses, taking the view of sensitivity of the case, it was said 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 witness marked as A-1 to A-5 were kept in a sealed cover in view of their declaration as protected witness.

RELEVANT PROVISIONS

Section 44 of UAPA, (Unlawful Activities Prevention Act) it deals with “protection of witness”

1. Notwithstanding anything contained in the Code, the proceedings under this Act may, for reason to be recorded in writing, be held in camera if the court so desires.

2. A court, if on an application made by the witness in any proceedings 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 motion 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 identify and address of the witness are not disclosed.

d) A decision that is in the public interest to order that all or any of the proceedings pending before such a court shall not be punished in any manner.

Section 17 of National Investigation Agency Act, 2008

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 proceedings 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 measure 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 holdings of the proceedings at a place to be decided by the special court.

b) The avoiding of the mention of the names and address of the witness in its orders or judgments 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 and 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.

Section 161 of the Code of Criminal Procedure, 1973

Examination of witness by the Public Officer.

1) Any public 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, prescribed in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquitted 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 answer to which would have a tendency to expose him to a criminal charge or to a penalty.

3) The police officer may advice 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 person whose statement be records.

Section 207 of the Code of Criminal Procedure

Section 207 of the Code deals with supplying copies of statements (recorded by the police), other relevant documents, or extracts from the documents to the accused. It confers a duty on the Magistrate to supply copies of documents prescribed under the Section, that too free of cost.

TRIAL COURT FINDINGS

The Trial Court order dated 11.09.2021 allowed the application of the appellant while observing that in view of Section 44 UAPA, and Section 207 and 173 (6) Cr.PC, it was amply clear 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.

HIGH COURT FINDINGS

The High Court was 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 refracted statements would amount to revisiting and reviewing its own orders, which was not permissible. The same would also expose the protected witnesses to vulnerability.

SUPREME COURT FINDINGS

1. Mohammed Hussan Vs. State (2012) SCC 584

The accused has a right under Sec. 207 to receive copies of witness’s statements in order to effective defense.

2. Sidhartha Vasihisht Manu Sharma Vs. State (NCT of Delhi) 2010

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 fair disclosure in a fair trial.

3. Jahid Shaikh Vs. State of Gujarat (2011) SCC 762

It was the duty of the Sessions Court to supply copies of the charge sheet, all relevant documents relied upon by the prosecution under Sec. 207 and 208 Cr.PC, and the same could not be treated as an empty formality.

JUDGMENT

Therefore, it is held that the order dated 11.09.2021 is both fair and reasonable for the prosecution and defense while protecting the witnesses and not depriving the defense of a fair trail with the disclosure of the related portion of the testimony under Sec. 207 of the Cr.PC.

The result of the aforesaid is that the impugned judgment of the High Court dated 11.10.2021 is set aside and impugned order of the trial court dated 11.09.2021 is restored.

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