Court to keep the identity and address of witness secret - SC

Question arises before Apex Court in the recent Judgement that Can the defence seek recourse to the remedy U/s 207 and 161 Cr.P.C for obtaining copies of redacted statements of protected witnesses?

Two FIR registered against Syed Naveed Mushtaq and others at P.S. Qazigund.  arraying the appellant as accused No.11 in the said supplementary chargesheet. The Investigating Officer (IO) filed an application under section 44 of the UAPA seeking protection for witnesses in relation to a high-profile case. Under section 44, secret copies of their statements are to be excluded from copies to be provided to the accused and kept in a sealed cover. The trial court vide order dated 01.06.2021 allowed the application filed by the respondent. There was a threat to the life and property of the witnesses and their families.

Appellant / accused moved 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.

Same was opposed 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. Trial Court allowed the application.

Respondent preferred the appeal to High Court and 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. The High Court of Jammu & Kashmir and Ladakh opined in favour of the respondents. The trial court having allowed the plea of protected witnesses and directing their testimonies to be kept in a sealed cover, would amount to revisiting and reviewing its own orders, which was not permissible.

Aggrieved appellant approached Apex Court.

Apex Court while go through Section 173 of Cr.P.C all statements of prosecution witnesses would have to be disclosed to the accused except Statement is not relevant or Its disclosure to the accused is not essential in the interests of justice or expedient in the public interest.

Section 44 of the UAPA provides that a court may take such measures as it deems fit for keeping the "identity and address of such witness secret". The objective is that from the testimony of the witness, their location and identity can be deciphered, that portion of the testimony should not be handed over.

Apex Court observed that 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, we say. there was no notice to the accused.

Held by the Apex Court There is no doubt that the power of review is not available with the trial court. The plea of the prosecution of this being a review power is, in our view, misplaced. The exercise of the power was at two different stages of proceedings under two different provisions. Appeal allowed.

D.D- February 25, 2022.

WAHEED-UR-REHMAN PARRA  Versus UNION TERRITORY OF JAMMU & KASHMIR