Union Territory Of J&K Through ... vs Waheed-Ur-Rehman Parra
2021 Latest Caselaw 1272 j&K/2

S.no. 37            HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                    AT SRINAGAR
                                         ...
                                 CrlA(D) no.16/2021


           Union Territory of J&K through Police Station CIK, Srinagar

                                                                     ....... Appellant(s)
                                                 Through: Mr B.A.Dar, Sr. AAG

                                              Versus
           Waheed-ur-Rehman Parra
                                                                  .........Respondent(s)
                                                 Through: Mr R.A.Jan, Sr. AAG with
                                                 Mr Aswad Attar, Advocate

           CORAM:
                 HON'BLE THE CHIEF JUSTICE
                 HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                             ORDER

11.10.2021

1. This Appeal under Section 21 of the National Investigation Agency

Act, 2008 ("NIA Act" for short) is against the Order dated 11 th

September 2021, passed by the court of Special Judge Designated under

NIA Act, Srinagar (for brevity "Trial Court") in an application filed by

respondent/accused, and for setting aside the same on the grounds made

mention of therein.

2. Heard and considered.

3. Police Station CIK, Srinagar, has registered an FIR no.31/2021 under

various sections of UA(P) Act and accused/respondent arrested on 10 th

January 2021. The charge sheet was filed before the Trial Court.

Consequently, an application under Section 44 of UA(P) Act read with

Section 173 (6) of the Code of Criminal Procedure was filed by

Page 1 CrlA(D) no.16/2021 appellant before the Trial Court, seeking declaring five prosecution

witnesses (A-1 to A-5) as protected witnesses and keeping their

statements in sealed cover and excluding the same from being furnished

to respondent/accused. The aforesaid application was allowed vide

order dated vide Order dated 1st June 2021. Nevertheless, accused/

respondent moved an application for issuance of copy of statements of

protected witnesses (A-1 to A-5), which has been allowed by the Trial

Court vide order 11th September 2021. It is this order of which

appellant is aggrieved and seek setting aside thereof.

4. According to learned counsel for appellant, the Trial Court has passed

impugned order contrary to the Order dated 1st June 2021, excluding

statements of protected witnesses. He contends that impugned order has

negated purpose, which was sought to be served in terms of order dated

1st June 2021. It is stated that Trial Court has, in essence, reviewed its

own order, which is procedurally and jurisdictionally not within the

parameters of the law.

5. Per contra, learned senior counsel for respondent/accused argues that

the instant Appeal is not maintainable as the order passed by the Trial

Court is interlocutory order. He avers that Appeal against impugned

order is not maintainable in view of provisions of Section 21 of NIA

Act.

6. It is important to mention here as is gatherable from perusal of the file,

an application in terms of Section 44 of UA(P) Act read with Section

173 (6) Cr.P.C. was filed by appellant before the Trial Court seeking

direction for keeping the identity and address of witnesses marked as Page 2 CrlA(D) no.16/2021 A-1, A-2, A-3, A-4, and A-5, kept in sealed cover, as secret and

declaring them as protected witnesses besides excluding the documents

marked as D-1 from being provided to accused/respondent. The Trial

Court, after hearing counsel for appellant, passed Order dated 1 st June

2021. Paragraph 03 and 04 thereof are advantageous, in the context of

present Appeal, to be reproduced hereunder:

"3. Heard learned APP for state/UT and perused the whole material available with the file. Perusal of the record reveals that charge sheet/challan above titled has been presented today by prosecution against the accused person before the court and the next date in the same has been fixed as 15/06/2021. Keeping in view the sensitivity of the case, it appears that there is a threat to the life and property to the witnesses and their families, as such, keeping in view the scope and object of Section 44 of UA P Act incorporated in this act which aims at the protection of the witnesses and prescribes for, "the holding of the proceedings at a place to be decided by the court, rather in simple words we can say there should be Camera trial,". Secondly, the names and address of such protected witness should not be disclosed in any record including orders or judgments during the course of trial. Lastly their identity and address should not be published in any manner whatsoever, so as to ensure their security in all set of circumstances.

4. Therefore, in view of the aforesaid discussion on both facts and statutory provisions this application is hereby allowed and Prosecution witnesses marked as A-1, A-2, A-3, A-4 and A-5, which are kept in a sealed cover are hereby declared as protected witnesses besides the documents marked as D-1, (which are also in a separate sealed cover) is hereby excluded from other documents and are placed in a sealed cover alongwith the statement/s of protected witnesses. Concerned Ahlimad/clerk is directed not to mention the name/s parentage and address etc. of the protected witnesses in any manner, whatsoever during the trial of case and even the court is conscious of the fact and even at the time of judgment the names of such protected witnesses should remain secret to ensure their safety and security. Application after due completion be made part of the main file."

7. As can be seen while perusing the aforesaid paragraphs 03 and 04 of

the Order dated 1st June 2021, the Trial Court has taken into account all

aspects of the matter, including threat to the life and property of

witnesses and their families and as a result whereof, directed that

names, identity of the protected witnesses (A-1 to A-5) shall be kept in

Page 3 CrlA(D) no.16/2021 a sealed cover and documents marked as D-1 shall be excluded from

other documents and kept in sealed cover.

8. An application was filed by respondent/accused before the Trial Court

seeking issuance of copy of statements of protected witnesses A1 to A-

5, which has been allowed by the Trial Court vide impugned order and

Special Public Prosecution has been directed to delivery statements of

protected witnesses, after expunging the identity and relevant paras in

their statement which discloses their occupation and identity, to the

counsel for respondent.

9. Section 44 of UA(P) Act, as has been strenuously stated by learned

counsel for appellant to reinforce the case set up seeking setting aside

of impugned order, is relevant reproduced as under:

"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."

10.As can be seen from provisions of Section 44 of UA(P) Act, particularly

subsection (2) thereof, a Court, if on an application made by a witness

Page 4 CrlA(D) no.16/2021 before it or by Public Prosecutor about such witness or on its own

motion, is satisfied that the life of such witness is in danger, it may take

such measures as it deems fit to keep identity and address of such

witness secret. Subsection (3) envisages that a Court may take under

Subsection (2) all and/or any measure, which includes holding

proceedings at a place to be decided by the court; to void mentioning

names and address of witnesses in its order of judgements or in any

records of the case accessible to public; not to disclose identity and

address of witnesses; to make a decision that it is in public interest to

order that all or any of the proceedings shall not be published in any

manner.

11.It would also be apt to reproduce Section 173(6) Cr.P.C. hereunder:

"Section 173 Cr.P.C. :

Report of police officer on completion of investigation.-- xxxxxx (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."

12.Perusal of subsection (6) of Section 173 Cr.P.C. provides that if police

officer is of opinion that disclosure of any part of any statement is not

essential in the interests of justice and is inexpedient in 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.

13.In the present case, a request was made by appellant before the Trial

Court while making an application under Section 44 UA(P) Act read

Page 5 CrlA(D) no.16/2021 with Section 173(6) Cr. P.C. to keep identity and address of witnesses

in sealed cover as also excluding documents marked as D-1 to be

provided to accused/respondent. When impugned order is looked into

the backdrop of the Order dated 1st June 2021, it becomes self-evident

that impugned order has been passed in contravention thereof.

14.It would be appropriate to reproduce Section 17 of the NIA Act:

"17. 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 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; 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."

15.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

Page 6 CrlA(D) no.16/2021 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. 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. The above provisions are part of a

scheme intended to screen the identity of witnesses who are vulnerable

for one reason or the other. The 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.

16.On an examination of the safeguards in the above Statutes, viz., Section

44 of the UA(P) Act, 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.

17.As has been reiterated above, 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, Page 7 CrlA(D) no.16/2021 take such measures as it deems fit for keeping the identity and address

of such witness secret. Subsection (3) provides 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.

18.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 Code of Criminal Procedure, 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.

19.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

Page 8 CrlA(D) no.16/2021 expression "identity and address" will have to be understood in the facts

and circumstances available in each case.

20.In the present case, once the Trial Court, while passing order dated 1 st

June 2021, allowed application of prosecution/appellant, declaring the

witnesses (A-1 to A-5) as protected witnesses, keeping them and their

statements in a sealed cover, it cannot now by impugned order dated

11th September 2021 revisit and review its own orders, and pass such

an order, which exposes the protected witnesses to vulnerability.

Impugned order has been even passed oblivious to the Order dated 1 st

June 2021, requiring and warranting it to be interfered with by allowing

the instant Appeal. The submission of learned senior counsel appearing

for respondent that impugned order is an interlocutory, has no substance

as in terms of impugned order, as stated above, the Trial Court has

finally decided an application which, in essence and core, has reviewed

its earlier order and has exposed the protected witnesses to

susceptibility.

21.For the foregoing reasons, the instant Appeal is allowed and the Order

dated 11th September 2021, passed by the court of Special Judge

Designated under NIA Act, Srinagar, in the case titled Waheed-ur-

Rehman Parra vs. UT of J&K, is set-aside.

22.Copy be sent down.

                              (Vinod Chatterji Koul)           (Pankaj Mithal)
                                              Judge             Chief Justice
Srinagar
11.10.2021
Imtiyaz

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 Whether approved for reporting? Yes/No




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