Statements of protected witness after redaction of identity can be provided to UAPA accused: Supreme Court

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The Supreme Court on Friday held that an accused is entitled to obtain copies of statements of those who are declared ‘protected witnesses’ under Section 173(6) of the Code of Criminal Procedure (CrPC) read with Section 44 of the Unlawful Activities (Prevention) Act after redaction of identities of such witnesses [Waheed-Ur-Rehman Parra vs UT of J&K].

A Bench of Justices Sanjay Kishan Kaul and MM Sundresh was dealing with a question as to whether, in the case of certain witnesses being declared as protected witnesses by the trial court, the defence can seek recourse to the remedy under Section 207 and Section 161 of the CrPC for obtaining copies of redacted statements of these protected witnesses.

The top court held that the provisions of Section 173(6) of the CrPC read with Sections 44 of the UAPA and 17 of the NIA Act (both deal with protection of witnesses) stand on a different plane with different legal implications as compared to Section 207 of the CrPC.

Section 173(6) provides that if the police officer is of opinion that any part of a statement is not relevant or essential to proceedings, they are to 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.

Section 207 of the CrPC deals with the Magistrate supplying the accused copies of the police report and other documents.

“The objective of Section 44, UAPA, Section 17, NIA Act, and Section 173(6) is to safeguard witnesses. They are in the nature of a statutory witness protection. On the court being satisfied that the disclosure of the address and name of the witness could endanger the family and the witness, such an order can be passed. They are also in the context of special provisions made for offences under special statutes,” the Court said.

In the present case, the trial court had weighed all considerations before allowing accused’s plea and directed that the statements be supplied to the accused after expunging the identity (name and address of the protected witnesses) and relevant paras in their statements which disclosed their occupation and identity.

The same was fair and reasonable to the prosecution and defence while protecting the witnesses and not depriving the defence of a fair trial, the Court said.

By way of background, a first information report was lodged in 2020 against one Syed Naveed Mushtaq under the UAPA, Explosive Substances and Arms Acts.

Thereafter, the NIA took over the probe and registered another FIR. The appellant Waheed-Ur-Rehman Parra was charged as an accused under the NIA FIR and by a supplementary chargesheet, he was arrayed as accused no 11 in the primary offence.

Later, under another FIR by the State on the same facts as the NIA, the appellant was arrayed as the sole accused.

The trial court by an order of June 1, 2021 declared five prosecution witnesses as protected witnesses, and their statements were kept in a sealed cover.

An application under Section 207 of the CrPC was filed by the appellant before the trial court praying for a redacted copy of the statements of the five protected witnesses.

State had contended that Section 207 CrPC was conditional upon Section 173 CrPC and could not supersede it. The right of the accused to be supplied with all material as envisaged under Section 207 CrPC could thus not be inferred to be absolute, the State urged.

The trial court on September 11, 2021 allowed the application of appellant observing that in view of Section 44, UAPA, and Sections 207 and 173(6), CrPC, the prosecution was duty bound to provide the copies of the statements of the five protected witnesses to the accused in order to provide a fair trial.

It, however, directed that the identities of the protected witnesses be redacted.

On appeal, the High Court of Jammu & Kasmhir and Ladakh favoured the State and held 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 redacted statements would amount to revisiting and reviewing its own orders, which was not permissible.

The High Court held that the same would expose the protected witnesses to vulnerability.

This led to the present appeal before the Supreme Court.

It was contended by the prosecution that Section 207 CrPC was conditional upon Section 173 CrPC and could not supersede it. The right of the accused to be supplied with all material as envisaged under Section 207 CrPC could thus not be inferred to be absolute, which was quite evident from the reading of clause (iii) of Section 207 CrPC, it was argued.

In addition it was contended that there was no power of review under the provisions of the CrPC and the prayer of the appellant to statements of witnesses would amount to seeking review of the earlier order of the trial court dated June 1, 2021 by which it had allowed the prosecution’s application for declaration of five witnesses as protected witnesses and for certain documents to be excluded from the documents to be provided to the accused.

The Supreme Court noted that on query to the State as to how the trial court 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 was really been no answer.

“We believe that the order dated September 11, 2021 is both fair and reasonable for the prosecution and defence while protecting the witnesses and not depriving the defence of a fair trial with the disclosure of the redacted portion of the testimony under Section 207 of the Cr.P.C,” the top court ruled.

Regarding the prosecution’s contention that the plea amounted to a review, the Court disagreed.

“The occasion for the appellant/accused to come in and seek redacted statements under Section 207 of the Cr.P.C. arose when the trial was to commence and the appellant was of the view that in order 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, in our view, an exercise of the power of review but the exercise of powers at two different stages of proceedings under two different provisions,” the apex court said.

The Court said that there is no doubt that the power of review available with the trial court but the question was whether the exercise of the power by the trial court under the two separate provisions vide orders dated June 1, 2021 and September 11, 2021 can at all be said to be the power of review in the latter order.

“The answer to this is clearly in the negative,” the Court made it clear.

It, therefore, allowed the appeal and set aside the High Court judgment.

Read Judgment here

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