Waheed-Ur-Rehman Parra vs Union Territory Of Jammu And Kashmir

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.237 OF 2022 (Arising out of SLP (Crl.) No.9031/2021)

WAHEED-UR-REHMAN PARRA …Appellant

Versus

UNION TERRITORY OF JAMMU & KASHMIR …Respondent

JUDGMENT

SANJAY KISHAN KAUL, J.

1. The moot point arising for consideration in the present appeal is

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 (hereinafter referred to as the ‘Cr.P.C.’), read

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

(hereinafter referred to as the ‘UAPA’) by the trial court, can the defence Signature Not Verified Digitally signed by Anita Malhotra Date: 2022.02.25 seek recourse to the remedy under Section 207 and Section 161 of the 17:35:35 IST Reason: 1 Cr.P.C. for obtaining copies of redacted statements of these protected

witnesses.

Background:

2. A First Information Report (for short ‘FIR’), being FIR No.5/2020,

was registered on 11.01.2020 under Sections 18, 19, 20, 38 & 39 of the

UAPA read with Sections 7/25 of the Arms Act, 1959 (hereinafter

referred to as the ‘Arms Act’) and Sections 3/4 of the Explosive

Substance Act, 1908 (hereinafter referred to as the ‘ES Act’) against one

Syed Naveed Mushtaq and others at P.S. Qazigund. The National

Investigation Agency (for short ‘NIA’) 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 herein was arrested in the said FIR on 25.11.2020 and the NIA

filed the second supplementary chargesheet in the FIR before the Court

of 3rd Additional Sessions Judge, Jammu (Special Judge NIA Act) on

22.03.2021 arraying the appellant as accused No.11 in the said

supplementary chargesheet.

3. On 22.12.2020, the respondent filed FIR No.31/2020 under

Sections 13, 17, 18, 38, 39, 40 of the UAPA read with Sections 120-B,

2 121, 121-A and 124-A of the Indian Penal Code, 1860 (hereinafter

referred to as the ‘IPC’) 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 No.31/2020 before the Special Judge (NIA Act),

Srinagar where the appellant was arraigned as the sole accused. The

charges were framed against the appellant on 20.7.2021.

4. The respondent herein moved an application under Section 44 of

the UAPA read with Section 173(6) of the Cr.P.C. before the trial court

seeking 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 trial court vide order dated 01.06.2021

allowed the application filed by the respondent herein, observing that in

view of the sensitivity of the case, it appeared 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 witnesses marked as A-1 to A-5 were kept in a

sealed cover in view of their declaration as protected witnesses. In

addition, the documents marked as D-1 (which were also in a separate

3 sealed cover) were excluded from other documents and were placed in a

sealed cover along with the statements of protected witnesses.

Trial Court Proceedings:

5. 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. This was resisted 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. It was contended that

Section 207 Cr.P.C. was conditional upon Section 173 Cr.P.C. and could

not supersede it. The right of the accused to be supplied with all material

as envisaged under Section 207 Cr.P.C. could thus not be inferred to be

absolute, which was quite evident from the reading of clause (iii) of

Section 207 Cr.P.C.. In addition it was contended that there was no

power of review under the provisions of the Cr.P.C. and the prayer of the

appellant would amount to seeking review of the earlier order dated

01.06.2021.

6. The trial court vide order dated 11.09.2021 allowed the application

4 of the appellant while observing that in view of Section 44, UAPA, and

Sections 207 and 173(6), Cr.P.C., it was amply clear that the prosecution

was duty bound to provide the copies of the statements of protected

witnesses A-1 to A-5 to the accused in order to provide a fair trial.

Further, the order dated 01.06.2021 passed by the trial court did not

restrict or inhibit the powers of the trial court under the aforementioned

Sections. It was opined that the object of the application of the

prosecution was with the sole purpose of declaring the witnesses A-1 to

A-5 as protected witnesses and nowhere did the order opine that the

accused were precluded from obtaining the copies of the statements of

those protected witnesses.

The High Court Proceedings:

7. The respondents preferred an appeal before the High Court on the

ground that the order dated 11.09.2021 would be in conflict with the

earlier order dated 01.06.2021 and would negate the very purpose which

was sought to be served in terms of the earlier order. It was further

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

5 that no appeal was maintainable arising from an interlocutory order.

8. The High Court of Jammu & Kashmir and Ladakh vide impugned

order dated 11.10.2021 allowed the appeal, observing that in the light of

Sections 17 & 44 of the UAPA it was clear 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 the said provisions. The High Court opined 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 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.

The Legal Position:

9. In order to appreciate the controversy we would first set forth the

legal position.

10. The initial exercise of the power by the trial court was under

Section 173(6) of the Cr.P.C. Chapter XII of the Cr.P.C. deals with

“Information to the police and their powers to investigate”. Section 173

refers to “Report of police officer on completion of investigation”. The

6 relevant provisions of Section 173 Cr.P.C. read as under:

“173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay.

xxxx xxxx xxxx xxxx

(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.”

11. In the normal course of trial, all statements of prosecution

witnesses would have to be disclosed to the accused. Section 173(6) is

an exception to the said provision. This is applicable in two

eventualities, viz.,

a. Statement is not relevant to the subject matter of the

proceedings.

b. Its disclosure to the accused is not essential in the interests of

justice or expedient in the public interest.

It goes on to further state that such part of the statement be

appended in a note requesting the Magistrate to exclude “that part

7 from the copies” to be granted to the accused and disclose the reasons

for making such a request.

12. A perusal of the application filed would show that the reason for

the same as set out by the Investigating Officer (for short ‘IO’) was 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. There was

perceived to be an imminent danger to the life and property of such

witnesses and, thus, in the interest of justice and in the interest of these

witnesses they were required to be declared as protected witnesses. In

terms of Section 44 of the UAPA, copies of their statements ought to be

excluded from the copies to be provided to the accused and be kept in a

sealed cover.

13. We now turn to the second provision, which is Section 44 of the

UAPA, which deals with “protection of witnesses” and reads as under:

“44. 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

8 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 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.”

14. In terms of sub-section (2) of Section 44 of the UAPA, if the

public prosecutor in relation to such witness pleads as aforesaid, then a

court on an application if satisfied that the life of such witness is in

danger, 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.”

9 We, thus, may say that the whole objective is that if from the testimony

of the witness, their location and identity can be deciphered, that portion

of the testimony should not be handed over. We are observing this in the

context of the prayer made by the accused before the trial court, where he

sought only the redacted statements of protected witnesses. We may also

simultaneously note that the order of the trial court dated 11.09.2021

permitted the same with a clear direction that the documents be delivered

after expunging the identity (name and address of the protected

witnesses) and relevant paras in their statements which disclosed their

occupation and identity. Thus, it went as far as to leave it to the Special

Public Prosecutor to take a call on what would be taken as relevant paras

in their statement which would disclose their occupation and identity,

apart from redaction of their names and addresses.

15. We may also note that Section 17 of the NIA Act is in pari materia

with the aforesaid provision.

16. Section 161 of the Cr.P.C. deals with the “examination of

witnesses by police” while Section 207 Cr.P.C. deals with the aspect of

“supply to the accused of copy of police report and other documents.”

This Section falls in Chapter XVI dealing with “commencement of

10 proceedings before Magistrates” and reads as under:

“207. Supply to the accused of copy of police report and other documents. – In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.”

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17. A reading of the aforesaid provision would show that it mandates a

Magistrate, by using the word “shall”, without delay to furnish copy of

what is specified therein, which would include statements recorded under

sub-section (3) of Section 161 of all persons. The first proviso, however,

carves out an exception that the Magistrate, in respect of clause (iii), after

considering the reasons given by the police officer for the request, direct

that a copy of that part of the statement or of such portion thereof as the

Magistrate thinks proper, shall be furnished to the accused.

The Rival Contentions:

18. Learned counsel for the appellant contended that the accused has a

statutory right to get a copy of the witnesses’ statements in order to

confront the witness during the course of trial in accordance with

Sections 161 and 207 of the Cr.P.C. and relied upon the judgment of this

Court in Mohd. Hussain v. State (GNCTD)1 to emphasise that the

accused has a right under the said provisions to receive copies of

witnesses’ statements in order to mount and effective defence. Additionally, in Sidhartha Vashisht @ Manu Sharma v. State (NCT of

Delhi)2, it was opined that the right of the accused to receive the

1 (2012) 2 SCC 584 2 (2010) 6 SCC 1 12 documents and statements submitted before the court was absolute and

must be adhered to. This was treated as a part of the requirement of a fair

disclosure in a fair trial. In Jahid Sheikh v. State of Gujarat 3, this Court

expressed a similar view with the conclusion that it was the duty of the

Sessions Court to supply copies of the chargesheet and all relevant

documents relied upon by the prosecution under Sections 207 and 208

Cr.P.C., and the same could not be treated as an empty formality.

19. Learned counsel for the appellant requested this Court to strike a

balance, so as to not compromise fair trial in cases where special laws

require concealment of the identity of witnesses. The counsel for

appellant sought to justify the direction of the trial court as a very

reasonable one, leaving it to the SPP himself to redact the appropriate

information so as to safeguard the witnesses and their identities.

20. On the aspect of a review power being exercised by the trial court,

which was not within its jurisdiction, it was urged that the first direction

to designate certain witnesses as protected witnesses was in the absence

of the accused. That was a distinct nature of proceedings. Those

proceedings could not take away the right of an accused to be supplied

with witness statements as the objective was only to protect the witnesses 3 (2011) 7 SCC 762 13 and not to take out the whole statement out of the purview of Section 207

of the Cr.P.C. The second order dated 11.9.2021 was to fulfil the

mandate of Section 207 of the Cr.P.C., subject to the precautions to be

taken in that behalf.

21. Lastly it was sought to be urged that no appeal was maintainable

before the High Court appeals against interlocutory orders are barred

under Section 21 of the NIA Act, which would equally apply to the

prosecution and the defence. To appreciate the contentions, we are

reproducing Section 21(1) of the NIA Act, which provides an exception

to interlocutory orders and reads as under:

“21 Appeals. - (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law.”

22. Interestingly, a Division Bench of the Kerala High Court in D.

Subair T.P. & Ors. v. Union of India4 has opined on a similar issue by

giving similar terms to the accused as the trial court in its order dated

11.09.2021. However, the discretion to redact portions of the statement

has been left to the trial court instead of the Special Prosecutor. No

judgment of this Court under these provisions has been brought to our 4 (2021) 1 KLT (SN 17) 14 notice.

23. On the other hand learned counsel for the respondent resisted the

appeal essentially on the ground that the power of review was not

available with the trial court (Atul Shukla v. State of M.P. & Anr. 5). It

was urged that in view of the charges levelled against the appellant, it

was expedient in public interest for certain facts to be excluded from

disclosure as there was an imminent threat to the life and safety of

witnesses and their families.

Conclusion:

24. On a conspectus of the aforesaid legal position and the limited

contours of the facts required for determination of the issue, we are of the

view that the provisions of 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 of the Cr.P.C. We say so as the first order was passed at the

threshold. There was no notice to the accused. 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 5 (2019) 17 SCC 299 15 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. These considerations weighed with the

trial court while passing the order dated 01.06.2021, and even the

appellant has no quibble with the same.

25. 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 plea of the prosecution of this being a review power is,

thus misplaced. There is no doubt that the power of review is not

available with the trial court and the question was whether the exercise of

the power by the trial court under the two separate provisions vide orders

dated 01.06.2021 and 11.09.2021 can at all be said to be the power of

review in the latter order. The answer to this is clearly in the negative.

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26. We may also note another aspect arising from there being no

appeal against an interlocutory order. This aspect somehow has not been

dealt with by the High Court possibly because it opined that the latter

order amounted to a review of the earlier order. The appellant had not

challenged the earlier order dated 01.06.2021 and could not have done

so. Similarly the latter order could not have been challenged in appeal by

the respondents, being in the nature of an interlocutory order given the

provisions of Section 21(1) of the NIA Act.

27. 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

17 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 trial with the disclosure of the

redacted portion of the testimony under Section 207 of the Cr.P.C.

28. 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.

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

………………………J. [Sanjay Kishan Kaul]

....……………………J. [M.M. Sundresh] New Delhi.

February 25, 2022.

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