IMPORTANT POINTS
(1) Supply of documents to accused – Court has to protect witnesses while ensuring fair trial to accused.
(2) Supply of documents to accused – Particulars of witnesses which could disclose their identities can be redacted.

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 seek recourse to the remedy under Section 207 and Section 161 of the 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 and 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 charge-sheet 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 charge-sheet.

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, 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 charge-sheet, the respondent filed another final report/charge-sheet 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 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