Back
2019 Supreme(Ker) 890
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.HARIPRASAD, N.ANIL KUMAR, JJ.
Subair.T.P @ Subu, S/o. Pareeth Pillai and Ors - Appellant
Versus
Union of India Represented By National Investigating Agency and Ors - Respondent
Crl.Appeal Nos.837, 1107, 1206 & 1207 of 2019
Decided On : 09-12-2019
Advocate Appeared:
For the Appellant : Sri.K.S.Madhusoodanan, Sri.P.C.Noushad, Sri.M.M.Vinod Kumar, Sri.P.K.Rakesh Kumar, Sri.K.S.Mizver
For the Respondent: Sri.M.Ajay, Special Public Prosecutor For NIA
IMPORTANT POINTS
The identity of the witnesses questioned by the investigating officers are clearly revealed therefrom- Not only the identity of the witnesses deposed, but the identity of some other protected witnesses are also seen revealed from the testimony of some witnesses. Hence, we find basis in the apprehension raised by NIA.
Headnote:
Indian Penal Code, 1860 ;; Unlawful Activities (Prevention) Act, 1967-No particular provision relating to supply of copies of the statements of witnesses recorded by the investigating officer under Section 161(3) Cr.P.C. to the accused. But, we notice a residuary provision in Clause 7(o), which says that any other form of protection measures considered necessary can be given to a witness. It is a general provision enabling the courts to tackle the problems arising in each case.
Statement of facts:
Accused 39, 41, 44 and 45 were not available for the first round of trial since they absconded at that time. Hence, case against them was split up and is pending trial at present. In an earlier trial, held against the then available accused, as many as 97, out of 300 witnesses examined, turned hostile allegedly under threat, fear and intimidation by the absconding accused. According to NIA, the accused at present facing trial as well as the accused who stood trial in the earlier case are members of Popular Front of India (PFI)- In the further investigation conducted by NIA against the accused herein and others, 10 fresh witnesses, who had till then feared to depose, came forward to do so- NIA would state this was partly due to the fact that the agency has now arrested all the accused except one- The accused persons are involved in grave crimes registered under the provisions of the Indian Penal Code, 1860 and Unlawful Activities (Prevention) Act, 1967 - According to NIA, the witnesses are under threat to lives and limbs and NIA acceded to the request of the witnesses to take necessary steps to protect their identity.
Finding of the court:
• In Crl.Appeal No.837 of 2019 and 1107 of 2019, arising out of S.C.No.2/2017/NIA before the Special Court for NIA Cases, we direct the learned Judge, Special Court for NIA Cases to supply copies of the statements of witnesses A to J in Annexure-1A to the supplementary final report No.3 dated 01.06.2017 after blackening/darkening all the aspects in the statements which may tend to reveal the identity of any of the protected witnesses. Likewise, we also direct the learned Judge, Special Court for NIA Cases to furnish copies of the statements of witnesses other than the protected witnesses, recorded under Section 164 Cr.P.C., and copies of statements recorded under Section 161 Cr.P.C. of CWs 333 and 334 only after blackening/darkening all portions of the statements revealing the identity of the protected witnesses. Learned Judge shall also furnish to the accused the copies of final report dated 10.01.2011 and supplementary final reports dated 18.01.2013 and 12.04.2013 only after blackening/darkening all portions in them which may result in revealing the identity of the protected witnesses. NIA is permitted to file blackened/darkened copies of the above records before the Special Court in two weeks from today for issuing them to the accused.
• The Judge, Special Court for NIA Cases may consider whether the chief examination of all the witnesses, including the protected witnesses, be taken one after the other and the cross examination on them deferred for a couple of days so as to enable the accused to formulate a specific defence and then cross examine all the witnesses on a day to day basis peremptorily.
Result: Disposed of
JUDGMENT :
A.HARIPRASAD, J.
1. Primacy of witnesses in the adjudication of disputes, especially in the dispensation of criminal justice, is a well known fact recognised from time immemorial. Dharma Sasthras postulate that credible witnesses are the most important element from the point of view of oral evidence. A witness, according to Shukra Neethi, is a person other than the party, who has some knowledge of the transaction in dispute. Saintly jurist Manu said a person becomes a witness because he has either seen or heard something relevant. Kautilya @ Chanakya, ancient Indian teacher, philosopher, economist, jurist and royal advisor, in his Arthasasthra, a text dated to roughly between 2nd and 3rd century BCE, in Book III, concerning law, deals with the importance of witnesses in trials. Importance of taking oath by a witness is also dealt with therein.
2. Jeremy Bentham (1747-1832), an English philosopher, jurist and social reformer, said : “Witnesses are eyes and ears of justice”. If the witnesses themselves are incapacitated or prevented from acting as eyes and ears of justice, trial becomes nugatory, worthless, trivial and meaningless. That may even sacrifice the sublime concept known as fair trial.
3. State of affairs existed during ancient times have drastically changed now. As long as the relevancy of oral evidence remains to be legally recognized in the realm of adjudication, especially in criminal cases, pre-eminence of the witnesses will continue. A genuine and truthful witness coming forward to depose in a criminal case should be regarded as an enlightened and responsible citizen, who has immense sense of public duty. He deserves to be respected and protected.
4. Variegated questions, relating to witness protection arising in these cases should be answered on the basis of well established sublime principles in this regard.
5. We shall deal with these appeals together notwithstanding they arise out of two proceedings in two Sessions Cases pending before the Special Court for trial of NIA Cases, Ernakulam (hereinafter referred to as “Special Court”). Crl.Appeal Nos.837 of 2019 and 1107 of 2019 arise out of Crl.M.P.No.86 of 2017 in S.C.No.2/2017/NIA. Crl.Appeal Nos.1206 of 2019 and 1207 of 2019 arise out of a common order passed by the Special Court on Crl.M.P.Nos.91 of 2019 and 93 of 2019 in S.C.No.2/2018/NIA. Crl.Appeal No.837 of 2019 is preferred by original accused Nos.39, 41, 44 and 45 in S.C.No.2/2017/NIA. Crl.Appeal Nos.1107 of 2019, 1206 of 2019 and 1207 of 2019 are preferred by the Union of India through the National Investigation Agency (in short, “NIA”).
6. Facts relating to the appeals preferred from orders in S.C.No.2/2017/NIA, shortly stated, are as follows: Accused 39, 41, 44 and 45 were not available for the first round of trial since they absconded at that time. Hence, case against them was split up and is pending trial at present. In an earlier trial, held against the then available accused, as many as 97, out of 300 witnesses examined, turned hostile allegedly under threat, fear and intimidation by the absconding accused. According to NIA, the accused at present facing trial as well as the accused who stood trial in the earlier case are members of Popular Front of India (PFI). In the further investigation conducted by NIA against the accused herein and others, 10 fresh witnesses, who had till then feared to depose, came forward to do so. NIA would state this was partly due to the fact that the agency has now arrested all the accused except one. The accused persons are involved in grave crimes registered under the provisions of the Indian Penal Code, 1860 (in short, “IPC”) and Unlawful Activities (Prevention) Act, 1967 (in short, “UA(P) Act”). According to NIA, the witnesses are under threat to lives and limbs and NIA acceded to the request of the witnesses to take necessary steps to protect their identity.
7. NIA filed Crl.M.P.No.74 of 2017 before the Special Court requesting the statements, recorded under
