IN a setback to the Jammu and Kashmir Police, the Supreme Court on Friday restored the order of the trial court directing the prosecution to provide redacted copies of the statements of protected witnesses to Waheed-ur-Rehman Para, a Kashmiri politician belonging to the Jammu and Kashmir Peoples Democratic Party, currently facing terror charges under the Unlawful Activities (Prevention) Act, 1967 [UAPA].
A division bench of Justices Sanjay Kishan Kaul and M.M. Sundresh held that the trial court's order was both fair and reasonable for the prosecution and accused while protecting the witnesses, and not depriving the accused of a fair trial with the disclosure of redacted portion of the testimony of the witnesses.
The bench was ruling on an appeal filed by Para against the Jammu & Kashmir and Ladakh High Court order which had quashed the trial court's order.
On June 1, 2021, the trial court, on an application moved by the prosecution under Section 44 of the UAPA read with Section 173(6) of Code of Criminal Procedure [CrPC], declared five witnesses as protected witnesses whose identity could not be revealed. Citing this order, the prosecution refused to supply statements of these witnesses alongside the chargesheet to the accused, even though the trial court order had not excluded the statements from being supplied. Para then moved an application before the trial court seeking supply of the redacted statements of the protected witnesses by way of compliance with Section 207 of CrPC, which came to be allowed on September 11, 2019. This section pertains to the supply to the accused of a copy of the police report and other documents.
The prosecution sought to oppose the application by Para on the ground that the trial court had already, on June 1, 2021, decided that copies of statements were to not be supplied to the accused, and thus the trial court could not review its order. This contention was rejected by the trial court stating that the application made by the prosecution was for the sole purpose of declaring the witnesses as protected witnesses, and nowhere in the said order it was ordered that the accused was precluded from obtaining the copies of the statements of those protected witnesses. However, the High Court, on appeal by the police, quashed the trial court order, holding that the trial court could not have reviewed its order and that the order of trial court could expose the protected witnesses to susceptibility.
The issue before the Supreme Court thus was whether in the case of certain witnesses being declared as protected witnesses by the trial court, can the accused seek recourse to the remedy under Sections 207 and 161 of the CrPC for obtaining copies of redacted statements of these protected witnesses.
Appearing for the petitioner, advocate Shadan Farasat contended that the trial court's order dated June 1, 2021 designating certain witnesses as protected witnesses was a distinct one. Those proceedings, he argued, could not take away the right of an accused to be supplied with witness statements as the objective was only to protect the witnesses and not to take the whole statement out of the purview of section 207 of the CrPC.
Clarifying the legal position, the Supreme Court held that the proceedings to declare witnesses as protected under section 173(6) of the CrPC read with section 44 of the UAPA and Section 17 of the National Investigation Agency Act stand on a different plane with different legal implications as compared to section 207 of the CrPC. It added that the occasion for the appellant/accused to come in and seek redacted statements under section 207 of the CrPC. arose when the trial was to commence, and the accused 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", the Supreme Court held.
The Court also noted that on a query to counsel for the police 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 had been no answer.
Approving the trial court's order, the Supreme Court noted that the former's order had 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", the Supreme Court held.
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