Read Time: 08 minutes

The Top Court on Friday clarified that as per Section 44 of the UAPA, 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. 

Sub-section (2) of Section 44 of the UAPA, says that if the public prosecutor in relation to a witness pleads that they should be protected, 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.”

"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....", observed a bench of Justices SK Kaul and MM Sundresh.

These observations were made by the top court while hearing an appeal filed by Waheed-ur-Rehman Parra questioning whether in a case where certain witnesses being declared as protected witnesses in the exercise of powers under Section 173(6) of the Code of Criminal Procedure, 1973, read with Section 44 of the Unlawful Activities (Prevention) Act, 1967 by the trial court, can the defence seek recourse to the remedy under Section 207 and Section 161 of the 1 CrPC for obtaining copies of redacted statements of these protected witnesses.

Parra was arrested in relation to an FIR A was registered under Sections 18, 19, 20, 38 & 39 of the UAPA read with Sections 7/25 of the Arms Act, 1959 and Sections 3/4 of the Explosive Substance Act, 1908.

The UT of Jammu and Kashmir had then moved an application under Section 44 of the UAPA read with Section 173(6) of the CrPC before the trial court seeking declaration of five witnesses as protected witnesses and for certain documents to be excluded from the documents to be provided to the accused, which came to be allowed.

Parra then filed an application under Section 207 CrPC before the trial court praying for a redacted copy of the statements of protected witnesses.

The trial court allowed the said application while observing that in view of Section 44, UAPA, and Sections 207 and 173(6), CrPC, it was amply clear that the prosecution was duty bound to provide the copies of the statements of protected witnesses to the accused in order to provide a fair trial.

High Court set aside the order of the trial court 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 Supreme Court noted that the Investigating Officer sought for such redaction as 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. 

While noting that the accused before the trial court sought only the redacted statements of protected witnesses, it was found that the trial court 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.

It was further noted that the trial court had given a wide discretion 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.

Accordingly, trial court's was found to be 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. 

With this view, the appeal was allowed and the High Court's order was set aside.

Case Title: WAHEED-UR-REHMAN PARRA v UNION TERRITORY OF JAMMU & KASHMIR