What Kerala HC said on maintaining confidentiality of witnesses in NIA cases

The Supreme Court’s 2018 verdict on witness protection was relied on by the Kerala High Court recently to protect the identity of witnesses testifying against persons accused of offences under the Unlawful Activities (Prevention) Act (UAPA)..The case before the Division Bench of Justices A Hariprasad and N Anil Kumar concerned two appeals filed by the National Investigating Agency (NIA) challenging Special Court directions to share copies of witness statements, which the agency contended would expose the protected witness to threats from the accused..The accused in the case were said to be members of the Popular Front of India (PFI) with ties to ISIS, as per the NIA. Earlier, 97 of 300 witnesses had turned hostile. 10 fresh witnesses, who are said to have been afraid to depose earlier, came forward later on, after all, but one of the accused in the case were arrested. Apart from statements by protected witnesses, another witness statement is also said to have divulged the identity of a protected witness. The Special Court had ordered that this statement also be shared without blacking out any details..Arguing that the accused would scuttle the investigation if details of the protected witnesses were divulged, the NIA approached the High Court in appeal. The Agency cited Section 17 of the NIA Act and Section 44 of the UAPA, both of which deal with the protection of witnesses, to make their case..The High Court, in turn, observed firstly that it is clear in cases of this nature, the NIA can withhold certain materials from the accused for a limited time. On an allied note, the Court pointed out that the police may also withhold from accused parts of witness statement which are irrelevant or not essential or inexpedient to public interest, as per Section 173 (6) of the Code of Criminal Procedure (CrPC). As far as the process is concerned,.“It is required that he (police officer) should append a note requesting the Magistrate to exclude that part of the statement from the copies to be granted to the accused and he should state his reasons for making such a request ….… At the time of examination of such witness, the accused will have a right to know the identity of the person who is going to speak against him, as such details may be required for effectively cross-examining the witness. In a given case, the accused may try to establish that the person speaking against him was not present at the scene of occurrence or he is falsely deposing on account of the previous enmity, so on and so further. However, at the stage of investigation or inquiry, the accused cannot, as of right, claim full disclosure of the identity of such witnesses … “.Further, the Court also has the discretion to reveal such statements to ensure a fair trial later on. If there are compelling reasons and in the interest of avoiding serious prejudice to the accused, the Court may also reveal the identity of witnesses..“The accused at the stage of trial may suffer prejudice on account of exclusion of such statements and therefore the court may exercise its power, at that stage, to direct the prosecution to handover such statements to ensure a fair trial. However, that will not confer a right on the accused to claim such statements before hand.” .The Court went on to note that,.“It is therefore clear that even in a criminal case registered for offences under IPC, the investigating officer is empowered to request the court to withhold certain statements from the accused, if it is expedient tin the public interest or if it is not essential to give to the accused in the interest of justice. Hence, we cannot hold a view that Section 17 of the NIA Act and Section 44 of the UA (P) Act are abhorrent provisions.”.While this was the case, the Court also took critical note that Witness Protection Programmes in India were not fully developed, compared to other countries. It was also pointed out that the 198th report of the Law Commission had proposed a legal regime for witness protection in India, although no law on the topic has been enacted so far..In this backdrop, the Court proceeded to take note of the guidelines issued by the Supreme Court in Mahender Chawla v UOI, which also laid down different classes of protected witnesses. The Bench found that the Supreme Court, in that case, had also inserted a general witness protection clause, which could be invoked on a case-to-case basis for the protection of witnesses..“On careful scrutiny of the provisions in the Scheme (proposed by the Supreme Court in Mahender Chawla v. UOI), we do not find any particular provision relating to supply copies of the statements of witnesses recorded by the investigating officer under Section 161 (3) CrPC 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.”.In view of this observation, the High Court proceeded to direct that copies of the witness statements should be shared with the accused only after blacking out of the identity of the protected witnesses. The Court clarified that even when it comes to statements by persons other than protected witnesses, any content identifying any protected witness must be blackened out..Read Judgment: