Supreme Court clarifies access to redacted witness statements under UAPA and CrPC: Waheed-Ur-Rehman Parra vs. Union Territory of Jammu & Kashmir (25 February 2022)

Introduction

Date of the Judgment: 25 February 2022
Citation: 2022 INSC 196
Judges: Sanjay Kishan Kaul, J., M.M. Sundresh, J.

Can an accused be denied access to witness statements if those witnesses are declared protected under special laws? The Supreme Court of India recently addressed this critical question in a case involving the Unlawful Activities (Prevention) Act (UAPA) and the Code of Criminal Procedure (CrPC). This judgment clarifies the balance between ensuring fair trials and protecting vulnerable witnesses. The court considered whether a trial court could provide redacted statements of protected witnesses to the accused.

The Supreme Court bench, comprising Justices Sanjay Kishan Kaul and M.M. Sundresh, delivered the judgment. Justice Sanjay Kishan Kaul authored the opinion for the bench.

Case Background

The case began with the registration of FIR No. 5/2020 on January 11, 2020, at P.S. Qazigund, against Syed Naveed Mushtaq and others under the UAPA, Arms Act, 1959, and Explosive Substance Act, 1908. The National Investigation Agency (NIA) took over the investigation and re-registered the FIR as RC/01/2020/NIA/JMU on January 17, 2020. The appellant, Waheed-Ur-Rehman Parra, was arrested on November 25, 2020, and was named as accused No. 11 in the second supplementary chargesheet filed by the NIA on March 22, 2021.

Separately, on December 22, 2020, another FIR No. 31/2020 was registered at P.S. CIK, Srinagar, against the appellant under various sections of the UAPA and the Indian Penal Code, 1860 (IPC). The charges were framed against the appellant on July 20, 2021, by the Special Judge (NIA Act), Srinagar.

The prosecution sought to declare five witnesses as protected witnesses, citing threats to their lives and property, and requested that certain documents be excluded from those provided to the accused. The trial court allowed this request on June 1, 2021, ordering the statements of these witnesses to be kept in a sealed cover.

Timeline

Course of Proceedings

The appellant applied to the trial court under Section 207 of the CrPC for redacted copies of the protected witnesses’ statements. The trial court allowed this application on September 11, 2021, stating that the prosecution was duty-bound to provide these copies for a fair trial, and that the earlier order did not restrict the court’s powers under the relevant sections.

The respondent appealed to the High Court, arguing that the trial court’s order conflicted with its earlier order and amounted to a review of its own decision, which was beyond its powers. The High Court of Jammu & Kashmir and Ladakh allowed the appeal on October 11, 2021, stating that providing redacted statements would negate the purpose of protecting the witnesses and would expose them to vulnerability.

Legal Framework

The Supreme Court examined several key legal provisions. Section 173(6) of the CrPC allows a police officer to request the exclusion of parts of a witness statement from copies given to the accused if the statement is irrelevant or its disclosure is not in the interest of justice or public interest.

Section 44 of the UAPA provides for the protection of witnesses, allowing courts to hold proceedings in camera and take measures to keep the identity and address of witnesses secret if their lives are in danger.

Section 207 of the CrPC mandates that the Magistrate furnish the accused with copies of the police report, FIR, statements recorded under Section 161(3) of the CrPC, confessions, and other documents. The proviso to Section 207 allows the Magistrate to direct that a copy of a part of the statement be furnished to the accused if the police officer requests exclusion under Section 173(6) of CrPC.

The court also noted that Section 17 of the National Investigation Agency Act, 2008 (NIA Act) is similar to Section 44 of the UAPA.

The relevant provisions of Section 173(6) of the CrPC read as under:

“173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
xxxx xxxx xxxx xxxx
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.”

Section 44 of the UAPA, which deals with “protection of witnesses” reads as under:

“44. Protection of witnesses.— (1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the court so desires.
(2) A court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, is satisfied that the life of such witness is in danger, it 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.
(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a court may take under that sub-section may include—
(a) the holding of the proceedings at a place to be decided by the court;
(b) the avoiding of the mention of the name and address of the witness in its orders or judgments or in any records of the case accessible to public;
(c) the issuing of any directions for securing that the identity and address of the witness are not disclosed;
(d) a decision that it is in the public interest to order that all or any of the proceedings pending before such a court shall not be published in any manner.
(4) Any person, who contravenes any decision or direction issued under sub-section (3), shall be punishable with imprisonment for a term which may extend to three years, and shall also be liable to fine.”

Section 207 of the Cr.P.C. reads as under:

“207. Supply to the accused of copy of police report and other documents. – In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.”

Arguments

Appellant’s Arguments:

• The appellant argued that the accused has a statutory right to receive copies of witness statements under Sections 161 and 207 of the CrPC to effectively confront witnesses during the trial.
• The appellant relied on the judgements in Mohd. Hussain v. State (GNCTD) [(2012) 2 SCC 584], Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], and Jahid Sheikh v. State of Gujarat [(2011) 7 SCC 762], to emphasize the accused’s right to receive witness statements for mounting an effective defense.
• The appellant contended that the trial court’s order to provide redacted statements was reasonable, leaving it to the Special Public Prosecutor (SPP) to redact information that could reveal the witnesses’ identities.
• The appellant argued that the initial order to designate witnesses as protected was made without the accused’s presence and could not override the accused’s right to receive witness statements under Section 207 of the CrPC.
• The appellant submitted that no appeal was maintainable before the High Court against an interlocutory order under Section 21 of the NIA Act.

Respondent’s Arguments:

• The respondent argued that the trial court did not have the power to review its earlier order and that the subsequent order was an exercise of review power, which is not within its jurisdiction.
• The respondent contended that it was in the public interest to exclude certain facts from disclosure due to the imminent threat to the lives and safety of witnesses and their families.

The innovativeness of the argument by the appellant was that it sought a balance between the need to protect witnesses and the right of the accused to a fair trial by suggesting that redacted statements be provided, with the Special Public Prosecutor (SPP) being responsible for redacting sensitive information. This approach aimed to safeguard witness identities while still allowing the accused to mount an effective defense.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether, in the case of certain witnesses being declared as protected witnesses under Section 173(6) of the CrPC, read with Section 44 of the UAPA, can the defense seek recourse to the remedy under Section 207 and Section 161 of the CrPC for obtaining copies of redacted statements of these protected witnesses?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• Mohd. Hussain v. State (GNCTD) [(2012) 2 SCC 584] – The Court relied on this case to emphasize that the accused has a right to receive copies of witnesses’ statements to mount an effective defense.
• Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1] – This case was cited to support the view that the accused’s right to receive documents and statements submitted before the court is absolute and essential for a fair trial.
• Jahid Sheikh v. State of Gujarat [(2011) 7 SCC 762] – The Court referred to this case to highlight that it is the duty of the Sessions Court to supply copies of the chargesheet and all relevant documents relied upon by the prosecution under Sections 207 and 208 of the CrPC.
• Atul Shukla v. State of M.P. & Anr. [(2019) 17 SCC 299] – This case was cited by the respondent to argue that the trial court does not have the power of review.
• D. Subair T.P. & Ors. v. Union of India [(2021) 1 KLT (SN 17)] – A Division Bench of the Kerala High Court opined on a similar issue by giving similar terms to the accused as the trial court in its order dated 11.09.2021, where the discretion to redact portions of the statement has been left to the trial court instead of the Special Prosecutor.

Legal Provisions:

• Section 173(6) of the CrPC: Deals with the police officer’s report on completion of the investigation and allows for exclusion of certain parts of statements if they are irrelevant or not essential in the interest of justice.
• Section 44 of the UAPA: Provides for the protection of witnesses, allowing courts to hold proceedings in camera and to keep the identity and address of witnesses secret.
• Section 17 of the NIA Act: Is in pari materia with Section 44 of the UAPA.
• Section 161 of the CrPC: Deals with the examination of witnesses by the police.
• Section 207 of the CrPC: Mandates the supply of police reports and other documents to the accused, including witness statements.

Authorities Considered by the Court

Judgment

The Supreme Court held that the provisions of Section 173(6) of the CrPC, Section 44 of the UAPA, and Section 17 of the NIA Act operate on a different plane than Section 207 of the CrPC. The initial order to protect witnesses was passed at the threshold without notice to the accused, aiming to safeguard witnesses. The subsequent request for redacted statements was not a review of the earlier order but an exercise of powers at a different stage of the proceedings under a different provision.

The court emphasized that the trial court’s order of September 11, 2021, was carefully worded, allowing for the redaction of not only the address and particulars of the witnesses but also any relevant paras that could disclose their occupation and identity. The court found this order to be fair and reasonable, balancing the protection of witnesses with the accused’s right to a fair trial.

The Supreme Court set aside the High Court’s judgment and restored the trial court’s order of September 11, 2021.

Treatment of Submissions by the Court

How each authority was viewed by the Court?

• Mohd. Hussain v. State (GNCTD) [(2012) 2 SCC 584]*: The court agreed with the principle that the accused has a right to receive copies of witnesses’ statements to mount an effective defense.
• Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1]*: The court agreed with the principle that the accused’s right to receive documents and statements submitted before the court is absolute and essential for a fair trial.
• Jahid Sheikh v. State of Gujarat [(2011) 7 SCC 762]*: The court agreed with the principle that it is the duty of the Sessions Court to supply copies of the chargesheet and all relevant documents relied upon by the prosecution under Sections 207 and 208 of the CrPC.
• Atul Shukla v. State of M.P. & Anr. [(2019) 17 SCC 299]*: The court distinguished this case by clarifying that the trial court’s order of September 11, 2021, was not a review of its earlier order but an exercise of powers at a different stage of the proceedings under a different provision.
• D. Subair T.P. & Ors. v. Union of India [(2021) 1 KLT (SN 17)]*: The court noted that the Kerala High Court had a similar view on the issue.
• Section 173(6) of the CrPC: The Court clarified that this provision allows for the exclusion of certain parts of statements if they are irrelevant or not essential in the interest of justice.
• Section 44 of the UAPA: The Court clarified that this provision allows for the protection of witnesses.
• Section 17 of the NIA Act: The Court noted that this provision is in pari materia with Section 44 of the UAPA.
• Section 161 of the CrPC: The Court clarified that this provision deals with the examination of witnesses by the police.
• Section 207 of the CrPC: The Court clarified that this provision mandates the supply of documents to the accused.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was primarily focused on balancing the rights of the accused to a fair trial with the need to protect vulnerable witnesses. The court emphasized that the initial order to protect witnesses was a separate exercise from the subsequent request for redacted statements. The court found that providing redacted statements, with the Special Public Prosecutor (SPP) responsible for redacting sensitive information, was a reasonable approach that would not compromise the safety of the witnesses. The court also noted that the trial court’s order of September 11, 2021, was carefully worded to ensure that the identity of the witnesses was not disclosed.

Logical Reasoning

Ratio

The Supreme Court held that while the protection of witnesses is paramount, it cannot override the accused’s right to a fair trial. The court clarified that providing redacted statements of protected witnesses does not negate the purpose of protecting them. The court emphasized that the trial court’s order to provide redacted statements, with the Special Public Prosecutor (SPP) responsible for redacting sensitive information, was a reasonable and balanced approach that ensured both witness protection and the accused’s right to a fair trial.

Conclusion

The Supreme Court’s judgment in Waheed-Ur-Rehman Parra vs. Union Territory of Jammu & Kashmir clarifies the balance between ensuring fair trials and protecting vulnerable witnesses under UAPA and CrPC. The court held that the accused has a right to receive redacted witness statements, even if those witnesses are declared protected. This judgment ensures that the accused can mount an effective defense while also protecting the identities of witnesses. The court’s decision underscores the importance of a fair trial and the need to balance the rights of the accused with the concerns of witness protection.