Excelsior Correspondent
Srinagar, Oct 20: The High Court allowed the appeal of National Investigation Agency (NIA) challenging the order of the Special Judge designated under NIA Act whereby application of People’s Democratic Party (PDP) youth leader Waheed ur Rehman Parra was entertained for seeking statements of protected witnesses.
Parra had moved an application seeking issuance of copy of statements of five protected prosecution witnesses in FIR 31/2021 registered under various section of Unlawful Activities of Prevention Act (UAPA) against the accused Parra and the trial court vide order dated 11.9.2021 while allowing the application directed the Special Public Prosecution to deliver the statements of protected witnesses after expunging the identity and relevant paras in their statement disclosing their occupation and identity to the counsel of Parra.
Aggrieved of the said order, NIA moved an appeal and the Division Bench of Chief Justice Pankaj Mithal and Justice V C Koul barred the trial court from providing the statement of these witnesses to the Parra’s counsel.
“…the instant appeal is allowed and the order dated 11.9.2021 passed by the court of Special Judge Designated under NIA Act, Srinagar is set-aside”, the DB concluded. NIA counsel submitted before the court that an application was filed by the NIA before the court seeking declaring five prosecution witnesses in the case as protected witnesses and keeping their statements in sealed cover and excluding the same from being furnished to the accused-Parra and the said application was allowed by the court below on June 1, 2021.
The DB has been apprised that the trial court has passed the order under challenge contrary to his order dated June 1 and negated the purpose, which was sought to be served in terms of earlier order. It has been submitted by the NIA counsel that the trial court in essence reviewed its own order which procedurally and jurisdictionally is not permitted within the parameters of the law.
Parra’s counsel in rebuttal argued that the instant appeal filed by NIA is not maintainable as the order of trial court is interlocutory one and the instant appeal is not maintainable in view of section 21 of NIA Act.
The DB while referring the earlier trial court order said it has taken into account all aspects of the matter, including threat to the life and property of witnesses and their families and as a result directed that names, identity of the protected witnesses shall be kept in a sealed cover.
The DB while referring section 44 of UAPA, a court, if on an application made by a witness before it or by Public Prosecutor about such witness or on its own motion, is satisfied that the life of such witness is in danger, it may take such measures as it deems fit to keep identity and address of such witness secret.
The DB added that a request was made by the appellant-NIA before the trial court while making an application to keep the identity and address of witnesses in question in sealed cover as also excluding to be provided to the accused-Parra and when impugned order is looked into the backdrop of the earlier order, it becomes self evident that impugned order has been passed in contravention thereof.
Court added that it is discernable that the legislative concern about the protection of a vulnerable witness, if the life of such witness is in danger and it was thought fit to keep the identity and address of such witness in secret.
“One the trial court, while passing the order by declaring the witnesses as protected witnesses, keeping them and their statements in a sealed cover, it cannot now by impugned order revisit and review its own orders and pass such order which exposes the protected witnesses to vulnerability”, the DB recorded.
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