JAMMU, Feb 23: In a much publicized Udhampur terror attack case, Division Bench of State High Court comprising Justice Mohammad Yaqoob Mir and Justice Janak Raj Kotwal today directed trial court to strictly follow the provisions of Section 17 of the NIA Act and Section 44 of the Unlawful Activities (Prevention) Act.
The direction was passed in an appeal filed against the order dated December 9, 2016 whereby trial court had opined that the statements of the protected witnesses are to be recorded in the absence of the court but in the presence of respective counsels.
After hearing Advocate Rahul Bharti with Advocate Satinder Gupta, who filed revision against the order of trial court, Division Bench observed, “special court if so desires for reasons to be recorded in writing may hold the proceedings in-camera. Sub-Section (2) provides that on an application of a witness or by the Public Prosecutor or court on its own motion if satisfied that the life of such witness is in danger then for reasons to be recorded in writing shall take such measures as it may deems fit for keeping the identity and address of such witness secret”.
“The proceedings so far as recorded by the trial court from time to time do not indicate anywhere that it has recorded any reason as was required to be done in terms of Section 17 of the NIA Act or under Section 44 of the Unlawful Activities (Prevention) Act”, the DB said, adding “Special Judge has not recorded any reason for holding the proceedings in-camera nor it is anywhere mentioned that any application was made by any witness or by PP or the court on its own motion was satisfied that life of such witnesses (protected witnesses) is in danger”.
The DB further observed, “order dated 09.12.2016 passed by the Special Judge rejecting the application of the accused is an interlocutory order, therefore under Section 21 of the NIA Act, appeal or revision cannot lie and counsel for the appellants while confronted with the legal position would contend that the order in effect is final, appeal can be maintained but we are not persuaded to accept the submission”.
“But at the same time, while noticing that Special Judge has not followed the procedure as envisaged under Section 17 of the NIA Act or under Section 44 of the Unlawful Activities (Prevention) Act regarding holding of trial in-camera or taking measures for keeping the identity and address of protected witnesses secret and for avoiding miscarriage of justice and for fair trial to the accused, we are inclined to invoke powers under Section 561-A CrPC and to set-aside the order impugned which we do”, the DB said.
“To avoid any protraction in the trial proceedings, the file shall be sent back to the trial court forthwith along with copy of this order so as to enable the Special Judge to fix the schedule for production and examination of the witnesses”, the DB said, adding “the trial court shall strictly follow the provisions of Section 17 of the NIA Act and Section 44 of the Unlawful Activities (Prevention) Act”.