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Report No. 173

Part III of The Criminal Law Amendment Bill

Part III of the Bill under consideration comprises clauses 8 to 17. Clause 8 deals with constitution of Special Courts and the qualifications of the persons to be appointed as Judges/Addl. Judges of the special courts. We have nothing to add or comment upon this clause. In the Working Paper also, no change was suggested in this clause. Similarly, the Law Commission has nothing to add to or comment upon clause 9 (which deals with the place of sitting of special courts). Clause 10 of the Bill provides for jurisdiction of Special Court and transfer of cases from one Special Court to any other Special Court in another State, on motion being moved by the Attorney-General of India before the Supreme Court.

We are of the opinion that the right of applying for transfer should also be given to the interested party as fair play. We therefore recommend that this clause be recast on the lines of sections 406 and 407 of Cr.P.C. Clause 11 again is an incidental provision of procedural nature to which no exception can be taken by any one. It provides that when trying an offence, a Special Court may also try any other offence with which the accused may, under the Code of Criminal Procedure, be charged at the same trial if the offence is connected with such other offence.

By Amendment 6 of the Official Amendments, a new clause, namely, clause 11A is sought to be introduced. It contains two sub-clauses. Sub-clause (1) says that "when a Police officer investigating a case requests the court of a Chief Judicial Magistrate or the court of a Chief Metropolitan Magistrate in writing for obtaining samples of handwriting, finger prints, foot prints, photographs, blood, saliva, semen, hair of any accused person reasonably suspected to be involved in the commission of an offence under this Act, it shall be lawful for the court of a Chief Judicial Magistrate or the court of a Chief Metropolitan Magistrate to direct that such samples be given by the accused person to the Police officer either through a medical practitioner or otherwise, as the case may be".

Sub-clause (2) then says that "if any accused person refuses to give samples as provided in sub-clause (1) in a trial under this Act, the court shall presume until the contrary is proved that the accused person had committed such offence". In the Working Paper, the Law Commission had observed that in view of the decision of the eleven-Judge Constitution Bench of the Supreme Court in State of Bombay v. Kathikalu, AIR 1961 SC 1808, a direction of the kind contemplated by sub-clause (1) of clause 11A cannot be held to contravene clause (3) of article 20 which declares that "no person accused of any offence shall be compelled to be a witness against himself".

It cannot be denied that such a provision is necessary in an enactment designed to check terrorist activities. One must keep in mind the difficulty of procuring witnesses and the difficulty in the way of collecting independent evidence against the terrorists. [In this connection, reference may be made to a letter dated February 12, 2000 from Sri Veeranna Aivalli, Commissioner of Security(Civil Aviation), Bureau of Civil Aviation Security, addressed to Law Commission. He has stated that he has spent more than three decades in Jammu and Kashmir and on the basis of his experience, he has, inter alia, made the following comments:

"Our experience of TADA in J&K has not been good. There has not been a single case, which has been decided by the Court of Law. The difficulties encountered have been with regard to the non-availability of witnesses to testify in the Courts of Law on account of fear of reprisal. There is another difficulty and that is the collection of evidence in cases where the search, seizure and arrest in areas where there is no habitation and many a time these have been by security forces. In such a case, the arrested persons' confession to the security forces leading to the recovery of arms and ammunition and explosives is the only thing, which can be brought on record.

Even the security force personnel do not come forward for tendering evidence because they keep on moving from place to place for performance of their duties not only within J&K but even outside J&K and sometimes outside India. The security force personnel are reluctant to depose in any case as they feel that they are not attuned for this kind of exercise. In the last 15 years of militancy in J&K, thousands of people have been arrested, lakhs of weapons seized and millions of rounds collected and quintals of explosive material seized. These figures are real eye openers and the fact that not a single case has ended in conviction nor has there been any recording of evidence and even this itself is very disturbing. TADA had a provision that no arrested person could be released on bail without giving an opportunity to the State to present its viewpoints. In thousands of cases, the bails were granted in situations far from satisfactory and full of suspicion. The State High Court did not interfere in the matter on the ground that the appellate jurisdiction rested with the Supreme Court. The Supreme Court did not interfere in the matter nor did they take cognizance on the ground that no one has filed a petition before it in this matter. The High Court Bar Association had passed a resolution that no Member of the Bar should appear for the State and they wanted the judiciary to pass the orders ex-parte. Above facts are only indicators of the malady, which has been prevailing in J&K on account of terrorism... Expression of honest opinion have become difficult on account of the damocles sword of contempt of court hanging on the heads of the people."

The proposed clause 11A provides a legally permissible method of collecting evidence. It is only one method of collecting evidence and proving the offence. Indeed, if the accused is not guilty, such a provision would in fact help him in establishing his innocence. For the above reasons, the insertion of sub-clause (1) of clause 11A cannot be legitimately opposed. However, we propose to add the word "voice" after the word "hair" but before the words "of any accused" in sub-clause (1) so that sample of the voice of the accused can be obtained by the police officer.

Once sub-clause (1) is held to be necessary and constitutionally valid, no real objection can be taken to the presumption created by sub-clause (2) but it appears that the amptitude of presumption provided is disproportionate and excessive. Instead of presuming that the accused person had committed such offence, it would be appropriate and consistent with fair play and good sense to provide merely that on such failure, the Court would draw the appropriate adverse inference against the accused person. Clause 12 of the said Bill deals with appointment and qualifications of public prosecutors/additional public prosecutors/special public prosecutors for the Special Courts. No comment is called for on this provision.

Clause 13 sets out the procedure and powers of Special Courts. Sub-clause (1) empowers the Special Court to take cognizance of any offence upon receiving a complaint of facts which constitute such offence or upon a Police report of such facts without the accused being committed to it for trial. Chapter XVIII of the Code of Criminal Procedure provides the procedure to be followed by the committal court in case of offences triable by a sessions court. This procedure is dispensed with in the case of offences under the Act by sub-clause (1) of clause 13. Sub-clause (2) of clause 13 empowers the special court to try an offence punishable with imprisonment for a term not exceeding three years or with fine or with both to try in a summary way in accordance with the procedure prescribed by the Code therefor.

The two provisos to sub-clause (2) are enabling provisions. The minimum punishment that can be imposed in such summary trial is however restricted to two years. We may point out that even according to section 260 of the Cr.P.C., a magistrate of first class is empowered to try offences punishable for two years or less, which can not be said to be unreasonable, in view of the fact that the Special Court is manned by a District Judge. Sub-clause (3) clarifies that a special court shall have all the powers of a court of session while sub-clause (4) is a procedural provision to which no valid objection has been or can be raised.

Sub-clause (5) empowers the special court to proceed with the trial in the absence of the accused or his pleader and to record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination. This power is conferred upon the special court notwithstanding the provisions contained in the Code of Criminal Procedure. However, before exercising this power, the Special Court has to be satisfied that such a course is appropriate and is also obliged to record the reasons for adopting such a course.

Not only no objection has been taken to this sub-clause by anyone, the incorporation of such a provision in an anti-terrorism law, is obviously designed in the interest of speedy trial and hence cannot be reasonably objected to. However, it does not appear necessary to exclude section 299 of the CrPC which provides for a special situation. Accordingly, sub-clause needs modification to make it clear that that section 299 is not excluded.

Clause 14 of the Bill contains provisions for protection of witnesses. Sub-clause (1) says that notwithstanding anything contained in the Code of Criminal Procedure, the proceedings under the Act may be held in camera if the Special Court so desires. It may not be fair to leave this discretion totally unregulated or unguided. It would be fair and proper to provide that the Special Court shall record its reasons for holding the trial in camera. Sub-clause has accordingly been modified. Sub-clause (2) empowers the special court to take appropriate measures for keeping the identity and address of a witness secret if it is satisfied that the life of a witness in any proceedings before it is in danger. Of course, the court has to record the reasons for taking such measures.

This power can be exercised either on the application made by the witness or by the public prosecutor or suo motu. Sub-clause (3) of clause 14 specifies some of the measures contemplated by sub-clause (2). The measures specified in sub-section (3) are (a) holding of the proceedings at a place to be decided by the special court; (b) avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public; (c) issuing of any direction for securing that the identity and addresses of the witnesses are not disclosed and (d) passing orders to the effect that it is in the public interest that all or any of the proceedings pending before such a court shall not be published in any manner.

In para 5.15 of its Working Paper, the Law Commission had opined that while it may be necessay to protect the witness by keeping his identity and address secret, the right of the accused to cross-examine such witness must also be protected at the same time. It was observed that there may be several methods by which effective cross-examination could yet be undertaken without disclosing the identity and address of the witness. Accordingly, it was suggested that paragraph (c) of sub-clause (3) of clause 14 may be substituted by the following:

"(c) The making of necessary arrangements for securing that the identity and address of the witness is not disclosed even during his cross-examination".

At the seminars, two conflicting view points were projected. One set of participants submitted that no effective cross-examination was possible unless the identity of the witness was known to the accused and his counsel and that therefore concealing the identity of the witness would really mean denying to the accused an effective opportunity to cross-examine the witness. The proponents of this view emphasised the absolute necessity of affording to the accused a reasonable opportunity to cross-examine the witness.

On the other hand, certain other participants stressed the necessity of concealing the identity of the witness from the accused and his counsel in cases where such a course was necessary for protecting the life or safety of the witness and his relatives. They also emphasised the practical difficulty in procuring witnesses in such matters and submitted that if a person yet came forward as a witness but apprehended danger to his life on that account, it was the duty of the court and the State to provide him protection.

We have considered both the points of view. Sub-clause (3) is indeed illustrative of the provision contained in sub-clause (2). In other words, sub-clause (3) is not an independent provision but a continuation and elaboration of sub-clause (2). This means that before taking any of the steps elaborated in sub-clause (3), the special court has to be satisfied that the life of a particular witness is in danger and must also record reasons for formation of such satisfaction. The requirement of law that the court must be satisfied that the life of the witness was in danger and the further requirement that the special court is bound to record its reasons for forming such satisfaction are adequate safeguards against abuse of the power conferred by sub-clause (2) upon the special court.

Sub-clause (2) is based upon the doctrine of necessity, a cruel necessity. It obviously takes note of the fact that the life of witnesses deposing against terrorists may be in danger in many cases and provides for such cases. Sub-clause (2) which in reality includes sub-clause (3) within its fold, is an exception rather than the rule. Since the power is given to the court, apprehension of its misuse cannot be lightly presumed. Indeed, so far as the right of cross-examination of the accused is concerned, it is undoubtedly a very valuable and effective instrument enabling the accused to defend himself appropriately and effectively, but this right of the accused has to be balanced against the interest of the society and may have to be modified where the interest of society does call for such modification.

All this discussion only means that if the court is satisfied that for the reasons mentioned in the sub-clause, it is necessary to keep the identity and address of the witness secret, it may have to take appropriate measures and make necessary arrangements for ensuring both the right of cross-examination and the protection of the witness. In this behalf, it may be relevant to notice the judgment of the Supreme Court in Kartar Singh, (1994) 3 SCC 569, at pages 688-689 sub-para 11 of the summary in para 368. We are also of the opinion that the power of the court to take appropriate measures to permit cross-examination even while protecting the identity of the witness must be deemed to be implicit in sub-clauses (2) and (3) as they are found in the Bill.



Report on Prevention of Terrorism Bill, 2000 Back




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