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Report No. 198

10. Order by the Magistrate or Judge.-

(1). If, after consideration of-

(a) the application and all materials and documents submitted in support of the application by the parties; and

(b) the statements recorded under sub-section (3) of section 9 if any, and, after hearing the submissions of the prosecutor or the applicant witness, as the case may be, and the accused, the Magistrate or Judge, as the case may be, is satisfied that:

(a) the witness who is subject of the application is a threatened witness;

(b) withholding the threatened witness's identity until the judgment in trial is given and if any appeal or revision is presented against the judgment, until the decision in the appeal or revision, as the case may be, is given, would not be contrary to the interests of justice; and

(c) the need for passing a protection order outweighs the general right of the accused to know the identity of the witness, he shall, pass a reasoned judicial order that until the judgment in trial is given and if any appeal or revision is presented against the judgment, until the decision of the appeal or revision, as the case may be, is given, the identity of threatened witness shall not be reflected or mentioned in,

(i) any document produced before the Magistrate or Judge, or before an appellate or revisional Court, in relation to such case;

(ii) any proceeding (including judgment and order) before the Magistrate or Judge, or before an appellate or revisional Court, in relation to such case;

(iii) any copy of documents required to be supplied to the accused as specified in, sections 207 and 208 of the Code of Criminal Procedure, 1973 (2 of 1974) or under any other special law.

(2). If, however, after such consideration and hearing as referred to in sub-section (1), the Magistrate or Judge, as the case may be, is satisfied that

(a) the witness who is subject of the application is not a threatened witness, or

(b) that withholding the identity of such a witness

(i) would be contrary to the interests of justice, or

(ii) would not outweigh the right of the accused to know the identity of the witness, he shall, by a judicial reasoned order, dismiss the application.



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