Report No. 198

5.9 Kartar Singh's case: (section 16 of TADA)(1994)

Kartar Singh v. State of Punjab 1994(3) SCC 569 is a landmark and is a case nearest to the subject matter of this Consultation Paper. That case was dealing with the provisions of section 16(2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987. section 16(2) gives discretion to the Designated Court to keep the identity and address of any witness secret on the following three contingencies:

(1) on an application made by a witness in any proceedings before it; or

(2) on an application made by the Public Prosecutor in relation to such witness; or

(3) on its own motion.

Section 16(3) refers to the measures to be taken by the Designated Court while exercising its discretion under subsection (2).

If neither the witness nor the Public Prosecutor has made an application in that behalf nor the Court has taken any decision of its own, then the identity and address of the witnesses have to be furnished to the accused. The measures are to be taken by the Designated Court under any of the above contingencies so that a witness may not be subjected to any harassment for speaking against the accused.

Section 16(3) refers to the measures that the Court without prejudice to its general power under section 16(2), may take. These include:

(a) the holding of the proceedings at a place to be decided by the Designated Court;

(b) the avoiding of the mentioning of the names and addresses of the witnesses in its orders or judgments or in any records of the cases accessible to public;

(c) the issuing of any directions for securing that the identity and addresses of the witnesses are not disclosed;

(d) directing, in the public interest, that all or any of the proceedings pending before such a Court, shall not be published in any manner.

Subsection (4) of section 16 refers to the punishment that can be imposed for contravention of any direction issued under subsection (3). It says that such persons shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to Rs. 1000/-.

In Kartar Singh, the Supreme Court upheld the special provision envisaged in section 16(2) and (3) stating as follows: (pp 688-689)

"Generally speaking, when the accused persons are of bad character, the witnesses are unwilling to come forward to depose against such persons fearing harassment at the hands of those accused. The persons who are put for trial under this Act are terrorists and disruptionists. Therefore, the witnesses will all the more be reluctant and unwilling to depose at the risk of their life. The Parliament, having regard to such extraordinary circumstances has thought it fit that the identity and addresses of the witnesses be not disclosed in any one of the above contingencies."

The Supreme Court then referred to the provision of section 228A of the Indian Penal Code, (inserted in 1983) which states that disclosure of the identity of the 'victims' of certain offences, (sections 376, 376A, 376B, 376C, 376D) as contemplated by sub-section (1) of that section is punishable but will be subject to sub-section (2). Sub-section (2) states that nothing in subsection (1) shall extend to any printing or publication of the name of any person which may make known the identity of the victim if such printing or publication is made:

"(a) by or under the orders in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or (b) by, or with the authorisation in writing of the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of the next of kin of the victim."

Subsection (3) of section 228A of the Indian Penal Code states that whoever prints or publishes any matter in relation to any proceeding before a Court with respect to an offence referred to in subsection (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation below sub-section (3) states that the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of the section.

The Supreme Court (p. 689) then explained the permissible restrictions upon the right of the accused to cross-examine the prosecution witnesses, as follows:

"However, when the witnesses are examined in the presence of the accused, then the accused may have the chances of knowing the identity of the witnesses if they are already known to the defence. But if the witnesses are unknown to the defence, there is no possibility of knowing the identity of the witnesses even after they enter into the witness box. During a trial, after examination of the witness-in-chief, the accused have a right of deferring the crossexamination and calling the witnesses for cross-examination on some other day.

If the witnesses are known to the accused, they could collect the material to cross-examine at the time of cross-examination in such circumstances. Whatever may be the reasons for nondisclosure of the witnesses, the fact remains that the accused persons to be put up for trial under this Act which provides severe punishment, will be put to disadvantage to effective cross-examining and exposing the previous conduct and character of the witnesses."

The following final observation of the Supreme Court in Kartar Singh's case (para 290) is important:

"Therefore, in order to ensure the purpose and object of the crossexamination, we feel that, as suggested by the Full Bench of the Punjab and Haryana High Court in Bimal Kaur (AIR 1988 P&H p 95 (FB)) the identity, names and addresses of the witnesses may be disclosed before the trial commences; but we would like to qualify it by observing that it should be subject to an exception that the Court for weighty reasons in its wisdom may decide not to disclose the identity and addresses of the witnesses especially if the potential witnesses whose life may be in danger."(Emphasis supplied)

The Supreme Court has, therefore, upheld the provision of sub-sections 1(2) and (3) of section 16 of the TADA, 1987 by treating the right of the accused to cross-examine the prosecution witnesses as not being absolute but as being subject to exceptions in the case of trials of alleged offenders by the Designated Court.