Report No. 198

Chapter VII

Procedure For Deciding on Anonymity of Witnesses in Indi.- (I) During Investigation and At Inquiry; and (Ii) During Trial

As stated earlier, it is essential that there should be a procedure for granting anonymity (i) during investigation and (ii) during inquiry and (iii) also during trial. But we are, however, confining ourselves with cases triable by a Sessions Court and other equivalent special Courts in which witness anonymity may be necessary.

Before we refer to the procedure (see under (D) below), we shall first refer to the existing procedure under some special statutes and the procedure and certain case law in other countries on the subject.

(A) Procedure under earlier special statutes in India

Though section 16(2) and (3) of the TADA (1987) and section 30 of the POTA, 2002 and section 44 of the Unlawful Activities (Prevention)Act, 1967 (as amended in 2004) contain certain provisions for granting witness anonymity, the threshold procedure was with Designated Court or Special Court under these respective Acts.

But as we are now dealing with offences to be tried exclusively by the Sessions Court and other equivalent special Courts, we have to ensure that there is a procedure at the three stages mentioned above, so that, where necessary, the identity of the witnesses can be directed to be kept confidential.

We have already stated in Chapter III that the POTA provisions of 2002 were an improvement on the TADA provisions of 1987. In the POTA, 2002, section 30 laid down the witness anonymity procedure as follows:

"Section 30: Protection of Witnesses: (1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the Special Court so desires.

(2) A Special Court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.

(3) In particular, and without prejudice to the generality of the provisions sub section (2), the measures which a Special Court may take under that sub section may include:

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

(b) the avoiding of the mention of the names and addresses in its order or judgment or in any record of the case accessible to the public;

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

(d) a decision that it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner.

(4) Any person who contravenes any decision or direction issued under sub section (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees."

On repeal of POTA, these provisions have now been incorporated in the Unlawful Activities (Prevention) Act, 1967 by the amendments of 2004.

There are some drawbacks in the procedure formulated in the above special Acts. The provisions do not refer to the danger to the life of the witness's relatives or to danger to property of witness or relatives. They do not contemplate the passing of an order by the Court but state that reasons for granting anonymity should be "recorded" in writing. There is, therefore, need for specific provisions that a witness anonymity order be passed where the life or property of the witness or the life or property of his or her relatives are in danger.

It is necessary that an order of the Court be passed in as much as it is not sufficient if the Court merely "records" its reasons in its file. Care must be taken while drafting the order that the identity of the witness to whom anonymity is granted is not disclosed in the order of the Court.