Report No. 198
This is the first stage. We are of the view that witness identity protection is necessary at the stage of investigation also. In fact, in the responses to the Questionnaire issued along with the Consultation Paper, it was stated in 36 responses out of 43 that such protection is necessary even at the stage of investigation.
There are certain stages of the investigation at which point the witness identity may get revealed to the accused and it is there that witness identity protection is necessary. We shall refer to the relevant steps in the investigation where such anonymity is necessary.
(1) Chapter XII of the Code of 1973 deals with 'Information to Police and their power to investigate'. (ss 154 to 176) Section 173 deals with the 'Report of Police Officer on Completion of Investigation'.
Section 173(1) states that the Report must contain
(a) name of the parties;
(b) nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case. and section 173(5) states that
(e) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(f) the statement recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses; be filed along with the Report.
Further sub-section (6) states as follows:
"section 173(6): If the police officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating the reasons for making such request."
(2) Again, under section 164(6), the Magistrate recording a confession of the accused or statement of a witness shall forward the same to the Magistrate who inquires or tries the case.
Therefore, these provisions relating to certain stages of investigation show that the identity of witnesses may, unless protected, become known to the accused i.e. at the stage of recording statements under section 161 or section 164 or at the stage of filing of the charge-sheet under section 173 into the Magistrate's Court. At these stages of investigation, protection of identity may become necessary in some cases.
The copies of the charge sheet, FIR, section 161 and 164 statements of the persons and other documents, as stated above, have to be given to the accused under section 207 except where the Police under section 173(6) may request that those portions of the statements which disclose the identity of the witnesses be not granted. There may be a large number of cases where the police officer has not made a request under section 173(6).
As we propose to grant protection to witnesses in the cases of serious offences, namely, offences triable by the Sessions Court, it is obvious that even at the above stages of investigation adequate safeguards as to the nondisclosure of identity of the witnesses has to be considered and granted by the Magistrate. We have to devise a procedure and confer statutory power on these courts.
Procedure for 'Preliminary inquiry' for granting anonymity during Investigation:
(i) Where a police officer, before recording statements of witnesses under section 161, feels that witness identity has to be protected, he must have the liberty to apply before the Magistrate concerned seeking permission to record the statement under a pseudonym subject to making the identity known only to the Magistrate.
(ii) However, where the identity is not kept confidential at the stage of recording the statement of witnesses as stated in (i) above but where the prosecution feels later during investigation, that it has to be kept confidential when copies of charge sheet and section 161 statements etc. will be granted under section 207, the police must be at liberty to apply to the Magistrate for such protection before the Magistrate takes cognizance of the offence.
(iii) There should be a preliminary inquiry, in camera, and at the stage of investigation, there is no need to hear the accused or giving him an opportunity.
We are proposing to provide such a procedure for seeking witness identity protection at the stage of investigation, by way of an application to be presented to the Magistrate under sections 4, 5 and 6 of the Draft Bill attached to this Report. This is so far as investigation is concerned.