Report No. 198
(B) Preliminary inquiry during Inquiry as provided in Ch. 14 to Ch. 16 before the Magistrate:
(a) Chapter XVI of the Code of Criminal Procedure, 1973 is titled 'Commencement of Proceedings before Magistrates'. There are some sections in this chapter which are relevant on the question of identity of witnesses. section 207, as stated above, deals with 'Supply of police report by the police and other documents'. The documents referred to in section 207 are:
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statement recorded under subsection (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under subsection (6) of section 173;
(iv) confessions and statements, if any, recorded under section 164;
(v) any other documents or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173.
Section 208 likewise refers to supply of copies of statements and documents to accused in other cases triable by a Court of Session.
(b) A preliminary hearing has to be conducted by the Magistrate or the Session Judge, in camera, but it will be necessary to hear the accused. We are proposing that the accused may be heard separately and not in the presence of the victim or witness who are not known to the accused.
(c) In as much as, during the course of investigation, when the Police applies through the public prosecutor before the Magistrate for a preliminary order granting anonymity, the accused is not given a hearing, it is necessary, in our opinion, that at the stage of inquiry, there should be a fresh preliminary hearing, even in respect of the same witness, for the purpose of granting anonymity at the stage the witness gives evidence at the regular trial. This is because, in the preliminary inquiry now conducted (i.e. the preliminary inquiry after investigation), the accused will have to be heard on the question of granting anonymity to the witness.
Whenever such an application is made after commencement of inquiry, the Magistrate has to conduct a preliminary or voir dire inquiry as to whether the witness's life or property or that of his relatives is in danger. An in camera hearing is necessary. As to how this will be conducted will be explained in the next chapter.
Where during Inquiry, the Magistrate grants an anonymity order, it will ensure for the subsequent stages including trial and thereafter.
We are providing the procedure in sections 8 to 11 which covers the preliminary inquiry procedure at the stage of Inquiry and before commencement of recording evidence at the trial.