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Report No. 198

(C) Preliminary Inquiry Before The Sessions Judge Before Commencement of Recording Statement of Witnesses in Sessions Court:

In respect of other witnesses whose identity protection has not been sought at the stage of section 161, 164 or 207, i.e. during investigation or inquiry but where it is still considered necessary and in the case of fresh witnesses to be examined at the trial, there must again be an opportunity to the prosecution to apply for maintaining anonymity during the trial and, if need be, thereafter. Such power has again to be conferred on the Sessions Court.

In this connection, we may refer to the judgment of the Supreme Court in Kartar Singh's case 1994 (3) SCC 569 under the TADA where in relation to section 16 of that Act, the Supreme Court stated (at p. 290) that the 'identity, names and addresses of the witnesses may be disclosed before the trial commences' as was held by the Full Bench of the Punjab and Haryana High Court in Bimal Kaur's case (AIR 1988 P&H p.95 (FB)).

We may also refer in this connection to the judgment of the Canadian Supreme Court in R v. Khela: 1995 (4) SCR 201 where the said Court too stated that if there was danger to the witness's life, the name and address need not be disclosed till 'just before the trial'.

But in our opinion, the view expressed in these judgments for grant of identity protection to witness at a stage just before the starting of the trial, would in most cases frustrate the very object for protection. There are today not many cases coming before the Sessions Court in which the trial is completed in respect of all witnesses nor even of a single prosecution witness in a single day . Hence, in our view, the protection granted by the Magistrate or by the Sessions Court must last till the completion of the trial in the Sessions Court and cannot be confined to a stage just before the trial.

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