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Report No. 198

5. Ex parte preliminary inquiry by the Magistrate.-

(1). The Magistrate shall, upon receipt of an application under section 4, hold a preliminary ex parte inquiry in camera to determine whether the witness is a threatened witness as claimed in the application and whether there is necessity to pass a protection order, and shall follow the procedure laid down in this section for such determination.

(2). The Magistrate may require the prosecution to place before him any material or document which has not been already submitted, and which he considers relevant for the disposal of the application.

(3). The Magistrate shall hear the prosecution and, in his discretion, may examine any person including the witness who is subject of the application orally, and shall record the substance of the statement.

(4). During the course of the preliminary inquiry, no prosecutor, officer of the Court, or other person present or involved in the preliminary hearing shall disclose or reveal or leak out any information regarding the true identity of the witness, or any other particulars likely to lead to the witness's identification.

(5). During the course of the preliminary inquiry, no oral evidence shall be given, and no question may be put to any person, if such evidence or question relates directly or indirectly to the true identity of the witness who is subject of the application.

(6). While considering the application, the Magistrate shall have regard to the following:-

(i) the general right of the accused to know the identity of witness;

(ii) the principle that witness anonymity orders are justified only in exceptional circumstances;

(iii) the gravity of the offence;

(iv) the importance of the threatened witness's evidence in the case;

(v) whether the witness's statement, if any, under subsection (3) as to why he is a threatened witness and as to why there is necessity to pass a protection order, is reliable; and

(vi) whether there is other evidence, which corroborates the threatened witness's evidence in respect of the offence.



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