AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 198

(6) Should there be a preliminary inquiry by the Judge/Magistrate? In such preliminary inquiry, should the identity of the witness be kept secret? Should the accused or his lawyer be heard or should it be an ex parte inquiry? Should the inquiry be in camera?

We have discussed these aspects in detail in Chapter VII.

In our view, there should be a preliminary inquiry before the Magistrate for purposes of deciding the issue whether anonymity is necessary. At the stage of investigation, an application can be moved by the Police that in respect of the particular witness anonymity is necessary while recording statements under section 161 or section 164 of the Code of Criminal Procedure. A decision here will enure only for the period upto the filing of chargesheet.

Again, before the starting of the inquiry before the Magistrate, there should be an enabling provision for preliminary inquiry if anonymity is required for same witness or other witnesses for purposes of inquiry and trial and if granted, such orders will enure beyond the judgment of the Sessions Court and for purposes of appeal or revision and thereafter.

There should also be a provision for grant of anonymity before the Court of Session before it actually starts recording evidence at the trial, if anonymity is necessary in respect of some fresh witnesses or in respect of witnesses for whom anonymity was not sought earlier or was refused. Here a preliminary order will have to be passed in respect of such witnesses by the Sessions Court before recording evidence relating to the trial. The anonymity granted by the Session Court must continue till trial is completed and thereafter also.

At the stage of inquiry and trial, such application can be filed by the prosecutor or even by the witness. At the stage of investigation, only the police can file such application.

In all these preliminary inquiries, the identity of the witness will have to be kept secret and the prosecution must place the necessary material before the Magistrate or Sessions Judge as to why there should be an anonymity order.

The Police may file the certificate of a senior police officer of the rank of Commissioner or District Superintendent of Police and in addition place other material before the Court.

In the preliminary inquiry during investigation, it is not necessary to hear the suspect. The Magistrate may personally question and examine the witness in his chambers in the presence of the prosecutor.

In the preliminary inquiry by the Magistrate during inquiry or by the Sessions Judge before recording evidence at the trial, they shall hear the defence lawyer or the accused separately on the question without divulging facts which may enable the defence lawyer or accused to know about the identity of the witness. It is necessary to give an opportunity to the defence lawyer/accused by hearing them separately in cases where anonymity is claimed for witnesses during inquiry and before recording evidence at the trial.

The proceedings before the Magistrate/Sessions Court must be in camera.

In the above preliminary inquiries by the Magistrate or Judge, as already stated, there is no need to use the closed circuit television or video link methods. Such a procedure we are recommending only for examination of protected witnesses or victims when they depose at the stage of trial in Sessions Court.

Thus, there should be a preliminary inquiry by the Magistrate or Sessions Judge. In such preliminary inquiry, the identity of the witness has to be kept secret and the accused or his lawyer can be heard separately. The inquiry will be in camera. But at the stage of investigation, in any such preliminary inquiry, the accused need not be heard.



Witness Identity Protection and Witness Protection Programmes Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys