Report No. 198

6. Order by the Magistrate.-

(1). If, after consideration of

(a) the application and all material and documents submitted in support of the application under section 4; and

(b) the statement of any person recorded, if any, under subsection (3) of section5; and, after hearing the prosecution, the Magistrate is satisfied that

(a) the witness who is subject of the application is a threatened witness;

(b) withholding the threatened witness's identity until the investigation is completed and final report or charge sheet is submitted in the court, would not be contrary to the interests of justice; and

(c) the need for passing a protection order outweighs the general right of the accused to know the identity of the witness, he shall, pass a reasoned judicial order that until the investigation is completed and the police report referred to in sub section (2) of section 173 of the Code of Criminal Procedure, 1973 or charge sheet under any other law is forwarded to the Magistrate or Judge, the identity of threatened witness shall not be reflected or mentioned in:

(a) any document prepared or any statement recorded under sections 161 and 164 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) or any other statement recorded during the course of investigation, including the case diary ;

(b) the police report or charge sheet referred to above and documents forwarded along with the police report or charge sheet;

(c) any other document forwarded to the Magistrate or Judge in any proceeding in relation to such offence;

(d) any proceeding before the Magistrate or before any other Court, during investigation, in relation to such offence.

(2). If, however, after such consideration and hearing as referred to in sub-section

(1), the Magistrate is satisfied that

(a) the witness who is the subject of the application is not a threatened witness, or

(b) withholding the identity of such a witness

(i) would be contrary to the interests of justice, or

(ii) would not outweigh the right of the accused to know the identity of the witness, he shall, by a reasoned judicial order, dismiss the application.