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Report No. 198

9. Preliminary Inquiry by Magistrate or Judge.-

(1). The Magistrate or Judge, as the case may be, shall, upon receipt of an application under section 8, hold a preliminary inquiry in camera to determine whether the witness is a threatened witness as claimed in the application and whether there is necessity for the passing of a protection order and shall follow the procedure laid down in this section for such determination.

(2). The Magistrate or Judge, as the case may be, may require the prosecution or the threatened witness who has moved the application under section 8, to place before him any material or document which has not already been submitted, and which he considers relevant for the disposal of the application.

(3). The Magistrate or the Judge, as the case may be, shall hear the prosecution, and subject to provisions of sub-sections (4) and (5), the accused and may examine any person including the witness who is subject of the application, orally and shall record the substance of the statement.

(4). The Magistrate or Judge, as the case may be, shall, on the basis of the information which has come before him under sub section (1) of section 8(1) and sub section (2) and (3), inform the accused or his pleader as to the apprehensions of the witness and as to why he is a threatened witness and the necessity for passing a protection order and, for that purpose, give a hearing to the accused before passing an order of protection.

Provided that the Magistrate or Judge shall not disclose the identity of the witness or any other particulars which may lead to the identification of the said witness.

Provided further that if the accused or his pleader wants to elicit further information from the prosecution of the threatened witness on the question of likelihood of danger to the life or property of the said witness or his close relatives, they may be permitted to furnish a list of questions to be answered by the prosecution or the said witness but no question or information which may lead directly or indirectly to the identification of the said witness shall be permitted.

(5). The accused and his pleader shall not be allowed to remain present during such inquiry when the Magistrate or Judge, as the case may be, is-

(i) examining the witness or any other person under subsection (3); and

(ii) hearing the submissions of the prosecutor or the applicant witness, as the case may be.

(6). Provisions of sub-sections (4) to (6) of section 5 shall, mutatis mutandis, apply to the preliminary inquiry under this part.

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