DB directives to Trial Court in Udhampur attack case

24/02/2017

Jammu, Feb 23: In a much publicized Udhampur Terror Attack Case on a BSF Convoy ambushed on August 5, 2015, in which National Investigating Agency produced challan in the Court of special Judge NIA against Mohammad Naveed @ Usman s/o Mohammad Yaqoob and Ors, A Division Bench of State High Court Comprising Justice Mohammad Yaqoob Mir and Justice Janak Raj Kotwal after hearing Adv Rahul Bharti with Adv Satinder Gupta who filed revision against the order of Trial Court, directed Trial Court to strictly follow the provisions of Section 17 of the NIA Act and Section 44 of the Unlawful Activities (Prevention) Act.
The appeal is filed against the order dated 09.12.2016 in terms whereof Trial Court has opined that the statements of the protected witnesses are to be recorded in absence of the accused but in presence of the respective Counsel. Further has observed that so far as other witnesses are concerned, their statement can be recorded in presence of the accused. In addition has observed that it is made clear that the proceedings in the case are being held in camera and in the case titled N.I.A vs. Mohammed Naveed and others bearing No. RC-08 / 2015 / NIA / DLI dated 06.08.2015, the trial against the appellants is being held by the Court of Special Judge, NIA (3rd Additional Sessions Judge, Jammu). Charge-sheet, RC-08/2015/NIA/ DLI of PS NIA, filed under Section 173(2) of the Code of Criminal Procedure contains list of 180 witnesses with their name and addresses forming Annexure-(A). It also includes list of 19 protected witnesses forming Annexure-1(A). Amongst other offences, accused are also tried for the offences under Sections 16, 18-20, 38 and 39 of the Unlawful Activities (Prevention) Act.
Division Bench after hearing both the sides observed that Special Court if so desires for reasons to be recorded in writing may hold the proceedings in-camera. Sub-section (2) provides that on an application of a witness or by the Public Prosecutor or Court on its own motion if satisfied that the life of such witness is in danger, then for reasons to be recorded in writing shall take such measures as it may deems fit for keeping the identity and address of such witness secret and After recording statement of some of the witnesses including some protected witnesses, an application has been filed on behalf of the accused that the statements of the witnesses may be recorded in their presence.
The application has been disposed of vide order impugned dated 9.12.2016. Rejecting the application, Trial Court (Special Court) has observed that in view of Sections 16 and 17 of the NIA Act and Section 44 of the Unlawful Activities (Prevention) Act, statement of the protected witnesses are to be recorded in absence of the accused but in presence of the respective counsel.
DB further observed that proceedings so far as recorded by the Trial court from time to time do not indicate anywhere that the Trial Court has recorded any reason as was required to be done in terms of Section 17 of the NIA Act or under Section 44 of the Unlawful Activities (Prevention) Act i.e. Special Judge has not recorded any reason for holding the proceedings in-camera,nor it is anywhere mentioned that any application was made by any witness or by PP or the Court on its own motion was satisfied that life of such witnesses (protected witnesses) is in danger, nor any reason has been recorded, instead what the Trial Court has done is that while disposing of the application has in a casual manner observed that under Section 17 of the NIA Act and under Section 44 of the Unlawful Activities (Prevention) Act, statement of the protected witnesses are to be recorded in absence of the accused.
While holding that the appeal is not maintainable, Division Bench persuaded to have recourse to the powers under Section 561-A Cr.PC and while invoking such powers, we have set-aside the order impugned dated 9.12.2016.JNF

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