1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2885 OF 2009 Union of India & Ors. . .. Petitioners. vs. State of Maharashtra & Ors. .. Respondents. Mr. D.A. Khambata, Addl. Solicitor General with Mr. S.K. Shinde, Vinod Joshi and Ms. Lata Patne i/by Mr. Chaturvedi & Mr. Mohapatra for the petitioners. Mr. P.A. Pol, P.P. with Ms. U.V. Kesariwal, A.P.P. for the State. Mr. Shahid Azami with Sabah Qureshi & Ezar Naqvi for respondent nos. 3 & 4. CORAM : J. N. PATEL & A. A. SAYED, JJ. DATE : 5TH NOVEMBER, 2009 P.C. : The Union of India along with the persons who have been summoned by the learned Additional Sessions Judge presiding 2 over the case pertaining to catastrophe of 26/11/2008 have taken exception to the order passed by the learned Additional Sessions Judge summoning petitioner nos. 2, 3 and 4 to give evidence for just and proper decision of the case. 2. Having heard the learned counsel for the parties, we express that the order passed by the learned Additional Sessions Judge appears to be in consonance with the well settled principles of law and we find no error or illegality to interfere with the same in exercise of our extraordinary jurisdiction. 3. It was submitted by Mr. Khambata, the learned Additional Solicitor General that the only reservation the petitioners have pertains to national security and exposure of the method, techniques, weapons, equipments, operations and communications, manner of combating terrorists and training of the National Security Guard and to the specific actions and operations in Mumbai between 26/11/2008 and 29/11/2008 and that it will be in the interest of national security as well as public good that the petitioner nos. 2, 3 and 4 should not be exposed by examining them as witnesses. 4. Another apprehension expressed by the learned Additional Solicitor General is that if the commandos who belong to the National Security Guard are summoned as witnesses pertaining 3 to any action and operation carried out by them, it may set a wrong trend and expose the force in respect of their actions and operations which may be detrimental to the internal security of the country. 5. The learned Additional Solicitor General was fair enough to state that the petitioner nos. 2 to 4 may be examined by recording their evidence through video-conferencing and in camera and in so far as petitioner nos. 3 and 4 are concerned, they may be permitted to file affidavits as provided under Section 296 of Cr. P. C. and in case they are required to be cross-examined, the same procedure may be followed as in the case of petitioner no. 2 and that the Union of India or the State shall provide with all the necessary infrastructure and logistic support for the effective conduct of the case in so far as it relates to the examination of petitioner nos. 2 to 4. 6. We find that the learned Additional Sessions Judge has given specific reasons as to why the trial Court proposes to examine them as witnesses and we concur with the findings given by the trial Court except that in the interest of internal security and for the public good, it will be proper that certain safeguards are provided as suggested by the learned Additional Solicitor General. In so far as petitioner nos. 3 and 4 are concerned, we find that permitting them to give evidence under Section 296 Cr.P.C. may further delay the 4 recording of their evidence if the prosecution or the accused want to cross-examine them and, therefore, it will be proper that they are also examined as witnesses by recording their evidence through video-conferencing and in camera. Therefore, we dispose of the petition by issuing the following directions in respect of the conduct of the trial in Sessions Case No. 175 of 2009. (i) The evidence of petitioner no. 2 in Sessions Case No. 175 of 2009 shall be limited to the incident of kiling any terrorist and whether or not he killed any terrorist in the Hotel Oberoi. The cross-examination if any will also be restricted to this issue. The learned Addl. Sessions Judge shall ensure that no evidence is received or recorded and no question is allowed (including in cross-examination) that pertains or relates to the methods, techniques, weapons/ equipment, operations, communications, manner of combating terrorists and training of the National Security Guard (including of the witness), and to the specific actions and operations in Mumbai between 26th November 2008 and 29th November 2008. The evidence of Petitioner Nos. 2, 3 & 4 shall be recorded through video-conferencing and in camera. 5 (ii) The evidence of Petitioner Nos. 3 and 4 shall be restricted to the production of material at the Colaba Police Station, and seizure of such material and no question is allowed that pertains or relates to the methods, techniques, weapons/equipment, operations, communications, manner of combating terrorists and training of the National Security Guard (including of the witness) and to the specific actions and operations in Mumbai between 26th November, 2008 and 29th November 2008. (iii) The learned Addl. Sessions Judge shall ensure that that the evidence of Petitioner Nos. 2, 3 and 4 is kept confidential and their names, ranks, identifications, photographs and addresses are not disclosed. (iv) In the event that the evidence of any other specific Commando or Officer of the National Security Guard is essential for the just decision of the case and he is required to give evidence or to be summoned to give evidence, the learned Additional Sessions Judge after recording his order will hold the issuance of summons to such witness in abeyance to enable the prosecution/ accused to approach High Court if aggrieved and 6 obtain necessary direction/order in the matter and thereafter proceed to act as ordered by the High Court and in accordance with law. The prosecution/accused or Union of India if wants to move the High Court it will give due notice to other side. 7. The impugned orders dated 25th September 2009 (Exhibit B to the Petition) and 16th October 2009 (Exhibit G to the Petition) shall stand substituted by the above. 8. This order is without prejudice to the issues and contentions raised in the writ petition in so far as it relates to the claim made by the prosecution/Union of India in respect of any privilege or immunity claimed by officers of N.S.G. from being summoned by any Court to give evidence in connection with any operations conducted by them. ( J. N. PATEL, J.) ( A. A. SAYED, J.)