bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 581 OF 2008 PETITION NO. 581 OF 2008 PETITION NO. 581 OF 2008 Mohamed Hassan Mohamed Anas @ Hassan Batterywala ... Petitioner v/s The State of Maharashtra ... Respondent Mr.S.R.Pasbola i/by Mirza Yadullan & Sharif Shaikh for the petitioner. Smt.A.A.Mane, A.P.P. for the State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 20TH JUNE, 2008 20TH JUNE, 2008 20TH JUNE, 2008 P.C. P.C. P.C.: 1. The petition challenges the order passed by the Special Judge under POTA 2002, Greater Mumbai in POTA Special Case No.1 of 2004 on 14.2.2008. 2. During the course of the cross-examination of defence witness No.3, the witness was asked whether he had recorded the statements of Ajmeri Mohd. Ali Shaikh in the case of the bomb blasts which occurred in the local trains on 11.7.2006 (railways blasts case). This witness refused to answer the question as the MCOCA Court before whom the railways blasts case was in progress had passed an order not to reveal the names and 2 address of the witnesses in order to ensure their safety and security. The learned advocate for the accused in POTA Special Case No.1 of 2004 (Ghatkopar blasts case) requested the Court to compel the witness to answer the question. This was objected to by the prosecutor. The trial Court held that the DW-3 could not under the circumstances be compelled to answer the question in view of the order passed by the MCOCA Court in the railways blasts case. 3. The entire controversy has arisen because, according to the petitioner, who is an accused in the Ghatkopar blasts case, Ajmeri Mohamed Ali Shaikh has deposed to the conspiracy with which the accused have been charged as PW-8. The learned advocate for the petitioner/accused contends that the newspapers reported that PW-8 had also informed the police about the conspiracy hatched with regard to the railway blasts case. His statement was recorded by the police, according to the newspapers and, therefore, it was essential for the DW-3 who was the Chief Investigating Officer in the railway blasts case to answer the question posed. He submits that for effectively defending the accused it was necessary to compel the witness to answer the question posed in the examination-in-chief. The learned advocate submits that 3 it was an inocuous question which would not in any way hamper the case of the prosecution in either of the blasts cases. The learned advocate then relied on the judgment of the Supreme Court in the case of Kartar Kartar Kartar Singh Singh Singh v/s State of Punjab, reported in 1994 Cri.L.J. v/s State of Punjab, reported in 1994 Cri.L.J. v/s State of Punjab, reported in 1994 Cri.L.J. 3139, 3139, 3139, in support of his submissions. 4. The main reason as to why the witness has not been compelled to answer the question under Section 132 of the Indian Evidence Act is that the MCOCA Court in the railway blasts case has directed that the names and addresses of the witnesses whose statements have been recorded in the case should not be revealed. The order passed by the MCOCA Court has been annexed to the affidavit filed by the State to oppose the admission of this petition. 5. In the case of Kartar Singh, the Supreme Court has considered the validity of Terrorists and Destructive Activities (Prevention) Act, 1987. This Act also had a provision under which the Court was empowered to direct parties to refrain from disclosing the names and addresses of the witnesses in order to ensure the security of the witnesses. While considering the scope and intention of Sections 16(2) and (3) of the T.A.D.A. Act, the Supreme Court observed: 4 "285. "285. "285. Section 137 of the Evidence Act defines what cross-examination means and Ss.139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross-examining lawyer’s client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character. 286. 286. 286. The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimised by any false and invented evidence that may be tendered by the adversary party." The Supreme Court observed that although under the T.A.D.A. Act the right of cross-examination is not taken away, the identity and the addresses of the witnesses are permitted to be withheld. The Supreme Court further observed that - "295. "295. "295. Generally speaking, when the accused persons are of bad character, the witnesses are unwilling to come forward to depose against such persons fearing harassment at the hands of those accused. The persons who are 5 put for trial under this Act are terrorists and disruptionists. Therefore, the witnesses will all the more be reluctant and unwilling to depose at the risk of their life. The Parliament having regard to such extraordinary circumstances has thought it fit that the identity and addresses of the witness be not disclosed in any one of the above contingencies. 296. 296. 296. In this context, reference may be made to S.228A of the Indian Penal Code as per which the disclosure of the identity of the victims of certain offences as contemplated under sub-sec.(1) of that Section is punishable but subject to sub-sec.(2). However, when the witnesses are examined in the presence of the accused then the accused may have the chances of knowing the identity of the witnesses if they are already known to the defence. But if the witnesses are unknown to the defence, then there is no possibility of knowing the identity of the witnesses even after they enter into the witness box. During a trial after examination of the witnesses in chief the accused have got a right of deferring the cross-examination on some other day. If the witnesses are known to the accused they could collect the material to cross-examine at the time of cross-examination in such circumstances. Whatever may be the reasons for non-disclosure of the witnesses, the fact remains that the accused persons to be put up for trial under this Act which provides severe punishments, will be put to disadvantage to effective cross-examining and exposing the previous conduct and character of the witnesses. 297. 297. 297. Therefore, in order to ensure the purpose and object of the cross-examination, we feel that as suggested by the Full Bench of the Punjab and Haryana High Court in Bimal Kaur (AIR 1988 Punj. & Har. 95), the identity, names and addresses of the witnesses may be disclosed before the trial commences; but we would like to qualify it observing that it should be subject to an exception that the Court for weighty reasons in its wisdom may decide not to disclose the identity and 6 addresses of the witnesses especially of the potential witnesses whose life may be in danger." Thus, it can be seen that the Supreme Court was of the view that the identity of the witness must be disclosed to the accused for him to effectively defend himself but under exceptional circumstances the Court is empowered to direct non-disclosure of the identity of the witnesses. In the railway blasts case, the Special Judge designated under the MCOCA Act has directed on an application made by the Special Public Prosecutor in that case that the identity of the witnesses should not be disclosed. Copies of the statements and documents of the truncated charge-sheet have been furnished to the accused in that case without revealing particulars which would establish the identity of the witnesses. 5. In these circumstances, in my opinion, the witness, DW-3 cannot be compelled to answer the question posed to him. 6. Apart from this, assuming the witness is compelled to answer the question and he does not, the only recourse would be to haul such a witness for contempt of Court. However, even by doing so, it would not necessarily mean that the accused would be able to get 7 him to answer the question which was posed. In the present case, if the witness answered in the affirmative, it would mean that there would be a possibility of disclosure of the identity of one of the witnesses in the railway blasts case, which is not what is envisaged in view of the order passed by the MCOCA Court in the railway blasts case. In any event, if DW-3 does not answer the question, the Court, while assessing the evidence on the completion of the trial, would take this fact into consideration. 7. In this view of the matter, the petition fails and is rejected.