The identities of 15 of the ‘protected witnesses’ who provided statements in the Delhi riots ‘conspiracy’ charge sheet have been revealed in documents that are accessible to the accused, The Quint has confirmed.
Speaking to this reporter, two protected witnesses said they were shocked and in disbelief that this lapse has taken place and added that this puts a very real threat to their life. One of them even claimed to have no knowledge of being a protected witness.
We also spoke to senior advocate Sidharth Luthra, one of India’s foremost criminal law experts, to understand the nature of this procedural lapse and what would or should be done going ahead.
This story also includes the response of the Delhi Police to The Quint, who has accepted that ‘a court-related document containing the identities of some of these witnesses has been inadvertently included in the copies of the charge-sheet’.
Protected Witnesses ‘Stunned’ by Lapse
Not only has the name of protected witnesses been revealed, but also the addresses and pseudo names.
X* (name changed to protect identity) said that it was at huge personal risk that he got out of the house and went to be interrogated by the Delhi Police to begin with.
“I would keeping getting odd calls in the middle of the night, people would ask for my name and other details, I would keep switching my phone off and blocking their numbers. The case is a very sensitive one with various stakeholders. During this interrogation lots of people have turned their backs on each other. It was at a huge personal risk that I even went for the interrogations. There was a reason it was supposed to be kept a secret. I am shocked that they have revealed my identity. I do not trust this system at all,” X said, adding that this means there will be a ‘serious threat to life and movement’ for him now.
“If you’re making me a protected witness, then how can the top agency of the state make such a huge mistake? This changes things for me in the future in a very real way. What was the point at all then of making me a protected witness, you could have just revealed my identity to begin with. Still thinking of taking legal action, things like this take a lot of time. Either way I am going to be targeted, so what is the point of legal action. I do not know yet.”
Another protected witness called Y* (name changed to protect identity) said he did not even know he is a protected witness. He added, “They never approached me regarding this or asked for my consent before putting my name as a witness. I am rather surprised. Personally also this will change everything and the trouble for me will increase. People will now target me, it could also be a physical attempt of an attack. They can come and harm me any day.”
The Quint has access to these documents, however we have chosen to not make them public.
‘Threat to Safety’ Brought up in Application and Court Order
The application from the prosecution for protecting the witnesses’ identity had expressly raised concerns over the safety of the witnesses, and hence said they needed to be protected, stating:
The following witnesses have expressed fear for their lives from the accused personas as they are residing/working in the same locality or they are known to each other, some of them giving in writing about their threat to safety.
It is requested that identity of the above mentioned public witnesses with pseudo names, mentioned against their names, be kept confidential during the proceedings of this case as per section 44 of the UAPA. The truncated statements of above witnesses under section 161 and 164 of CrPC may please be ratified for the purpose of investigation and subsequent trial.
The court order granting the application had agreed with this, holding:
Considering the nature of the instance case, I concur with the Ld. Public Prosecutor that there is a genuine apprehension regarding the safety and security of the public witnesses in the instant matter. In view of the same, the application is allowed.
Have the Police Broken the Law Here? What Punishment Could They Face?
Senior advocate Sidharth Luthra explained that apart from obviously endangering the witnesses, this was also clearly an offence under Section 44(3)(c) of the Unlawful Activities (Prevention) Act (UAPA) and Section 17 of the NIA Act, which deal with protection of witnesses.
“The release of their names, despite the existence of this order is a breach of law punishable under Section 44 of UAPA and Section 17 of the NIA Act. While the prosecution had no option but to send the application to the court by law, they should have made an application for keeping the details in the sealed cover.”Sidharth Luthra, senior advocate at Supreme Court
Speaking about the procedure involved, Luthra added, “Whenever we have appeared as prosecutors for cases under NIA, whenever we want identities protected, we give the judge original statements but the accused are given truncated statements and the request is made to keep those statements in sealed covers with names and identities. It is inappropriate that they have released the name of their own protected witnesses. That is an unfortunate lapse on their part.”
The relevant sections of UAPA under Section 44 on ‘protection of witnesses’ read:
The measures which a court may take under that sub-section may include-
a) the holding of the proceedings at a place to be decided by the court
b) the avoiding of the mention of the name and address of the witness in its orders or judgments or in any records of the case accessible to public
c) the issuing of any directions for securing that the identity and address of the witness are not disclosed
d) a decision that it is in the public interest to order that all or any of the proceedings pending before such a court shall not be published in any manner [emphasis added]
Section 44 also states the punishment for not following the law:
Any person, who contravenes any decision or direction issued under sub-section (3), shall be punishable with imprisonment for a term which may extend to three years, and shall also be liable to fine. [emphasis added]
Delhi Police: Steps Being Taken to Ensure Safety of Protected Witnesses
The Quint has reached out to the Delhi Police Commissioner SN Shrivastava, Delhi Police PRO Eish Singhal and Special Cell DCP Pramod Kushwaha for comment.
Delhi Police additional PRO Anil Mittal responded to The Quint’s queries and said:
Delhi Police Special Cell had filed a charge-sheet in case FIR 59/2020 PS Crime Branch relating to the riots in north-east Delhi in February 2020. During the course of investigation, it was deemed necessary that the identities of some witnesses should not be disclosed in the public domain. However, a court-related document containing the identities of some of these witnesses has been inadvertently included in the copies of the charge-sheet provided to the accused persons as part of compliance of judicial orders.
Since the witnesses are court-protected, their identities should not be published. Media is requested to cooperate in this matter. However, steps are being taken to ensure the safety and security of these witnesses and to address all concerns in this regard.
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