Protection of Witnesses

In one line

Section 19 lets the Special Court sit in camera and keep a witness's identity and address secret, and makes it an offence to breach a direction it gives.

In the wording a student can write in an exam: by section 19(2) of the Maharashtra Control of Organised Crime Act, 1999 a Special Court may, on an application by a witness or by the Public Prosecutor in relation to a witness, or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret.

Why the provision exists

The hostile witness is the reason the Act was passed. Prosecutions against syndicates failed not because the evidence was weak but because the people who could give it would not, and a witness who has testified in open court against an organisation that operates in his own locality is exposed for the rest of his life.

Open justice is the countervailing principle. A trial conducted in secret against a witness the accused cannot identify is difficult to test, and the accused's ability to cross-examine depends on knowing who is speaking and why.

Section 19 chooses protection and leaves the balance to the court. The measures are discretionary, they are listed without limiting the discretion, and the court may act on its own motion.

The provision itself

Section 19(1), in camera. Notwithstanding anything in the Code, the proceedings under this Act may be held in camera if the Special Court so desires.

Section 19(2), secrecy of identity. The Special Court may, on an application by a witness or by the Public Prosecutor in relation to a witness, or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret.

Section 19(3), four particular measures, expressed without prejudice to the generality of sub-section (2): holding the proceedings at a place decided by the Special Court; avoiding the mention of witnesses' names and addresses in its orders, judgments or any records of the case accessible to the public; issuing directions to secure that identities and addresses are not disclosed; and ordering, where it is in the public interest, that all or any of the proceedings pending before it shall not be published in any manner.

Section 19(4), the offence. Contravening any direction issued under sub-section (3) is punishable with imprisonment up to one year and with fine up to one thousand rupees.

Broken down

Sub-section (1) is entirely discretionary. The words are "if the Special Court so desires", with no conditions and no test to satisfy.

Sub-section (2) is wide by design. "Such measures as it deems fit", and the four measures in sub-section (3) are expressed as being without prejudice to that generality, so they illustrate rather than limit.