New Delhi: Noting that an accused's right to an open trial was not above the safety of witnesses, the Law Commission has recommended that the identity of a witness facing a threat should be kept secret before, during and after the trial. The identity may be known only to the magistrate and it should not reflect even in court records, the Law Commission said in its report on the protection of witnesses.

The Commission said protecting the identity of a witness becomes "necessary at the stage of investigation" itself -- the moment after the crime has been committed. The magistrate may pass an ex-parte order granting total anonymity to a witness after conducting a proper threat assessment in consultation with the prosecutor, said the Commission headed by Justice M Jagannadha Rao.

Laying down the procedure to be followed by a prosecutor who fears a witness may face a threat before trial, the Commission said he may approach the magistrate in his chamber for a "preliminary enquiry" or "voir dire" in the matter. "The suspect is not entitled to be heard at this stage during the investigation," the Commission cautioned.

"The magistrate will have to consider the material relied upon by the prosecutor for substantiating the danger to the witness, his property, or relatives.
"If necessary, the magistrate can examine the witness," the Commission said, adding if the magistrate comes to the conclusion that there is a "likelihood of danger", he can grant identity protection and pass an ex-parte order.