This Article is written by
Vanshikha Mahana ( 4th-year of B.A. LL.B (H) Criminal law student pursuing it from UPES, Dehradun)
In a democratic country like India, the crime rate is increasing at a burning speed but as far as justice is concerned, it is not of parallel pace to it. A criminal case is built upon an edifice of evidence including witnesses whether it is direct evidence or circumstantial evidence. As per the present scenario of our judicial system witnesses are taken for granted in a way that they are harassed, bribed, maimed or even abducted at times. But on the other hand in cases of white-collar crimes or cases involving corrupt politicians, there is a casualty of witnesses becoming hostile. Many developed countries across the globe provide for witness protection laws but woefully in India, there is no such legislation framed with regard to this issue. It is due to the lack of such legislation that the witnesses are in a precarious situation. However, providing protection to witnesses might be tedious in a country with a limited police force but undoubtedly it is a key aspect of the administration of justice. Each and every statement is very important as it has a magic force to change the course of the whole case.
According to Bentham, “witnesses are eyes and ears of justice”. It is trite law that justice should not only be done but it should be seen to have been done.2Witnesses are to be produced before Judges, who in turn should subsume the protection of witnesses along with their power of administering justice. Not only the parties to suit but additionally the witnesses too have a right to a fair trial. “Free and fair trial is sine qua non of Article 21 of the Constitution.” It is the duty of the judge to play a constructive role thereby providing different methods for the protection of witnesses. In numerous cases, the judiciary played a constructive role to provide different means and methods to the protection of witnesses which lead to the significant amount of encouragement to establish Witness Protection Programs in India.
14th Law Commission Report (1958)
The 14th Law Commission Report highlighted the lack of facilities given to witnesses attending the proceedings of the Court. It mentioned that adequate arrangements for amenities of the witness within the court boundaries. It was referred that provision for the daily allowance must be made to enable them to give testimony in the court. The Report focused on witness protection by concentrating on the amenities and facilities to witnesses to avoid delay.
Fourth Report of the National Police Commission (1980) (Handicaps of Witness)
The Fourth Report of the National Police Commission came in June 1980. It referred to certain troubles and handicaps suffered by the witnesses. The Commission cited a letter sent by District and Session Judge stating, “A prisoner suffers from some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time ‘foolish’ enough to remain there till the arrival of the police” It also referred that among the numerous witness who attended the proceedings to testify only a few were paid the allowances. The witnesses who received the allowances has resorted to the lengthy and hectic procedure to procure the allowance.
154th Report of the Law Commission (1996)
The Chapter X of the Report dealt with ‘Protection and Facilities to Witnesses’ referred to in the 14th Law Commission Report and Report of the National Police Commission. The Law Commission recommended that the procedure for payment for allowances must be simplified and realistic allowances must be paid to the witness. Proper and Adequate facilities must be given to the witnesses for their stay in the premises of the Court. All reasonable causes for witnesses’ anguish must be removed. “Necessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality.” The cases must be listed in such a way that witnesses should be examined on the day they are summoned and examination should proceed on day to day basis.
172nd Report of the Law Commission (2000)
The 172nd Law Commission report was on ‘Review of Rape Laws. This report was submitted after the Supreme Court issued a direction in the case Sakshi v Union of India in the year 1999. In this case, Sakhi an NGO concerned with the issues related to women filed a petition to seek directions for amendment of the definition of sexual intercourse envisaged in Section 375 of the Indian Penal Code. The Supreme Court requested Law Commission to highlight the loopholes in the substantive and Procedural law and suggest the changes in the law to plug those loopholes. To comply with the direction of the Supreme Court Law commission sought written suggestions from the petitioner, Sakshi.
The Law Commission gave its report on 25th March 2000. The petitioner suggested that the minor victim should not be required to give his/ her evidence in the presence of the accused rather the sexually assaulted minor must give the testimony behind the screen. The Law Commission to this suggestion referred to Section 273 of Code of Criminal Procedure which provides that “except as otherwise expressly provided, all evidence taken in the course of a trial or other proceeding, shall be taken in the presence of the 35 accused or when his personal attendance is dispensed with, in the presence of his pleader”. “The Law Commission took the view that his general principle, which is founded upon natural justice, should not be done away with altogether in trials and enquiries concerning sexual offence.”The commission recommended that it would be the Court’s discretion to provide a screen between the accused and the victim so that the accused is not visible to the victim and simultaneously the accused could hear the testimony of the child victim to facilitate the advocate in preparing the defence and effective cross-examination.
The 178th Law Commission Report (2001):
This report was given in December 2001 for the need to amend various criminal and civil provisions. This report was made to deal with the problem of hostile witnesses and the precautions to be taken by the police at the time of the investigation to prevent the witness to prevaricate at the later stage of the trial. The Commission gave 3 recommendations
- The Sub- section (1A) to be inserted in Section 164 of the CrPC to record the statement of prime witnessesare recorded in the presence of Magistrates. This would require the large number of Magistrates to be recruited.
- To prevent the witness to turn hostile, the signature on the statements given to police must be signed by the witness and sent to appropriate Magistrate and a senior police officer.
- In those offences where the punishment is ten years or more, in such cases the statements under section 164 of CrPC must be recorded at the earliest by the Magistrate. In the less serious offences the abovementioned recommendation shall suffice the purpose.
However, the Law Commission omitted the measure for physical protection of the witnesses from the wrath of the accused. It also did not deal with the suggestion of keeping the identity of the witness secret and enabling the accused or his advocate to effectively cross-examine the witness simultaneously.
Criminal Amendment Bill, 2003
The RajyaSabha recommended that were in the recommendation (c) as aforesaid mentioned, the punishment for the offence must be of seven years or more rather than ten years or more. The Council of States also proposed for the retraction in a confession made before a Magistrate. The RajyaSabha also proposed for the provision to find out whether the retraction was made due to threat or inducement or intimidation.
Justice Malinath Committee Reports- Reforms of Criminal Justice System
The Committee imparted the recommendations under the chairmanship of Dr Justice V.S. Malimath. It contains that the law should be forgiving protection to witnesses and their family member, without specifying any scheme or whatsoever. The Court should keep the details of witnesses confidential. The Court can even avoid giving the address of witnesses in its judgments. T justice to the victim is possible only in the case where the rights of the witnesses are protected. The Committee proposed “A Hybrid System of Criminal Justice” whereby some features of the inquisitorial system shall be incorporated into the adversarial system of trial. This System is to empower the judge to seek the truth and focus on justice to victims.
198th Report of the Law Commission (2006)
“A Consultation Paper on Witness Identity Protection and Witness Protection Programmes’ was prepared. In the Final Report, the Commission identified three categories of witnesses: (i) victim-witnesses who are known to the accused; (ii) victims-witnesses not known to the accused (e.g. as in a case of indiscriminate firing by the accused) and (iii) witnesses whose identity is not known to the accused. Category (i) requires protection from trauma and categories (ii) and (iii) require protection against disclosure of identity.
The committee comprising Members of Parliament from the RajyaSabha was reviewing the status of promises made by the government in 2009 to amend necessary laws to protect witnesses. The commission recommended witness anonymity and protection where there is a danger to the witness, to his properties or to those of his relatives, at all stages – investigation, inquiry, trial, appeal – and thereafter also.”
The Witness Protection Bill, 2015
The proposed bill is to provide protection to the witnesses. The Bill formulates a witness programme, which too is provided to a witness at all stages viz., during the course of an investigation; during the process of trial; and after the judgment is pronounced. The Bill constitutes a “witness protection cell” to prepare a report for the judge of the trial court to examine and grant protection to the witness referred a “protectee” after being admitted in the programme. The Bill proposes the constitution of the authority of the National Witness Protection Council and State Witness Protection Councils to ensure implementation of the witness protection programme in its letter and spirit.The Bill ensures the protection of the Identity of the Witness. It provides for the transfer of cases so that witness deposes freely. The Bill imposes the fine extendable up to fifty thousand rupees for contravention of the provisions of the Bill. According to Bill, stringent actions shall be taken in case false testimonies and misleading statements are given.
The Bill provides that the appropriate Government shall provide an allowance to the protectee during the course of an investigation. It also provides for providing distance modes of education to the protectee. Clause 8 seeks to constitute a National Witness Protection Council. The Bill seeks to constitute State Witness Protection Council by State Government. It also provides for the appointment of officers and employees to the Council. It also provides for salary and allowances payable to Chairperson and members of National Council and the State Councils.
“The expenditure relating to State Governments shall be borne out of the Consolidated Funds of States concerned. The expenditure in relation to Union Territories shall be incurred from the Consolidated Fund of India. The Bill, therefore, if enacted would involve expenditure from the Consolidated Fund of India. It is estimated that a recurring expenditure of about rupees five hundred crores per annum would be involved from the Consolidated Fund of India. A Non-recurring expenditure of about rupees twenty crores is also likely to be involved.”
Delhi Witness Protection Scheme, 2015
The Delhi State Legal Services Authority on 30th July 2015 notified Delhi Witness Protection Scheme, 2015. “The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences are not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and the overall administration of Justice.” According to the scope of the scheme, the witness can be escorted by a police officer to the Courtroom or provide a temporary safe residence intact with a facility of videoconferencing for a recording of statements. Where the case is complex and witnesses’ life is threatened by a powerful criminal group or some powerful person then, the police can resettle such witnesses with a different identity in an undisclosed place.
Categories of Witness as per Threat Perception
|Category A||Where the threat extends to the life of the witness or his family members and their normal way of living is affected for a substantial period, during investigation/trial or even thereafter.|
|Category B||Where the threat extends to safety, reputation or property of the witness or his family members, only during the investigation process or trial.|
|Category C||Where the threat is moderate and extends to harassment and intimidation of the witness or his family member’s, reputation or property, during the investigation process.|
The Delhi State Legal Services Authority (DSLSA) passes protection orders in each case after evaluating the threat. The Commissioner of Police is responsible for the overall implementation of the witness protection orders. Protection measures can include armed police protection, regular patrolling around witnesses’ house, installing closed-circuit television cameras, and relocation.
Once the DSLSA receives an application for protection, it seeks a threat analysis report from a senior police officer of the district or unit investigating the case. DSLSA is required to interact with the witness or others linked to the prosecution to determine protection needs, and make a final order within seven working days of the application being filed and pass interim protection orders if needed.
The Supreme Court in State of Punjab V. Gurmit Singhheld that “if the witness or victim is protected it would enable the victims of crimes to be a little comfortable and answer the questions with greater ease in not too familiar surroundings. Trial in the camera would not only be in keeping the self-respect of the victim of (the) crime and in tune with legislative intent but is also likely to improve the quality of evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in the open court, under the gaze of (the) public. The improved quality of her evidence would assist the court in arriving at the truth and sifting truth from falsehood.”
The Supreme Court of India in Sakshi V. Union of India observed: “the whole inquiry before a court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment….The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in a miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.”
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
In Kartar Singh v/s State of Punjab case, the Hon’ble Supreme Court “upheld the validity of Section 16(2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA) which gave the discretion to the Designated Court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the Court and to withhold the names and addresses of witnesses in its orders. The court further held that the right of the accused to cross-examine the prosecution witnesses was not absolute but was subject to exceptions.”
The Prevention of Terrorism Act, 2002 (POTA)
In People’s Union of Civil Liberties v/s Union of India, the Supreme Court considered the validity of Section 30 of The Prevention of Terrorism Act, 2002 which deals with the protection of witnesses. “The court upheld the validity of a similar provision subject, of course, to certain conditions which form part of Section 30 now. The present position is that Section 30(2) requires the court to be satisfied that the life of a witness is in danger to invoke a provision of this nature. Furthermore, reasons for keeping the identity and address of a witness secret are required to be recorded in writing and such reasons should be weighty. In order to safeguard the right of an accused to a fair trial and basic requirements of the due process a mechanism can be evolved whereby the special court is obligated to satisfy itself about the truthfulness and reliability of the statement or disposition of the witness whose identity is sought to be protected.”
Protection Against Publications
Publication of name, address and identity of witness by Media
In BimalKaurKhalsa v/s Union Of India, “the Full Bench of the Punjab and Haryana High Court held that the identity, names and addresses of the witnesses may be disclosed to theaccused before the trial commences but the court would like to qualify it by 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 addresses of the witnesses especially if the potential witnesses whose life may be in danger. It may stop the dissemination of the information regarding the address and identity of a prosecution witness by ensuring that his name and address and the identity are not given publicity by the media. In this way the High Court provides for protection of the witness from the media but does not deal with all the aspects of the problem.”
Publication of identity of Rape Victim in judgments by the Court.
In State of Punjab v/s Ramadev Singh,“the Supreme Court held that the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which section 228-A IPC has been enacted, it would be appropriate that in judgment, be it of Supreme Court, high Court or lower Court, the name of the victim should not be indicated.”
Publication of evidence of witness to the Accused
In NareshShridharMirajkarv/s State of Maharashtra, the witness protection came up for consideration before the Supreme Court in somewhat unusual circumstances in a defamation case. In this case the witness for the offence repudiated in the witness box all statements earlier made by him. With the permission of the High Court, he was cross-examined by the defence, but he maintained his stance. Later the defence came to know of some other proceedings where the witness had substantially stated what was alleged by the defence. Accordingly, the defence recalled him to the witness box. At that stage, the witness sought protection of the High Court against the publication of his evidence because, he said, the publication of his earlier evidence had caused him business losses. Protection against publication of his evidence was given by the High Court and affirmed by the Supreme Court because it was “thought to be necessary in order to obtain true evidence in the case with a view to do justice between the parties.” This may well be the only case in which the business interests of a witness were sought to be protected rather than the witness himself. It is a novel and unexplored dimension to witness protection.
Judicial Directions & Guidelines forthe Protection of Witnesses
Direction to Central and State Government:
In NHRC v/s State of Gujarat,the Apex court observed, no law has yet been enacted, not even a scheme has been framed by the Union of India or by States in protection to the witnesses. The Court has laid down certain guidelines for ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court. Following are the steps shall be taken: (a) Ensuring safe passage for the witnesses to and from the court precincts, (b) Providing security to the witnesses in their place of residence wherever considered necessary, and (c) Relocation of the witnesses to another State wherever such a step is necessary. Yet despite the earlier directions of the Apex Court, given in this regard to the Central and the State Government to enact a law for witness protection, no action has been taken by either of the two Governments.
Direction to Court
In Harish C Tiwari v/s Baiju,the Supreme Court observed that if need be the courts have the necessary power, by issuing directions for the protection of witnesses to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.
Plight of the Witnesses
In Swaran Singh v/s State of Punjab,the Supreme Court of India expressed deep concern about the predicament of a witness in the following words: “A criminal case is built on the edifice of evidence, evidence that is admissible in law. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the Court many times and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. There is no protection for him. In adjourning the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all.”
Role of the State in Protecting the Witness
In ZahiraHabibulla H. Sheikh and Another v/s State of Gujarat and Others, the apex court was emphatic on the role of the State to play in protecting the witnesses. It has been observed that as a protector of its citizens, the State has to ensure that during the trial in the Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Supreme Court reminded the State that it has a constitutional obligation and duty to protect the life and liberty of the citizen.
Witness Protection Laws and Perjury
Perjury is rising in the absence of witness protection laws. In India, offence of perjury dealing with false and fabricated documents has been defined under Section 191 of IPC and Chapter XI of IPC. “A series of judicial pronouncements on the law of perjury have therefore incessantly stressed on the urgency of having a broad-based legislation on witness protection so that the high rate of acquittals in criminal cases could be curbed by assuring the witnesses that they will be kept out of harm’s way after they testify against powerful and influential people.”
Importance of Witness in Criminal Justice System
In criminal cases, witnesses have a substantial role to play as the facts cannot be determined without them. It is only the witnesses who can prove the case if the testimony of the victim is insufficient.
In BharatSingh Rawatvs State NCTOf Delhi,on 12 March, 2014, the Delhi High Court observes the importance of witness in criminal justice system.”Witnesses” as Bentham said: are the eyes and ears of justice. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it nolonger can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, lures and monetary considerations at the instance of those in power, political clouts and patronage and innumerable other corrupt practices stifle truth and realities coming out to surface rendering truth and justice. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies.
SOME OF THE RECENT FAMOUS CASES WHERE THE WITNESS TURNED HOSTILE
The Best Bakery Case
The Best Bakery, a small outlet in the Hanuman Tekri area of Vadodara, was allegedly attacked by a mob, which burned down the bakery, killing 14 people on March 1, 2002. The attack was part of the 2002 Gujarat violence. The mob targeted the Muslims inside, including the Sheikh family which ran the bakery. All the fourteen people, who were killed, had taken refuge in the Best Bakery during the riots. “Zahira Sheikh and her family changed their statements during both, the original trial in Vadodara in which all accused were acquitted, as well as the re- trial in Mumbai which convicted none accused. After the first trial, she claimed that she had lied because of pressure put on her by functionaries from the BJP to favour the accused; bu changed her story again; this time saying that she was threatened by activist TeestaSetalvad to give false testimony against the accused.”
Jessica Lal Murder Case
“In the Jessica Lal murder trial also, 31 witnesses turned hostile, including the complainant and key eyewitness ShyanMunshi, who claimed to have not known Hindi, which was language of the statement he had signed. This led to the acquittal of the accused, Manu Sharma and his associates, by the session court, though this was overturned in the higher courts.
Witnesses turning hostile had also affected another case in which Sharma had been involved- the NitishKatara murder case- where four key eyewitnesses no longer remembered seeing the victim being taken away in a car by the accused.”
Self-Styled Godman “BapuAsaram” Rape Case
A crucial witness in the rape case against the Asaram has been provided with police security, four days after one of the witnesses in the case was shot dead. A bench of Justices A. R Dave and A. K Goel directed the trial courts to pass appropriate orders for giving witness protection, if they are threatened.
The Indian Judiciary has been trying hard so as to deal out with the problem of witness protection but since there is an absence of such legislation witnesses are not getting that protection as and when needed. Present circumstances are such that it is not being able to provide protection to them. In the recent case, in trial of MukhtarAnsari(legislator- BahujanSamaj Party, Lucknow), who was tried for the murder of Jail Superintendent, was acquitted as all the 36 witnesses turned hostile. It was perhaps due to the inadequacy of protection granted to witnesses. Today, under the present situation, our Judiciary is evaluating the American laws pertaining to witness protection. In America, the Federal Witness Protection Program has been created in response to the problems faced by the witnesses who testified against mobsters. Even Canada has enacted Witness Protection Act 1996 (Kanishka Bombay Case) and the judiciary is acting accordingly. Therefore the Indian Parliament should too take a note on this issue and enact a legislature for the same and on the same side judiciary must also indulge in it thereby protecting witnesses so that the cases like Jessica Lal should not be repeated which are shattering the credibility of our criminal justice system.
Critics like Fali. S. Nariman, he says that criminal jurisprudence in India being a British concept, the Best Bakery case relies heavily on the Blackstonian maxim that “It is better that guilty persons go unpunished than one innocent person suffers” and that it is why all the 21 accused were acquitted due to the supposed “lack of proper evidence.” He quotes Dr. Owen Dixon, who said that in a court of appeal, a large number of the facts are excluded, either because of negligence of the legal profession, fading memory and also by archaic laws of evidence. The tools under the Criminal Procedure code are not properly used in a trial court at the stage of inquiry, trial and other proceedings or in the summoning of witnesses, their examination, cross examination and re examination. The judge, in his anxiety to maintain neutrality never takes an initiative to discover the truth and he relies on the excuse that ours is an adversarial system which does not impose a positive duty on the judge to discover truth. Law is a means to achieve an end, and that is justice. If this end is to be achieved law cannot remain stagnant and must change according to the transition of the society. No nation may afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law.
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- UtkarshAnand, Perjury Risising in Absence of Witness Protection Law, Available at: http://archive.indianexpress.com/news/perjury-rising-in-absence-of-witness-protection-law/1119283/
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