Author: ~Mehrul Arora | Featured Pic-credit: Shashwat Ashiya
“A trial without witnesses, when it involves a criminal accusation, a criminal matter, is not a true trial.” – Ira William “Bill” McCollum Jr.
INTRODUCTION
The statement of the witness during chief–examination and cross-examination, followed by re-examination (if allowed), together constitutes an evidence[1] and thus a witness plays a crucial role in the administration of justice and a fair criminal trial which is a fundamental right guaranteed under Article 21 of the Constitution of India and the same was also observed in the case of Himanshu Singh Sabharwal v. State of Madhya Pradesh and Ors.[2], that when a witness is threatened or killed or harassed, it is not only the witness who is threatened but also the fundamental right of a citizen to a free and fair trial is vindicated. Similarly, in the case of Zahira Habibullah Sheikh and ors v. State of Gujarat and ors.[3], it was observed that each one has an inbuilt right to be dealt with fairly in a criminal trial and if the witnesses get threatened or are forced to give false evidence, then it would not result in a fair trial.
Therefore, the witnesses who are said to be the eyes and ears of justice[4], need to be protected from intimidation and manipulation in order to give their unbiased statements as an evidence in the court of law, so that fair justice can be administered as, protection of a witness is the duty of the state and when the state fails to protect a witness, it actually fails to uphold the national motto – Satyamev Jayate[5].
HISTORICAL BACKGROUND
It was observed for the first time in the 14th Law Commission Report of India, 1958,(Inadequate Arrangements for Witnesses), that,it was by no means uncommon for the opposite party, as soon as he knew that certain witnesses were being called against him, to use all the means within his power to dissuade them from assisting the opponent, but there was no further recommendation on the same because the Commission was of the perspective that an attempt to tamper with the witnesses takes place only in a small number of cases. Further, the National Police Commission reproduced a critical and incisive letter, written by a senior District and Session Judge, which it had received, in the 4th Report of the National Commission of Police, 1980 (Handicaps of Witness), which stated that “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.”The Commission also noted, after surveying 18 Magistrates’ Court in one State that the monetary compensation which was paid to the witnesses was inadequate and out of 96,815 witnesses who had attended the Court in a particular period, only 6,697 witnesses were paid some allowance that too after following a rather cumbersome procedure. Further, in the Report of the Justice MalimathCommittee on Reforms of Criminal Justice System, chaired by Dr. Justice V.S. Malimath it was stated that there has been a growing tendency of subjecting the witness and his family to the serious threats of life, abducting or raping, or damaging the witnesses’ property or harming his image or interest in other ways and the witness has no protection whatsoever. While many countries have laws for the protection of witnesses, India has none of them and time has come to enact a comprehensive law for the protection of the witness and his family members.
The Law Commission, while referring to its 14th Report and the 4th Report of the National Commission of the Police, acknowledged inthe 154th Law Commission Report of India,1996, (Lack of Facilities and Wrath of the Accused)that there are enough justifications as to why the witnesses are reluctant to come forward to attend the Court promptly in obedience to the summons because the conditions of the witnesses appearing on behalf of the State is pitiable as they not only have to suffer due to the lack of facilities and conveniences but they also have to endure the wrath of the hardcore criminals, thus, affecting the purpose of criminal administration because the statements which are given by the witnesses appearing in the Court, might have been made in a state of fear. It further recommended that the amount which is being paid as an allowance or monetary compensation to the witnesses should be realistic and the procedure for receiving the same should be made simpler in order to avoid delays and, due respect should be given to the witnesses and adequate facilities should be provided for their stay in the court premises in order to create a necessary confidence in the minds of the witnesses that they would be protected from the wrath of the accused.
The 178th Law Commission Report of India, 2001, (Preventing Witnesses Turning Hostile), recommended that certain checks should be introduced on the witnesses so that they do not turn hostile such as taking the signature of the witnesses on the police statement and sending a copy of the same to the Magistrate and a senior police officer and on the basis of this recommendation theCriminal Law (Amendment) Bill was introduced in Rajya Sabha in August, 2003. In the 198th Law Commission Report of India, 2006, (Witness Identity Protection and Witness Protection Programmes), it was stated that there are two aspects to the need of the witness protection. First aspect is the need to protect the evidence of the witness from the danger of their turning into ‘hostile’ and the second aspect is the physical protection of the witness which involves drawing up of Witness Protection Programmes.
INADEQUATE LAWS PERTAINING TO WITNESS PROTECTION IN INDIA
According to the Black’s Law Dictionary, ‘a witness is a person who has knowledge of an event’ and there are three kinds of witnesses as per the 198th Law Commission Report of India,2006, which are as follows –
- Victim – witnesses who are known to the accused
- Victims – witnesses not known to the accused
- Witnesses whose identity is not known to the accused
While the 1st category requires protection from trauma, 2nd and 3rd Categories require protection against disclosure of identity.
In the case of Neelam Katara v. Union of India[6], the Apex Court observed that the edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favour, without intimidation or allurements in court of law. If witnesses are intimidated or allured, the foundation of administration of justice gets weakened and even obliterated.
Furthermore, in the case of NHRC v. State of Gujarat[7] it was observed by the Hon’ble Supreme Court that time has become ripe to act on account of numerous experiences faced by the courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle the truth and realities coming out to surface rendering truth and justice, to become ultimate casualties…and serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. Similarly, in the case of Sakshi v. Union of India,[8]the Court also emphasised on the need for legislation on witness protection.
Thus, The Witness Protection Bill (Bill No. 341 of 2015) was introduced in the Lok Sabha by Shri OM Birla, M.P., to provide compulsory protection to the witnesses within the territory of India. Section 3of the Bill, provides for a complete process through which protection can be availed by either applying for protection at any stage of the proceeding at the Court in which the proceeding is being heard or at that police station in whose jurisdiction he falls under, after which the application will be processed and produced by the station officer before the Court within forty – eight hours. The Police officer will also investigate the threat to the witness and shall submit the same as well as produce the witness before the Court after which a Witness Protection Cell, comprising of the Station House Officer of the appropriate police station, Investigating Officer and the Advocate of the witness, shall be constituted by the Judge of the competent court with the aid of the State Council, wherein all the necessary aid shall be provided to the witness. According to Section 4, the protectee’s right to life shall be maintained and the body, property, mind or the associated people shall also be protected so as to ensure that there is no influence to the action of the protectee and such protection shall be provided by the appropriate Government after the request or consent of the protectee at the following stages of the process of law –
- during the process of investigation and inquiry;
- during the trial; and
- after the trial as warranted by the Court as per the perception of threat against the individual.
Section 5 of the Bill, further provides for the protection of the identity of the witness by the appropriate Government, in the cases which are pertaining to a criminal offence, who is enrolled in the witness protection programme and the Judge may grant any of the following or a combination of the following protections –
- witness or protectee shall attend in – camera proceedings under the presence of a judicial officer or the judge may permit the witness or protectee to provide the evidence and allow the defendant to cross-examine the witness by a two – way camera;
- Protectee shall be given an option to request a change in his identity or residence for the duration of the trial or permanently or for a duration that exceeds the trial but is not permanent or that his or her name or address shall not be revealed in the public and to be redacted in the official records;
- the judge shall have the power to maintain the anonymity of the protectee.
The details of the protectee during the course of the investigation and trial, as per Section 6 of the Bill, shall be under the protection and custody of the National Witness Protection Council and State Witness Protection Council and such details may be released to individual or specified agencies only on the receipt of order from the High Court with the appropriate jurisdiction or the Supreme Court, as the case may be, and if any other individual or specified agency has access to such an information, it shall be in contempt of court andbe liable to criminal proceeding.
Further, Section 17 of the Bill states that, whoever contravenes the provisions of this Act, shall be punished in accordance with Chapters XVI and XVII of the Indian Penal Code, 1860, if he is found in a judicial proceeding that he has committed an offence relating to the victim and in case a police officer,officer of the State and relevant State authorities, abdicate their responsibilities or do not perform their duties, shall have to pay a fine which may extend to fifty thousand rupees.
CONCLUSION
Even though the Law Commission, as well as the Supreme Court in its various judgements, have recommended and observed respectively, time and again, that witness protection laws are a need of the hour, yet, when The Witness Protection Bill, 2015, was introduced in the Lok Sabha and was circulated to the State Governments and Union Territory administrators, no consensus was formed due to which it was shelved. But the legislature needs to understand that it is high time, that in order to administer justice and to put an end on the regular violation of Article 21 of the Constitution of India, laws pertaining to witness protection must be enacted and it should also be ensured that such laws are implemented in order to protect the rights of the witnesses, so that every witness feels safe to come forward and help the courts in the administration of justice by giving his or her unprejudiced statement as a valuable piece of evidence.
[1] Vijay Kumar v. State (Govt. of NCT of Delhi), Crl. M.A. 7450/2017.
[2] AIR 2008 SC.
[3](2006) 3 SCC 374 at 395.
[4] Jeremy Bentham, Jurist and English Philosopher.
[5] Supra 2.
[6]ILR (2003) II Del 377 260.
[7]2003 (9) SCALE.
[8] 2004 (6) SCALE.
About the author: Mehrul is a third-year law student, pursuing her B.A.LL.B. (Hons.) from Law College Dehradun, Uttaranchal University.
Disclaimer: Although we try to ensure that the information provided, whether in relation to the products, services, or offering or otherwise provided (hereinafter mentioned as “INFORMATION”) on the website is correct at the time of publishing, we or any third parties do not provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements. Neither the website nor any person/organization acting on its behalf may accept any legal liability/responsibility.
Criminal Law Research & Review 