The Code of Criminal Procedure, 1973 (Cr.P.C.) is a comprehensive and exhaustive procedural law for conducting a criminal trial in India, including the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and the rights of the accused for a fair trial. The procedure for criminal cases is therefore governed by the Cr.P.C. Every criminal case or complaint is built on the testimony of witnesses and these witnesses decide whether the case will be successful or not. Since witnesses are essential to a criminal case, they are often harassed and bribed by the person accused of the crime to ensure that the witnesses do not testify against them and for this reason, the State ensures that they have rights.
Who are witnesses?
Jeremy Bentham, a great English philosopher and jurist, once said “witnesses are the eyes and ears of justice.” Witnesses are persons, different from the accused person/s who have been called by authorities involved in criminal proceedings to testify on matters essential to the outcome of the proceeding based on information perceived through his senses, like what he heard or saw[i]. India follows an adversarial system where the court must decide criminal cases on the basis of the evidence produced before it and this evidence can be in the form of documents or oral statements by witnesses. The witnesses therefore play a crucial role in aiding the court in separating facts from the allegations and claims made by both parties to a criminal trial. There are three types of witnesses[ii]: eyes witnesses, character witnesses and expert witnesses.
1. Eye witnesses are witnesses who base their testimony on what they saw of the incident and their testimony consists of the facts of the incident rather than their inferences from what they saw.
2. Character witnesses are called in to attest to the good or bad character of a person accused or convicted in a criminal trial or a person in a civil trial whose character is of importance to the proceedings.
3. Expert witnesses are summoned when the facts or questions pertaining to the case are outside the ordinary knowledge of the judge. The opinion provided by an expert witness in accepted by the court since the judges do not possess the expertise to form a reliable opinion on the issue.
Rights that witnesses have
Witnesses are extremely important to the court while coming to a conclusion on the innocence or involvement of a person in a criminal offence and they play an important role in bringing perpetrators of crime to justice so the courts as well as the police authorities must treat them well and ensure that their rights are protected. Every witness has the following rights[iii]:
- Right to a secure waiting place while at Court proceedings
- Right to information of the status of the investigation and prosecution of the crime
- Right to be treated with compassion and dignity
- Right to protection from harm and intimidation
- Right to provide evidence while remaining anonymous
- Right to a stay at a safe place and transportation
- Right to refuse testimony in case the accused is a relative of the witness
- Right to testify in a language familiar to the witness
- Right to the presence of an interpreter
- Right to legal assistance
- Right to witness fees for any expenses incurred
Need for a Witness Protection Scheme
Even though witnesses are crucial to criminal case, they are often mistreated and/or threatened by the parties to the case and the judges. In many instances, since the witnesses pay for their own travel and lodging expenses when they provided testimonies in courts in other cities to give evidence he is often told that the case has been adjourned and is asked to come back at another time[iv]. When a case is adjourned, the witnesses in attendance are quite often not paid the allowances for the expenses incurred by them and another major problem is about the safety of the witnesses and their family members who face danger at different stages during the process of the criminal trial. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family, for if the accused is from an influential family the threats to the witnesses might escalate to action, thereby causing grievous harm or even death[v]. In a society governed by a Rule of Law, it is imperative to ensure that investigation, prosecution and trial of criminal offences is not prejudiced because of threats or intimidation to witnesses. The need to protect witnesses has been emphasised by the Hon’ble Supreme Court of India in the case of Zahira Habibulla H. sheikh and Another v. State of Gujarat,[vi] where the court, while defining Fair Trial, observed that “if the witnesses get threatened or are forced to give false evidence it would not result in a fair trial.”
The need for a scheme to protect the rights of witnesses has been discussed by various Law Commissions in their reports starting with the 14th Law Commission Report, then the 154th Law Commission Report which stated the need to improve the plight of witnesses especially with regard to the threats received by them, the 172nd and 178th Law Commission Reports which recommended that the witnesses should be protected no matter what, and the 198th Law Commission Report which emphasised that witness protection should extend to all serious offences and not just cases of terrorism or sexual offences.
To improve the condition of the witnesses, to improve their situation and to give effect to the recommendations of the various Law Commission Reports and the observations of the Supreme Court of India, the Witness Protection Scheme, 2018 was drafted by the National Legal Services Authority (NALSA) and put into place by the Supreme Court in the case of Mahendra Chawla v. Union of India[vii]. The Scheme aims to provide witness protection based on the categorization of witnesses into three categories: a grave threat extending to the life of the witness and his family, threat to safety/reputation/property of the witness and his family, and moderate threats of less severity than the first two categories. Every witness in a criminal case has the right to file an application for protection before a competent authority based if he belongs to any of the categories mentioned above. The procedure to fill and file an application is as follows[viii]:
1. The applicant seeking protection under this scheme has to file an application before the competent authority having territorial jurisdiction along with supporting documents through the Superintendent of Police or at the time of the trial
2. On receipt of application by the competent authority, the Commissioner will formulate a Threat Analysis Report keeping in mind to impart full confidentiality to the information mentioned therein and forward the report to the competent authority within five working days
3. In matters of urgency where there is imminent threat an interim order for the protection of witness and his family members can be passed
4. The Threat Analysis Report shall contain the threat level perception and may also contain some suggestive measures for adequate protection of the witness and his family members
5. Hearings in matter of Witness Protection Application shall be held in-camera by the competent authority to maintain full confidentiality;
6. Overall implementation of the witness protection order to be made by the head of Police of the State/Union Territory
7. If there is a need to revise the Witness Protection Order previously passed, the Competent Authority may forward the same to the Commissioner of Police to draft a fresh Threat Analysis Report.
The Witness Protection Scheme provides protection measures in proportion to the threats received by the witnesses and this protection extends for a reasonable time which is reviewed regularly and not forever. Some of the protection measures that the Scheme seeks to provide are[ix]:
a. Ensuring that witness and accused do not come face to face during investigation or trial
b. Monitoring of mail and telephone of the witness as well as providing the witness with an unlisted contact number
c. Installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc.
d. Concealment of identity of the witness by referring to him/her with a changed name
e. Close protection and regular patrolling around the witness’s house
6. Temporary change of residence to a relative’s house or a nearby town if necessary
f. Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing
g. Holding of in-camera trials
h. Allowing a support person to remain present during recording of statement and deposition
i. Usage of specially designed vulnerable witness court rooms which have special arrangements like live links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he/she is not identifiable
j. Ensuring expeditious recording of deposition during trial on day to day basis without adjournments
k. Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting new vocation/profession, if desired.
The draft Witness Protection Scheme, 2018 is India’s first attempt, at the national level, to holistically provide for the protection of the witnesses which will go a long way in eliminating secondary victimization and the scheme attempts at ensuring that witnesses receive appropriate and adequate protection. However, the Scheme has certain drawbacks like failing to consider the inadequacy of resources that some states might have in providing funds for witness protection and the pressure that the head of police might face while preparing the Threat Analysis Report in cases involving influential persons like politicians or businessmen. Even with the drawbacks, NALSA and the Supreme Court have taken a crucial step, with the Scheme, towards strengthening the Criminal Justice System in the Country and consequentially, enhancing National Security in the country.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] Mahendra Chawla & Ors. v. Union of India & Ors. 2018 SCC OnLine SC 2679.
[ii] Types of Witnesses, Citizens Information, (September 14, 2019, 9:18 PM), https://www.citizensinformation.ie/en/justice/witnesses/types_of_witnesses.html.
[iii]Prosecutor General’s Office, Rights and protection of Rights of Witnesses, NCZ, (September 14, 9:09 PM), http://www.nsz.cz/index.php/en/witness/rights-and-protection-of-rights-of-the-witness.
[iv]Importance of a Witness, LawTeacher, (September 14, 2019, 9:19 PM), https://www.lawteacher.net/free-law-essays/administrative-law/importance-of-a-witness-law-essays.php.
[vi] Zahira Habibulla H. sheikh and Another v. State of Gujarat 2004 (4) SCC 158 SC.
[vii] Mahendra Chawla & Ors. v. Union of India & Ors. 2018 SCC OnLine SC 2679.
[viii]Shrey Verma, Witness Protection Scheme in India, iPleaders, (September 14, 2019, 9:27 PM), https://blog.ipleaders.in/witness-protection-scheme-india/.
[ix]Bureau of Police Research and Development, Witness Protection Scheme 2018: The New Paradigm, bprd.nic.in, (September 14, 2019, 9:57 PM), http://bprd.nic.in/WriteReadData/CMS/Witness%20Protection%20Scheme-2018.pdf.