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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Hostile witnesses and the need for Witness protection in India

Jeremy Bentham describes witnesses as “the eyes and ears of justice.” Witnesses play a pivotal role in bringing the offender to justice, they are an indispensable aid in the justice dispensation in any civilized society. The role of witness assumes additional significance in adversarial systems where the onus of proving the case lies on the prosecution and witness of prosecution become an important part in the pursuit and establishment of the truth. “Whenever man commits a crime, heaven finds a witness,” says Edward G. Bulwer. The witness is considered a friend andsupporter to the cause of justice, their conduct, each statement has the power to change the course of the case. The Black law dictionary defines a witness as “a witness is one who sees, knows or vouches for something or one who gives testimony under oath or affirmation in person or by oral or written deposition or by affidavit.”

In the case of Swaran Singh v. the State of Punjab, Wadhwa J mentioned, “A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that, witnesses have required whether it is direct evidence or circumstantial evidence.”

Section 118 of Indian evidence Act, 1872 elucidates that all persons are competent to testify unless the court considers them unfit to understand the questions put to them, or giving rational answers to those questions due to their state of mind, tender age, disease, extreme old age etc. Further, the Section 119 of the Indian evidence Act states that “A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.” Witnesses are an integral part of a case and justice delivery system, that’s why statutes and legislations have incorporated special provisions concerning them, so that justice can be administered efficiently and in an impartial manner. 

The significant aspect of a fair trial is the obligation of the witnesses to give evidence in the case. Despite being eyewitnesses in the case, as can be observed in Jessica Lall murder case, Best Bakery case, etc. Witnesses are hesitant to testify in the court of law, due to incessant threats, fear of injury, or possible death, and this led to turning them, hostile witnesses. The hostile witnesses are now becoming one of the major impediments in the criminal justice delivery system.

Meaning of Hostile witnesses

According to the Black law dictionary, a hostile witness is “a witness who is biased against the examining party, who is unwilling to testify, or who is identified with an adverse party.”

In India, the term ‘hostile witness’ is not defined in the Indian evidence act, 1872, Code of criminal procedure 1973, or any other law in force. In the case ofDadabuddappa Gouli vs Kalu Kanu Gouli And Another, the Karnataka High Court stated that the “witness is hostile if he tries to injure the party’s case by prevaricating or suppressing the truth.” But a witness cannot necessarily be called hostile if its evidence goes against the case of the prosecution and favors the accused. In the case ofKaraj Singh vs Amarjit Kaur and ors, the Punjab & Haryana court stated that “the distinction must be drawn between the true witness and the hostile witness. A mere fact that the witness has given some unfavorable evidence is not enough to declare him as a witness ‘adverse’.” The courts in various cases also opined that the likelihood of the witnesses turning hostile with unpredictable regularity due to threats, manipulation, or coercion is the cause of great concern.

In the case ofAneek Singh vs State of Uttar Pradesh, the Court observed that “We find that it is becoming a common phenomenon, almost a regular feature, that in criminal cases witnesses turn hostile. There could be various reasons for this behavior or the attitude of the witnesses. It is possible that when the statements of such witnesses were recorded under Section 161of the Code of Criminal Procedure, 1973 by the police during the investigation, the Investigating Officer forced them to make such statements and, therefore, they resiled therefrom while deposing in the Court and justifiably so. However, this is no longer the reason in most cases. This trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations.”

 

Fairness of trial for the accused as well as the victim

Article 10 of the universal declaration of human rights states that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and any criminal charge against him”.Article 14(2) of the international covenant on civil and political rights recognizes that accused to be presumed innocent until proven guilty. Judiciary in India has interpreted the right to a fair trial as a fundamental right under Article 21of the Indian Constitution. It has been acknowledged that denial of fair trial amounts to the denial of basic human rights. A fair trial encapsulates the principle of the independent, impartial, and competent judiciary, right to legal aid, knowledge of accusation et al. Witnesses are the essential ingredients of the criminal trial, for it is the testimonies of the witnesses, which assist the court to establish the guilt of the accused.

The ability of witnesses to cooperate with law enforcement agencies and judicial settings and give truthful testimony is essential for the administration of justice. Malimath Committee on reforms on criminal justice 2003 stated that “by giving evidence relating to the commission of an offence, he performs a sacred duty to assist the court to discover the truth.” In the case ofState (NCT of Delhi) vs Shiv Kumar Yadav & Anr, the Supreme court stated that “It is further well settled that fairness of trial has to be seen not only from the point of view of the accused but also from the point of view of the victim and society.” Therefore, it is inherent to the principle of a fair trial that there should be free and independent witnesses, produced before the court of evidence.

Role of State in the Witness Protection

“A man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences,” says Whittaker Chambers.

For the last many years, in India, the criminal justice system has been facing traumatic experiences of witnesses turning hostile and it is happening very frequently. The hon’ble court in various cases such asNHRC vs the State of Gujarat;PUCL vs Union of India;Sakshi vs Union of India;Zahira Habibullah Sheikh vs State of Gujarat have stated that the witnesses turning hostile due to threats, manipulation, or inducement by the accused and emphasized on the issue of witness protection in India.

In the case ofSwaran Singh vs State of Punjab, the Wadhwa J. opined on conditions of witnesses by stating that:

“The witnesses are harassed a lot. They come from distant places and see the case is adjourned. They have to attend court many times on their own. It has become routine that the case is adjourned till the witness is tired and will stop coming to court. In this process lawyers also play an important role. Sometimes a witness is threatened, maimed, or even bribed. There is no protection for the witnesses. By adjourning the case the court also becomes a party to such miscarriage of justice.”

InMahender Chawla and Ors. vs Union of India (UOI) and Ors, the Apex court stated that:

“It hardly needs to be emphasized that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State.”

The pertinent point is witnesses turn hostile because they do not get appropriate protection from the State. Another major issue is that the safety of their family members, the witnesses often receive threats against their family members and the seriousness of the threats depends on the background of the accused. More often crucial witnesses get threatened or injured before testifying in court. If these situations persist the witnesses will not come forward to depose unless they are guaranteed protection from the law.

In the case ofZahira Habibullah Sheikh vs State of Gujarat, the Hon’ble Supreme court stated that “As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every state has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law.” The state needs to take into consideration the fact that the accused can retaliate against the witness and act accordingly by giving protection to the witness and its family members.

The ultimate aim of the judicial system is to arrive at the truth and dispense justice, and the eyes and ears of the justice must be protected so the interests of justice do not get incapacitated.

Witness Protection in India

The first-ever reference to the need for witness protection in India was mentioned in the 14th Law Commission in India report in 1958. Further, the subject of witness protection was mentioned in the 154th and 178th reports of the Law Commission of India. The 198th Law commission report which was published in 2006, was titled “Witness Identity Protection and Witness Protection Programmes, 2006” and it extensively discussed the issue of witness protection in India.

Further, the statutes likeWhistle-blower’s protection, Act 2011,Protection of Children against Sexual Offences Act, 2012,Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 andJuvenile Justice (Care and Protection of children) Act, 2015 also have provisions for safeguarding witnesses against the threats. In 2006 legislature introducedSection 195Aof the Indian Penal Code, making intimidation of witnesses a criminal offence. However, there was no formal statute or programme which was in place addressing the issue of witness protection holistically.

In 2018, the Central government finalised the witness protection scheme, in consultation with the National Legal Services Authority. The Hon’ble Supreme Court in its judgement inMahender Chawla and Ors vs UOI and Ors held that considering the absence of any statutory regime concerning witness protection, the scheme was duly adopted and declared to be law under the Art. 141of the Indian Constitution and directed the States and Union territories to implement the witness protection scheme, 2018.

The scheme aims to provide safety and protection to the witnesses, it included categories of threat perception i.e., “Category A – Where the threat extends to the life of witness or his family members, during investigation/trial or thereafter; Category B – Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter; Category C – Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s reputation or property, during the investigation/trial or thereafter.” As per the scheme, the origin of a witness protection order is to apply for it. Further, clause 5 of the said scheme mentions that the application can be filed in the prescribed form before the competent authority of the concerned district where the offence is committed through its member secretary. The scheme has a provision for the creation of a state witness protection fund (Clause 4), Clause 6 of the scheme directs the Additional Commissioner of Police/ Deputy Commissioner of Police in charge of the concerned Police Station to prepare ‘Threat Analysis Report’ based on the application received for the witness protection and depending upon the urgency of threat the competent authority can pass an order for interim protection of witnesses and their family members and the witness protection measures and to take witness protection measures mentioned in clause 7 of the scheme which includes mail and telephone calls, escort the witness to and from the court, holding in-camera trials, regular patrolling around witness’s house and any other form of protection that can be considered necessary. The scheme also has provisions regarding the protection of identity (clause 9), change of identity (clause 10), relocation of witness (clause 11), confidentiality and preservation of the records clause (13), as per clause 12 every state should give wide publicity to the scheme and it is incumbent on the IO and the court to inform to the witness about the existence of this scheme.

Conclusion

Though, the witness protection scheme 2018 is the right step in safeguarding the witnesses and making our criminal justice system robust. But, there are some lacunas in the scheme; such as, the protection envisaged in the bill is for only three months at a time, the protection order under the scheme seems to completely rely on the TARs (threat analysis report) which is created by the concerned police officers who are often prone to corruption, political or superior pressures et al. further, the scheme envisages the confidentiality of the witness and protection of records, but if there is a violation of these provisions there is no any penal sanctions.

It is right to state that the witnesses coming forward and deposing without fear or favor in the court of law is the edifice of administration of justice. India has come a long way in ensuring safety and safeguarding the witnesses. The criminal justice system has evolved to consider the safeguarding of witnesses as a paramount duty. However, the absence of a statutory mechanism with adequate safeguards with strict penal sanctions may lead to hampering the intended outcome of this scheme, which came into effect by judicial process. Thus, for the swift and efficient administration of justice now it is time for the State to bring comprehensive legislation regarding witness protection in India.

Authored By: Anshu Singh Rathore who is a 3rdYear, B.A. LL. B (Hons.) Student of VIT School of Law, Vellore Institute of Technology, Chennai.

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