A STUDY ON PROTECTION OF WITNESS UNDER INDIAN EVIDENCE ACT
From the past few years, we can see that the crimes and criminal behavior in the human beings are increasing day by day. In the process of solving criminal cases the courts undergo trail in which witness play a vital role in determining the final outcome in any criminal case. Due to this reason the parties in most of criminal cases face threats which results turning them “Hostile”. Though there are no specific laws for the protection of witness but there are some witness protection programs all over the world. But still in India there are so many cases in which the witness turns Hostile. This paper discusses about the concept of Witness protection, and about witness protection programs in few countries. Further it analyses the present scenario of witness in India and the witness protection in India. And also, the concept of Hostile witness and the evidentiary value of hostile witness in the Indian Legal System.
Keywords: Protection of Witness, Hostile Witness, Witness Protection Laws
The term witness refers to an individual who is important with the end goal of examination, inquiry or trail in any serious offences in which they are required to produce any record during investigation, enquiry or trail. In the case of “Ms. Neelam Katara Vs. Union of India”2, the High Court of Delhi defined witness as “Witness is a person whose statement has been recorded by the investigating officer under section 161 of Criminal Procedure Code 1973, pertaining to a crime punishable with life imprisonment or death. “The edifice of administration of justice is based upon witness coming forward and deposing without fear or favor without intimidation in the court of law. If the witness is giving statement under fear or favor or intimidation, the foundation of administration of justice not only gets weakened, but it may even get obliterated.”
From the words of Bentham, we can hear that “Witness are the eyes and ears of justice”. Influential people in most of the cases where heinous crimes take place try to threaten witness and destruction of their property in which the witness try to hide or they may turn hostile believing that there is no proper protection for witness from either judiciary or from the government. At present India wants a witness protection program that can promise that it protects the witness in all kinds of situation and to ensure free and fair justice in the world.
In the case of “State of Gujarat Vs. Anirudh Singh”3, the Apex court held that “It is the salutary duty of every witness who has the knowledge of the commission of crime to assist the state in giving evidence”.Witness plays a major role in proving the facts of the case and also witness becomes the foundation for building justice and equity in order to ensure free trail.
In the case of “Nahar Singh vs. Union of India”4, Free trail is also recognized as Fundamental Right emerging under article 21 of the Indian Constitution. Therefore, witness play a major role in the process of trail whether it is a civil trial or criminal trial.
In the case of “Zahira Habibullah Sheikh Vs. State of Gujarat”5, the supreme court held that if the witness got threatened or forced to give false evidence that would not result in Free trail.
The statement given by the witness helps the court to decide the case on merits and facts based on the circumstances. Also, by the statement of witness in heinous crimes may lead to acquittal or conviction of the accused. A person who commits a crime may escape punishment if no one testifies against the accused.
PRESENT SCENARIO OF WITNESS IN INDIA:
The situation of witness in Indian Legal System is very Pathetic. In most of cases especially in India the witness turn hostile by the existence of accused in which he faces pressure and death to his life. Also, at present if a witness feels threatened, he only has three avenues. They are
- He can approach the local police station and ask for protection. But the local police only provide protection after going through threat
- The witness can file a writ petition in the respective High Court and ask direction to the police for
- The witness has a chance of asking a trail court judge to order police for the WITNESS TURNING HOSTILE:
It is not quite uncommon that the witness turning hostile. The main reason for the larger number of acquittals in our Indian Legal System are due to witness turning Hostile and giving false statements during the course of trail.The Former Attorney General, Mr. Soli Sorabjee, has rightly said that “Nothing changes the confidence in public in the criminal justice delivery system more than the destruction of prosecution owing to witness turning hostile and retracting their previous statements.”
In the case of “Krishna Mochi Vs. State of Bihar”6, the Supreme Court pointed out that one of the reasons of witness turning hostile is that they do not posse’s courage to testify against the accused because of pressure and threats to their life. More over if the offenders are habitual offenders or the influential people from the government or they may possess power in some other way like political, economic etc.
In the case of “Swaran Singh Vs. State of Punjab”,7 the Supreme Court expressed the difficulty of witness in the following words:
‘A witness in a criminal trial may come from a far of place and finds that the case adjourned. He has to attend to the court a several times in the course of a trail in which the expenses for travelling his own or to his family is not that difficult to understand. It has become a fashion to have a criminal case adjourned till the witness gives up. Also, the Supreme Court expressed that the witness is not treated with respect in the court.
The mere sight of the accused may induce an element of extreme fear in the mind of the victim of the witnesses or can put up them in a state of shock. In such a situation he/she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, some arrangement should be made where the victim or witnesses do not have to undergo the trauma.8
The Supreme Court through Justice J.M Panchal has clearly explained that the role of witness in the criminal justice system. The court stated that ‘the witness plays an integral role in dispensation of justice and the protection of witness through legislative measures can go a long way in conducting a fair trial’.9
In a series of sensational cases like the BMW and Jessica Lal murder case andBest bakery case, The Human Rights Commission itself involved when the witnesses changed their statements
within the court due to lack of protection to them and their families whereas within the earlier cases, i.e., the BMW and Jessica Lal case, most of the eye witnesses didn’t open up to pin point the possible reason which compelled them to vary their stand. The fact is that the accused knows that there are no protection programs that is available to the witness, as a result he tries to threaten the witness, the administration could give him/her the requisite security cover. In the course of proving a case in order to obtain justice witnesses are the basic proof, says Pavan Duggal, a Supreme Court lawyer and expert in cyber law and technology. In such cases, when witnesses turn hostile, there’s little chance of getting a conviction. A report by the parliamentary committee on home affairs tabled in Parliament earlier this year had acknowledged that the conviction rate in criminal cases could also be as low as 10 percent due to perjury by witnesses who do so either of their own volition or under threats, allurements, or inducements from others.10
WITNESS PROTECTION LAWS IN OTHER PARTS OF WORLD:
The effects of crime on those affected can be profound. Victims can suffer physical, mental, emotional, and economic damage, some of which never recover. Victims, witnesses or their family members can be threatened or injured and threatened. One of the challenges many criminal justice systems face in investigating and prosecuting criminal offenses is obtaining such cooperation. Intimidating or threatening yourself or members of your family. These concern scan be compounded when people who come into contact with the criminal justice system are particularly at risk. For example, children due to their age and developmental maturity require special measures to ensure that they are adequately supported and protected through criminal proceedings. Those who receive adequate and appropriate care and support are more likely to work with the criminal justice system to bring the perpetrators to justice. However, weaknesses in criminal justice systems can prevent victims from accessing the services they need and may even become victims again of the criminal justice system itself.
In order to encourage witnesses to testify, a witness safety plan has been implemented to protect witnesses from criminals. However, there are few studies on the impact of witness protection programs on people’s willingness to testify.
THE UNITED STATES OF AMERICA
Witness protection was introduced in the United States of America, in the year 1970, as a legal process that was used in conjunction with the demolition plan of the criminal organizations. Until then and unwritten peace code among Mafia members- known as omertahas come as a shock, threatening death to anyone who violates standards and cooperating with police. In fact, the term ‘Protected Witness’ is usually reserved for witnesses who receive the protection program. The USA is one of the most developed official witness protection programs. The USA is one of the most developed countries and therefore has the most protected witness programs. Witness protection is confiscated by the US Marshals Service, but some provinces have their own rules of protection of witnesses by providing evidence and providing financial and employment assistance. However, due to the lack of specific guidelines in the program, the 1984 Security Reform Act was enacted which made the plan broader. More than 6600 witness and 8000 family members were assisted in process of establishing the Reform act in the first 15 years.11
In Canada, the witness protection act means these witnesses as “protectees”, a term not commonly used in other places. Groups in United States are encouraged to look for ways to protect against improper treatment by any person who reports misconduct and crime in confidence and with good reason to knowledgeable authorities. These steps are sometimes referred to as a ‘Whistle Blower’ scheme. They are very important in cases involving economic and financial crime or corruption.12
In China witness protection program was launched by Hong Kong Police in the year 1994when a received a telephonic call from police in search of change, Hong Kong Police launched a witness protection program. Also, in the year of 1998 a new plan of Independent Commission against Corruption (ICAC) was emerged. In 2000, the Protection Ordinance was enacted to
provide a basis for protection and other assistance of witnesses and persons associated with witnesses.
Protection is available to employees found in cases involving drug and drug offences for attracting a minimum of seven years imprisonment. The police commissioner should issue a certificate to the court that the person seeking for protection has not been found guilty. In1997, Section 13G was introduced to make the protection applicable to all the witnesses should their lives be at risk. In R v. L, this provision was tested in the resource of section25 (f) of the New Zealand Bill of Rights that provides for the right of interrogation of the accused. It was upheld by the court on the basis of right to cross examination was not absolute. Under Section 13C (4), a Judge may make an anonymous declaration where he is satisfied that the safety of a witness may be compromised if his identity is revealed.13
The impact of the witness protection program on the willingness of witnesses to testify was investigated, and socio demographic variables such as gender, marital status, age, employment, and education level, economic and social status were considered. According to the research 732 crime victims or witnesses. Multivariate analysis shows that gender, social status, and occupation will affect willingness to provide information. The social status of middle or upper class and the unemployed increase the likelihood of willingness to testify.
They are not statistically important predictors of the statement. This evidence shows that the Witness Safety Plan is an important tool to increase people’s willingness to testify and ensure effective investigations, law enforcement, and justice.
INDIAN LAW COMMISION REPORTS:
The 14thReport14 of Law Commission explained the term “Witness Protection” in a specific sense. In the report it discusses that specific provision has to be made for adequate arrangements for the witnesses within the jurisdiction of specific court, the travelling expenses and the daily allowances has to be paid to be witness for approaching the court in response of summons and orders.
The 154th Report of Law commission15 contains a discussion on protection and facilities to witness. The recommendation of this report was that “Witness should be protected from the outrage of the accused”. For the scope of the physical protection of witness this report does not contain any chapter. This report also discussed about the hostile witness and the remedies to prevent the witnesses turning hostile by taking the signature. If the witness is literate in giving the statement, then a copy is given to him with an acknowledgment and send copies of the statements to the respective magistrate and to the superior police officers.
The 172ndReport of Law Commission16 discussed the issues raised by the Supreme Court in the case of “Sakshi Vs. Union of India”,17After discussing the issues raised by the petitioner NGO and other Women Organizations the Supreme Court is of the opinion that a minor who has been assaulted sexually are not required to give evidence in the presence of the accused.
The 178th Report of Law Commission18again discusses the issue of witness turning hostile and it suggested an amendment that is to be inserted as Section 164A of Code of Criminal Procedure.
The Criminal Law Act 2005 (Amendment) (No.2 of 2006) suggested some important amendments to be made under the Section 195A of the Indian Penal Code, where by threatening or inducing a person is made punishable under the Indian Penal code and also some changes were made under section 154 of Evidence Act and Section 195 of Criminal Procedure Code through this amendment.
In the 198th Report of Law commission19 the commission has produced its final report on Witness Identify Protection and Witness Identify Programs in which the commission classified witnesses in to three categories. They are:
- Victims- witnesses known to accused – This category of people requires protection from
- Victim – witnesses not known to
- Witnesses whose identity is not known to accused – This category of people requires protection against disclosure of their identity.
CHALLENGES TOWARDS WITNESS PROTECTION:
In India, the courts are facing problems like costs of implementation and infrastructure when compared to other countries in the world. When we are talking about the protection of witness the costs that are required for the protection of witness will be boundless. The states play a major role and to take first step in protecting of witness and to develop a witness protection law. The major problem is that of corruption in the Administration and Judiciary. Other problem that Indian judiciary is facing is that the statements that are given by witness is to recorded by Judicial Magistrate. Practically it not possible with a lower setup of courts and staff deficient judiciary.20
Mostly witness in India, who are in a dignified life style i.e., holding a job, having a family may not intend to be act as a witness by standing in the court of law. At present in India where people are having many obligations and family to answer with, it will be most difficult for the implementation of protection programs for various reasons. Also, in India the forensic expert witness does not have any protection.
COMMENTS BY THE JUDICIARY:
The judgment that managed the part of witness’s security was in the case of Naresh Shridhar Mirajkar vs. State of Maharashtra,21 wherein protection of distribution of evidence of the witness was permitted by the High Court and later re-insisted by the Supreme Court as in any case the business interests of the observer would have been hampered.
The most historic and appropriate case that brought witness protection into focus was the Zahira Habibulla Sheikh vs. State of Gujarat.22 In this case, the Supreme Court decided to move the case from Gujarat to Maharashtra since the Court felt that the witness would not have the option to assert their statements uninhibitedly in the said state. The Supreme Court repeated “legislative measures to emphasize restriction against tampering with witness, victim or informant, have become the unavoidable and inevitable need of the day. “In Delhi Domestic Working Women’s Forum Vs. Union of India,23 the Supreme Court emphasized the support of the objectivity of the victims of assault or rape who might be the critical observers in trails
including the offense of rape. The rules for witness protection laid by the Delhi High Court in Neelam Katara Vs. Union of India,24but they didn’t manage the way where the identity of the witness can be kept secret either before or during the trail. The judgment of the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa,25 which accommodates protection of the witness from the media, doesn’t manage every one of the aspects of the issue.
WITNESS PROTECTION SCHEME, 2018:
The scope of this act discusses that witness protection is not as easy as giving a police escort for the witness up to the court room or by using modern communication technology. In more complex cases like heinous crimes and rape cases the protection of witness becomes difficult and it is the responsibility of the state and the union both to ensure the witness safety. How ever witness protection needs a witness to be viewed on case-to-case basis based upon threat perception At present in India there is no law comprehensively at the national level for the protection of witness. Keeping in view of this the Hon’ble Supreme Court has endorsed India’s first witness protection scheme drafted by the union government.
In the case of “Mahendra Chawla & Ors Vs. Union of India & Ors”,26The bench comprising of Justice A.K. Sikri and Justice S. Abdul Nazeer recognized the privileges of the witness to affirm inside the ambit of Article 21 of the Constitution and said “The right to testify in courts in a free and reasonable way with no pressure and danger at all is under serious attack today. In the event that one can’t testify in courts because of threats or different pressing factors, at that point it is reasonable infringement of Article 21 of the Constitution.”
The three categories of witness on the basis of threat are:
Category ‘A’: In the cases where the threat extends to life of witness or his family members, during investigation/trial or thereafter.
Category ‘B’: In the cases where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.
Category ‘C’: In the cases 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.
Protection might be given before, during as well as after the judicial proceeding relying upon the sort of the witness or the level of involvement or co-operation. Witness protection legislation, ought to preferably include every one of the three concerned offices – police, government and legal executive. The government should show a political will to carry out fundamental Acts, the legal executive can investigate the lawful perspectives and the execution might be depended to the police.
In order to constitute the provisions for the false identities and relocation, a witness protection team must be arranged in the way that this team should be independent and doesn’t depend on any other authority. The witness in all the crimes not only including heinous crimes and, in all cases, where witnesses are involved should be treated with due respect and dignity and free from abuse or sexual harassment or intimidation. Witness should also be given access to all the details of the case like, the status of investigation and including prosecution details.
As of our opinion, even though there are laws and witness programs the protection of the witness and their family members becomes difficult for the states in order to ensure law and order is maintained. We suggest that proceedings that are involved should be conducted in In camera proceedings because in most of the cases the witness may be a girl or a minor and they require special protection. Section 352 Criminal Procedure Code, 1973 says that the judge may by reasonable interest for the protection of witness may take leave from the court and order special protection by the separate law.
Witness plays most important role in the part of justice. He is one of the major components in which the total merits and facts depend on his statement. Whittaker Chambers once said that “A witness is a man whose life and faith are so completely one that when the challenges come to step out and testify for his faith, he does so, disregarding all the risks, accepting all the consequences.”27
From the recent years in India terrorism and organized crimes have grown and becoming stronger, it becomes difficult for the witness to give his statement in a fair manner. It is very important that the witness should believe in India criminal Justice system in which the government are providing witness protection schemes all over the world in the view of witness protection.
1 V. Sai Sri Harsha & Nidhi P Gopan , BBA LLB, Alliance University, Bengaluru,
2ILR (2003) 11 Del 377.
3(1977)6 SCC 514.
4(2011)1 SCC 307.
5(2006)3 SCC 374.
6AIR 2003 SC 886.
7AIR 200 SC 2017.
8Sakshi and Ors Vs. Union of India. [AIR 2004 SC 3566].
9J. M. Panchal, Vikas Kumar Roorkewal Vs. State of Uttarakhand. [(2011)2 SCC 178].
10Mamta Chatterjee, ‘Who is a Hostile Witness’ (Problem of Hostile Witnesses), available at http://www.legalserviceindia.com/articles/hostile_w.htm(Accessed on 14 April 2021).
11 Tanuj Bhushan, Witness Protection in India and United States: A Comparative Analysis, 2(1) INTERNATIONAL JOURNAL OF CRIMINAL JUSTICE SCIENCES 13(2007), available at http://webcache.googleusercontent.com/search?q=cache:http://www.sascv.org/ijcjs/tanujpranatijcjsjan2007.pdf(Ac cessed on 14 April 2021).
12Dr. Jayashankar K.I. Right of Witness Protection ( A Comparative Overview), Bharati Law Review, http://docs.manupatra.in/newsline/articles/Upload/15752492-FEFB-45AA-B52D-9CE9472B492D.pdf (Accessed on 15 April 2021).
14 14th Report of the Law Commission of India, Reform of Judicial Administration (1958 ).
15154th Report of the Law Commission of India, Code of Criminal Procedure, 1973 (Act No. 2 of 1974) (1996).
16 172nd Report of the Law Commission of India, Review of Rape Laws (2000).
17 2004(6) SCALE 15.
18 178th Report of the Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal (2001).
19198thReport of the Law Commission of India, Witness Identity Protection and Witness Protection Programme (2004).
20Ankit Kejriwal, Need For A Witness Protection Programme: The Solution To The Problem Of Hostile Witness, available at http://www.legalserviceindia.com/article/l259-Witness-Protection-Programme.html(Accessed on 16 April 2021).
211966 SCR (3) 744.
22Supra at note 4.
23(1995)1 SCC 14.
24Supra at note 1.
25AIR 1988 P&H 95.
26 Writ Petition (Crl.) No. 156 of 2016.
27Abhyankar Girish, Witness Protection in Criminal Trail in India, Symbiosis International University, https://shodhganga.inflibnet.ac.in/handle/10603/145311 (Accessed on 19 April 2021).