GS Paper II

News Excerpt:

The Supreme Court-appointed special investigation team (SIT) re-investigating nine 2002 Gujarat riot cases has withdrawn police and paramilitary protection to all the witnesses; the only exception has been made for Zakia Jafri.

About the witness:

• A witness may be defined as a person who gives evidence or deposes before a judicial tribunal.
• The term "witness" has not been defined anywhere in the Criminal Procedure Code.
• Any court, however, at any stage of inquiry, trial or other proceeding under the Criminal Procedure Code, can summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine such person if his evidence appears to be essential to the just decision of the case.

Need to protect witnesses:

• Judicial Interpretation:

• • In Swaran Singh vs. State of Punjab (2000), the SC observed that a criminal case is built upon the edifice of evidence that is admissible in law, and for that, witnesses are of paramount importance.

• Law Commission:

• • The 14th report of the Law Commission, 1958, highlighted the tribulations commonly encountered by witnesses, like difficulty accessing courts owing to expenses, travel, time, and frequent adjournments.
  • The Law Commission’s 154th and 178th reports also discussed various facets of witness protection.
  • Based on the suggestions made in the 178th Report, the Criminal Law (Amendment) Bill, 2003 was proposed.

• Other factors:

• Witnesses in India are mistreated, given no facilities, and face the danger of bodily harm, death, abduction, and threats, besides other forms of mental and physical harassment.
• Several witnesses also turn hostile. A hostile witness does not tell the truth when the party calls him.
• In cases like the Jessica Lal murder case or the Salman Khan hit-and-run case, the prosecution failed after witnesses turned hostile.

Significance of witness protection:

• The primary objective of a criminal justice system is to guard society against criminal conduct, deter law-breakers and sanction those who violate or attempt to violate the laws of the land.
• An effective criminal justice system constitutes a methodical investigation to identify the course of action leading to the crime.
• The mechanism of evidence through systematic collection and presentation in a court of law, in civil and criminal matters, enables the adjudicatory bodies to dispute or prove a fact effectively.

Efforts made to protect witnesses:

• The Criminal Law (Amendment) Bill, 2003 proposed to amend sections 161, 162 and 344 of, and to insert new sections 164A and 344A in, the CrPC.
• The bill made it mandatory for police to record witness statements before a magistrate.
• However, nothing much happened regarding the bill as the government fell out of power in 2004.
• The Justice VS Malimath Committee Report (2003) recommended enacting a law to protect witnesses and their families, following laws in the USA and other countries.
• The Delhi government also notified a witness protection scheme in 2015.
• In 2017, the SC asked the Centre why witness protection rules along the lines of the NIA Act 2008 hadn’t been framed.
• Protections in laws such as Section 195A IPC, Sections 151–52 of the Indian Evidence Act, and Section 327 CrPC, like criminalising threatening of witnesses, prohibiting parties from asking insulting questions to witnesses and empowering magistrates to shield court proceedings from the public.
• In 2018, the SC drew up a nationwide Witness Protection Scheme.

Witness Protection Scheme 2018:

• The Supreme Court in Mahender Chawla vs. Union of India (2019) observed that witnesses turned hostile due to inadequate state protection and directed the Centre, states, and UTs to enforce the scheme until a law is enacted.
  • Consequently, the Centre drew up the scheme.
• Categories of witness:
  • Category 'A' - Where the threat extends to the life of a witness or his family members during the investigation/trial or thereafter.
  • Category 'B' - Where the threat extends to the safety, reputation, and 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.
• Procedural framework:
  • An application is made by a witness, their family member, lawyer, or the concerned IO/SHO/SDPO/Jail Superintendent before “a competent authority through its Member Secretary”.
  • A “Threat Analysis Report” is prepared and submitted by the Head of the Police in the investigating district concerning the seriousness and credibility of the threat.
    • It details the nature of threats, analyses the extent of the threat, categorises threat perception and suggests witness protection measures like ensuring witnesses and accused don’t come face-to-face during the probe, identity protection, relocation of witnesses, confidentiality and preservation of records, and recovery of expenses.
  • Depending on the urgency, the “competent authority” can pass orders for interim protection.
• Competent Authority under the Scheme:
  • It has been defined as a Standing Committee in each district chaired by the District and Sessions Judge, with the Head of the Police in the District as Member and Head of the prosecution in the District as its Member Secretary.
• State Witness Protection Fund:
  • It has been proposed under the Scheme.
  • The expenses incurred while implementing the Witness Protection Order shall be met.
  • The sources of the fund are -
    • Budgetary allocation, Fines ordered to be deposited by the courts/tribunals in the Witness Protection Fund; Donations and contributions from International/National/Philanthropist/Charitable Institutions/Organizations and individuals permitted by the Government; and Funds contributed under Corporate Social Responsibility.

Conclusion:

The Witness Protection Scheme, 2018, is the first attempt at the national level to holistically provide for the protection of the witnesses, which will go a long way in eliminating secondary victimisation. The witnesses, being eyes and ears of justice, play an important role in bringing perpetrators of crime to justice. This scheme attempts to ensure that witnesses receive appropriate and adequate protection. This will go a long way in strengthening the country's Criminal Justice System and consequently enhance the National Security Scenario.