“Witnesses are the eyes and ears of justice.”

                                                                                   -Jeremy Bentham

Undeniably, witnesses play a crucial role in the legal proceedings to meet the ends of justice. Still, the subject of witness protection is not given much priority in India, which is absolutely unfair. It is well known that both the parties to the litigation are well informed that a witness in their case can hold the verdict in their favour, consequently, they either attempted to blackmail that person or bribed to stay quiet or change his/her version in a case. Although there is a lack of a statutory mechanism for the protection of witnesses in India, still there is a mechanism that has been set by the judiciary through its various verdicts from time to time. Before digging into deep, let’s put shine some shine on the basics of the aforesaid concept.

Who is called a witness?

In ordinary language, a witness is a person who has seen the crime happening and he/she is able to express it before the court.  In a legal context, as per Section 118 of the Indian Evidence Act, the witness is defined as a person who is competent enough to understand the questions put forward by the court of law.  Therefore, any person could be a witness if he/she has the ability to understand and answer the questions asked by the court.

According to Black’s Law Dictionary, the term witness has been defined as “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes a transaction.”

Who are vulnerable witnesses?

It is often understood that only child comes under the category of vulnerable witness, but the said notion was declined by the Hon’ble Apex Court in Smruti Tukaram Badade v. State of Maharastra and Anr., Special Leave Petition (Crl) No. 4480 of 2019, that term vulnerable witness might not be constrained to the child witness. Broadly speaking, certain people who are not able to testify or give evidence to the court because of some difficulties including mental disorder, physically handicapped, or are unable to cope due to intelligence impairments, and are less than 18 years of age.

Whether a child can become a witness?

The answer to this question is affirmative if the court thinks that a child is able to answer the questions put forward rationally, but he/she must not be a toddler. The Hon’ble Supreme Court in Dhanraj and Ors. Vs. State of Maharashtra 2002(4) R.C.R. (Criminal) 157, held that a child of class VIII who is not very small will be having enough intelligence to understand the facts and answer the questions put forward. Hence, the testimony of the child was heard.

Witness Protection in India: –

This becomes an intense issue in the country. According to the 4th National Police Commission Report, 1980, prosecution witnesses in India are turning hostile due to pressure and coercion by the accused and therefore, a regulation on the exploitation of witnesses is necessary. Consequently, it can be assumed that the state of witnesses in India is not good enough. Similarly, in the case of Mahendra Chawla and Ors. Vs. Union of India and Ors., 2019 (1) R.C.R.(Criminal)268, the Hon’ble Top Court while issuing directions to the Centre, States and Union Territories to enforce the Witness Protection Scheme, 2018, observed as under 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. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offenses, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’.”

What is the Witness Protection Scheme, 2018?

Being the first legal enactment set up by the Indian Government, the Witness Protection Scheme, 2018 received approval by the Hon’ble Supreme Court on 06th December 2018. The sole objective of the scheme is to protect and safeguard the interests of the witnesses. Besides this, the Scheme provides the Witness Protection Fund, which is created to bear expenses arising out of arrangements made for a witness protection order. For unversed, the witness protection order includes a list of protective measures for the safety of a witness, which is passed by the competent authority. Moreover, the Scheme ensures the complete identity protection of the witnesses along with family members during the investigation.

What are the types of protective measures provided in the Scheme?

Some of the protective measures provided in the scheme are given below: –

  • To make sure that witness and accused are not met each other during investigation and trial.
  • To provide an unlisted mobile number to the witness by contacting a telephone company.
  • To give adequate security to the witness in form of body protection, regular patrolling, and by installing CCTVs cameras outside the witness’s house.
  • To provide the facility of govt. conveyance to attend the court hearing.
  • To hold in-camera trials.
  • To use specially designed courtrooms equipped with software which are sufficient to conceal the identity of the accused for e.g. with options to transform the voice and face.
  • To grant suitable financial aid to the witness from the Witness Protection Fund.
  • Repositioning of the witness based on the Threat Analysis Report.

What is the procedure to get protection under the Scheme?

The process to seek protection is summarized below in steps: –

  • Initially, the witness seeking protection has to file an application before the competent authority of his/her area through the Superintendent of Police along with supporting documents.
  • Thereafter, on receipt of the application, a Threat Analysis Report will be prepared by the Commissioner of Police and the same shall be forwarded to the competent authority within 05 working days.
  • If an imminent threat is found then an interim order for the protection of witness along with family members can be passed.
  • The hearing of the application for protection is held in-camera by the competent authority.
  • Lastly, the implementation of a protection order is made by the head of State/UT Police.

Notably, there are three categories to determine the threat level perception. The Threat Analysis Report contains a perception according to the situation and provides some solutions for the safety of the witness.

What rights are available to the witnesses?

Unquestionably, there is a need for some statutory enactment regarding the safety of the witness, so that witnesses can claim certain rights in order to be protected themselves. However, the multifarious reports presented by Law Commission from time to time as well as the Witness Protection Scheme have identified some privileges that a witness possesses in India, which are enshrined below: –

  • To get a secure waiting place at the time of the court hearing.
  • To obtain information regarding the status of investigation and prosecution of the crime.
  • To be treated with dignity and privacy.
  • To be protected from danger and oppression.
  • To give evidence without disclosing identity.
  • To get a safe place to live and transportation to attend court hearings.

Markedly, it is mandatory for Investigating Officer/Court to apprise each and every witness about the Witness Protection Scheme and the rights granted under the Scheme.

Conclusion: –

The Witness Protection Scheme, 2018 is an appreciable step towards the plight of the witness who may have to undergo a rash path in order to corroborate the case in favour of the victim. Howbeit, this attempt to bring the protection of witnesses under the ambit of law could not be implemented successfully because of a lack of adequate resources in some states. Regardless of this, the enforceability of the protection order has been made limited to only 03 months, which is not enough in cases that involve influential people.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali