WITNESS PROTECTION- A NEED FOR THE FAIR CONCLUSION

INTRODUCTION:                                                                        

Witness plays a very important role in the criminal justice system. The outcome of any trial is based on the testimony of the witness. Without his assistance, the Court cannot come to a final judgment. Protection of witness is one of the major issues in India the best example is Asaram Bapu and Vaypam are the best examples wherein not only the prime witnesses but also various journalists and other individuals who were associated with the case were killed. There are no such laws made in protection of witnesses. One of the common reasons why witnesses turn hostile is due to intimidation, threat to life and destruction of property. This eventually results in the miscarriage of justice. Therefore, there is a need to adopt a proper and effective witness protection policy in the country. Jeremy Bentham one of the great English philosophers, a jurist and social reformer expressed his views and considered “witnesses as the eyes and ears of justice”. The committee on reforms in Criminal Law headed by Justice V.S Mallimath has suggested that ―The witness should be treated with great respects and should be considered as a guest of honor[1]. The witness testimony has the power to change the course of a case. The Supreme Court in past though its landmark judgment Mahender Chawla & Ors. Vs. Union of India & Ors endorsed[2] the draft on Witness Protection Scheme, 2018 and directed the Central and State government and Union territories to enforce the scheme in letter and spirit.

PROVISIONS MADE FOR WITNESS IN INDIA:

Criminal Procedure Code 1973

  • Section 160: Attendance of witness – For effective investigation the police need to obtain information from persons acquainted with the facts and circumstance relevant to the commission of the offence. Under this section the payment of reasonable travel expenses incurred by the person for travelling shall be paid.
  • Section 284: Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice. As a general rule in criminal proceedings, the important witnesses on whose testimony the case against the accused has to be established must be examined in court and usually the issuing of commission should be restricted to formal witnesses or to such witnesses who cannot be produced without unreasonable delay or inconvenience[3].
  • Section 309: In every inquiry or trial the proceeding shall be continued from day to day until all the witness in attendance have been examined unless the court finds the adjournment of the same beyond the following day to be necessary for reason to be recorded[4].
  • Section 312:gives power to criminal court to order payment of reasonable expense incurred by complainant or witness for attending court proceedings. The amount shall be paid by the Government.

ANALYSIS ACROSS JURISDICTIONS:

Witness Protection Act, 1991 (Victoria – Australia)

In Australia, the Parliament of Victoria has enacted an Act called the Witness Protection Act, 1991 for the purposes of protection to the witnesses in criminal proceedings.

  • The term ‘Witness’ is defined under Section 3(1) of the Act which states “that a person who has given or agreed to give, testimony on behalf of the Crown in proceedings before various authorities and who is in need of protection or assistance from the state.”
  • Section 3A of the Act provides for the Victorian Witness Protection Programme. The Chief Commissioner of Police is empowered to take action for the protection of the witness and his family members under this section.

The Criminal Justice and Public Order Act, 1994 (The United Kingdom)

 In the U.K., intimidation of a witness is an offence punishable under law.

  • In order to further ensure that the anonymity of a witness remains intact there exist numerous provisions of law in the U.K. in the sense that the witness is screened in a manner that only judges/jury can see him[5].
  • Voice modulation of the witness[6] is done so that no one can recognize the voice of the witness accept judge/jury.

United States WITSEC

United States does not have a legislature but has a comprehensive Witness Security Program called the WITSEC. Which providing the witness with monetary assistance as well as assistance in the form of housing facilities, medical care, job training is a very special feature of the Witness Protection Scheme.

WHY THERE SHOULD BE WITNESS PROTECTION ACT IN INDIA? 

Asaram Bapu and VAYPAM are the best examples wherein not only the prime witnesses but also various journalists and other individuals who were associated with the case were killed. Many innocent witnesses have lost their life due to lack of effective Witness Protection mechanism in the Indian Criminal Justice System. Witness Protection mechanism in the Indian Criminal Justice System. Recently, the Central government had notified a Scheme called Witness Protection Scheme, 2018. The Scheme aims to create a sense of security and confidence in the mind of the witness so that they voluntarily come forward to assist the court by furnishing testimony. Further, the Scheme is endowed with various protective measures to defend the witness from being subjected to the harsh consequence of trial. Moreover, some special Acts like Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and Prevention of Terrorist Act, 2002 (POTA) explicitly mentioned various provisions for the protection of witnesses in serious crimes but now these Acts are repealed by Indian Parliament. In this regard countries like United States of America, United Kingdom, Australia, Canada, South Africa etc. are the best example that already have incorporated a comprehensive policy on Witness Protection in their domestic laws.

In a recent case of the custodial torture of trader P. Jayaraj and his son J.Benicks at the Sattankulam police station Revathy’s testimony was among the key factors that prompted the judges to observe two days ago that there was prima facie material to book the accused police personnel for murder.

This is unprecedented in the annals of the judiciary. When judges spoke to her over phone, they showed much concern and assured her that everyone in her family would get utmost protection. What else do a witness? It is a great gesture that will encourage everyone to come forward to tell the truth to the world about anything happening against the rights of every human being[7].”

CONCLUSION:

Our Criminal Justice system has aptly focused to protect the rights of accused, but rights of witnesses have been ignored. The Code of Criminal Procedure is in the concurrent list of Indian Constitution; hence both Centre and State can legislate on these matters. Moreover, the Supreme Court also declared the scheme as ‘law’ under Article 141/142 of the Constitution till any appropriate Central or State enactment. Article 141/142 talks about the Law declared by Supreme Court to be binding on all courts and Enforcement of decrees and orders of Supreme Court and unless as to discovery are defined under Article 141 and 142 of Constitution of India 1949. In Article 141 it is defined that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The scheme is a landmark initiative for the protection of witnesses during the course of the trial. Drafting such policies a reference can be taken from the Australian legislations, as the provision which is there in Australian legislation are very much effective in protecting the witness from treat and intimidation imposed by accused. Therefore, the Indian Parliament should also integrate such a policy through which witness could be facilitated.


[1] The committee on reforms in criminal law headed by justice V.S Mallimath. ASA 20/025/2003

[2] Mahender Chawla & Ors. vs Union of India & Ors WP (Criminal) No. 156 Of 2016.

[3] Dharmanand Pant vs. State of UP. AIR 1957 SC 594.

[4] 2013 Amendment of Section 309(1).

[5] Coroners and Justice Act, 2009, § 86 (2) (d) (The United Kingdom).

[6]Coroners and Justice Act, 2009, § 86 (2) (e)  (The United Kingdom).

[7] P.Sudhakar, HC judge speak to Revathy, Head constable is a key witness in custodial deaths case,The Hindu,3rd July 6 2020 at 4.

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