Witnesses protection law in India

 

Dr. (Smt.) Abha Sinha

Asst. Professor, Department of Law, T.C.L. Govt. P.G. College, Janjgir

 

 

INTRODUCTION:

Witnesses protection program and witnesses protection  laws are simply the need of the hour. In fact, it is the absence of these laws that has helped in further strengthening the criminals and offenders. But  ironically in India, such programs and laws are a far cry from reality. Where leave alone protection, the witnesses is not even treated with respect or asked for water.

 

A criminal case is built upon the edifice of  evidence that is admissible in law. For that, witnesses are required, whether it is direct evidence or circumstantial evidence. Today the witnesses are a harassed lot. Not only that the witnesses is bribed, threatened, abducted, even maimed or done away with. For all these reason are many more, a person abhors from becoming a witnesses.

 

Meaning and concept of witnesses protection :

The word “witnesses” means a person who has perceived certain fact and able to testify the fact reasonably. In other words. Witnesses is a person who has seen or perceived something as is therefore competent to give evidence  concerning it(1) In Brief witnesses is someone who gives information or who participate in an incident of crimes and its causation. Such persons are relied by the prosecution because the person is helping the law enforcement agencies. In Neelma Katara case Delhi High Court held that(2) “Witnesses’ means a person whose statement has been recorded by the investigating officer under section 161 of the code of criminal procedure pertaining to a crime punishable with death or life imprisonment. The Competent Authority, on receipt of a request from a witnesses shall determine whether the witnesses requires police protection, to what extent and for what duration.

 

The statement given by the witnesses helps the court to draw the decision. It is the reason for which the importance of the witnesses is well recognized and therefore they are expected to tell the truth. The court thus believes in the quality of evidence that has been produced before it. It Never believes in quantity of witnesses. It is said that witnesses are weighed not numbered. Therefore quantity of witnesses is not taken for consideration.

 

 

However, good witnesses, who can testify the fact beyond reasonable doubt, hold paramount importance in the criminal justice system of any country. Bentham said, “witnesses are the eye and ears of the justice. Thus the witnesses play crucial role in bringing offender to forefront. The successful conclusion can be drawn in criminal proceeding on the basis of co-operation received from the witnesses. Justice Wadhwa said in a case(3) “A criminal case is built on the edifice of evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Similarly, the importance of the witnesses of the witnesses can be well marked from the following statement of justice Mallimath. He  said.(4)  By giving evidence relating to the communication of an offence, he perfrom a sacred duty of assisting the court to discover the truth. It is because of this reason that the witnesses either takes an oath in the name of god or solemnly affirms to speak the truth, the whole of truth and nothing but truth. He/she perfroms an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross-examination and can’t refuse to answer question on the ground that the answer will incriminate him. “He has to  give correct information to the court. In case he fails to discharge public duty he shall be liable to punishment for giving false evidence(5) Looking to the various factors, mainly the witnesses are facing serious challenge and intimidation, witnesses deserve special treatment and protection. Therefore, the protection to the witnesses and protection to the other relative of the witnesses is recognized. It is to be noted that many civilized countries of the world have enacted laws for the witnesses protection.

 

Condition of witnesses in India:

In India, the condition of witnesses is very precarious, so far as there care and protection is concerned. The witnesses and their family members never feel secured and in many cases they are subjected to life threatening intimidations. The vulnerability of the witnesses is so urgent that, we deserve to have law. The condition of witnesses can be well ascertained from the following remarks of justice Wadhwa. He said(6) “the witnesses are harassed a lot. A witnesses in a criminal trial may come from a far off place to find the case adjourned. He has to come to the court many times and at What cost  to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witnesses tires and he gives up. It is the game of unscrupulous lawyers to get adjournment for one excuse or the other till a witnesses is won over or is tired, Not only that witnesses is threatened; he is abducted he is mained; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A witnesses is then not treated with respect in the court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witnesses, it is the administration of justice that suffers. Then appropriate diet money for a witnesses is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witnesses (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish state machinery. Each trail should be properly monitored. Time has come that all the courts, district courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trail.

 

Perjury has also become a way of life in the law Courts, A trial judge knows that the witnesses is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of criminal procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of evil of perjury, the court should resort to the use of the provisions of law as contained in chapter XXVI of the Code of Criminal procedure… “The observation of the court depicts clear picture of Indian scenario on the necessity of the witnesses protection programme.

Main Difficulties of witnesses:

Witnesses are subjected to severe hurdles during administration of the criminal Justice in India. They may  be summerised as under-

1.      Witnesses come to court from remote places. He is not paid for his travelling and other expenditure.

2.      The witnesses never gets proper treatment. Sometimes he never gets a seat  and not received by the court. There is not designated place with proper management for rest and waiting. There is no provision for drinking water or toilet facility. They do not find other amenities like food and refreshment.

3.      Adjournments of cases demoralize the inner strength of the witnesses and causes frustration.

4.      Witnesses has to face hurdles of cross-examination and often subjected to harassment by way of unpleasant unnecessary question.

5.      Witnesses and his family members are subjected to threat and criminal intimidation of various types.

6.      There is enough scope to be gain over by the opposite party, either by allurement or intimidation.

7.      There is no security and there is fear psychosis. Mental unrest always cast shadow in the mind of the witnesses.

8.      Harassment during police interrogation is also well marked.

9.      Witnesses has to sacrifice his own business and valuable time. He has to sacrifice the whole day in the premises of court. He is not properly compensated for this.

10.   Witnesses does not have any award or reward, but he has to receive mental and physical pain.

 

All these above factors lead the witnesses to gave false statement or to become a hostile witnesses. In our criminal justice system we may find that 80% cases are ended with acquittal. The Best Bakery case(7)And jessicalal case(8) are the glaring example in which the witnesses are gained over and witnesses have changed their statements in the court due to lack of protection to them and their family members. Following the Godhra carnage and Best Bakery case-National Human Rights Commission augmented following statement for the safety of the witnesses and ensuring fair trail.

·        The concept of a fair trial is a constitutional imperative recognized in Articles 14,19,21,22 and 39-A, as well as by the Code of criminal Procedure 1973.

·        Article 14 of the international Covenant on civil and political Rights, which has been ratified by India, and is now a part of the Protection of Human Rights Act (1973), recognizes the right to fair trial as a human right.

·                                                                                                                                                                                                             When the right to fair trial is violated, it not only violates certain Fundamental Rights Under the Constitution, but also violates  basic human rights.

·        Whenever a criminal goes unpunished, it is the society at large that suffers, because victims get demoralized and criminals are encouraged.

India has high rate crime and low rate conviction. It is unfortunate to note that India has not fromulated any law for witnesses protection. But most of the developed and developing countries have enacted comprehensive witnesses protection law. There are also specialized witnesses protection programmes which deal with a slightly different kind of protection to witnesses and this refers to their protection outside Court,

 

Witnesses protection Law in India:

In India, there is no special law relating to witnesses protection, supreme courts and High Court have given their valuable suggestion as follow, In Neelam Katara’s (9) case the Honble High Court of Delhi issued following guidelines-

1)     Member Secretary, Delhi Legal Services Authority would be competent authority who on, receipt of a request on a witnesses, decide “whether a witnesses requires protection, to what extent and for what duration the court said.

2)     However the protection would be available only to witnesses who were to depose in casese punishable with death sentence of life imprisonment.

3)     In deciding whether to grant protection to a particular witnesses, the Competent Authority “shall” take into account the nature of the risk to the security of witnesses emanating from the accused or his associates and the nature of probe or the criminal case.

4)     The authority shall also consider the importance of the witnesses and the value of evidence given or agreed to be given by him/her besides the cost of giving protection to him or her.

5)     While recoding the statement of witnesses under Section 161 of the Cr.P.C., it would be the duty of the investigating officer to make the witnesses aware of these guidelines and also the fact that in case of any threat he/she can approach the competent authority.

6)     Once the competent authority decides to extend the protection to a particular witnesses, it “shall” be the duty of the police Commissioner to provide protection to him or her.

 

The report of Justice  M. Jaganndha Rao, Chairman, Law Commission of India, in 2004 and appreciated the case of Zahira (10) it said that, the Supreme Court dealh with ‘witnesses protection’ and the need for a fair trail, whereby fairness is meted out not only to the accused but to the victims/witnesses. On the question of ‘witnesses protection’, the court observed “if  the witnesses get threatened or are forced to give false evidence that also would not result in a fair trail. “Witnesses, as Bentham said, are the eyes and ears of justice, Hence, the importance and the quality of witnesses controls the trial process. If the witnesses himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witnesses being not in a position to testify for reasons beyond control,  to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the court on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of these in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth  and realties coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of state representing by their presenting agencies do not suffer… there comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the court and justice triumphs and that the trial is not reduced to mockery. The state has  a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage  and could wield muscle and money power….. As a protector of its citizens, it has to ensure that during trail in court, the witnesses could safely depose truth without any fear of being haunted by those against whom he has deposed. “Legislative measures to emphasize prohibition against tampering with witnesses, victim or infromant, have become the imminent and inevitable need of the day. “The Witnesses protection programmes are imperative as well as imminent in the context of alarming rate of summersaults by witness with ulterior motive and purely for personal gain or fear for security. It would be a welcome step if something in those lines is done in our country. That would be a step in the right direction for a fair trial. “From the above discussion it is highly necessary to legislate a law for witnesses protection in India without any delay.

 

Suggestion:

After going through the above discussion following suggestion may be taken for consideration to have a better and effective witnesses protection law in India.

ü  The Director of prosecution may be given power to provide protection to the witnesses;

ü  The identity of witnesses may be kept confidential throughout the trial and thereafter;

ü  The closed door trial may be made or trial by video conferencing may be arranged;

ü  No exposure of the witnesses to be made through media or otherwise;

ü  Physical safety of the witnesses and their close relatives be made

ü  Compensation may be provided to the witnesses, who easily turn victim of the present adjudication system.

 

CONCLUSION:

It may be concluded that India need an urgent witnesses protection law as recommended by the law commission and honorable Supreme court. In the absence of such law witnesses are turning hostile. There is high need to have stringent laws against persons giving false evidence, it is on basis of the evidence given by witnesses that the state initiates the prosecution process. However, during the trial of those accused, the witnesses ( on the basis of whose evidence the prosecution was initiated), turn hostile resulting in the acquittal of the accused. Many scholars express that providing  ‘Z’ security to the witnesses is impossibility and a costly affairs for the country like India. If legislative mechanism not developed soon, criminal administration of Justice will collapse.

 

REFERENCES:

1.       The new international website’s dictionary, CBS pub.2005 at 851

2.       Neelam Katra Vs Union of India ( Crl. w.No-247 of 2002) on 14.01.2003

3.       Swaran Singh Vs. State of Punjab (2000) 5 sec at 678

4.       Committee on refrom of Criminal Justice system- vol. 1 page. 151

5.       Section 190,193 to 195 of IPC

6.       Supra – 2

7.       Zahira Habibulla Sheikh and another Vs. State of Gujarat and other (2004)4 sec 158

8.       Jassicalal’s case Manu Sharma was acquitted due to hostile witnesses

9.       Supra note 2

10.     Zahira Sheikh 2004(4) scale 373