PROTECTION TO WITNESS IN CRIMINAL PROCEEDINGS- A DIRE NEED OF WITNESS PROTECTION PROGRAMMES
THIS ARTICLE WAS WRITTEN BY GAZAL TALWAR A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE WHO IS CURRENTLY PURSUING L.L.M IN CRIMINAL AND SECURITY LAWS.
The role of witness in any criminal proceeding is of paramount importance because they help in determining the final outcome of the case. It has been witnessed in various instances where the parties have been threatening the witness and compelling them to turn hostile and therefore as a result they interfere with the fair administration of justice. Seeing the plight of the witnesses it has become a need to protect the witnesses as there is a fear of them being intimidated and as a result will live in fear of revealing the truth in the court. Looking in our own country we see that India still lacks a well- functioning witness protection programme despite various attempts by judiciary to make improvement in this field.
The observations made in Neelam Katara v. Union of India & Ors [1]depicts that there are problems which are faced by the witnesses and in turn has implications in the criminal justice system. Witnesses are considered as an important part of the criminal proceedings because they provide essential leads and in absence of such it would be difficult on the part of judges to impart justice. [2]
While giving regard to treatment of witnesses, the Indian judicial system has been taking witnesses for granted. They are being summoned to the court regardless of the issue that they are not financially sound and cannot leave their family and are made to appear before the Court. On reaching the Court, some of the witnesses are told that the case has been adjourned and the respective lawyer gives them a further date for their next appearance. In the matter of Swaran Singh v. State of Punjab,[3] the Supreme Court observed:
“A witness has to visit the Court at his own cost, every time the case is differed for a different date. Nowadays it has become more or less fashionable to repeatedly adjourn a case. Eventually the witness is tired and gives up”.
The term witness in common parlance means “a person present at some event and able to give information about it.”[4] According to Black’s Law Dictionary witness has been defined follows:
“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.” [5]
A witness is considered as one of the indispensable parts of the criminal justice system. His opinion defines the very backbone of the decision of the case. The truth depicted from the testimony of the witness shows that it does become the foundation of justice and hence the witness is made to offer statement under oath. The term witness has not been given any statutory definition in under Indian Penal code, 1860 or Code of Criminal Procedure, 1973.
Hostility is being considered as the major problem faced by witness in the proceedings. They tend to turn hostile witness due to the threats which they receive from the other party or they get intimidated. The People’s Union for Civil Liberties (PUCL) gave reasons for witnesses turning hostile. Firstly the statements recorded by the police are incorrect and secondly the statements recorded were correct but they are retracted by the witnesses due to intimidation and other ways of manipulation.
Another key reason for witnesses turning hostile is prolonged trials. The judicial process works at a slow pace. Several dates are allotted for cross examination of the witnesses which makes them frustrated over as they are summoned time and again only to find out that the date allotted has been adjourned. The frustration of the witnesses takes its toll and the witnesses tend to decide to turn hostile to get rid of the harassment. The Mallimath Committee has given its opinion about witnesses turning hostile and that the witnesses should be treated with great respect and they should be given the designation of guest of honour. Other reasons for witness turning hostile are lacks of witness protection programme; unsympathetic attitude of the police, bribery and corruption due to which a person loathes from becoming witness.
India lacks specific legislation on witness protection though through enactments and judicial pronouncements a person who is a witness to a case can seek to afford protection. Sections 151 and 152 of Indian Evidence Act 1872 that protect the victims and the witnesses from being asked indecent, scandalous, offensive questions which are intended to annoy or insult them. Sections 200 to 202 of Cr.P.C, 1973 provide for the examination of witness in from of the complainant by the Magistrate. Section 16 of Terrorist and Disruptive Activities (Prevention) Act, 1987 provides for the protection of witness .
14th Report of the Law Commission Report of Law Commission (1958) (Inadequate Arrangements for Witnesses)[6] gave an insight about the inadequate arrangements for witnesses in the Courthouse and how there was an increase in the expenses and long hours of waiting in Court with tension and attending numerous adjournments. Witnesses due to this reason developed the attitude of indifference to the question of bringing the offender to justice
The 154th Report of the Law Commission[7]contains a chapter on protection and facilities provided to the witness. It gave a recommendation on how witnesses should be given protection from the madness of the accused. It suggested how witnesses can be prevented from turning hostile.
The 178th Report of Law Commission[8], suggested an amendment to insert S.164 A to the Code of Criminal Procedure, 197 dealing with hostile witnesses thereby giving certain precautions relating to the police which should be taken at the stage of investigation to prevent avoidance by witnesses when they are examined later at the trial. The Commission provided that recording of the statement of material witnesses shall be done in the presence of Magistrates where the offences were punishable with imprisonment of 10 years and more.[9]On the basis of this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha. The Commission also recommended some alternatives like introducing certain checks so that witnesses do not turn hostile like taking the signature of a witness on his police statement and sending it to an appropriate Magistrate and a senior police officer or in serious offences which are punishable with ten or more years of imprisonment, the statement of important witnesses should be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973.
The Committee on Reforms of Criminal Justice System[10]under the chairmanship of Dr. Justice V. S. Mallimath, submitted a Report containing 158 recommendations. It consists of statements which showed that a law should be enacted for giving protection to witnesses and their family members, without specifying any provision or scheme whatsoever. The prosecution and the Court should direct that the identity and the address of the witness be kept secret. The Court can even avoid the mention of the names and addresses in its order or judgement.
The Criminal Law (Amendment) Act, 2005has made many important amendments including the introduction of Section 195A to the Indian Penal Code, 1860 whereby threatening or inducing any person to give false evidence is made punishable. Other changes include amendment of Section 195 of Cr.P.C, 1973 and Section 154 of Evidence Act, 1872.
In the 198th Report of the Law Commission[11], a Consultation Paper on Witness Identity Protection and Witness Protection Programmes’ was prepared. In the Final Report, the Commission identified three categories of witnesses: (i) victim-witnesses who are known to the accused; (ii) victims-witnesses not known to the accused (e.g. as in a case of indiscriminate firing by the accused) and (iii) witnesses whose identity is not known to the accused. Category (i) requires protection from trauma and categories (ii) and (iii) require protection against disclosure of identity.
In recent time the judiciary has been playing a significant role and give ample amount of encouragement to establish witness protection programs in India. The Delhi High Court in cases like Ms. Neelam Katara v. Union of India[12] issues certain guidelines which provided protection to witness in cases dealing with life imprisonment or death penalty like an inadequate and non-realistic allowance are paid to witnesses to compensate for the loss of earning and pocket expenses.
As the terrorist activities are increasing, the Mumbai police have formulated a four-point plan in order to protect vital witnesses in the cases of bomb blasts and other sensitive cases. Such are made on the guidelines as follows:
- Transferring the witness from his city of residence to another place.
- Government will provide the witness with a job that is similar to the one he is/was undergoing.
- The witness shall be given a new name, identification, ration card; and a new passport.
- The government will accept the responsibility of the witness’s entire family and provide it with security cover.
Therefore a person who has given or agreed to give any useful information or evidence or participates or has agreed to participate in a matter which pertains to inquiry into the investigation or prosecution of an offence and who may require protection due to the risk of security shall be given witness protection by the police.
The first instance where witness protection was given is Naroda-Patila carnage; where Mohammad Shakur Sayyad who was a victim of such in 2002. He was a key witness who was attacked and was brutally beaten up by a mob of 30 people while he was sitting outside his shop. According to him Akram Ahmed, an anti-social element assaulted him along with other people and asked him that is he very fond of deposing before the Nanavati Commission. The victim had already lost his three children in the massacre and had deposed before the Nanavati Commission in 2003 giving names of several persons in the mob. He was one of the key witnesses and therefore had also been provided with one police guard. The day the victim was attacked, the guard had retired for the day. The neighbours said that Akram Ahmed had been giving threats to other people not to depose before the Judge during the trial. It is to be seen that the key witness has just been provided with only one police guard and it can be inferred that he would have surely saved his own life rather than that of the witness while he was protecting when the crowd of more than thirty people attacked the victim.[13]
The prosecution in a large number of cases like the BMW and the Jessica Lal murder cases has time and again failed due to the backing out of witnesses. Time and again the prosecution in most of the sensitive issues has failed because the witnesses had changed their mind when they were examined in the Court. In sensational cases like the BMW; the Jessica Lal murder, Best Bakery case wherein the Human rights commission intervened when the witnesses changed their statements in the court due to lack of protection to them and their families.
Protection may be given before, during and/ or after the judicial proceeding. Effective witness protection legislation, should ideally involve all the three concerned agencies – police, government and judiciary. The government should implement necessary Acts, the judiciary should look into the legal aspects and the task of execution may be entrusted to the police. An independent witness protection cell should be constituted and it must arrange for the provision of false identities, relocation and follow up. The witnesses should be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process. They should have access to information of the status of the investigation and prosecution of crime. Medical facilities, social services, state compensation, counselling, treatment and other support may be provided.
The police force should be given the freedom to take basic measures to protect witnesses like surveillance, escorting the witness to work and court, assisting with emergency relocation etc. Measures should be taken by the courts to restrict public access to the witness’s identity including having a witness testify under a false name. The use of practices such as videoconferencing, teleconferencing, voice and face distortion, and other similar techniques must be encouraged as well as allowing witnesses to conceal their address or occupation.
The government is trying its best on their part to make laws pertaining to hostile witnesses and laws for witness protection. Stringent laws are being made against persons giving false evidence and against witnesses that turn hostile. It is need of an hour that such laws should be made. It is also high time that the disease of ‘hostile witness’ should be tackled in a proper manner. No country would ever afford its citizens to be harassed by any anti-social element just because of the fact that they testified in a court of law. Proper and adequate steps should be taken for the protection of witnesses who appear before the Court. Justice will suffer if witnesses carry on turning hostile and do not make truthful deposition in Court.
[1] (2004) 4 SCALE 375
[2] J. H. Suresh, “ New Law Needed to Protect Witnesses”, Combat Law, Vol. 4 , Issue 1, April-May 2005, p.4
[3]AIR 2000 SC 2017
[4]Dorling Kindersley Illustrated Oxford Dictionary, 958 (1998).
[5]Black’s Law Dictionary
[6]Law Commission of India, Reform of Judicial Administration, 14 th Report, First Law Commission under the Chairmanship of Mr. M. C. Setalvad 1955-1958, in 1958
[7]154th Report of the Law Commission of India, Code of Criminal Procedure, 1973 (Act No. 2 of 1974) (1996).
[8]178th Report of the Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal (2001).
[9] Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal, 178th Report, Sixteenth Law Commission under the Chairmanship of Mr. Justice B. P. Jeevan Reddy 2000-2001 & Mr. Justice M. Jagannadha Rao 2002-2003, in 2001
[10]Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System (2003)
[11]198thReport of the Law Commission of India, Witness Identity Protection and Witness Protection Programme (2004)
[12] ILR (2003) II Del 377 260
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