• LAWGIC STRATUM

WITNESS PROTECTION SCHEME, 2018-AN EXPOSITION

Author: Mohana Priya R





INTRODUCTION


Witness plays the most crucial role in all criminal cases, who knows about the crime. Their testimony may decide upon the acquittal or conviction of the accused. The Hon’ble Supreme Court in the judgment of Zahira Habibulla H. Sheikh and Another v. State of Gujarat[1]decided that they need to be protected to avoid the witnesses turning hostile because of threat or forced to give false evidence, which would not result in a fair trial.

An English philosopher Jeremy Bentham has quoted that, “Witnesses are the eyes and ears of justice.” They need to be assured that they will receive support and protection from intimidation and harm from criminals who might seek to inflict upon them to frighten and discourage them from cooperating in the investigation, before the court of law.

It aims at promoting law enforcement by ensuring the protection of witnesses who are involved in assisting criminal law enforcement agencies and overall administration.


WITNESS PROTECTION SCHEME, 2018


The Hon’ble Apex Court approved this scheme in its landmark judgment of Mahendra Chawla v. Union of India[2], where they first attempted protecting the witness and ordered the State to implement it effectively. According to Article141 of the Constitution of India, is binding on all courts within the territory of India except Jammu and Kashmir.

The 14th Law Commission Report brought the issues of witness protection, the 154th report dealt with the plight of witnesses, then the 172nd report drawn up a great deal from the judgment of Sakshi v. Union of India[3], where camera trials were progressed to protect the witness from the accused and to ensure that her testimony is attained without any coercion. The 178th report laid ways to protect the witnesses and the 194th report highlighted that the witness protection is not only limited to terrorism or sexual offenses cases but extends further to all serious cases.


SCOPE


Witness Protection Scheme,2018 aims at :

  • protecting the life and safety of witnesses,

  • Providing police escort to the witness to reach courtroom safely,

  • Furnishing a new identity like a new name, profession,

  • Recording their testimony through modern communication by ensuring their anonymity,

  • Relocation of witnesses temporarily in a safer house, etc[4].


ADEQUATE SECURITY MEASURES


The witness protection given to the witness depends upon the proportionality of threats faced by them for the given period which may not exceed three months. Following measures are taken by the competent authority:

  • Ensuring that witness and accused do not come face to face investigation or put up together during investigation or trial.

  • Installation of security devices such as CCTV, security doors in their home, providing regular patrol, etc.

  • Concealment of the identity of the witness, close protection.

  • Relocating the witness temporarily to the relative house or somewhere else with regular patrolling around the house.

  • Monitoring all telephone calls, allot the witness an unlisted phone number, and list emergency contact persons for the witness.

  • Escort the witness to and from the court, through a government vehicle or a state-funded conveyance.

  • Holding of In-camera proceedings and allowing the presence of one supporting person during the recording of statements.

  • Utilizing specially designed courtrooms furnished with one-way mirrors, separate passage for the accused and the witness, or using voice change mechanisms through the software of the witness to suppress his identity;

  • Granting the periodical financial aids to the witness for relocation or starting a new profession, as may be considered necessary.

Any other form of protection measures as may be considered necessary will be provided.

The witness may himself ask for any other protective measures by way of application forwarded to the authority[5]. After the protection order has been passed, the competent authority will monitor its implementation and review it quarterly based on the monthly report submitted by the witness protection cell.


CATEGORY OF WITNESS AS PER THREAT PERCEPTION


  • Category A – Threat extends to the life of the witness or his family members during investigation or trial.

  • Category B – Threat extends to the safety, reputation, or property of a witness or his family members during investigation or trial.

  • Category C - Threat extends to harassment and intimidation.


STATE WITNESS PROTECTION FUND


  • Budgetary allocation presented annually by the State Government;

  • Receipt of the number of costs imposed to be deposited by the courts/tribunals in the Witness Protection Fund;

  • Donations from Philanthropist/ Charitable Institutions/ Organizations and individuals permitted by the Government.

  • Funds contributed under Corporate Social Responsibility.

They are operated by the Ministry of Home under the State government[6].



PROCEDURE FOR FILING APPLICATION


  • The applicant seeking protection has to file the application (Annuxeure1) before the competent authority along with the supporting document through the Superintendent of police/ at the time of trial.

  • On receipt of the application by the competent authority, the Commissioner will formulate a Threat Analysis Report to impart full confidentiality to the information mentioned and forward the report to the competent authority within five days.

  • During an emergency or imminent threat, an interim order can be passed.

  • Threat Analysis Report contains threat level perception, suggestive measures to protect them like hearing matters through In-camera to maintain confidentiality.

  • In case to revise the order is passed, the competent authority may forward the same to the Commissioner to draft a fresh report.

  • In case of a false complaint, the government may initiate a proceeding to recover the expenditure incurred from the Witness Protection Fund[7].


DEFECT OF WITNESS PROTECTION SCHEME


There are some flaws in implementing this scheme, where few states may not have adequate resources and the assistance by the center was nowhere entitled to provide funds. The duty of deciding the content and level of threat in the Threat Analysis Report is assigned to the Head of District Police, so it automatically involves the politician and influential peoples, where the police are under pressure of their influence to reveal the identity of the witness. In Pehlu Khan Lynching Case[8], the witness was attacked by men of the unmarked vehicle on their way to court to depose in the case. The PUCL wrote a letter to DGP, requesting witness protection. These are the major drawbacks.


CONCLUSION


The Hon’ble Top Court in State of Gujarat v. Anirudh Singh[9] held that it is a statutory duty of a witness who has knowledge about the crime, to assist the state in giving evidence. The State will implement witness protection to all witnesses in heinous crimes and those who apply for the protection. The scheme has been around 11 months, but many are unaware, so the witness need to be guaranteed that they will be protected.


References

[1]Zahira Habibulla H. Sheikh and Another v. State of Gujarat,(2004) 4 SCC 158. [2] Mahendra Chawla v. Union of India, 2018 SCCOnline SC 2678. [3] Sakshi v. Union of India, (2004) 5 SCC 518 [4]https://www.mondaq.com/india/trials-appeals-compensation/914274/witness-protection-safeguarding-the-eyes-and-ears-of-justice [5] https://blog.ipleaders.in/witness-protection-scheme-india/ [6] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1578108 [7]https://www.mha.gov.in/sites/default/files/Documents_PolNGuide_finalWPS_08072019.pdf [8] https://sabrangindia.in/article/witness-protection-india-idea-gathering-dust [9] State of Gujarat v. Anirudh Singh, (1997) 6 SCC 514.

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