Hon'ble Mr. Justice Arjan Kumar Sikri
"Witness Protection Scheme, 2018
a Land mark Judgment of Apex court to safe guard the rights and safety of the witness .
The Apex court framed the scheme and order its application till the Law is passed to that effect.
Gave valuable directions as follows :-
We, accordingly, direct that :
(i) This Court has given its imprimatur to the Scheme prepared
by respondent No.1 which is approved hereby. It comes into
effect forthwith.
(ii) The Union of India as well as States and Union Territories
shall enforce the Witness Protection Scheme, 2018 in letter and
Writ Petition (Crl.) No. 156 of 2016 Page 40 of 41
spirit.
(iii) It shall be the ‘law’ under Article 141/142 of the Constitution,
till the enactment of suitable Parliamentary and/or State
Legislations on the subject.
(iv) In line with the aforesaid provisions contained in the
Scheme, in all the district courts in India, vulnerable witness
deposition complexes shall be set up by the States and Union
Territories. This should be achieved within a period of one year,
i.e., by the end of the year 2019. The Central Government should
also support this endeavour of the States/Union Territories by
helping them financially and otherwise.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 156 OF 2016
MAHENDER CHAWLA & ORS. .....PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The instant writ petition filed by the petitioners under Article
32 of the Constitution of India raises important issues touching
upon the efficacy of the criminal justice system in this country. In
an adversarial system, which is prevalent by India, the court is
supposed to decide the cases on the basis of evidence produced
before it. This evidence can be in the form of documents. It can
be oral evidence as well, i.e., the deposition of witnesses. The
witnesses, thus, play a vital role in facilitating the court to arrive at
correct findings on disputed questions of facts and to find out
where the truth lies. They are, therefore, backbone in decision
Writ Petition (Crl.) No. 156 of 2016 Page 1 of 41
making process. Whenever, in a dispute, the two sides come out
with conflicting version, the witnesses become important tool to
arrive at right conclusions, thereby advancing justice in a matter.
This principle applies with more vigor and strength in criminal
cases inasmuch as most of such cases are decided on the basis
of testimonies of the witnesses, particularly, eye-witnesses, who
may have seen actual occurrence/crime. It is for this reason that
Bentham stated more than 150 years ago that “witnesses are
eyes and ears of justice”.
2) Thus, witnesses are important players in the judicial system, who
help the judges in arriving at correct factual findings. The
instrument of evidence is the medium through which facts, either
disputed or required to be proved, are effectively conveyed to the
courts. This evidence in the form of documentary and oral is
given by the witnesses. A witness may be a partisan or
interested witness, i.e., a witness who is in a near relation with
the victim of crime or is concerned with conviction of the accused
person. Even his testimony is relevant, though, stricter scrutiny is
required while adjudging the credence of such a victim. However,
apart from these witnesses or the witnesses who may themselves
be the victims, other witnesses may not have any personal
Writ Petition (Crl.) No. 156 of 2016 Page 2 of 41
interest in the outcome of a case. They still help the judicial
system. In the words of Whittaker Chambers, a witness is “a
man whose life and faith are so completely one that when the
challenge comes to step out and testify for his faith, he does so,
disregarding all risks, accepting all consequences1
.”
3) The importance of the witness, particularly in a criminal trial is
highlighted in a book in the following manner:
"In search of truth, he plays that sacred role of the sun,
which eliminates the darkness of ignorance and illuminates
the face of justice, encircled by devils of humanity and
compassion.
xxx xxx xxx
The value of witnesses can’t be denied, keeping in view
the dependency of the criminal proceedings on the
testimonies and cooperation of witnesses in all the stages
of the proceedings, especially in those cases where the
prosecution has to establish the guilt with absolute
certainty via oral cross-examination of witnesses in
hearings open to the world at large. In such cases, the
testimony of a witness, even if not as an eye witness, may
prove to be crucial in determining the circumstances in
which the crime might have been committed...”2
Notwithstanding the same, the conditions of witnesses in
Indian Legal System can be termed as ‘pathetic’. There are
many threats faced by the witnesses at various stages of an
investigation and then during the trial of a case. Apart from facing
1 Whittaker Chambers, WITNESS QUOTES (January 7, 2014, 10.30 am),
http://www.brainyquote.com/quotes/keywords/witness.
2 Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar
Writ Petition (Crl.) No. 156 of 2016 Page 3 of 41
life threatening intimidation to himself and to his relatives, he may
have to face the trauma of attending the court regularly. Because
of the lack of Witness Protection Programme in India and the
treatment that is meted out to them, there is a tendency of
reluctance in coming forward and making statement during the
investigation and/or testify in courts. These witnesses neither
have any legal remedy nor do they get suitably treated. The
present legal system takes witnesses completely for granted.
They are summoned to court regardless of their financial and
personal conditions. Many times they are made to appear long
after the incident of the alleged crime, which significantly
hampers their ability to recall necessary details at the time of
actual crime. They are not even suitably remunerated for the loss
of time and the expenditure towards conveyance etc.
4) In Swaran Singh vs. State of Punjab3
, this Court speaking
through Wadhwa, J. expressed view on conditions of witnesses
by stating that:
"The witnesses are harassed a lot. They come from
distant places and see the case is adjourned. They have
to attend the court many times on their own. It has
become routine that case is adjourned till the witness is
tired and will stop coming to court. In this process lawyers
also play an important role. Sometimes witness is
threatened, maimed, or even bribed. There is no
3 (2000) 5 SCC 68 at 678.
Writ Petition (Crl.) No. 156 of 2016 Page 4 of 41
protection to the witnesses. By adjourning the case the
court also becomes a party to such miscarriage of justice.
The witness is not given respect by the court. They are
pulled out of the court room by the peon. After waiting for
the whole day he sees the matter being adjourned. There
is no proper place for him to sit and drink a glass of water.
When he appears, he is subjected to prolong stretched
examinations and cross examinations. For these reasons
persons avoid becoming a witness and because of this
administration of justice are hampered. The witnesses are
not paid money within time. The High Courts must be
vigilant in these matters and should avoid harassment in
these matters by subordinate staff. The witnesses should
be paid immediately irrespective of the fact whether he
examines or the matter is adjourned. The time has come
now that all courts should be linked with each other
through computer. The Bar Council of India has to play
important role in this process to put the criminal justice
system on track. Though the trial judge is aware that
witness is telling lie still he is not ready to file complaint
against such witness because he is required to sign the
same. There is need to amend section 340(3)(b) of
Cr.P.C.”
5) It hardly needs to be emphasised 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 offences, 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
Writ Petition (Crl.) No. 156 of 2016 Page 5 of 41
measure to ensure the safety of these witnesses, commonly
known as ‘witness protection’.
6) Over the last many years criminal justice system in this country
has been witness to traumatic experience where witnesses turn
hostile. This has been happening very frequently. There may be
many causes for this sordid phenomena.
7) In Ramesh and Others vs. State of Haryana4
, this Court had
indicated some of the reasons which make witnesses turn hostile,
as can be discerned from the following discussion.
"40. In some of the judgments in past few years, this Court
has commented upon such peculiar behaviour of
witnesses turning hostile and we would like to quote from
few such judgments. In Krishna Mochi v. State of
Bihar [Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 :
2002 SCC (Cri) 1220] , this Court observed as under:
(SCC p. 104, para 31)
“31. It is a matter of common experience that in
recent times there has been a sharp decline of
ethical values in public life even in developed
countries much less developing one, like ours,
where the ratio of decline is higher. Even in
ordinary cases, witnesses are not inclined to
depose or their evidence is not found to be
credible by courts for manifold reasons. One of the
reasons may be that they do not have courage to
depose against an accused because of threats to
their life, more so when the offenders are habitual
criminals or high-ups in the Government or close
to powers, which may be political, economic or
other powers including muscle power.”
4 (2017) 1 SCC 529
Writ Petition (Crl.) No. 156 of 2016 Page 6 of 41
"41. Likewise, in Zahira Habibullah Sheikh (5) v. State of
Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat,
(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , this Court
highlighted the problem with the following observations:
(SCC pp. 396-98, paras 40-41)
“40. “Witnesses” as Bentham said: “are the eyes
and ears of justice”. Hence, the importance and
primacy of the quality of trial process. If the
witness 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 witness being not in a position 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
those in power, their henchmen and hirelings,
political clouts and patronage and innumerable
other corrupt practices ingeniously adopted to
smother and stifle truth and realities coming out
to surface.… Broader public and societal interests
require that the victims of the crime who are not
ordinarily parties to prosecution and the interests
of the State represented by their prosecuting
agencies do not suffer.… There comes the need for
protecting the witness. Time has come when
serious and undiluted thoughts are to be bestowed
for protecting witnesses so that the ultimate truth
presented before the court and justice triumphs
and that the trial is not reduced to a mockery. …
41. 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, to avert trial getting tainted and
derailed and truth becoming a casualty. As a
protector of its citizens it has to ensure that during
a trial in court the witness could safely depose the
truth without any fear of being haunted by those
against whom he had deposed. Every State has a
constitutional obligation and duty to protect the
life and liberty of its citizens. That is the
fundamental requirement for observance of the
rule of law. There cannot be any deviation from
Writ Petition (Crl.) No. 156 of 2016 Page 7 of 41
this requirement because of any extraneous
factors like caste, creed, religion, political belief or
ideology. Every State is supposed to know these
fundamental requirements and this needs no
retaliation (sic repetition). We can only say this
with regard to the criticism levelled against the
State of Gujarat. Some legislative enactments like
the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (in short “the TADA Act”) have taken
note of the reluctance shown by witnesses to
depose against people with muscle power, money
power or political power which has become the
order of the day. If ultimately truth is to be arrived
at, the eyes and ears of justice have to be
protected so that the interests of justice do not get
incapacitated in the sense of making the
proceedings before the courts mere mock trials as
are usually seen in movies.”
"42. Likewise, in Sakshi v. Union of India [Sakshi v. Union
of India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] , the
menace of witnesses turning hostile was again described
in the following words: (SCC pp. 544-45, para 32)
“32. The mere sight of the accused may induce an
element of extreme fear in the mind of the victim or the
witnesses or can put them in a state of shock. In such a
situation he or she may not be able to give full details
of the incident which may result in miscarriage of
justice. Therefore, a screen or some such arrangement
can be made where the victim or witnesses do not have
to undergo the trauma of seeing the body or the face of
the accused. Often the questions put in crossexamination are purposely designed to embarrass or
confuse the victims of rape and child abuse. The object
is that out of the feeling of shame or embarrassment,
the victim may not speak out or give details of certain
acts committed by the accused. It will, therefore, be
better if the questions to be put by the accused in
cross-examination are given in writing to the presiding
officer of the court, who may put the same to the victim
or witnesses in a language which is not embarrassing.
There can hardly be any objection to the other
suggestion given by the petitioner that whenever a
child or victim of rape is required to give testimony,
sufficient breaks should be given as and when required.
The provisions of sub-section (2) of Section 327 CrPC
should also apply in inquiry or trial of offences under
Sections 354 and 377 IPC.”
Writ Petition (Crl.) No. 156 of 2016 Page 8 of 41
43. In State v. Sanjeev Nanda [State v. Sanjeev Nanda,
(2012) 8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3
SCC (Civ) 899] , the Court felt constrained in reiterating
the growing disturbing trend: (SCC pp. 486-87, paras 99-
101)
“99. Witness turning hostile is a major disturbing factor
faced by the criminal courts in India. Reasons are many
for the witnesses turning hostile, but of late, we see,
especially in high profile cases, there is a regularity in
the witnesses turning hostile, either due to monetary
consideration or by other tempting offers which
undermine the entire criminal justice system and
people carry the impression that the mighty and
powerful can always get away from the clutches of law,
thereby eroding people's faith in the system.
100. This Court in State of U.P. v. Ramesh Prasad
Misra [State of U.P. v. Ramesh Prasad Misra, (1996) 10
SCC 360 : 1996 SCC (Cri) 1278] held that it is equally
settled law that the evidence of a hostile witness could
not be totally rejected, if spoken in favour of the
prosecution or the accused, but it can be subjected to
closest scrutiny and that portion of the evidence which
is consistent with the case of the prosecution or
defence may be accepted. In K. Anbazhaganv. Supt. of
Police [K. Anbazhagan v. Supt. of Police, (2004) 3 SCC
767 : 2004 SCC (Cri) 882] , this Court held that if a
court finds that in the process the credit of the witness
has not been completely shaken, he may after reading
and considering the evidence of the witness as a whole,
with due caution, accept, in the light of the evidence on
the record that part of his testimony which it finds to be
creditworthy and act upon it. This is exactly what was
done in the instant case by both the trial court and the
High Court [Sanjeev Nanda v. State, 2009 SCC OnLine
Del 2039 : (2009) 160 DLT 775] and they found the
accused guilty.
101. We cannot, however, close our eyes to the
disturbing fact in the instant case where even the
injured witness, who was present on the spot, turned
hostile. This Court in Manu Sharma v. State (NCT of
Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6
SCC 1 : (2010) 2 SCC (Cri) 1385] and in Zahira
Habibullah Sheikh (5) v. State of Gujarat [Zahira
Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC
374 : (2006) 2 SCC (Cri) 8] had highlighted the glaring
defects in the system like non-recording of the
statements correctly by the police and the retraction of
the statements by the prosecution witness due to
Writ Petition (Crl.) No. 156 of 2016 Page 9 of 41
intimidation, inducement and other methods of
manipulation. Courts, however, cannot shut their eyes
to the reality. If a witness becomes hostile to subvert
the judicial process, the court shall not stand as a mute
spectator and every effort should be made to bring
home the truth. Criminal judicial system cannot be
overturned by those gullible witnesses who act under
pressure, inducement or intimidation. Further, Section
193 IPC imposes punishment for giving false evidence
but is seldom invoked.”
44. On the analysis of various cases, the following reasons
can be discerned which make witnesses retracting their
statements before the court and turning hostile:
(i) Threat/Intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of stock witnesses.
(v) Protracted trials.
(vi) Hassles faced by the witnesses during investigation
and trial.
(vii) Non-existence of any clear-cut legislation to check
hostility of witness.
45. Threat and intimidation has been one of the major
causes for the hostility of witnesses. Bentham said:
“witnesses are the eyes and ears of justice”. When the
witnesses are not able to depose correctly in the court of
law, it results in low rate of conviction and many times
even hardened criminals escape the conviction. It shakes
public confidence in the criminal justice delivery system. It
is for this reason there has been a lot of discussion on
witness protection and from various quarters demand is
made for the State to play a definite role in coming out with
witness protection programme, at least in sensitive cases
involving those in power, who have political patronage and
could wield muscle and money power, to avert trial getting
tainted and derailed and truth becoming a casualty. A stern
and emphatic message to this effect was given in Zahira
Habibullah case [Zahira Habibullah Sheikh (5) v. State of
Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] as well.
46. Justifying the measures to be taken for witness
protection to enable the witnesses to depose truthfully and
without fear, Justice Malimath Committee Report on
Reforms of Criminal Justice System, 2003 has remarked
as under:
Writ Petition (Crl.) No. 156 of 2016 Page 10 of 41
“11.3. Another major problem is about safety of
witnesses and their family members who face
danger at different stages. They are often
threatened and the seriousness of the threat
depends upon the type of the case and the
background of the accused and his family. Many
times crucial witnesses are threatened or injured
prior to their testifying in the court. If the witness
is still not amenable he may even be murdered. In
such situations the witness will not come forward
to give evidence unless he is assured of protection
or is guaranteed anonymity of some form of
physical disguise. … Time has come for a
comprehensive law being enacted for protection of
the witness and members of his family.”
47. Almost to similar effect are the observations of
the Law Commission of India in its 198th Report
[ Report on “witness identity protection and
witness protection programmes”.] , as can be seen
from the following discussion therein:
“The reason is not far to seek. In the case of
victims of terrorism and sexual offences against
women and juveniles, we are dealing with a
section of society consisting of very vulnerable
people, be they victims or witnesses. The victims
and witnesses are under fear of or danger to their
lives or lives of their relations or to their property.
It is obvious that in the case of serious offences
under the Indian Penal Code, 1860 and other
special enactments, some of which we have
referred to above, there are bound to be
absolutely similar situations for victims and
witnesses. While in the case of certain offences
under special statutes such fear or danger to
victims and witnesses may be more common and
pronounced, in the case of victims and witnesses
involved or concerned with some serious offences,
fear may be no less important. Obviously, if the
trial in the case of special offences is to be fair
both to the accused as well as to the
victims/witnesses, then there is no reason as to
why it should not be equally fair in the case of
other general offences of serious nature falling
under the Indian Penal Code, 1860. It is the fear or
danger or rather the likelihood thereof that is
common to both cases. That is why several
Writ Petition (Crl.) No. 156 of 2016 Page 11 of 41
general statutes in other countries provide for
victim and witness protection.”
8) All this has created problems of low convictions in India. This has
serious repercussions on the criminal justice system itself.
Criminal justice is closely associated with human rights.
Whereas, on the one hand, it is to be ensured that no innocent
person is convicted and thereby deprived of his liberty, it is of
equal importance to ensure, on the other hand, that victims of
crime get justice by punishing the offender. In this whole
process, protection of witnesses assumes significance to enable
them to depose fearlessly and truthfully. That would also ensure
fair trial as well, which is another concomitant of the rule of law.
9) Since this case relates to the issue of protection of witnesses, we
are eschewing any further discussion on other miseries faced by
the witnesses, though we emphasise the need for addressing
other problems as well, at appropriate level, if the criminal justice
system in this country is to succeed. Adverting to the importance
of witness protection, we may mention that it has been
highlighted and emphasised by the courts in India, including this
Court, time and again. Issues of identity protection of identity of
witnesses and witness protection programme have been raised in
Writ Petition (Crl.) No. 156 of 2016 Page 12 of 41
number of judgments like NHRC vs. State of Gujarat5
, People’s
Union for Civil Liberties (PUCL) vs. Union of India6
, Zahira
vs. State of Gujarat7
, Sakshi vs. Union of India8 and Zahira
Habibulla Sheikh vs. Gujarat9
.
10) In People’s Union for Civil Liberties, wherein constitutionality
some of the provisions of the Prevention of Terrorism Act (POTA),
2002, were challenged, the Court carefully analyzed Section 30
of the Act, which had mentioned about the protection of
witnesses. This provision provides for the proceedings to be held
in camera in order to keep the identity of witness confidential. The
Court felt the reality that very often witnesses do not come
forward to testify before court in serious crimes. Witnesses are
not ready to give evidence mainly because their lives might be in
danger. In the court’s view, Section 30 of the Act maintains a
balance between the rights of a witness, the rights of an accused
and the interest of the public. However, secrecy of the witness is
an exception and not a rule under this section.
11) The protection of a child witness, who may also be a victim,
5 2003 (9) SCALE 329
6 2003 (10( SCALE 967
7 (2004) 4 SCC 158
8 (2004) 5 SCC 518
9 2006 (3) SCALE 967
Writ Petition (Crl.) No. 156 of 2016 Page 13 of 41
becomes all the more important. In Sakshi vs. Union of India10
,
the Court stressed that there is a dire need to come up with a
legislation for the protection of witnesses. The Court also had
issued certain guidelines on the procedure of taking of evidence
from a child witness. The Court also pointed out the need for
special protection to a victim of sexual abuse at the time of
recording her statement in court. The petitioner in that case had
given certain suggestions for effectively dealing with the special
provisions for testimony in child sexual abuse cases, which were
as follows:
a) The judges shall allow the use of a videotaped interview of the
testimony of the child in the presence of a child-support person.
b) A child could be permitted to testify through closed circuit
television or from behind a screen to acquire an honest and frank
account of the acts complained of without any fear.
c) Only the judge should be allowed to cross-examine a minor on
the basis of the questions given by the defence in writing after the
examination of the minor.
d) During the testimony of the child, sufficient interval should be
provided as and when she requires it.
10 (2004) 5 SCC 518
Writ Petition (Crl.) No. 156 of 2016 Page 14 of 41
12) In some other judgments, this Court gave some more guidelines,
in the following manner:
a) Sections 354 and 377 of the Indian Penal Code should be tried
and inquired on the same principles mentioned under subsection (2) of Section 327 Cr.P.C.
b) While holding the trial of rape or child sex abuse, some sort of
arrangements like a screen or something like it may be used so
as to make sure that victim or witnesses (who are equally
vulnerable and need protection like the victim) do not confront the
accused;
c) Questions raised during the cross-examination by the counsel of
the accused that are directly related to and be reminiscent to the
victim or the witnesses of the incident should be written down and
given to the presiding officer of the court in advance. The
presiding officer must put forth those questions to the victim or
witness in simple and clear language and as far as possible
without making her uncomfortable;
13) It hardly needs to be emphasised that failure to hear material
witness is denial of fair trial. The practice, however, to give
protection to the witnesses is based on ad hocism, i.e., on case
Writ Petition (Crl.) No. 156 of 2016 Page 15 of 41
to case basis. The Courts have also, in the process, adopted
different means to ensure witness protection, which can be stated
in brief detail:
(a) Publication of evidence of the witness only during the
course of trial and not after [Naresh Shridhar Mirajkar and
Others vs. State of Maharashtra and Another; [1966 (3) SCR
744]
(b) Re-trial allowed due to apprehension and threat to the life of
witness [Sunil Kumar Pal vs. Phota Sheikh and Other; AIR
1984 SC 1591]
(c) Necessity of anonymity for victims in cases of rape [Delhi
Domestic Working Women’s Forum vs. Union of India; (1995)
1 SCC 14)]
(d) Discouraging the practice of obtaining adjournments in
cases when witness is present and accused is absent. [State of
U.P. vs. Shambhu Nath Singh; (2001) 4 SCC 667]
(e) Making threatening of witnesses as a ground for
cancellation of bail [Ram Govind Upadhyay v. Sudarshan
Singh; II (2002) SLT 587]
(f) Cross-examination by video conferencing — This is one
of the innovative methods devised, which is specifically helpful to
the victims of sexual crimes, particularly, child witnesses who are
Writ Petition (Crl.) No. 156 of 2016 Page 16 of 41
victims of crime as well.
14) In the instant case itself the petitioners have approached this
Court with the allegations that in the trials that are going on
against Asaram, who is charged with the offence of committing
rapes in numerous cases, the witnesses have been frightened
with serious consequences in case they depose against Asaram.
It is alleged that as many as 10 witnesses have already been
attacked and three witnesses have been killed.
15) There are four petitioners in this petition. These petitioners
include a witness, father of a murdered witness, father of the child
rape victim and a journalist who escaped a murder attempt by
goons of godman Asaram and his son Naryana Sai and still faces
death threats by a jailed sharpshooter of Asaram and Narayan
Sai. It is stated that Petitioner No. 1 Mahender Chawla
miraculously survived a murder attempt on his life for daring to
testify against so called godman, Asaram Bapu and his son
Narayan Sai in horrifying cases of rape of a child and two sisters.
Petitioner no. 1 also witnessed Narayan Sai doing Tantrik
Practice on a dead body of a child in an Asaram in Madhya
Pradesh, in which till date there has not been any investigation
due to the influence of Asaram. Petitioner no. 2 Naresh Gupta is
Writ Petition (Crl.) No. 156 of 2016 Page 17 of 41
the father of a murdered witness, named, Akhil Gupta. Akhil was
killed for daring to be a witness against Asaram. Petitioner no. 3
Karamvir Singh is the father of a child, who was raped by
Asaram. Petitioner no. 3’s son Somvir was threatened by 2
attackers despite having State police security. The attackers
were apprehended and released on bail. Shockingly the same
attacker, named Narayan Pandey, later killed a rape-case
prosecution witness Kripal Singh. The child rape victim’s family
has been attacked, threatened and lives in constant fear. It is
also alleged that despite being threatened, the Uttar Pradesh
Police shockingly withdrew half of their security. Petitioner no. 4,
Narendra Yadav is a journalist who survived a murder attempt on
his life because he dared to write articles to the dislike of Asaram
Bapu and Narayan Sai. He now lives in constant fear of being
killed as the Uttar Pradesh Police has given him a solitary
security guard for just eight hours a day, leaving him to fend for
himself through the remaining 16 hours. It is also averred that the
sharp shooter of Asaram, Narayan Pandey, who is in jail for
murdering a witness Kripal Singh, writes threatening letters to him
from inside the jail.
16) The petitioners have prayed for a court monitored SIT or a CBI
Writ Petition (Crl.) No. 156 of 2016 Page 18 of 41
probe. It is stated by the petitioners that the prevailing feeling of
fear amongst witnesses in the country seriously impairs the right
of the people of this country to live in a free society governed by
rule of law. The right to testify in courts in a free and fair manner
without any pressure and threat whatsoever is under serious
attack today. If one is unable to testify in courts due to threats or
other pressures, then it is a clear violation of Article 21 of the
Constitution. The right to life guaranteed to the people of this
country also includes in its fold the right to live in a society, which
is free from crime and fear and right of witnesses to testify in
courts without fear or pressure.
17) The petitioners had initially impleaded Union of India as
Respondent No. 1 and States of Haryana, Uttar Pradesh,
Rajasthan, Gujarat and Madhya Pradesh as Respondent Nos. 2
to 6.
18) Appreciating the importance and seriousness of the matter, this
Court issued show cause notices in the petition on November 18,
2016. After the service of the notice when the matter came up for
hearing on March 24, 2017, this Court also directed the States of
Uttar Pradesh and Haryana to ensure full and proper protection to
the petitioners by providing adequate security.
Writ Petition (Crl.) No. 156 of 2016 Page 19 of 41
19) When the matter was again listed on August 28, 2017, Mr. K.K.
Venugopal, learned Attorney General appeared on behalf of the
Union of India, along with Ms. Pinky Anand, Additional Solicitor
General. It was pointed out that since this Court was primarily
dealing with the issue pertaining to witness protection
programme, it would be appropriate that other States are also
impleaded inasmuch as the issue had PAN India significant and
witness protection programme should be available in all the
States. The petitioners were, accordingly, directed to implead
other States as well and they be served with the notice of this
petition. This is how the coverage of the petition has been
extended to the entire country, encompassing all the States and
Union Territories.
20) The petition was amended and all the States and Union
Territories have been served and are represented through their
respective counsel. When the matter was thereafter taken up for
hearing on November 17, 2017 all the respondents were called
upon to file their responses indicating as to what steps could be
taken to have the witness protection programme in place.
21) Mr. Venugopal, learned Attorney General for India was also
Writ Petition (Crl.) No. 156 of 2016 Page 20 of 41
requested to give suggestions in the form of a draft scheme. It is
heartening to note that Union of India did not take this petition as
adversarial and understood the necessity of having such a
scheme in the larger public interest. With this sensitivity in mind,
Ministry of Home Affairs have prepared a draft witness protection
scheme, 2018 and placed the same on record of this case. This
was noted in the orders dated April 13, 2018 and the State
Governments as well as Union Territories, who had already been
supplied with the copy of the draft scheme by the Ministry itself,
were asked to furnish their comments by May 31, 2018 to the
Ministry of Home Affairs. The Union Government was impressed
upon to finalise the scheme after receiving the
comments/suggestions from the various Governments. Order
dated April 13, 2018, incorporating the aforesaid aspects, is
reproduced below:
"We are informed that the Ministry of Home Affairs has
prepared a draft Witness Protection Scheme 2018. A copy
of the said draft scheme is handed over to us in the court
today. Vide letter dated 22nd March, 2018, a copy of the
said scheme is also provided to all the State Governments
and the Union Territories Administration requesting them to
furnish their comments by 9th April, 2018. Thereafter,
again by reminder dated 11th April, 2018 all the State
Governments and Union Territories were asked to furnish
their comments by 31st May, 2018.
We expect all the State Governments as well as the Union
Territories to furnish their comments by the aforesaid
stipulated date of 31st May, 2018 to the Ministry of Home
Affairs. After receiving the comments/suggestions the draft
Writ Petition (Crl.) No. 156 of 2016 Page 21 of 41
Witness Protection Scheme 2018 shall be finalized by the
Government, Ministry of Home Affairs before the next date.
List the matter in the second week of August, 2018.
Learned amicus curiae is also at liberty to furnish his
suggestions.”
22) When the matter was taken up on November 19, 2018, the
learned Attorney General informed that after taking the inputs
from various States and Union Territories, Central Government
had finalized the scheme and filed it in this Court on November
06, 2018 supported by its affidavit. He was also candid in his
submission that this Court can pass appropriate orders directing
all the States to adopt that scheme and provide a witness
protection in accordance therewith till the time appropriate
legislation in this behalf is passed.
23) We may place on record that as per the affidavit of the Central
Government, the Witness Protection Scheme, 2018 is based on
the inputs received from 18 States/Union Territories, 5 States
Legal Services Authorities and open sources including civil
society, three High Courts as well as from Police personnel. It is
also stated that the scheme has been finalised in consultation
with National Legal Services Authority (NALSA). It is mentioned
that the aim and objective of the scheme is to ensure that the
Writ Petition (Crl.) No. 156 of 2016 Page 22 of 41
investigation, prosecution and trial of criminal offences is not
prejudiced because witnesses are intimidated or frightened to
give evidence without protection from violent or other criminal
recrimination. It aims to promote law enforcement by facilitating
the protection of persons who are involved directly or indirectly in
providing assistance to criminal law enforcement agencies and
overall administration of justice.
24) The affidavit further emphasises that the witnesses need to be
given the confidence to come forward to assist law enforcement
and judicial authorities with full assurance of safety and the
present Scheme is aimed to identify the series of measures that
may be adopted to safeguard witnesses and their family
members from intimidate and threats against their lives,
reputation and property.
25) At this stage, we reproduce Witness Protection Scheme, 2018 as
filed, in its entirety:
"Witness Protection Scheme, 2018
PREFACE
Aims & Objective:
The ability of a witness to give testimony in a judicial
setting or to cooperate with law enforcement and
investigations without fear of intimidation or reprisal is
Writ Petition (Crl.) No. 156 of 2016 Page 23 of 41
essential in maintaining the rule of law. The objective of
this Scheme is to ensure that the investigation,
prosecution and trial of criminal offences is not prejudiced
because witnesses are intimidated or frightened to give
evidence without protection from violent or other criminal
recrimination. It aims to promote law enforcement by
facilitating the protection of persons who are involved
directly or indirectly in providing assistance to criminal law
enforcement agencies and overall administration of
Justice. Witnesses need to be given the confidence to
come forward to assist law enforcement and Judicial
Authorities with full assurance of safety. It is aimed to
identify series of measures that may be adopted to
safeguard witnesses and their family members from
intimidation and threats against their lives, reputation and
property.
Need and justification for the scheme:
Jeremy Bentham has said that “Witnesses are the eyes
and ears of justice.” In cases involving influential people,
witnesses turn hostile because of threat to life and
property. Witnesses find that there is no legal obligation by
the state for extending any security.
Hon’ble Supreme Court of India also held in State of Gujrat
v. Anirudh Singh (1997) 6 SCC 514 that: “It is the salutary
duty of every witness who has the knowledge of the
commission of the crime, to assist the State in giving
evidence.” Malimath Committee on Reforms of Criminal
Justice System, 2003 said in its report that “By giving
evidence relating to the commission of an offence, he
performs a sacred duty of assisting the court to discover
the truth”. Zahira Habibulla H. Shiekh and Another v. State
of Gujarat 2004 (4) SCC 158 SC while defining Fair Trial
said “If the witnesses get threatened or are forced to give
false evidence that also would not result in a fair trial’’.
First ever reference to Witness Protection in India came in
14th Report of the Law Commission of India in 1958.
Further reference on the subject are found in 154th and
178th report of the Law Commission in India. 198th Report
of the Law Commission of India titled as “Witness Identity
Protection and Witness Protection Programmes, 2006” is
dedicated to the subject.
Hon’ble Supreme Court observed in Zahira case supra,
Writ Petition (Crl.) No. 156 of 2016 Page 24 of 41
“country can afford to expose its morally correct citizens to
the peril of being harassed by anti-social elements like
rapists and murderers”. The 4th National Police
Commission Report, 1980 noted ‘prosecution witnesses
are turning hostile because of pressure of accused and
there is need of regulation to check manipulation of
witnesses.”
Legislature has introduced Section 195A IPC in 2006
making Criminal Intimidation of Witnesses a criminal
offence punishable with seven years of imprisonment.
Likewise, in statues namely Juvenile Justice (Acre and
Protection of Children) Act, 2015, Whistle Blowers
Protection Act, 2011, Protection of Children from Sexual
Castes and Tribes (Prevention of Atrocities) Act, 1989 also
provides for safeguarding witnesses again the threats.
However no formal structured programme has been
introduced as on date for addressing the issue of witness
protection in a holistic manner.
In recent year’s extremism, terrorism and organized
crimes have grown and are becoming stronger and more
diverse. In the investigation becoming and prosecution of
such crimes, it is essential that witnesses, have trust in
criminal justice system. Witnesses need to have the
confidence to come forward to assist law enforcement and
prosecuting agencies. They need to be assured that they
will receive support and protection from intimidation and
the harm that criminal groups might seek to inflict upon
them in order to discourage them from co-operating with
the law enforcement agencies and deposing before the
court of law. Hence, it is high time that a scheme is put in
place for addressing the issues of witness protection
uniformly in the country.
Scope of the Scheme:
Witness Protection may be as simple as providing a police
escort to the witness up to the Courtroom or using modern
communication technology (such as audio video means)
for recording of testimony. In other more complex cases,
involving organised criminal group, extraordinary
measures are required to ensure the witness’s safety viz.
anonymity, offering temporary residence in a safe house,
giving a new identity, and relocation of the witness at an
undisclosed place. However, Witness protection needs of
a witness may have to be viewed on case to case basis
Writ Petition (Crl.) No. 156 of 2016 Page 25 of 41
depending upon their vulnerability and threat perception.
1. SHORT TITLE AND COMMENCEMENT:
(a) The Scheme shall be called “Witness Protection
Scheme, 2018”
(b) It shall come into force from the date of Notification.
Part I
2. DEFINITIONS:
(a) "Code" means the Code of Criminal Procedure, 1973
(2 of 1974);
(b) “Concealment of Identity of Witness” means and
includes any condition prohibiting publication or revealing,
in any manner, directly or indirectly, of the name, address
and other particulars which may lead to the identification of
the witness during investigation, trial and post-trial stage;
(c) “Competent Authority” means a Standing Committee
in each District chaired by District and Sessions Judge
with Head of the Police in the District as Member and
Head of the Prosecution in the District as its Member
Secretary.
(d) “Family Member” includes parents/guardian, spouse,
live-in partner, siblings, children,grandchildren of the
witness;
(e) "Form" means “Witness Protection Application Form”
appended to this Scheme;
(f) “In Camera Proceedings” means proceedings
wherein the Competent Authority/Court allows only those
persons who are necessary to be present while hearing
and deciding the witness protection application or
deposing in the court;
(g) “Live Link” means and include a live video link or
other such arrangement whereby a witness, while not
being physically present in the courtroom for deposing in
the matter or interacting with the Competent Authority;
(h) “Witness Protection Measures” means measures
spelt out in Clause 7, Part-III, Part-IV and Part V of the
Writ Petition (Crl.) No. 156 of 2016 Page 26 of 41
Scheme.
(i) "Offence" means those offences which are punishable
with death or life imprisonment or an imprisonment up to
seven years and above and also offences punishable
punishable under Section 354, 354A, 354B, 354C, 354D
and 509 of IPC.
(j) "Threat Analysis Report" means a detailed report
prepared and submitted by the Head of the Police in the
District Investigating the case with regard to the
seriousness and credibility of the threat perception to the
witness or his family members. It shall contain specific
details about the nature of threats by the witness or his
family to their life, reputation or property apart from
analyzing the extent, the or persons making the threat,
have the intent, motive and resources to implement the
theats.
It shall also categorize the threat perception apart from
suggesting the specific witness protection measures which
deserves to be taken in the matter;
(k) “Witness” means any person, who posses information
or document about any offence;
(l) “Witness Protection Application” means an application
moved by the witness in the prescribed form before a
Competent Authority for seeking Witness Protection Order.
It can be moved by the witness, his family member, his
duly engaged counsel or IO/SHO/SDPO/Prison SP
concerned and the same shall preferably be got forwarded
through the Prosecutor concerned;
(m) “Witness Protection Fund” means the fund created for
bearing the expenses incurred during the implementation
of Witness Protection Order passed by the Competent
Authority under this scheme;
(n) “Witness Protection Order” means an order passed by
the Competent Authority detailing the witness protection
measures to be taken
(o) “Witness Protection Cell” means a dedicated Cell of
State/UT Police or Central Police Agencies assigned the
duty to implement the witness protection order.
Writ Petition (Crl.) No. 156 of 2016 Page 27 of 41
Part II
3. CATEGORIES OF WITNESS AS PER THREAT
PERCEPTION:
Category ‘A’ : Where the threat extends to life of witness or
his family members, during investigation/trial or thereafter.
Category ‘B’ : Where the threat extends to safety,
reputation or property of the witness or his family
members, during the investigation/trial or thereafter.
Category ‘C’ : Where the threat is moderate and extends
to harassment or intimidation of the witness or his family
member's, reputation or property, during the
investigation/trial or thereafter.
4. STATE WITNESS PROTECTION FUND:
(a) There shall be a Fund, namely, the Witness Protection
Fund from which the expenses incurred during the
implementation of Witness Protection Order passed by the
Competent Authority and other related expenditure, shall
be met.
(b) The Witness Protection Fund shall comprise the
following:-
i. Budgetary allocation made in the Annual Budget by
the State Government;
ii. Receipt of amount of costs imposed/ordered to be
deposited by the courts/tribunals in the Witness
Protection Fund;
iii. Donations/contributions from Charitable Institutions/
Organizations and individuals permitted by Central/State
Governments.
iv. Funds contributed under Corporate Social
Responsibility.
(c) The said Fund shall be operated by the
Department/Ministry of Home under State/UT
Government.
5. FILING OF APPLICATION BEFORE COMPETENT
AUTHORITY:
Writ Petition (Crl.) No. 156 of 2016 Page 28 of 41
The application for seeking protection order under this
scheme can be filed in the prescribed form before the
Competent Authority of the concerned District where the
offence is committed, through its Member Secretary along
with supporting documents, if any.
6. PROCEDURE FOR PROCESSING THE
APPLICATION:
(a) As and when an application is received by the Member
Secretary of the Competent Authority, in the prescribed
form, it shall forthwith pass an order for calling for the
Threat Analysis Report from the ACP/DSP in charge of the
concerned Police Sub-Division.
(b) Depending upon the urgency in the matter owing to
imminent threat, the Competent Authority can pass orders
for interim protection of the witness or his family members
during the pendency of the application.
(c) The Threat Analysis Report shall be prepared
expeditiously while maintaining full confidentiality and it
shall reach the Competent Authority within five working
days of receipt of the order.
(d) The Threat Analysis Report shall categorize the threat
perception and also include suggestive protection
measures for providing adequate protection to the witness
or his family.
(e) While processing the application for witness protection,
the Competent Authority shall also interact preferably in
person and if not possible through electronic means with
the witness and/or his family members/employers or any
other person deemed fit so as to ascertain the witness
protection needs of the witness.
(f) All the hearings on Witness Protection Application shall
be held in-camera by the Competent Authority while
maintaining full confidentiality.
(g) An application shall be disposed of within five working
days of receipt of Threat Analysis Report from the Police
authorities.
(h) The Witness Protection Order passed by the
Competent Authority shall be implemented by the Witness
Writ Petition (Crl.) No. 156 of 2016 Page 29 of 41
Protection Cell of the State/UT or the Trial Court, as the
case may be. Overall responsibility of implementation of
all witness protection orders passed by the Competent
Authority shall lie on the Head of the Police in the
State/UT.
However the Witness Protection Order passed by the
Competent Authority for change of identity and/or
relocation shall be implemented by the Department of
Home of the concerned State/UT.
(i) Upon passing of a Witness Protection Order, the
Witness Protection Cell shall file a monthly follow-up report
before the Competent Authority.
(j) In case, the Competent Authority finds that there is a
need to revise the Witness Protection Order or an
application is moved in this regard, and upon completion of
trial, a fresh Threat Analysis Report shall be called from
the ACP/DSP in charge of the concerned Police SubDivision.
7. TYPES OF PROTECTION MEASURES:
The witness protection measures ordered shall be
proportionate to the threat and shall be for a specific
duration not exceeding three months at a time. They may
include:
(a) Ensuring that witness and accused do not come face to
face during investigation or trial;
(b) Monitoring of mail and telephone calls;
(c) Arrangement with the telephone company to change
the witness’s telephone number or assign him or her an
unlisted telephone number;
(d) Installation of security devices in the witness’s home
such as security doors, CCTV, alarms, fencing etc;
(e) Concealment of identity of the witness by referring to
him/her with the changed name or alphabet;
(f) Emergency contact persons for the witness;
Writ Petition (Crl.) No. 156 of 2016 Page 30 of 41
(g) Close protection, regular patrolling around the
witness’s house;
(h) Temporary change of residence to a relative’s house or
a nearby town;
(i) Escort to and from the court and provision of
Government vehicle or a State funded conveyance for the
date of hearing;
(j) Holding of in-camera trials;
(k) Allowing a support person to remain present during
recording of statement and deposition;
(l) Usage of specially designed vulnerable witness court
rooms which have special arrangements like live video
links, one way mirrors and screens apart from separate
passages for witnesses and accused, with option to modify
the image of face of the witness and to modify the audio
feed of the witness’ voice, so that he/she is not identifiable;
(m) Ensuring expeditious recording of deposition during
trial on day to day basis without adjournments;
(n) Awarding time to time periodical financial aids/grants to
the witness from Witness Protection Fund for the purpose
of re-location, sustenance or starting a new
vocation/profession, if desired;
(o) Any other form of protection measures considered
necessary.
8. MONITORING AND REVIEW:
Once the protection order is passed, the Competent
Authority would monitor its implementation and can review
the same in terms of follow-up reports received in the
matter. However, the Competent Authority shall review the
Witness Protection Order on a quarterly basis based on
the monthly follow-up report submitted by the Witness
Protection Cell.
Writ Petition (Crl.) No. 156 of 2016 Page 31 of 41
Part III
9. PROTECTION OF IDENTITY :-
During the course of investigation or trial of any offence,
an application for seeking identity protection can be filed in
the prescribed form before the Competent Authority
through its Member Secretary.
Upon receipt of the application, the Member Secretary of
the Competent Authority shall call for the Threat Analysis
Report. The Competent Authority shall examine the
witness or his family members or any other person it deem
fit to ascertain whether there is necessity to pass an
identity protection order.
During the course of hearing of the application, the identity
of the witness shall not be revealed to any other person,
which is likely to lead to the witness identification. The
Competent Authority can thereafter, dispose of the
application as per material available on record.
Once, an order for protection of identity of witness is
passed by the Competent Authority, it shall be the
responsibility of Witness Protection Cell to ensure that
identity of such witness/his or her family members
including name/parentage/occupation/address/digital
footprints are fully protected.
As long as identity of any witness is protected under an
order of the Competent Authority, the Witness Protection
Cell shall provide details of persons who can be contacted
by the witness in case of emergency.
Part IV
10. CHANGE OF IDENTITY:-
In appropriate cases, where there is a request from the
witness for change of identity and based on the Threat
Analysis Report, a decision can be taken for conferring a
new identity to the witness by the Competent Authority.
Conferring new identities includes new
name/profession/parentage and providing supporting
documents acceptable by the Government Agencies. The
Writ Petition (Crl.) No. 156 of 2016 Page 32 of 41
new identities should not deprive the witness from existing
educational/ professional/property rights.
Part V
11. RELOCATION OF WITNESS:
In appropriate cases, where there is a request from the
witness for relocation and based on the Threat Analysis
Report, a decision can be taken for relocation of the
witness by the Competent Authority.
The Competent Authority may pass an order for witness
relocation to a safer place within the State/UT or territory
of the Indian Union keeping in view the safety, welfare and
wellbeing of the witness. The expenses shall be borne by
the Witness Protection Fund.
Part VI
12. WITNESSES TO BE APPRISED OF THE SCHEME:
Every state shall give wide publicity to this Scheme. The
IO and the Court shall inform witnesses about the
existence of "Witness Protection Scheme" and its salient
features.
13. CONFIDENTIALITY AND PRESERVATION OF
RECORDS:
All stakeholders including the Police, the Prosecution
Department, Court Staff, Lawyers from both sides shall
maintain full confidentiality and shall ensure that under no
circumstance, any record, document or information in
relation to the proceedings under this scheme shall be
shared with any person in any manner except with the
Trial Court/Appellate Court and that too, on a written
order.
All the records pertaining to proceedings under this
scheme shall be preserved till such time the related trial or
appeal thereof is pending before a Court of Law. After one
year of disposal of the last Court proceedings, the hard
copy of the records can be weeded out by the Competent
Authority after preserving the scanned soft copies of the
same.
Writ Petition (Crl.) No. 156 of 2016 Page 33 of 41
14. RECOVERY OF EXPENSES:
In case the witness has lodged a false complaint, the
Home Department of the concerned Government can
initiate proceedings for recovery of the expenditure
incurred from the Witness Protection Fund.
15. REVIEW:
In case the witness or the police authorities are aggrieved
by the decisions of the Competent Authority, a review
application may be filed within 15 days of passing of the
orders by the Competent Authority.
Witness Protection Scheme, 2018
Witness Protection Application
under
Witness Protection Scheme, 2018
Before, (To be filed in duplicate)
The Competent Authority,
District................................................................
Application for:
1. Witness Protection
2. Witness Identity Protection
3. New Identity
4. Witness Relocation
1. Particulars of the Witness (Fill in
Capital):
1) Name
2) Age
3) Gender (Male/Female/Other)
4) Father's/Mother’s Name
5) Residential Address
6) Name and other details of family
members of the witness who are
receiving or perceiving threats
7) Contact details (Mobile/e-mail)
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
2. Particulars of Criminal matter:
1) FIR No.
2) Under Section
3) Police Station
---------------------------
---------------------------
---------------------------
---------------------------
Writ Petition (Crl.) No. 156 of 2016 Page 34 of 41
4) District
5) D.D. No. (in case FIR not yet
registered)
6) Cr.Case No. (in case of private
complaint)
---------------------------
---------------------------
---------------------------
3. Particulars of the Accused (if
available/known):
1) Name
2) Address
3) Phone No.
4) Email id
---------------------------
---------------------------
---------------------------
---------------------------
4. Name & other particulars of the
person giving/suspected of giving
threats
---------------------------
---------------------------
---------------------------
---------------------------
5. Nature of threat perception. Please
give brief details of threat received in
the matter with specific date, place,
mode and words used
---------------------------
---------------------------
---------------------------
---------------------------
6. Type of witness protection measures
prayed by/for the witness
---------------------------
---------------------------
---------------------------
---------------------------
7. Details of Interim / urgent Witness
Protection needs, if required
---------------------------
---------------------------
---------------------------
---------------------------
• Applicant/witness can use extra sheets for giving
additional information.
_____________________
(Full Name with signature)
Date: ..............................
Place:...........................…
UNDERTAKING
1. I undertake that I shall fully cooperate with the
competent authority and the Department of Home of the
State and Witness Protection Cell.
2. I certify that the information provided by me in this
application is true and correct to my best knowledge and
belief.
Writ Petition (Crl.) No. 156 of 2016 Page 35 of 41
3. I understand that in case, information given by me
in this application is found to be false, competent authority
under the scheme reserves the right to recover the
expenses incurred on me from out of the Witness
Protection Fund.
_____________________
(Full Name with signature)
Date: ..............................
Place:...........................…”
26) As is clear from its reading, the essential features of the Witness
Protection Scheme, 2018 include identifying categories of threat
perceptions, preparation of a “Threat Analysis Report” by the
Head of the Police, types of protection measures like ensuring
that the witness and accused do not come face to face during
investigation etc. protection of identity, change of identity,
relocation of witness, witnesses to be apprised of the scheme,
confidentiality and preservation of records, recovery of expenses
etc.
27) Since it is beneficial and benevolent scheme which is aimed at
strengthening the criminal justice system in this country, which
shall in turn ensure not only access to justice but also advance
the cause the justice itself, all the States and Union Territories
also accepted that suitable directions can be passed by the court
to enforce the said Scheme as a mandate of the court till the
Writ Petition (Crl.) No. 156 of 2016 Page 36 of 41
enactment of a statute by the Legislatures.
28) It is clear from the aforesaid events that the Scheme is the
outcome of the efforts put in by the Central Government with due
assistance not only from the State Governments as well as Union
Territories but other stakeholders including Police personnel,
NALSA and State Legal Services Authorities, High Courts and
even civil society. There is no reason not to accede to the
aforesaid submission of the learned Attorney General and other
respondents.
29) As pointed out above, in Sakshi’s case, the Court had insisted
about the need to come up with a legislation for the protection of
witnesses. It had even requested the Law Commission to
examine certain aspects, which resulted to 172nd review of rape
laws by the Law Commission. However, the Court specifically
rejected the suggestion of the Law Commission regarding
examination of vulnerable witnesses in the absence of accused.
Having regard to the provisions of Section 273 of the Code of
Criminal Procedure, which is based on the tenets of principle of
natural justice, that the witness must be examined in the
presence of the accused, such a principle cannot be sacrificed in
trials and in inquiries regarding sexual offences. In such a
Writ Petition (Crl.) No. 156 of 2016 Page 37 of 41
scenario examination of these witnesses through video
conferencing provides the solution which balances the interest of
the accused as well as vulnerable witnesses.
30) Part II(7)(L) of the Witness Protection Scheme, 2018 provides for
usage of specially designed court room having special
arrangements like live links, one way mirrors, and screens apart
from separate passages for witnesses and accused with the
option to modify the image of the face of the witness and to
modify the audio feed of the witness’s voice, so that he/she is not
identified.
31) In consonance with the same, the Delhi Judiciary has already
established four Vulnerable Witness Deposition Complexes in the
National Capital Territory, the latest one being at the Dwarka
District Court, which was established in February, 2017. This
complex provides facilities like separate witness room, separate
accused room, play area for the child witnesses, pantry, separate
toilet and an exclusive & comfortable waiting area and is
equipped with all facilities of audio-visual exchange for a free
interface between the presiding Judge, the witness and the
accused without witness facing the accused. The complex has a
separate entry for vulnerable witnesses, so that they do not come
Writ Petition (Crl.) No. 156 of 2016 Page 38 of 41
in direct contact with accused at any point of time. There are
provisions for support persons, pre-trial court visit and facilities for
pick and drop of the witnesses from their residence. In this way,
all possible efforts have been made for providing comfortable
environment to vulnerable witnesses at this complex in order to
enable them to give their best evidence in criminal proceedings.
32) One of the main reasons behind establishing these Vulnerable
Witness Deposition Complexes was that a large percentage of
acquittals in criminal cases is due to witnesses turning hostile and
giving false testimonies, mostly due to lack of protection for them
and their families, especially in case of women and children.
33) In fact, the Supreme Court too, in The State of Maharashtra v.
Bandu @ Daulat (Order dt. 24.20.2017 in Crl. Appeal No.
1820/2017) has directed as follows:
"10. … there should be special centres for examination of
vulnerable witnesses in criminal cases in the interest of
conducive environment in Court so as to encourage a
vulnerable victim to make a statement. Such centres ought
to be set up with all necessary safeguards. Our attention
has been drawn to guidelines issued by the Delhi High
Court for recording evidence of vulnerable witnesses in
criminal matters and also the fact that four special centres
have been set up at Delhi for the purpose.
*****
12. The directions of Delhi High Court and setting up of
special centres for vulnerable witnesses as noted above
Writ Petition (Crl.) No. 156 of 2016 Page 39 of 41
are consistent with the decision of this Court and
supplement the same. We are of the view that all High
Courts can adopt such guidelines if the same have not yet
been adopted with such modifications as may be deemed
necessary. Setting up of one center for vulnerable
witnesses may be perhaps required almost in every district
in the country. All the High Courts may take appropriate
steps in this direction in due course in phases. At least two
such centres in the jurisdiction of each High Court may be
set up within three months from today. Thereafter, more
such centres may be set up as per decision of the High
Courts.”
34) One thing which emerges from the aforesaid discussion is that
there is a paramount need to have witness protection regime, in a
statutory form, which all the stakeholders and all the players in
the criminal justice system concede. At the same time no such
legislation has been brought about. These are the considerations
which had influenced this Court to have a holistic regime of
witness protection which should be considered as law under
Article 141 of the Constitution till a suitable law is framed.
35) We, accordingly, direct that :
(i) This Court has given its imprimatur to the Scheme prepared
by respondent No.1 which is approved hereby. It comes into
effect forthwith.
(ii) The Union of India as well as States and Union Territories
shall enforce the Witness Protection Scheme, 2018 in letter and
Writ Petition (Crl.) No. 156 of 2016 Page 40 of 41
spirit.
(iii) It shall be the ‘law’ under Article 141/142 of the Constitution,
till the enactment of suitable Parliamentary and/or State
Legislations on the subject.
(iv) In line with the aforesaid provisions contained in the
Scheme, in all the district courts in India, vulnerable witness
deposition complexes shall be set up by the States and Union
Territories. This should be achieved within a period of one year,
i.e., by the end of the year 2019. The Central Government should
also support this endeavour of the States/Union Territories by
helping them financially and otherwise.
36) Writ petition stands disposed of in the aforesaid terms.
.............................................J.
(A.K. SIKRI)
.............................................J.
(S. ABDUL NAZEER)
NEW DELHI;
DECEMBER 05, 2018.
Writ Petition (Crl.) No. 156 of 2016 Page 41 of 41
