CHAPTER 4

WITNESS
PROTECTION:
Legislative &
Judicial Trends

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CHAPTER-IV
WITNESS PROTECTION: LEGISLATIVE AND JUDICIAL
TRENDS
Part A: LEGISLATIVE TRENDS
Generally speaking, witness protection would imply protection to a witness from
physical harm, but in the Indian context it has been given a restricted meaning. It
has been understood to mean protection of witnesses from discomfort and
inconvenience and, therefore, has had reference only to the provision of facilities.
It is in this limited sense that witness protection was considered in the earlier
reports of Law Commission.

4.1.

EFFORTS TO IMPLEMENT WITNESS PROTECTION IN

INDIA (Commissions & Committees On Witness Protection)

4.1.1. 14th Report of Law Commission (1958) (Inadequate Arrangements

For Witnesses)
In the 14th Report of the Law Commission 1, witness protection was considered
from a different angle. The Report referred to:
inadequate arrangements for witnesses in the
Courthouse, the scales of traveling allowance and daily
batta (allowance) paid for witnesses for attending the Court
in response to summons from the Court.
This aspect too is important if one has to keep in mind the enormous increase in
the expense involved and the long hours of waiting in Court with tension and
attending numerous adjournments. Here the question of giving due respect to the
witnesss convenience, comfort and compensation for his sparing valuable time is
1

Law Commission of India, Reform of Judicial Administration, 14th Report, First Law Commission under
the Chairmanship of Mr. M. C. Setalvad 1955-1958, in 1958

76

involved. If the witness is not taken care of, he or she is likely to develop an
attitude of indifference to the question of bringing the offender to justice.

4.1.2. Fourth Report of the National Police Commission (1980)

(Handicaps Of Witnesses)
Witness Protection in its narrow interpretation, and its impact on judicial
administration, was also dealt with in the Fourth Report of the National Police
Commission 2. The Police Commission referred to certain inconveniences and
handicaps from which witnesses suffer. The Commission referred to the
inconveniences and harassment caused to witnesses in attending courts. The
Commission reproduced a rather critical and trenchant letter it received from a
senior District and Sessions Judge. The learned judge gave a litany of grievances
and complaints that a witness may have and then said that:
A prisoner suffers from some act or omission but a
witness suffers for no fault of his own. All his troubles
arise because he is unfortunate enough to be on the spot
when the crime is being committed and at the same time
foolish enough to remain there till the arrival of the
police.
Another aspect adverted to by the Police Commission was the payment of daily
allowance payable to witnesses for appearance in the Courts. The Commission
noted that the monetary compensation was woefully inadequate and referred to a
sample survey carried out in 18 Magistrates Courts in one State, which revealed
that out of 96,815 witnesses who attended the Courts during the particular period,
only 6697 witnesses were paid some allowance, and that too after following a
rather cumbersome procedure (which incidentally has hardly changed for the
better anywhere). These figures signify the irrelevance of the amount paid to
witnesses for their troubles. Apart from this point made by the Commission, these
figures suggest the backbreaking burden on the Magistracy, in as much as each
2

National Police Commission, 4th Report, 1980

77

Magistrate was expected to examine, on an average, about 5400 witnesses!

Unfortunately, the length of the test period has not been given and so it may be
difficult to comment further on these figures; but, whatever the period, the
situation could not at all have improved since then. 3

4.1.3. 154th Report of the Law Commission (1996) (Lack of facilities and
wrath of accused )
In the 154th Report of the Commission 4, in Chapter X, the Commission, while
dealing with Protection and Facilities to Witnesses, referred to the 14th Report
of the Law Commission and the Report of the National Police Commission and
conceded that there was plenty of justification for the reluctance of witnesses to
come forward to attend Court promptly in obedience to the summons. It was
stated that the plight of witnesses appearing on behalf of the State was pitiable not
only because of lack of proper facilities and conveniences but also because
witnesses have to incur the wrath of the accused, particularly that of hardened
criminals, which can result in their life falling into great peril. The Law
Commission recommended:
6. We recommend that the allowances payable to the
witnesses for their attendance in courts should be
fixed on a realistic basis and that payment should be
effected through a simple procedure which would
avoid delay and inconvenience. Adequate facilities
should be provided in the court premises for their
stay. The treatment afforded to them right from the
stage of investigation up to the stage of conclusion of
the trial should be in a fitting manner giving them
due respect and removing all causes which contribute
to any anguish on their part. Necessary confidence
has to be created in the minds of the witnesses that
3

Lokur, M. B., Access To Justice: Witness Protection and Judicial Administration, available at
www.humanrightsinitiative.org/
4
Law Commission of India, The Code of Criminal Procedure, 1973 (Act No. 2 of 1974), 154th Report,
Fourteenth Law Commission under the Chairmanship of Mr. Justice K. J. Reddy 1995-1997, in 1996

78

they would be protected from the wrath of the

accused in any eventuality.
7. Listing of the cases should be done in such a way
that the witnesses who are summoned are examined
on the day they are summoned and adjournments
should be avoided meticulously. The courts also
should proceed with trial on day-to-day basis and the
listing of the cases should be one those lines. The
High Courts should issue necessary circulars to all
the criminal courts giving guidelines for listing of
cases.
The following points emerge from the above recommendations:
a) Realistic allowance should be paid to witnesses for their attendance in
Courts and there should be simplification of the procedure for such
payment.
b) Adequate facilities should be provided to witnesses for their stay in the
Court premises. Witnesses must be given due respect and it is also
necessary that efforts are made to remove all reasonable causes for their
anguish.
c) Witnesses should be protected from the wrath of the accused in any
eventuality.
d) Witnesses should be examined on the day they are summoned and the
examination should proceed on a day-to-day basis.
The Law Commission did not suggest any measures for the physical
protection of witnesses or even suggest how witnesses could be protected from
the wrath of the accused.

4.1.4. 172nd Report of the Law Commission (2000) (Screen Technique)

In March 2000, the Law Commission submitted its 172nd Report 5 on Review of
Rape Laws. The Law Commission took the subject on a request made by the
5

Law Commission of India, Review of Rape Laws, 172nd Report, Fifteenth Law Commission under the
Chairmanship of Mr. Justice B. P. Jeevan Reddy 1997-2000, in 2000

79

Supreme Court of India (vide its order dated 9th August, 1999, passed in Criminal
Writ Petition (No. 33 of 1997), Sakshi v. Union of India 6.
The petitioner Sakshi, an organization, interested in the issues concerning
women, filed this petition, seeking directions for amendment of the definition of
the expression sexual intercourse, as contained in section 375 of the IPC. The
Supreme Court requested the Law Commission to examine the issues submitted
by the petitioners and examine the feasibility of making recommendations for
amendments of the Indian Penal Code or to deal with the same in any other
manner so as to plug the loopholes.
The Law Commission discussed the issues raised by the petitioner with
Petitioner NGO and other women organizations. The Commission also requested
Sakshi and other organizations to submit their written suggestions for
amendment of procedural laws as well as the substantial law.
Accordingly, these women organizations submitted their suggestions for
amendment of Cr.P.C. and the Evidence Act and also I.P.C. One of the views put
forward by the organizations was that a minor complainant of sexual assault shall
not have to give his/her oral evidence in the presence of the accused, as this will
traumatic to the minor. It was suggested that appropriate changes in the law should
be made for giving effect to this provision.
The Commission considered the above suggestion along with other issues
raised and the order of the Supreme Court and gave its 172nd Report on 25th
March, 2000. In respect of the suggestion that a minor who has been assaulted
sexually, should not be required to give his/her evidence in the presence of the
accused and he or she may be allowed to testify behind the screen, the Law
Commission referred to section 273 of the Cr.P.C., which requires that except as
otherwise expressly provided, all evidence taken in the course of a trial or other
proceeding, shall be taken in the presence of the accused or when his personal
6

2004(6) SCALE 15

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attendance is dispensed with, in the presence of his pleader. The Law

Commission took the view that his general principle, which is founded upon
natural justice, should not be done away with altogether in trials and enquiries
concerning sexual offence. However, in order to protect the child witness the
Commission recommended that it may be open to the prosecution to request the
Court to provide a screen in such a manner that the victim does not see the
accused, while at the same time providing an opportunity to the accused to listen
to the testimony of the victim and give appropriate instructions to his advocate for
an effective cross-examination. Accordingly, the Law Commission in para 6.1 of
its 172nd Report recommended for insertion of a proviso to section 273 of the
Cr.P.C. 1973 to the following effect:
Provided that where the evidence of a person below
sixteen years who is alleged to have been subjected to
sexual assault or any other sexual offence, is to be
recorded, the Court may, take appropriate measures to
ensure that such person is not confronted by the accused
while at the same time ensuring the right of crossexamination of the accused.

4.1.5. 178th Report of the Law Commission (2001) (Preventing Witnesses

Turning Hostile)
In December, 2001, the Commission gave its 178th Report for amending various
statutes, civil and criminal. That Report dealt with hostile witnesses and the
precautions the Police should take at the stage of investigation to prevent
prevarication by witnesses when they are examined later at the trial. The Law
Commission recommended the insertion of Sec. 164A in the Code of Criminal
Procedure, 1973
7

to provide for recording of the statement of material witnesses

Section 164A (1) Any police officer making an investigation into any offence punishable with
imprisonment for a period of ten years or more (with or without fine) including an offence which is
punishable with death, shall in the course of such investigation, forward all persons whose evidence is
essential for the just decision of the case, to the nearest Magistrate for recording their statement.
(2) The Magistrate shall record the statements of such persons forwarded to him under sub-section (1) on
oath and shall keep such statements with him awaiting further police report under section 173.

81

in the presence of Magistrates where the offences were punishable with

imprisonment of 10 years and more. 8 On the basis of this recommendation, the
Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha. The
Commission recommended three alternatives, (in modification of the two
alternatives suggested in the 154th Report). They are as follows:
1. The insertion of sub-section (1A) in Section 164 of the Code of
Criminal Procedure (as suggested in the 154th Report) so that
the statements of material witnesses are recorded in the presence
of Magistrates [This would require the recruitment of a large
number of Magistrates].
2. Introducing certain checks so that witnesses do not turn hostile,
such as taking the signature of a witness on his police statement
and sending it to an appropriate Magistrate and a senior police
officer.
3. In all serious offences, punishable with ten or more years of
imprisonment, the statement of important witnesses should be
recorded, at the earliest, by a Magistrate under Section 164 of
the Code of Criminal Procedure, 1973. For less serious offences,
the second alternative (with some modifications) was found
viable.

(3) Copies of such statements shall be furnished to the investigating officer.

(4) If the Magistrate recording the statement is not empowered to take cognizance of such offence, he shall
send the statements so recorded to the magistrate empowered to take cognizance of the case.
(5) The statement of any person duly recorded as a witness under subsection (1) may, if such witness is
produced and examined, in the discretion of the court and subject to the provisions of the Indian Evidence
Act, 1872, be treated as evidence.
8
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

82

However, it is to be noted that the Law Commission, in the above Report, did not
suggest any measures for the physical protection of witnesses from the wrath of
the accused nor deal with the question whether the identity of witnesses can be
kept secret and if so, in what manner the Court could keep the identity secret and
yet comply with the requirements of enabling the accused or his counsel to
effectively cross examine the witness so that the fairness of the judicial procedure
is not sacrificed.

4.1.6. The Criminal Law (Amendment) Bill, 2003 (Preventing Witnesses

Turning Hostile)
In the Criminal Law (Amendment) Bill, 2003, introduced in the Rajya Sabha in
August, 2003, the above recommendations have been accepted by further
modifying the recommendation (3) of recording statement before a Magistrate to
apply where the sentence for the offence could be seven years or more. A further
provision is being proposed for summary punishment of the witness by the same
Court if the witness goes back on his earlier statement recorded before the
Magistrate. Another provision is also being made to find out whether the witness
is going back on his earlier statement because of inducement or pressure or threats
or intimidation.

4.1.7. Report of the Justice Malimath Committee on Reforms of

Criminal Justice System
Recently, the Committee on Reforms of Criminal Justice System under the
chairmanship of Dr. Justice V. S. Malimath, former Chief Justice Karnataka High
Court submitted its voluminous Report, containing as many as 158
recommendations. Many of these recommendations reiterate the earlier
recommendations of the Law Commission and the National Police Commission. 9

Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System,
March 2003 (Chaired by Dr. Justice V. S. Malimath),

83

Part-III of the report titled JUDICIARY, the chapter 11 on Witness and

Perjury at page 152 states as follows:
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. Sometimes holding of in-camera
proceedings may be sufficient to protect the interest of the
witness. If, however, the circumstances indicate that the
life of any particular witness is in danger, the court must
take such measures as are necessary to keep the identity of
the witness secret and make arrangements to ensure
protection to the witness without affecting the right of the
accused to cross-examine him. The threat from the accused
side may be before he gives his statement before the police
officer or evidence before the court or after the conclusion
of the trial. There is a growing tendency of subjecting the
witness and his family members to serious threats to life,
abduction or raping, or damaging the witnesses property
or harming his image and interest in other ways. The
witness has no protection whatsoever. Many countries in
the world have enacted laws for witnesses protection.
There is no such law in India. Time has come for a
comprehensive law being enacted for protection of the
witness and members of his family.
The committee only asked what to do but not how to do. Although it has
highlighted the miserable conditions of the witnesses in India and made
recommendations for their protection, but it has not gone into much details. As
regards physical protection to a witness, the Justice Malimath Committee makes
only a single line recommendation at page 284, which is as follows:

84

(81) A law should be enacted for giving protection to the

witnesses and their family members on the lines of the laws
in USA and other countries.
Thus, the above analysis of the various recommendations of the Law Commission
made from time to time, including the 178th Report shows that they do not address
the issue of protection and anonymity of witnesses or to the procedure that has
to be followed for balancing the rights of the witness on the one hand and the
rights of the accused to a fair trial. The above gaps in the law have been dealt with
in detail in the Consultation Paper of the Law Commission of India on Witness
Identity Protection and Witness Protection Programme. 10

4.1.8. 198TH REPORT OF THE LAW COMMISSION (2006) (Witness

Identity Protection and Witness Protection Programmes)
Initially, the Law Commission prepared a Consultation Paper on Witness Identity
Protection and Witness Protection Programmes (August 2004) and invited
responses to the Questionnaire. The Consultation Paper contained three parts:
Part I General (Chapter 1 to IV),
Part II Witness Identity Protection v. Rights of accused (Chapters V, VI) and
Part III Witness Protection Programmes (Chapter VII).
The Statutes of New Zealand and Portugal were annexed as examples of existing
laws.
In the Introductory chapter-1 titled Protection of Witnesses in Criminal Cases
Need for new law Observations of the Supreme Court at page 15 dealing
with the issue of Witness Protection it states as follows:
1.2 There are two broad aspects to the need for
witness protection. The first is to ensure that evidence
of witnesses that has already been collected at the
10

Law Commission of India, 198th Report on Witness Identity Protection and Witness Protection
Programme Seventeenth Law Commission under the Chairmanship of Mr. Justice M. Jagannadha Rao
2003-2006, in 2004

85

stage of investigation is not allowed to be destroyed

by witnesses resiling from their statements while
deposing on oath before a court. This phenomenon of
witnesses turning `hostile on account of the failure
to `protect their evidence is one aspect of the
problem. This in turn would entail special procedures
to be introduced into the criminal law after knowing
all details about witnesses, to balance the need for
anonymity of witnesses on the one hand and rights of
the accused for an open public trial with a right to
cross-examination of the witnesses, on the other
hand.
1.3 The other aspect is the physical and mental
vulnerability of the witness and to the taking care of
his or her welfare in various respects which calls for
physical protection of the witness at all stages of the
criminal justice process till the conclusion of the
case.
1.4 While the first aspect of protecting the evidence of
witnesses from the danger of their turning `hostile
has received limited attention at the hands of
Parliament, there is an urgent need to have a
comprehensive legislative scheme dealing with the
second aspect of physical protection of the witness as
well. Further, witness protection will have to be
ensured in all criminal cases involving grave crimes
not limited to terrorist crimes. The implementation of
such a law would involve drawing up of Witness
Protection Programmes.
The Consultation Paper deals with a number of practical aspects related to this
problem changed identity of a witness, police protection being made available to
the witness and his family members, witness being relocated elsewhere in the
country or abroad and whether a memorandum of understanding, suggesting the
rights and obligations of the witnesses and the Law enforcement authorities, is an
appropriate method of going about this programme. The enormous expenditure

86

involved in implementing such a Witness Protection Programme has also to be

kept in mind.
The Commission prepared this Consultation Paper in order to invite responses
from all sections of society which if found fit, would be incorporated in the
recommendations to be sent to the Government along with the Draft Bill on
Witness Protection.

Final Report:
In the Final Report, the Commission has discussed the responses and given its
recommendations, both in regard to Witness Identity Protection and Witness
Protection Programmes. So far as the Witness Identity Protection is concerned, it
has also annexed a Draft Bill as Annexure I. The Commission has not given any
Draft Bill in regard to Witness Protection Programmes. The observation of the
Law Commission on Witness Identity Protection and Witness Protection
Programme is worth mentioning here:

I. Witness Identity Protection:

The accused in our country have a right to an open public trial in a criminal court
and also a right to examination of witnesses in open court in their presence. But,
these rights of the accused are not absolute and may be restricted to a reasonable
extent in the interests of fair administration of justice and for ensuring that victims
and witnesses depose without any fear. The right of the accused for an open trial
in his or her presence, being not absolute, the law has to balance that right of the
accused as against the need for fair administration of justice in which the victims
and witness depose without fear or danger to their lives or property or those of
their close relatives.
There are three categories of witnesses:
(i)

victim-witnesses who are known to the accused;

87

(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 category (i) above, as the victim is known to the accused, there is no need to
protect the identity of the victim but still the victim may desire that his or her
examination in the Court may be allowed to be given separately and not in the
immediate presence of the accused because if he or she were to depose in the
physical presence of the accused, there can be tremendous trauma and it may be
difficult for the witness to depose without fear or trepidation. But, in categories
(ii) and (iii), victims and witnesses who are not known to the accused have a more
serious problem if there is likelihood of danger to their lives or property or to the
lives and properties of their close relatives, in case their identity kept secret at all
stages of a criminal case, namely, investigation, inquiry and trial.

At the stage of investigation:

We are of the opinion that witness protection is necessary even at the stage of
investigation. This can be provided by the prosecutor moving the Magistrate to a
conduct a preliminary inquiry or voir dire, in his chambers, i.e. in camera. The
Magistrate will have to consider the material relied upon by the prosecutor for
substantiating the danger to the witness or his property or those of his relatives,
and, if necessary, the Magistrate can examine the witness. The suspect is not
entitled to be heard at this stage during investigation. If the Magistrate comes to
the conclusion that there is likelihood of danger, he can grant identity will,
however, be disclosed to the Magistrate and none else. Further, the real identity
will not be reflected in the court records but the witness will be described by a
pseudonym or a letter from the alphabet.

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During inquiry and before recording evidence at the trial:

In the inquiry before the Magistrate or Court of Session (before the trial starts),
the prosecutor or the witness has to make a fresh application and this is necessary
even if some of the witnesses have been allowed anonymity and given a new
identity during investigation. The Magistrate or judge has to pass a fresh
preliminary order granting anonymity. The reason is that, unlike at the stage of
investigation, in the case of identity protection during inquiry/or before trial, such
protection can be granted only after giving a reasonable opportunity to the
accused. We have evolved a procedure in which inquiry before the Magistrate or
before the Sessions Judge before recording of evidence at the trial, the Magistrate
or Judge will consider the material produced by the prosecutor or the witness as
to the danger to his life or property or that of his relatives, and will, if necessary,
hear the witness. All this has to be in camera and the accused/his lawyer will not
be present. However, the Magistrate or Judge will have to hear the accused or his
lawyer separately and disclose to them the material relating to the alleged danger
to the witness, but not any facts which may enable the accused or his lawyer to
discover the real identity of the witness. This, we have pointed, satisfies the
requirement of law where rights of the accused and the rights of the witness get
balanced. If, during inquiry, the Magistrate or Judge grants identity protection by
a preliminary order, it will ensure not only for the period during inquiry, trial, but
at the later stages of appeal or revision and even after the case has been finally
concluded. The record of the proceedings shall not, however, contain the real
identity of the witness or any facts from which identity can be discovered.

Recording evidence during the trial in the Sessions Court: two-way closed
circuit television:
The next stage is the final stage of trial in the Sessions Court. The witness, if he
had already been granted anonymity by the Magistrate or Judge, as stated above,
he need not apply again for anonymity. In respect of the evidence during the trial

89

a two-way closed-circuit television or video link and two-way audio link is

proposed and these will be installed connecting two rooms.
Fortunately, after the decision of the Supreme Court in State of Maharashtra v.
Dr. Praful B Desai, 2003 (4) SCC 601 and Sakshi, 2004 (6) SCALE 15, such
evidence by video-link is admissible.

II. Witness Protection Programmes:

Witness Protection Programmes refer witness protection outside the Court. At the
instance of the public prosecutor, the witness can be given a new identity by a
Magistrate after conducting an ex parte inquiry in his chambers. In case of
likelihood of danger of his life, he is given a different identity and may, if need be,
even relocated in a different place along with his dependents till be trial of the
case against the accused is completed. The expenses for maintenance of all the
persons must be met by the State Legal Aid Authority through the District Legal
Aid Authority. The witness has to sign an MOU which will list out the obligations
of the State as well as the witness. Being admitted to the programme, the witness
has an obligation to depose and the State has an obligation to protect him
physically outside Court. Breach of MOU by the witness will result in his being
taken out of the programme.
A detailed framework for Witness Identity Protection and Witness Protection
Programmes is recommended by the Law Commission of India in its 198th Report.

4.1.9. Research Study under the supervision of Bureau of Police

Research and Development (B.P.R.D)
Recently in 2009 a research study about the witnesses; their problems, hostility
and assistance has been conducted by the Research Division of Bureau of Police
Research and Development (BPRD), Ministry of Home Affairs. The title of the
study is Witness in the Criminal Justice Process : A Study of Hostility and
Problems associated with Witness by Dr. G.S. Bajpai, Department of

90

Criminology & Forensic Science, Sagar (MP). The key objective of the study was
to highlight the problems faced by the witnesses in their interaction with criminal
justice agencies. The need and shape of witness protection relevant to Indian
context has also been studied. With the help of a sample of 789 witnesses in four
states i.e. Madhya Pradesh, Rajasthan, Maharashtra and Karnataka all aspects of
witnesses hostility, protection, problems and assistance have been examined .The
focus of the research was on the following four areas:
1. Problem of witnesses at various levels
2. Hostility of witness
3. Protection of witness
4. Assistance to witnesses
It was seen in the study that witnesses are frequently pressurized in the course of
their testimony. Majority of witnesses (69.8 percent) of the witnesses were
pressurized by their acquaintances followed by social pressure (13.4 percent), and
only 3.4 percent by money power. Similarly muscle power was also faced by these
people in many cases (20.3percent) as against general classes (19 percent).The
study indicated that several types of pressures were used to make the witnesses to
twist their statements in the trial. As data suggested the money (31.6percent) and
muscle power (39.3 percent) was predominantly faced by the respondents. The
witnesses with relatively poor educational background had excessive chances to be
physically pressurized in relation to their testimony. These classes were also seen
to have been pressurized, to a large extent, by money power. The findings of the
study suggested that subjects were physically assaulted after being witness. It was
also found that witnesses from the under privileged category (22.4 percent) were
more likely to face physical assault than the witnesses of general category (16.5
percent).

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PART-B: JUDICIAL TRENDS

Law is a mean to achieve an end, and that is justice. If this end is to be achieved
law cannot remain stagnant. It has to be dynamic and must change according to
the transition of the society. One may raise question why Judge should involve
himself in Witness Protection or Witness Protection Programme. It is the
function and duty of the state. The function of the Court is to conduct trial in free
and fair manner and deliver final verdict on the basis of record. In fact the Judge
has an important role to play in Witness Protection.
The role of a Judge is to strike a balance fair trial to accused as well as to
the prosecution or the victims. The primary object of the criminal procedure is to
bring offenders to books and to ensure a fair trial to accused persons. A fair trial
has two objectives i.e. it should be fair to accused and should also be fair to the
prosecution or to the victims. The judge is supposed to play an innovative role in
conduction of the fair trial. The duty of a judge is to ensure that witnesses are
giving evidence without any force, fear and pressure in the courts and also to
provide necessary protection if required.
Under the heading Judicial Trends an attempt has been made to analyse
the cases pertaining to witness protection and how the judiciary played the
constructive role to provide different means and methods to the protection of
witnesses.

4.2.

ARTICULATION OF WITNESS PROTECTION BY INDIAN

JUDICIARY

4.2.1. Protection Against Publication of Evidence

A rather interesting aspect of witness protection came up for consideration before
the Supreme Court in somewhat unusual circumstances in a defamation case. In

92

Naresh Shridhar Mirajkar v. State of Maharashtra 11, a witness for the defence
repudiated in the witness box all statements earlier made by him. With the
permission of the High Court, he was cross-examined by the defence, but he
maintained his stance. Later the defence came to know of some other proceedings
where the witness had substantially stated what was alleged by the defence.
Accordingly, the defence recalled him to the witness box. At that stage, the
witness sought protection of the High Court against the publication of his evidence
because, he said, the publication of his earlier evidence had caused him business
losses. Protection against publication of his evidence was given by the High Court
and affirmed by the Supreme Court because it was thought to be necessary in
order to obtain true evidence in the case with a view to do justice between the
parties. This may well be the only case in which the business interests of a
witness were sought to be protected rather than the witness himself. It is a
novel and unexplored dimension to witness protection.

4.2.2. Externment Power of Commissioner of Police

In Gurbachan Singh v. State of Bombay 12the challenge was to an order of
externment passed under Sec. 27 of the Greater Bombay Police Act, 1902 against
the appellant (writ petitioner), a resident of Bombay, to the effect that he should
shift to Amritsar, (later modified as a shift to Kalyan), so that witnesses may
depose freely against him in Bombay. The order was passed by the Commissioner
of Police under sec. 27 of the Greater Bombay Police Act, 1902 13. That section
permitted the Commissioner to direct any person to remove himself outside the
State or to such place within the State and by such route and within such time as
the Commissioner shall prescribe and not to enter the State or, as the case may be,
the Greater Bombay, if it appears to the Commissioner:
11

A.I.R. 1967 SC 1
A.I.R. 1952 SC 221
13
which is now replaced by section 56 of the the Bombay Police Act, 1951
12

93

(a) that the movements or acts of any person in Greater

Bombay are causing or calculated to cause alarm, danger
or harm to person or property, or that there are reasonable
grounds for believing that such person is engaged or is
about to be engaged in the commission of an offence
involving force or violence, or an offence punishable under
Chapters XII, XVI or XVII of the Indian Penal Code, or in
the abetment of any such offence, and where in the opinion
of the Commissioner, witnesses are not willing to come
forward to give evidence in public against such person by
reason of apprehension on their part as regards the safety
of their person or property.
One of the contentions of the appellant was that section 27 which permitted the
Court to order the accused to be removed outside the State or to another place
within the State imposed an unreasonable restriction on the appellant violating Art.
19(1)(d) of the Constitution of India and was not saved by clause (5) of Art 19.The
Supreme Court has upheld the power of externment and repelled a challenge to its
constitutionality14. It was held that:
There can be no doubt that the provision of S. 27(1) of the
Bombay Act [conferring on the Commissioner of Police the
power to extern] was made in the interest of the general
public and to protect them against dangerous and bad
characters whose presence in a particular locality may
jeopardize the peace and safety of the citizens.
The Supreme Court also held that the procedure in the Act which denied
permission to be present when the witness was cross-examined was not
unreasonable. The law was an extraordinary one and was made only to deal with
exceptional cases where witnesses, for fear of violence to their person or property,
were unwilling to depose publicly against bad characters whose presence in
certain areas might constitute a menace to the safety of the public residing there.
This object would be wholly defeated if a right to confront or cross examine these
witnesses was given to the suspect. The power under sec 27 was vested in a high
14

Supra note 12

94

dignitary and was justified. It should be noted that the Court treated the procedure
as valid as it was not necessary before Maneka Gandhis case 15, to go into the
question whether the procedure was fair. The Supreme Court did not, as indeed it
was not required to, consider the possibility of protection to the witnesses to
secure a conviction, as an alternative to passing an externment order against a bad
character.

4.2.3. Cancellation of Bail for Continuance of Fair Trial

In Talab Haji Hussain V. Madhukar Purushottam Mondkar 16 were that the
person was accused of having committed an offence which was bailable but the
High Court, in exercise of its inherent power, allowed an application by the
complainant for cancelling the bail on the ground that it would not be safe to
permit the appellant to be at large. The Supreme Court confirmed the order of
cancellation and observed that the primary purpose of the Criminal Procedure
Code was to ensure a fair trial to an accused person as well as to the prosecution.
The Court observed:
It is therefore of the utmost importance that, in a
criminal trial, witnesses should be able to give evidence
without inducement or threat either from the prosecution
or the defence.the progress of a criminal trial must not
be obstructed by the accused so as to lead to the acquittal of
a really guilty offender. there can be no possible doubt
that, if any conduct on the part of an accused person is
likely to obstruct a fair trial, there is occasion for the
exercise of the inherent power of the High Court to secure
the ends of justice. and it is for the continuance of such
a fair trial that the inherent powers of the High Courts, are
sought to be invoked by the prosecution in cases where it is
alleged that accused person, either by suborning or
intimidating witnesses, or obstructing the smooth progress
of a fair trial.
15
16

1978(1) S.C.C. 240

A.I.R. 1958 SC 376

95

The cancellation of bail was justified on the basis of the conduct of the accused
subsequent to release on bail.

4.2.4. Transfer of Case

(a) Case Transferred Anticipating Communal Violence
The preserving of a congenial atmosphere for the conduct of a fair trial has been
viewed as imperative by the superior courts. If the atmosphere is surcharged with
tension on account of the hostility between the parties, or within the community, it
is bound to have impact on the fairness of the trial. The necessity for ensuring
protection of witnesses assumes significance in this context as well. This case in
Francis and the next one relating to Maneka Gandhi state that if there are serious
local tensions which are likely to preclude a fair trial, the case can be transferred
for trial to a distant place. These cases were followed recently in Best Bakery case
also.
In G.X. Francis v. Banke Bihari Singh 17, the Supreme Court was deciding a
transfer petition filed under section 527 of the Cr.P.C. 1898 for the transfer of a
criminal case from Jashpuranagar, in the state of Madhya Pradesh, to some other
State, preferably New Delhi or Orissa. The complainant in the case was a member
of the royal family of Jashpur, who used to reside at Jashpurnagar. All the seven
accused, except one, were Roman Catholics and the other one was a Jacobite
Christian. One of the grounds for asking transfer of the case was that there was
bitterness among the communities of the accused and the complainants i.e.
Christians and Hindus, in the area of Jashpurnagar. In view of the unanimity of
testimony from both sides about the nature of surcharged tension in Jashpurnagar,
the Supreme Court ordered transfer of the case from Jashpurangar to the State of
Orissa, for fair trial. Vivian Bose J, speaking for the Court observed:

17

A.I.R. 1958 SC 209

96

But we do feel that good grounds for transfer from

Jashpurnagar are made out because of the bitterness of
local communal feeling and the tenseness of the
atmosphere there. Public confidence in the fairness of a
trial held in such an atmosphere would be seriously
underminded, particularly among reasonable Christians all
over India, not because the Judge was unfair is biased but
because the machinery of justice is geared to work in the
midst of such conditions. The calm detached atmosphere of
a fair and impartial judicial trial would be wanting and
even if justice were done it would not be seen to be done.
(b)Transfer of Case can be made if there are Local Tensions:
The Supreme Court in Maneka Sanjay Gandhi vs. Rani Jethmalani 18 stressed
the need for a congenial atmosphere for fair and impartial trial. Krishna Iyer J
while defining the need for congenial atmosphere for a fair and impartial trial,
observed:
This tendency of roughs and street roughs to violate the
serenity of court is obstructive of the course of justice and
must surely be stamped out. Likewise the safety of the
person of an accused or complainant as an essential
condition for participation in a trial and where that is put
in peril by commotion, tumult, or threat on account of
pathological conditions prevalent in a particular venue, the
request for a transfer may not be dismissed summarily. It
causes disquiet and concern to a court of justice if a person
seeing justice is unable to appear, present ones case, bring
only witnesses or adduce evidence. Indeed, it is the duty of
the court to assure propitious conditions which conduce to
comparative tranquility at the trial. Turbulent conditions
putting the accuseds life in danger or creating chaos
inside the Court hall may jettison public justice. If this vice
is peculiar to a particular place and is persistent the
transfer of the case from that place may become necessary.
Likewise, if there is general consternation or atmosphere
of tension or raging masses of public in the entire region
18

(1979) 4 S.C.C. 167

97

taking sides and polluting the climate, vitiating the

necessary neutrality to hold a detached judicial trial, the
situation may be said to have deteriorated to such an extent
as to warrant transfer.

4.2.5. Accused not allowed to Cross Examine Witnesses

In Hira Nath Mishra v. Principal, Rajendra Medical College 19 the Supreme
Court considered the validity of an internal inquiry in a college where some male
students behaved indecently in the presence of some female students. In the
internal inquiry, the statements of the female students were recorded and they
were asked to identify the male students from some photographs. The male
students were not allowed to cross-examine the female students. The Supreme
Court did not find the procedure adopted as being violative of the principles of
natural justice, inter alia, because
We know of statutes in India like the Goonda Acts which
permit evidence being collected behind the back of the
goonda and the goonda being merely asked to represent
against the main charges arising out of the evidence
collected. Care is taken to see that the witnesses who gave
statements would not be identified. In such cases there is
no question of the witnesses being called and the goonda
being given an opportunity to cross-examine the witnesses.
The reason is obvious. No witness will come forward to
give evidence in the presence of the goonda. However
unsavoury the procedure may appear to a judicial mind,
these are facts of life which are to be faced. The girls who
were molested that night would not have come forward to
give evidence in any regular enquiry and if a strict enquiry
like the one conducted in a court of law were to be imposed
in such matters, the girls would have had to go under the
constant fear of molestation by the male students who were
capable of such indecencies.

19

(1973) 1 S.C.C. 805

98

4.2.6. Protection of Witnesses from Media

The High Court of Punjab and Haryana in Bimal Kaur Khalsas case (P&H
High Court, Full Bench) 20 observed that neither the Court nor the government
can ensure the total safety of a prosecution witness. A witness deposing in a
criminal case does so with a sense of public duty. The Court can however take
steps to stop the dissemination of information regarding the identity and address of
the witness ensuring that the name, address and identity of the witness are not
given publicly in the media. Even this judgment does not deal with all the aspects
relating to witness protection.

4.2.7. Preventive Detention in the Interests of Maintaining Public

Order
Harpreet Kaur v. State of Maharashtra 21

arose under the Maharashtra

Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug offenders

Act (1981). An order of preventive detention was passed against the detenu for
indulging in transportation of illicit liquor and keeping arms with him while
transporting liquor. He was also creating fear psychosis. Four witnesses, on
condition of anonymity gave statements to the police and clearly stated that they
would not depose against the detenu for fear of retaliation as the detenu had
threatened to do away with anyone who would depose against him. The Supreme
Court held that the activities of the detenu affected the even tempo of the society
by creating a feeling of insecurity among those who were likely to depose against
him as also the law enforcement agencies. The fear psychosis created by the
detenu in the minds of the witnesses was aimed at letting the crime go unpunished.
It was held that these activities fell within sec. 2(a) of the Act, as to permit the
detenus preventive detention in the interests of maintaining public order.

20
21

A.I.R. 1988 P&H p. 95

A.I.R. 1992 SC 779

99

4.2.8. Keeping the Identity and Address of Witness Secret

Kartar Singh v. State of Punjab 22 is a landmark and is a case nearest to the
subject matter of this study. That case was dealing with the provisions of Section
16(2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
Section 16(2) gives discretion to the Designated Court to keep the identity and
address of any witness secret on the following three contingencies:
1. on an application made by a witness in any proceedings before it; or
2. on an application made by the Public Prosecutor in relation to such witness;
or
3. on its own motion.
Section 16(3) refers to the measures to be taken by the Designated Court while
exercising its discretion under subsection (2).If neither the witness nor the Public
Prosecutor has made an application in that behalf nor the Court has taken any
decision of its own, then the identity and address of the witnesses have to be
furnished to the accused. The measures are to be taken by the Designated Court
under any of the above contingencies so that a witness may not be subjected to any
harassment for speaking against the accused. Section 16(3) refers to the measures
that the Court without prejudice to its general power under section 16(2), may
take. These include:
a. the holding of the proceedings at a place to be decided by the
Designated Court;
b. the avoiding of the mentioning of the names and addresses of the
witnesses in its orders or judgments or in any records of the cases
accessible to public;
c. the issuing of any directions for securing that the identity and
addresses of the witnesses are not disclosed;
22

1994(3) S.C.C. 569

100

d. directing, in the public interest, that all or any of the proceedings

pending before such a Court, shall not be published in any manner.
Subsection (4) of section 16 refers to the punishment that can be imposed for
contravention of any direction issued under subsection (3). It says that such
persons shall be punishable with imprisonment for a term which may extend to
one year and with fine which may extend to Rs. 1000/-.
In Kartar Singh, the Supreme Court upheld the special provision envisaged
in section 16(2) and (3) stating as follows: (pp 688-689)
Generally speaking, when the accused persons are of bad
character, the witnesses are unwilling to come forward to
depose against such persons fearing harassment at the
hands of those accused. The persons who are put for trial
under this Act are terrorists and disruptionists. Therefore,
the witnesses will all the more be reluctant and unwilling to
depose at the risk of their life. The Parliament, having
regard to such extraordinary circumstances has thought it
fit that the identity and addresses of the witnesses be not
disclosed in any one of the above contingencies.
The Supreme Court then referred to the provision of section 228A of the Indian
Penal Code, (inserted in 1983) which states that disclosure of the identity of the
victims of certain offences, (sections 376, 376A, 376B, 376C, 376D) as
contemplated by sub-section (1) of that section is punishable but will be subject to
sub-section (2). Sub-section (2) states that nothing in subsection (1) shall extend to
any printing or publication of the name of any person which may make known the
identity of the victim if such printing or publication is made:
a. by or under the orders in writing of the officer-in-charge
of the police station or the police officer making the
investigation into such offence acting in good faith for the
purposes of such investigation; or
b. by, or with the authorisation in writing of the victim; or

101

c. where the victim is dead or minor or of unsound mind, by,

or with the authorization in writing of the next of kin of
the victim.
Subsection (3) of section 228A of the Indian Penal Code provides that whoever
prints or publishes any matter in relation to any proceeding before a Court with
respect to an offence referred to in subsection (1) without the previous permission
of such Court shall be punished with imprisonment of either description for a term
which may extend to two years and shall also be liable to fine. Explanation below
sub-section (3) states that the printing or publication of the judgment of any High
Court or the Supreme Court does not amount to an offence within the meaning of
the section.
The Supreme Court (p. 689) then explained the permissible restrictions
upon the right of the accused to cross-examine the prosecution witnesses, as
follows:
However, when the witnesses are examined in the
presence of the accused, then the accused may have the
chances of knowing the identity of the witnesses if they are
already known to the defence. But if the witnesses are
unknown to the defence, there is no possibility of knowing
the identity of the witnesses even after they enter into the
witness box. During a trial, after examination of the
witness-in-chief, the accused have a right of deferring the
cross-examination and calling the witnesses for crossexamination on some other day. If the witnesses are known
to the accused, they could collect the material to crossexamine at the time of cross-examination in such
circumstances. Whatever may be the reasons for
nondisclosure of the witnesses, the fact remains that the
accused persons to be put up for trial under this Act which
provides severe punishment, will be put to disadvantage to
effective cross-examining and exposing the previous
conduct and character of the witnesses.

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The following final observation of the Supreme Court in Kartar Singhs case (para
290) is important:
Therefore, in order to ensure the purpose and object of
the cross-examination, we feel that, as suggested by the
Full Bench of the Punjab and Haryana High Court in
Bimal Kaur (AIR 1988 P&H p 95 (FB)) the identity, names
and addresses of the witnesses may be disclosed before the
trial commences; but we would like to qualify it by
observing that it should be subject to an exception that the
Court for weighty reasons in its wisdom may decide not to
disclose the identity and addresses of the witnesses
especially if the potential witnesses whose life may be in
danger.(Emphasis supplied)
The Supreme Court has, therefore, upheld the provision of sub-sections 1(2) and
(3) of section 16 of the TADA, 1987 by treating the right of the accused to crossexamine the prosecution witnesses as not being absolute but as being subject to
exceptions in the case of trials of alleged offenders by the Designated Court.

4.2.9. Anonymity of the Victims in Rape Trials

As compared to statutory provisions, the judicial pronouncements have gone far
ahead in protecting the witnesses and more particularly the protection of victims
witness as in the case of a rape. In the Delhi Domestic Working Womens
Forum v. Union of India 23, the Supreme Court, while indicating the broad
parameters that can assist the victims of rape, emphasized that in all rape trials
anonymity of the victims must be maintained as far as necessary so that the
name is shielded from the media and public. The Court also observed that the
victims invariably found the trial of an offence of rape trial a traumatic experience.
The experience of giving evidence in court has been negative and destructive and
the victims have often expressed that they considered the ordeal of facing crossexamination in the criminal trial to be even worse than the rape itself.

23

(1995) 1 S.C.C. 14

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4.2.10.

Plight of Witnesses in Criminal Cases

The expenses payable to witnesses provided in sec. 312 of the Code of Criminal
Procedure, 1973 came up for discussion in Swaran Singh s. State of Punjab 24.
The Supreme Court (Wadhwa J) described the plight of witnesses in criminal
courts as follows:
Not only that a witness is threatened; he is maimed; he is
done away with; or even bribed. There is no protection for
him.

4.2.11.

Criminal Trial On Day to Day Basis

The Supreme Court in State of UP v. Shambhu Nath Singh

25

observed that

section 309 of the Code of Criminal Procedure, 1973 requires that the criminal
trial must proceed from day to day and should not be adjourned unless special
reasons are recorded by the Court. In that case, after several adjournments, PW1
was not examined even when present. The Supreme Court observed:
If any Court finds that day to day examination of
witnesses mandated by the legislature cannot be complied
with due to the noncooperation of the accused or his
counsel, the Court can adopt any of the measures indicated
in the sub section, i.e. remanding the accused to custody or
imposing costs on the party who wants such adjournments
(the costs must be commensurate with loss suffered by the
witnesses, including the expenses to attend the Court).
Another option is, when the accused is absent and the
witness is present to be examined, the Court can cancel his
bail, if he is on bail.

4.2.12.

Need for Law of Witness Protection:

In the public interest case, (W.P. Crl. No. 109/2003 and batch) in National
Human Rights Commission v. State of Gujarat 26 a series of orders were passed

24

AIR 2000 SC 2017

2001 (4) S.C.C. 667
26
2003(9) SCALE 329
25

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by the Supreme Court. There, the National Human Rights Commission (NHRC)
filed a public interest case seeking retrial on the ground that the witnesses were
pressurised by the accused to go back on their earlier statements and the trial was
totally vitiated. The Supreme Court observed:
. A right to a reasonable and fair trial is protected
under Articles 14 and 21 of the Constitution of India,
Article 14 of the International Covenant on Civil and
Political Rights, to which India is a signatory, as well as
Article 6 of the European Convention for Protection of
Human Rights and Fundamental Freedoms. On perusal of
the allegations in the special leave petition and number of
criminal cases coming to this Court, we are prima facie of
the opinion that criminal justice delivery system is not in
sound health. The concept of a reasonable and fair trial
would suppose justice to the accused as also to the victims.
From the allegations made in the special leave petition
together with other materials annexed thereto as also from
our experience, it appears that there are many faults in the
criminal justice delivery system because of apathy on the
part of the police officers to record proper report, their
general conduct towards the victims, faulty investigation,
failure to take recourse to scientific investigation etc.
Then, on the question of protection of witnesses, the Supreme Court referred to the
absence of a statute on the subject, as follows:
No law has yet been enacted, not even a scheme has been
framed by the Union of India or by the State Government
for giving protection to the witnesses. For successful
prosecution of the criminal cases, protection to witnesses is
necessary as the criminals have often access to the police
and the influential people. We may also place on record
that the conviction rate in the country has gone down to
39.6% and the trials in most of the sensational cases do not
start till the witnesses are won over. In this view of the
matter, we are of opinion that this petition (by NHRC) be
treated to be one under Article 32 of the Constitution of
India as public interest litigation.

105

The Court directed that in the counter-affidavit of the Gujarat Government, it

should indicate the steps, if any, taken by it for extending protection to the lives of
victims, their families and their relations; if not, the same should be done. The
Court also wanted to know whether any action had been taken by the Gujarat
Government against those who had allegedly extended threats of coercion to the
witnesses, as a result whereof the witnesses had changed their statements before
the Court. The Court also directed the Union of India to inform the Court about the
proposals, if any, to enact a law for grant of protection to the witnesses as is
prevalent in several countries.
By a subsequent order passed on 12th July, 2004, the Supreme Court issued
directions to all States and Union Territories to give suggestions for formulation of
appropriate guidelines in the matter.

4.2.13.

Role of State in protecting the witnesses

The apex Court in Zahira Habibulla H. Sheikh and Another V. State of

Gujarat and Others, 27 was emphatic on the role of the State to play in protecting
the witnesses. It has been observed that as a protector of its citizens, the State has
to ensure that during the trial in the Court the witness could safely depose the truth
without any fear of being haunted by those against whom he had deposed.
Supreme Court reminded the State that it has a constitutional obligation and duty
to protect the life and liberty of the citizen. 28

4.2.14.

Guidelines for Witness Protection Issued by Delhi High

Court

Certain guidelines were issued by the Delhi High Court in Ms. Neelam Katara v.
Union of India 29 to the police on providing protection to witnesses to curb the
menace of their turning hostile leading to acquittal of accused in heinous crimes.
27

2000 (4) S.C.C. 187

A.Hariprasad, Director, Kerala Judicial Academy, WITNESS PROTECTION-Birds-eye view
available at http://kja.nic.in/article/witnessProtection.pdf
29
ILR (2003) II Del 377 260
28

106

This decision given by a bench comprising Justice Usha Mehra and Justice
Pradeep Nandrajog on a petition filed by Neelam Katara whose son Nitish was
allegedly kidnapped form a marriage party in Gaziabad by Rajya Sabha MP DP
Yadavs son Vikas and his nephew Vishal and killed. Apparently, fearing that the
investigation may not be free or fair and the subsequent trial may also be affected,
Mrs. Katara filed a writ petition praying, inter alia, for the issuance of directions
for protection of witnesses.
The Government of India filed its response by way of an affidavit 30 in which it
stated that:
1. An inadequate and non-realistic allowance is paid to witnesses to
compensate for the loss of earning and pocket expenses.
2. Witnesses in important cases are under constant fear of criminals.
3. There is an urgent need to provide adequate protection to a witness from
harassment and intimidation of criminals, and
4. Government feels that framing of a scheme for protection of witnesses is of
prime importance in the administration of justice.
5. These guidelines are applicable to cases where an accused is punishable
with death or life imprisonment. The significance of the guidelines is that
they are not confined to cases of rape, or sexual offences or terrorism or
organized crime. The Court suggested the following scheme:
Witness Protection Guidelines
a) Definitions:
i) Witness means a person whose statement has been recorded by the
Investigating Officer under section 161 of the Code of Criminal

30

Affidavit dated 25th February 2003 of Venu Gopal v. Director (Judicial) in the Ministry of Home
Affairs.

107

Procedure pertaining to a crime punishable with death or life

imprisonment.
ii) Accused means a person charged with or suspected with the
commission of a crime punishable with death or life imprisonment.
iii) Competent Authority means the Secretary, Delhi Legal Services
Authority.
iv) Admission to protection: The Competent Authority, on receipt of a
request from a witness shall determine whether the witness requires
police protection, to what extent and for what duration.
b) Factors to be considered:
i) In determining whether or not a witness should be provided police
protection, the Competent Authority shall take into account the
following factors:
ii) The nature of the risk to the security of the witness which may emanate
from the accused or his associates.
iii) The nature of the investigation in the criminal case.
iv) The importance of the witness in the matter and the value of the
information or evidence given or agreed to be given by the witness.
v) The cost of providing police protection to the witness.
c) Obligation of the police:
i) While recording statement of the witness under sec. 161 of the Code of
Criminal Procedure, it will be the duty of the Investigating Officer to
make the witness aware of the Witness Protection Guidelines and also
the fact that in case of any threat, he can approach the Competent

108

Authority. This, the Investigating Officer will inform in writing duly

acknowledged by the witness.
ii) It shall be the duty of the Commissioner of Police to provide security to
a witness in respect of whom an order has been passed by the
Competent Authority directing police protection.
The court further said that the guidelines shall operate for the protection of
witnesses till enactment of a suitable legislation.
The above guidelines laid down by the Delhi High Court are the first of its
kind in the country and have to be commended. But, they deal only with one
aspect of the matter, namely, protection of the witnesses. They do however not
deal with the manner in which a witnesss identity can be kept confidential either
before or during trial nor to the safeguards which have to be provided to ensure
that the accuseds right to a fair trial is not jeopardized.

4.2.15.

Witness Protection Under Section 30 of the POTA

In PUCL V. Union of India 31, where the validity of several provisions of the
Prevention of Terrorism Act, 2002 (POTA), came up for consideration, the
Supreme Court considered the validity of section 30 of the Act which deals with
protection of witnesses. The provisions of section 30 are similar to those in
section 16 of the TADA, 1987, which were upheld in Kartar Singhs case already
referred to above. In PUCL, the Court referred to Gurubachan Singh vs. State of
Bombay 1952 SCR 737, and other cases, and observed that one cannot shy away
from the reality that several witnesses do not come to depose before the Court in
serious cases due to fear of their life. Under sec. 30 a fair balance between the
rights and interests of witnesses, the rights of the accused and larger public interest
has, it was held, been maintained. It was held that section 30 was also aimed to
31

2003 (10) SCALE 967

109

assist the State in the administration of justice and to encourage others to do the
same under given circumstances. Anonymity of witnesses is to be provided only in
exceptional circumstances when the Special Court is satisfied that the life of
witnesses is in jeopardy.
The Court in PUCL has pointed out that the need for existence and exercise
of power to grant protection to a witness and preserve his or her identity in a
criminal trial has been universally recognized. A provision of this nature should
not be looked at merely from the angle of protection of the witness whose life may
be in danger if his or her identity is disclosed but also in the interests of the
community to ensure that heinous offences like terrorist acts are effectively
prosecuted and persons found guilty are punished and to prevent reprisals. Under
compelling circumstances, the disclosure of identity of the witnesses can be
dispensed with by evolving a mechanism which complies with natural justice and
this ensures a fair trial. The reasons for keeping the identity and address of a
witness secret are required to be recorded in writing and such reasons should be
weighty. A mechanism can be evolved whereby the Special Court is obliged to
satisfy itself about the truthfulness and reliability of the statement or deposition of
the witness whose identity is sought to be protected.
On the subject of protection of identity of witnesses, section 30 of the
Prevention of Terrorism Act, 2002 is similar to section 16 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987. It is necessary to advert to the
contentions raised in the case. While challenging the constitutional validity of
section 30 of the Prevention of Terrorism Act, 2002 in Peoples Union of Civil
Liberties V. Union of India (2003) 10 SCALE 967, the petitioner (PUCL)
argued as follows:
that the right to cross-examine is an important part of
fair trial and principles of natural justice which is

110

guaranteed under article 21; that even during Emergency,

fundamental rights under articles 20 and 21 cannot be
taken away; that section 30 is in violation of the dictum in
Kartar Singhs case because it does not contain the
provision of disclosures of names and identities of the
witnesses before commencement of trial; that fair trial
includes the right for the defence to ascertain the true
identity of an accused; that therefore the same has to be
declared unconstitutional.
Responding on behalf of Union of India, the learned Attorney- General for India
submitted as follows:
Such provisions (section 30) or exercise of such powers
are enacted to protect the life and liberty of a person who is
able and willing to give evidence in prosecution of grave
criminal offences; that the section is not only in the interest
of witness whose life is in danger but also in the interests of
community which lies in ensuring that heinous offences
like terrorist acts are effectively prosecuted and punished;
that if the witnesses are not given immunity they would not
come forward to give evidence and there would be no
effective prosecution of terrorist offences and the entire
object of the Act would be frustrated; that crossexamination is not a universal or indispensable
requirement of natural justice and fair trial; that under
compelling circumstances, it can be dispensed with, and
natural justice and fair trial can be evolved; that the
section requires the court to be satisfied that the life of
witness is in danger and the reasons for keeping the
identity of witness secret are required to be recorded in
writing; that therefore, it is reasonable to hold that section
is necessary for the operation of the Act.
In PUCL, the Supreme Court speaking through Justice Rajendra Babu observed
(in para 57) as follows:
In order to decide the constitutional validity of section 30,
we do not think, it is necessary to go into the larger debate,
which learned counsel for both sides have argued, that
whether right to cross-examine is central to fair trial or
not. Because right to cross-examination per se is not taken

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away by section 30. The section only confers discretion to

the concerned court to keep the identity of witness secret if
the life of such witness is in danger.
In our view, a fair balance between the rights and
interests of witness, rights of accused and larger public
interest has been maintained under section 30. It is also
aimed to assist the State in justice administration and
encourage others to do the same under the given
circumstance. Anonymity of witness is not the general rule
under section 30. Identity will be withheld only in
exceptional circumstances when the special court is
satisfied that the life of witness is in jeopardy.
The Court further observed (in para 59) as follows:
The present position is that section 30 (2) requires the
Court to be satisfied that the life of a witness is in danger to
invoke a provision of this nature. Furthermore, reasons for
keeping the identity and address of a witness secret are
required to be recorded in writing and such reasons should
be weighty. In order to safeguard the right of an accused to
a fair trial and basic requirements of the due process, a
mechanism can be evolved whereby the Special Court is
obligated to satisfy itself about the truthfulness and
reliability of the statement or deposition of the witness
whose identity is sought to be protected.
Finally, the Court while upholding the validity of section 30, observed (in para 62)
as follows:
It is not feasible for us to suggest the procedure that has
to be adopted by the special Courts for keeping the identity
of witness secret. It shall be appropriate for the concerned
courts to take into account all the factual circumstances of
individual cases and to forge appropriate methods to
ensure the safety of individual witness.
In PUCL, the attention of the Court was drawn to the legal position in USA,
Canada, New Zealand, Australia and UK, as well as the view expressed in the
European Court of Human Rights in various decisions. However, the Court did not

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consider it necessary to refer to any of them in detail because the legal position has
been fully set out and explained in Kartar Singhs case.
It was stated further in PUCL that the effort of the Court is to strike a
balance between the right of the witness as to his life and liberty and the right of
the community in the effective prosecution of persons guilty of heinous criminal
offences on the one hand and the right of the accused to a fair trial, on the other.
The Court observed: (p 993)
This is done by devising a mechanism or arrangement to
preserve anonymity of the witness when there is an
identifiable threat to the life or physical safety of the
witness or others whereby the Court satisfies itself about
the weight to be attached to the evidence of the witness. In
some jurisdictions, an independent counsel has been
appointed for the purpose to act as amicus curiae and after
going through the deposition evidence assist the Court in
forming an opinion about the weight of the evidence in a
given case or in appropriate cases to be cross-examined on
the basis of the question formulated and given to him by
either of the parties. Useful reference may be made in this
context to the recommendation of the Law Commission of
New Zealand.
While elaborating further the need for keeping the identity of the witness secret,
the Court observed: (p 994)
It is not feasible for us to suggest the procedure that
has to be adopted by the Special Courts for keeping the
identity of witness secret.

4.2.16.

Special provisions for Trial in Child Sex Abuse or Rape

Cases

The Supreme Court in Sakshi v. Union of India 32 referred to the argument of the
petitioner that in case of child sexual abuse, there should be special provisions in
the law to the following effect:32

2004 (6) SCALE 15

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i.

permitting use of videotaped interview of the childs statement by the judge

(in the presence of a child support person).

ii.

allowing a child to testify via closed circuit television or from behind a

screen to obtain a full and candid account of the acts complained of.

iii.

that the cross examination of a minor should only be carried out by the
judge based on written questions submitted by the defence upon perusal of
the testimony of the minor.

iv.

that whenever a child is required to give testimony, sufficient breaks should

be given as and when required by the child. During the pendency of the
case in Sakshi, the Supreme Court requested the Law Commission to
examine the question as to the expansion of the definition of rape. The
Commission gave its 172nd Report dealing with various aspects of the
problem. Details of the Report have been set out in Chapter IV

The Supreme Court in Sakshi, after receipt of the Report of the Law Commission
(172nd Report, Chapter VI), did not accept the above said arguments of the
petitioner in view of sec. 273 of the Code of Criminal Procedure as, in its opinion,
the principle of the said section of examining witnesses in the presence of the
accused, is founded on natural justice and cannot be done away with in trials and
inquiries concerning sexual offences. The Supreme Court however pointed out
that the Law Commission had observed that in an appropriate case, it may be open
to the prosecution to request the Court to provide a screen in such a manner that
the victim does not see the accused and at the same time provide an opportunity to
the accused to listen to the testimony of the victim and the Court could give
appropriate instructions to his counsel for an effective cross examination.
The Law Commission had also suggested that with a view to allay any
apprehensions on this score, a proviso could be placed above the Explanation to
sec. 273 Cr.P.C to the following effect:

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Provided that where the evidence of a person below 16

years who is alleged to have been subjected to sexual
assault or any other sexual offence, is to be recorded, the
Court may, take appropriate measures to ensure that such
person is not confronted by the accused while at the same
time ensuring the right of cross examination of the
accused.
In para 31 and 32 the Supreme Court observed as follows:
31. The whole inquiry before a Court being to elicit the
truth, it is absolutely necessary that the victim or the
witnesses are able to depose about the entire incident in a
free atmosphere without any embarrassment. Section 273
Cr.P.C. merely requires the evidence to be taken in the
presence of the accused. The Section, however, does not
say that the evidence should be recorded in such a manner
that the accused have full view of the victim or the
witnesses. Recording of evidence by way of video
conferencing vis--vis Section 272 Cr.P.C. has been held to
be permissible in a recent decision of this Court in State of
Maharashtra vs. Dr. Praful B. Desai 33. There is a major
difference between substantive provisions defining crimes
and providing punishment for the same and procedural
enactment laying down the procedure of trial of such
offences. Rules of procedure are hand-maiden of justice
and are meant to advance and not to obstruct the cause of
justice. It is, therefore, permissible for the Court to expand
or enlarge the meaning of such provisions in order to elicit
the truth and do justice with the parties.
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 cross-examination are purposely designed
to embarrass or confuse the victims of rape and child
33

2003(4) S.C.C. 601

115

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 Cr.P.C. should also apply in inquiry or
trial of offences under Section 354 and 377 IPC.
The Court in Sakshi referred to State of Punjab v. Gurmit Singh 34 where the
Supreme Court had highlighted the importance of section 327(2) and (3) of the
Cr.P.C. which require evidence to be recorded in camera in relation to holding
rape and other sexual offences. The Court gave the following directions, in
addition to those given in Gurmit Singhs case, namely,
1. The provisions of sub-section (2) of section 327 Cr.P.C. shall, in addition to
the offences mentioned in that sub-section, would also apply in inquiry or
trial of offences under sections 354 and 377 IPC.
2. In holding trial of child sex abuse or rape:
i.

a screen or some such arrangements may be made where the victim

or witnesses (who may be equally vulnerable like the victim) do not
see the body or face of the accused;

ii.

the questions put in cross-examination on behalf of the accused, in

so far as they relate directly to the incident, should be given in
writing to the Presiding Officer of the Court who may put them to
the victim or witnesses in a language which is clear and is not
embarrassing;

34

1996(2) S.C.C. 384

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iii.

the victim of child abuse or rape, while giving testimony in court,

should be allowed sufficient breaks as and when required.

Finally, the Court in Sakshi added that cases of child abuse and rape are increasing
with alarming speed and appropriate legislation in this regard is, therefore urgently
required. They observed:
We hope and trust that the Parliament will give serious
attention to the points highlighted by the petitioner and
make appropriate suggestions with all the promptness
which it deserves.

4.2.17.

Protection of Witnesses

Recently, Honble Supreme Court in Zahira Habibulla H. Sheikh and Another

Vs. State of Gujarat and Others 35 came down heavily on the State administration
in general and the investigating agency in particular for rashly and negligently
handling their duties and abdicating their responsibilities. The categorical finding
is that the whole machinery of a State failed in maintaining the confidence of
public in the justice delivery system. Apex Court in strong words reminded the
trial Courts to be alive to the reality about the witness hostility. One of the
predominant points taken note of by the Honble Supreme Court is the lack of
witness protection in our country. The apex court observed that state has a definite
role to play in protecting the witnesses. It has also pointed out that at least in
sensitive cases, where accused person, are closely connected with the powerful,
having political patronage could wield muscle and money power, to avert fair trial,
full protection to witnesses deposing before them must be provided by the state. In
this case, the Supreme Court dealt with witness protection and the need for a fair
trial, whereby fairness is meted out not only to the accused but to the

35

(2004) 4 S.C.C. 158

117

victims/witnesses. On the question of witness protection, the Court observed

(p.392):
If the witnesses get threatened or are forced to give false
evidence that also would not result in a fair trial.
(Page 394):
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 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 (p.395) 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 trial
in court, the witness could safely depose truth without any
fear of being haunted by those against whom he has
deposed.
And the court further reminded the legislature about the urgency of the issue:

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(Page 395):
Legislative measures to emphasize prohibition against
tampering with witness, victim or informant, have become
the imminent and inevitable need of the day.
(Page 399)[Referring to UK]:
The Director of Prosecution plays a vital role in the
prosecution system. He even administers witness
protection programmes. Several countries for example,
Australia, Canada and USA have even enacted legislation
in this regard. The Witness Protection Programmes are
imperative as well as imminent in the context of alarming
rate of summersaults by witnesses 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.
The principles stated in the above decision have been reiterated by the
Honble Supreme Court in the contempt proceedings taken up against Zahira
Habibulla H. Sheikh and Another

36

Apex Court highlighted the importance and

primacy of the quality of trial process. It has been observed that if the witness
himself is incapacitated from acting as eyes and ears of justice, the trial gets
putrefied and paralyzed. Following excerpt from the said decision will be
appropriate in this context.
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 courts 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
36

(2006) 3 S.C.C. 374

119

to surface rendering truth and justice to become ultimate

casualties. Broader public and societal interests require
that the victims of the crime who are not ordinarily parties
to prosecution and the interests of State represented by
their prosecuting agencies do not suffer even in slow
process but irreversibly and irretrievably, which if allowed
would undermine and destroy public confidence in the
administration of justice, which may ultimately pave way
for anarchy, oppression and injustice resulting in complete
breakdown and collapse of the edifice of rule of law,
enshrined and jealously guarded and protected by the
Constitution. 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
ultimate truth is presented before the court and justice
triumphs and that the trial is not reduced to a mockery.

4.3.

CRITICAL EVALUATION OF ILLUSTRATIVE

RELATING TO WITNESS PROTECTION

CASES

Here are few cases in which the Indian Courts have given witness protection:

4.3.1. Naroda- Patia

Mohammad Shakur Sayyad, a victim of the Naroda-Patia carnage in the year
2002, who was also a key witness in that case, was attacked and beaten up brutally
by a group of thirty people, while he was sitting outside his shop at the Faisal Park
Society in Vatva. According to him Akram Ahmed, an anti social element of that
locality while assaulting him along with other people of the abovementioned
group was shouting you are very fond of deposing before the Nanavati
Commission , arent you?
Sayyad, who lost his three children in the Naroda-Patia massacre, had deposed
before the Nanavati Commission on 1st October 2003 naming several persons in
the mob. He is one of the key witnesses in the case and had also been provided
with one police guard. The guard however had retired for the day when Sayyad
was attacked. The neighbours of Sayyad maintain that Akram Ahmed had been

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threatening others not to depose before the judiciary during the Naroda trial.
About forty-five families of Naroda-Patia have refused to go back to the area after
the riots. What is shocking in this case is that such a key witness (in this case
Sayyad), was provided with only one police guard who, surely, would have looked
to save his own life rather than that of the witness he was protecting, when the
crowd of thirty people attacked.

4.3.2. Ketan Thirodkar Case

In another instance, the Bombay High Court had given police protection to an exjournalist Ketan Thirodkar, because he had been under threats soon after he had
filed the police complaint, which disclosed a series of illegal acts allegedly
committed by the police in connivance with the underworld. Thirodkar had filed a
petition seeking police protection as well as a police enquiry into the police
underworld nexus. However, the public prosecutor opposed the grant of police
protection on the ground that Thirodkar himself was involved with the
underworld. Here the public prosecutor failed to comprehend the fact that:
a) Thirodkar has admitted his links with the underworld and is ready to face
the legal consequences.
b) That even former criminals/ mobsters are also given police protection if
they turn approver.
The High Court, in this case, had given Thirodkar police protection only for a
limited period, not realizing that the persons that he is to implicate would cause
serious injury to him the moment the temporary police protection is removed.

4.3.3. Twin Blast Case

The role of witnesses and the issue of their protection has come in for much
discussion after Shivnarayan Pandey, the taxi driver who gave clues in the August
25th 2003 Twin Blast case had to be given extra protection by the Mumbai Police.

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The identity of the witness (Pandey) in this case was leaked to the media by
an inspector on the day of the blasts. This officer allegedly circulated Xerox copies
of a document bearing the name of the witness and the registration number of his
vehicle. A couple of days later, a crime branch officer is believed to have leaked
his address in Kandivali- a distant Mumbai suburb- to the media persons. The
police had failed to realize that Pandey was an important prosecution witness in a
very sensitive case. Since the police are yet to arrest more persons in regard to this
case, Pandey is a crucial witness in identifying such persons. In such cases the
police should take extra precaution and issue a circular or directive to all officers
in the department to maintain silence on all the investigations. In this case the
Mumbai police have contravened Section 30 of the Prevention of Terrorism Act
(POTA), by failing to protect the identity of the prosecution witness. Section.30 of
Prevention of Terrorism Act states:
"Since the life of the witness is in danger, adequate
measures should be taken to keep the identity and address
of such a witness a secret. The mention of the names and
address of the witness should be avoided in any records of
the case and even in the Court orders or judgment."
While Pandey had been kept at an undisclosed place with police guards, his family
had not been given protection, whereas, it could have been possible that under the
guise of a political activist, some terrorist could have approached Pandey or his
family members. They could have bribed Pandey or his family members or for that
matter done anything to make sure that Pandey turns hostile. 37

4.3.4. Beant Singh Assassination Case: Witness Made To Pay For His
Own Security
The case of Balwinder Singh, a prime witness in Beant Singh (former Chief
Minister of Punjab) assassination case, shows the state of witness protection in the
37

Desai, Dhruv, Treatment and Protection of Witnesses in India available at

http://legalservicesindia.com

122

country. The administration issued a .32 Italian revolver for self protection to
Balwinder Singh after he paid a sum of rupees 15,000. However he was neither
given any ammunition nor imparted training to use the weapon. As a result , his
life is now in danger. It may be mentioned in this context that three main accused
of the Beant Singh assassination case escaped from the high security Burail Jail on
22 January, 2004.
The witness, earning a meager salary of Rs.2, 700 per month as a home
guard, had to beg for money from his friends and relatives. It was funny that the
administration gave him a choice of making a cash down payment of Rs.5, 000,
while the rest could be paid in monthly installment at 10 percent interest per
annum. Further, the administration did not care to know whether Balwinder was in
a position to buy ammunition (Rs.180 per round).The situation was aptly
described by the witness himself: They made me pay Rs.15,000/- for a
confiscated weapon. But the resolver is nothing but a piece of metal for me. I do
not have any ammunition nor has anyone instructed me how to use the weapon.
This is sheer mockery of my security.
In September 2003, the Punjab and Haryana High Court ruled that it would
be appropriate for both the Central and State Government to expeditiously adopt a
programme for the protection of witnesses. 38 The Court said:
Since it is not for us to direct the administration to
formulate the guidelines, rather than leaving the decision
on the absolute discretion of the district authorities, who
may or may not like to draw upon secret service funds, we
would like to bring on record the desirability of the
legislature or the administration to try and emulate the
advances in this field made in other countries.

38

The Bench, comprised of Mr. Justice Amar Dutt and Mr. Justice Virender Singh; for further details, see
Mechanism Required for Protection of Witnesses, says High Court, The Tribune, 9 September 2003.

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These are some preliminary tentative steps being taken by the authorities
concerned with delivery of justice. But these steps are not enough to provide
protection to witnesses though they provide some guidelines in this regard.
Clearly, India needs a comprehensive law on witness protection.