Law

Criminal Justice Administration

Witness Protection
 Role Name Affiliation
Principal Investigator Prof. (Dr.) Ranbir Singh Vice Chancellor, National
Law University, Delhi
Co-Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law
University Delhi
Paper Coordinator Mr. Neeraj Tiwari Assistant Professor,
National Law University
Delhi
Content Writer/Author Dr. M. K. Sahu Department of Law,
Sambalpur University,
Odisha

Content Reviewer Mr. Neeraj Tiwari Assistant Professor,

National Law University
Delhi

DESCRIPTION OF MODULE

Items Description of Module

Subject Name Law
Paper Name Criminal Justice Administration
Module Name Witness Protection
Module Id LAW/CJA/XVI
Objectives  The main objective of the module is to provide
introductory knowledge of criminal justice system
vis-à-vis witness protection.

 To make the students aware about legal and

regulatory framework under which the witness
operate within the CJS and are extended
protection.

 To make the students understand the present

status of witness, causes of hostility and
implementations of recommendations of Law
Commission of India for protection of witnesses.
Prerequisites Basic knowledge of legal provisions relating to
witness under the Code of Criminal Procedure, 1973
and Indian Evidence Act, 1872 is required.
Key words Criminal justice, witness, witness protection
programme, hostility, false evidence, whistle
blowers, perjury.
1. Introduction:

Witness plays a vital role in adversarial system of criminal justice which is prevalent in
India. It is cardinal principle of criminal law that the burden of proof always lies on the
prosecution. A criminal case is to be proved beyond the reasonable doubt. In this context,
protection of witness becomes very important to explore the truth. The statement of
witness is the determining factor for the conviction or acquittal of the accused. The
speedy justice or delay in justice delivery also depends, to great extent, on the quality of
statement given by the witness during trial. The Jessica Lal case and Nirbhaya Case have
raised many important debates on the working of our Criminal Justice System. It
becomes imperative for a student of criminal law to understand firstly, how criminal
justice is regulated in the country and secondly, what are the legal provisions prescribed
for protection of witness. This module, therefore, will provide a brief insight on
provisions of law for witness protection in force in India. The module will also help
students to understand case laws, recommendations of Law Commissions of India and
various Committees for reforming criminal justice administration system and
recommendations for providing protection to witnesses.

The testimony of a witness is very vital in a criminal trial. The significant role played by
the witness is sine qua non for dispensing justice. It is believed that witnesses are just like
the eyes and ears of the court whose sole testimony sometimes leads to conviction or
acquittal in a criminal case. Each and every statement of witness is relevant to decide a
case by the court of law as witness has the power to change the course of the whole case.

2. Types of Witnesses and Witness Identity Protection:

Since witness is a party that brings relevant facts before the court either through oral
evidence or through documentary evidence, the criminal procedure law would permit the
possibilities of, at least, three categories of witnesses, namely i) victim witness, ii)
accused witness1 and iii) independent witness.2 The issue of witness protection becomes
relevant only in cases of victim witness or independent witnesses, who face the threat of
violence and harassment at the hands of the powerful and scheming accused. The
problem of hostile witnesses can be said to be a direct fall out of the growing menace of
protection-less victim/witness.

Witness protection is not defined anywhere under the Indian criminal law. Different
provisions under the Indian Evidence Act and Code of Criminal procedure only seek to
deal with hostile witness. In common parlance, it means protection to a witness from
physical harm, discomfort and inconveniences. It also implies legal analysis of the
commission of a crime to testify before a court or quasi-judicial body or before an
investigating authority by protecting him from reprisals and from economic dislocation
providing all necessary security and reposing in him the confidence that he is discharging
a very important duty to society for which he is expected to discharge the onus of
testifying his statement without any bias.

The identity of witnesses requires protection during investigation, inquiry and trial. It is
not confined to cases of terrorism or sexual offences only but it extends to all serious
offences where danger is imminent to the life and property of the witness. The Law
Commission in its 198th Report dwelled upon this issue and stressed upon streamlining
Witness Identity Protection and Witness Protection Programmes in India. It has been

1
An accused witness may be required to come for testifying before the court under section 313 and may be
either summoned to appear before the court under section 204(1)(a) or required to appear under warrant
under section 204(1)(b). Similarly an accused who is already remanded to prison may be required to attend
the court under section 267. In case of other witnesses, such as victim witness or independent prosecution
witness the court is given power to call the witness under section 311 of the Code.
2
Law Commission of India in its 198th Report on “Witness Identity Protection and Witness Protection
Programmes” (2006) divides witnesses in to three categories, namely (i) victim-witnesses who are known
to the accused; (ii) victims-witnesses not known to the accused (e.g. as in a case of indiscriminate firing by
the accused) and (iii) witnesses whose identity is not known to the accused. It further states that the
category (i) witnesses require protection from trauma and categories (ii) and (iii) witnesses require
protection against disclosure of identity.
Report available at http://lawcommissionofindia.nic.in/reports/rep198.pdf
stated in the said Report that Witness Identity Protection may require during
investigation, inquiry and trial while Witness Protection Programmes apply to the
physical protection of the witness outside the Court. In this regard the said Report
provides that on the basis of the direction given by public prosecutor, the Magistrate in
cases of likelihood of danger to life or property of the witness or any of his relative can
give the witness a new identity, only known to him. Entire case record must use the same
identity. Such order granting anonymity may be passed during the course of trial as well.

3. Legislative Measures for Witness Protection:

3.1 Procedural Safeguards to Victim/Witness:

Right to an open trial or public hearing and examination of witnesses in the presence of
the accused are among those cardinal principles of fair trial which are found in the
criminal procedure of almost all countries governed by rule of law. Similarly in our case
sections 273 and 327 ensure that all evidence should be taken in the presence of the
accused and requires all trials to be in open court. These rights of the accused are not
absolute. The law needs to make balance between these rights of the accused as against
the need for protection of victims and witnesses from fear or danger to their lives and
property so that they may depose in court freely. However, the recent laws have created
exceptions to these provisions.

3.1.1 Evidence to be taken in presence of the accused

The opening sentence of section 273 is indicative of the fact that in given cases the
requirement of taking evidence in the presence of the accused can be dispensed with in
the interest of justice.3

3
Section 273- Except as otherwise expressly provided, all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with,
in the presence of his pleader.
A proviso to section 273 is inserted in the year 2013 which allows court to take necessary
steps in recording of evidence in cases where a woman below the age of eighteen years is
subjected to rape or any other sexual offence. Such measures are necessary to ensure that
such woman is not confronted by the accused while cross-examination.4

3.1.2 Open Hearing or a Public Trial

The general rule is that the accused must be afforded a public trial. This rule is embodied
in section 327 of the Code. Though section 327 also creates an exception to this general
rule and the Magistrate, if circumstance demands, may reserve the access of public or any
person in any inquiry or trial of a particular case.

The section further provides that where such an inquiry or trial of cases pertains to sexual
offences then it must be conducted in camera. It prohibits publication of any matter
relating to such proceeding except with the prior permission of the court. Section 228A of
the Indian Penal Code, 1860 prescribes punishment if the identity of the victim of rape is
published.

The objective of trial in camera trial is that it would help the victim/witness to give her
testimony without fear. The presence of the accused or public creates a sense of pressure
and hesitation in the mind of the victim/witness which may cause discomfort for her to
depose voluntarily.

The Supreme Court in case of State of Punjab v. Gurmit Singh5 gave emphasis on in
camera trial and held that it would not only help in keeping the self-respect of the witness
/victim of the crime but also would improve the quality of evidence of the rape victim
because she would not feel shyness or hesitant to depose freely. The evidence deposed
by her will have quality and it evidence would help the court in ascertaining the truth.

4
It is pertinent to note here that the Law Commission in its 172nd Report (2000) has also recommended for
insertion of such proviso which took its final shape in the Justice Verma Committee Report on
Amendments to Criminal Law in the year 2013.
5
1996 (2) SCC 384
In Sakshi v. Union of India6 the Apex Court stressed on the use of a screen or some
other similar arrangement to prevent victim/witness face to face encounter with the
accused person. The face or visibility of the accused to the victim or witness may create a
fear in the mind of victim or the witness as a result of which he/she may adduce evidence
involuntarily. The Court further stated that recording through video conferencing can be
followed by which victim/witness can avoid direct confrontation with the accused at the
time of giving testimony.

Question as to the admissibility of evidence recorded through video conferencing was

answered in affirmative in the case of State of Maharashtra v. Dr. Praful B. Desai7.
Upholding the validity and legality of video conferencing, the Supreme Court held that
recording of evidence through video conferencing is permissible under law.

3.1.3 Recording of evidence in absence of the accused

Section 299 is an exception to the general rule that evidence to be taken in presence of
the accused. In cases where the accused has absconded or where there is no immediate
prospect of arresting him the Court may, in his absence, examine the witnesses produced
on behalf of the prosecution, and record their depositions.

Section 299 deals with the right of the accused to cross-examine the prosecution
witnesses. The object of this provision is to guarantee an open public trial which gives a
right to the accused to know the evidence gathered by the prosecution and also a right to
cross-examination to safeguard the interest of the accused. It is based on the cardinal
principle that the accused is presumed to be innocent unless proved guilty beyond
reasonable doubt.

3.1.4 Complainant and witnesses not to be required to accompany police officer and
not to be subject to restraint

6
2004(6) SCALE 15
7
2003 (4) SCC 601
Section 171 of the Code provides that the complainant or witness is not required to
accompany police officer on their way to any Court. At the same time they shall not be
subjected to unnecessary restraint or inconvenience, or required to give any security for
their appearance other than their own bond. In case any complainant or witness refuses to
attend or to execute a bond the officer in charge of the police station may forward him in
custody to the Magistrate, who may detain him in custody until he executes such bond, or
until the hearing of the case is completed.

3.1.5 When attendance of witness may be dispensed with and commission issued

Section 284 provides for cases where attendance of witness may be dispensed with and
commission may be issued for examination. If it appears to Magistrate that the
examination of a witness is necessary for the ends of justice, and that the attendance of
such witness cannot be procured without an amount of delay, expense or inconvenience
which, under the circumstances of the case, would be unreasonable, the Court or
Magistrate may dispense with such attendance and may issue a commission for the
examination of the witness.

3.1.6 Expenses of complainants and witnesses: Section 312 Cr. P.C

As per section 312, any criminal court may if it thinks fit order payment on the part of
Government of the reasonable expenses of any complainant or witness attending for the
purposes of any inquiry, trial or other proceeding before such Court.

It was held in the case of Zahira Habibulla Sheikh v. State of Gujarat8 that in cases
where the venue of trial is shifted from one place to another to provide more conducive
environment to witnesses or victims to depose freely, the courts are obliged to order
payment of reasonable expenses incurred by the witness or complainant for attending the
court as per section 312 of the Code.

8
(2004) 4 SCC158.
3.2 Penalizing Disclosure of Identity of victims of sexual offences and
threatening witness:

3.2.1 Disclosure of identity of sexual victims to be an offence

Section 228A of the Indian Penal Code provides that the court shall impose a sentence of
two years imprisonment and fine upon any person who prints or publishes the name
which may identify the victim of such offence of rape. The object of extending this
protection is to ensure that the rape victim’s privacy can be maintained throughout the
trial and even after trial is over.
3.2.2 Threatening any person to give evidence

Section 195-A was inserted in the Indian Penal Code by an amendment in the year 2005
which provides for punishment for threatening any person to give false evidence.

If any person threatens another with any injury to his person, reputation or property or to
the person or reputation of any one in whom that person is interested, with intent to cause
that person to give false evidence, he shall be punished with imprisonment for a term
which may extend to seven years.

Where any innocent person is convicted and sentenced in consequence of such false
evidence, with death or imprisonment for more than seven years, the person who
threatens shall be punished with the same punishment and sentence in the same manner
and to the same extent such innocent person is punished and sentenced.

3.3 Special Evidentiary Rules Relating to Witnesses:

3.3.1 Witness not excused from answering on ground that answer will criminate

Section 132 imposes a duty on a witness to answer questions put to him. He shall not be
excused from answering any question in any proceeding on the ground that such answer
will criminate witness or expose such witness to a penalty or forfeiture.

In case the witness is compelled to answer any such question, he shall not be subjected to
any arrest or prosecution, or it will not be used against him in any criminal proceeding,
though he may be prosecuted for giving false evidence by such answer.9

3.3.2 Court to decide when question shall be asked and when witness compelled to
answer

9
In the case of Elavarathi Peddatha Reddi v. Iyyala Varada Reddi , [AIR 1929 Mad. 236] the Court
observed that to avail the protection given under section 132 of Indian Evidence Act the witness should be
compelled to answer the question. The compulsion provided in Section 132 may be expressed or implied.
Section 148 of the Indian Evidence Act provides that if any question relates to matter
which is not relevant to the proceedings under hearing except it effects the credit of a
witness by injuring his character, then it empowers the court to decide when such
questions shall be asked and when such witness be compelled to answer it.

In exercising its discretion, the Court shall have regard to the following considerations:-

(1) such questions are proper if they are of such a nature that the truth of the imputation
conveyed by them would seriously affect the opinion of the Courts as to the
credibility of the witness or the matter to which testifies;

(2) Such questions are improper if the imputation which they convey relates to matters so
remote in time, or of such a character, that the truth of the imputation would not
affect, or would affect in a slight degree, the opinion of the Court as to the credibility
of the witness on the matter to which he testifies;

(3) such questions are improper if there is a great disproportion between the importance
of the imputation made against the witness's character and the importance of his
evidence;

(4) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference
that the answer if given would be unfavourable.

The onus is on the person asking such question to prove that he has reasonable grounds
for thinking that the imputation which it conveys is well-founded. Section 149 of the
Evidence Act lays down that a question which is likely to impeach the credit of a witness
should not be asked.

3.3.3 Witnesses not to be subjected to unreasonable questioning

The objective of section 150 of Evidence Act is to impose a restriction on the lawyers to
ask any question without any reasonable ground. It empowers the court to report the
circumstances of the case either to High Court or to such Bar Council to which such
barrister, pleader, vakil or attorney is subject in exercise of his profession.

3.3.4 Prohibition on indecent and scandalous questions

As per section 151 the Court may forbid any question or inquiry which it regards as
indecent or scandalous, although such questions or inquiries may have some bearing on
the questions before the Court, unless they relate to facts in issue, or to matters necessary
to be known in order to determine whether or not the facts in issue exited.10

10
In Babu Rao Patel v. Bal Thackeroy [1977 Cri.L.J. 1639] the Court pointed out that if the court is
satisfied that even an indecent and scandalous question is directly related to fact in issue that cannot be
refused to be asked. But the questions which are not relevant and likely to harass or embarrass a witness are
not allowed to be asked.
4. Special Witness Protection Laws:

The necessity for protection of witness in a criminal case has been universally recognized
for better administration of criminal justice and to ensure that offences like terrorist acts
or organized crime are properly prosecuted and punished to ensure that the hardened
criminal is not escaped from the clutches of law. It is noteworthy to mention here that a
witness who adduce evidence against an accused in a trial especially in a terrorist offence
which would expose himself to life threatening which may cause death or severe bodily
injury to him or to his kith and kin.

Following are some of the special statutes where provisions for protection to witness
have been prescribed:
4.1 The West Bengal Act, 1932

Section 31 of the West Bengal Act conferred power on a court to reserve the access of
public or any particular person in any given case. Even the Public Prosecutor or
Advocate-General may certifies in writing to the Magistrate that it is expedient in the
interests of public, peace or safety, or of peace or safety of any of the witnesses in the
trial that the public generally should not have access, the special Magistrate shall order
accordingly.
Section 31 kept the safety of the witnesses at paramount importance and it is a ground for
exclusion of public from a criminal trial.

4.2 Terrorists and Disruptive Activities Act, 1985

For the first time in 1985, the legislature introduced the principle of ‘witness identity’
protection in certain special statutes, and this started with the statutes to prevent terrorist
activities. To prevent the rising incidence of terrorist activities in recent times, the
Terrorist and Disruptive Activities (Prevention) Act, 1985 was enacted. It was felt that
unless sufficient safeguards are not provided to victims/witnesses the idea to curb such a
menace will remain a dream. To achieve this, the Act introduced witness anonymity for
the first time.

Section 13 of the Act provides for in camera proceeding. Though the prosecutor may
request to conduct any proceeding or part thereof in open court. Clause (2) provides for
keeping the identity of the witness secret if an application is made by the witness in this
behalf or by the public prosecutor in relation to a witness or even the Court on its own
motion may take such measures as it deems fit for keeping the identity and address of the
witness secret.

To protect the identity of the witness the Court may

a) hold the proceedings at a protected place;

(b) avoid mention of the names and address of witnesses in its orders or judgments or in
any records of case accessible to public;
(c) issue directions for security that the identity and addresses of the witnesses are not
disclosed.
Clause (4) provides for criminal sanction for those who contravene any such direction
issued under clause (3) prescribes for imprisonment for a term which may extend to one
year and with fine which may extend to one thousand rupees.

The 1985 Act was replaced by the 1987 Act with some changes. Under section 16 of the
new Act, it is not mandatory in all cases of trials in relation to terrorist activities to
conduct the proceedings in camera and the Court is given discretion to decide the same
based on facts and circumstances of the case. Section 16 prohibited publication of
information in regard to all or any of the proceedings pending before the Court in any
manner.

4.3 Prevention of Terrorism Act, 2002 (Repealed w.e.f. 21.9.2004)

The TADA Act 1987 was repealed by POTA Act 2002. Section 30 of the POTA, was
similar to section 16 of the TADA, 1987 and section 13 of the TADA, 1985.The only
changes brought into POTA, 2002 were

(i) that the Court has to record reasons for holding the proceedings in camera and
also for coming to the conclusion that the ‘life of such witness is in danger’,
and
(ii) that publication of court proceedings may be prohibited in ‘public interest’
too.

4.4 Unlawful Activities (Prevention) Act, 1967

The Act applies to ‘unlawful activities’ and also to ‘terrorist acts’. Section 44 (1) to (4) of
the Act bears the heading ‘Protection of Witness’ and is in identical term as section 30(1)
to (4) of the POTA, 2002.

4.5 Juvenile (Care and Protection of Children) Act, 2000

Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides
for ‘prohibition of publication of name, etc. of juvenile involved in any proceeding
except in situations where such disclosure is in the interest of the juvenile and prior
permission of the authority is taken.

4.6 National Investigation Agency Act, 2008

Section 17 of the Act provides for protection of witnesses in the similar terms as given
under section 13 of TADA, 1985 and section 30 of POTA, 2004. The only improvement
was made by prescribing enhanced punishment for breaching any of the directions issued
under that section. The term of imprisonment was enhanced from one year to three years.

4.7 Whistle Blowers Protection Act, 2011

This Act is meant to establish a mechanism to receive complaints relating to disclosure

on any allegation of corruption or willful misuse of power or willful misuse of discretion
against any public servant and to inquire or cause an inquiry into such disclosure and to
provide adequate safeguards against victimization of the person making such complaint.
Some notable provisions in this regard are mentioned below:

 The Act casts a duty on the Central Government to protect any person or public
servant from any kind of proceedings initiated merely on the ground that such
person or a public servant had made a disclosure or rendered assistance in inquiry
under this Act.11

 If the Competent Authority either on the application of the complainant, or

witnesses, or on the basis of information gathered, is of the opinion that such
person rendering assistance for inquiry under this Act need protection, the
Competent Authority shall issue appropriate directions to the concerned
Government authorities (including police) which shall take necessary steps,

11
Section 11, Whistle Blowers Protection Act, 2011
 through its agencies, to protect such complainant or public servant or persons
concerned.12

 The Act empowers the Competent Authority to conceal the identity of the
complainant and the documents or information furnished by him.13

4.8 Protection of Children from Sexual offences Act, 2012

This Act is enacted with an object to protect children from offences of sexual nature and
pornography. The Act also aims to establish special courts to try cases involving such
offences. Some of the provisions dealing with protection of witness/victim are given
hereinafter:

 The Act prohibits media and other agencies to make any report or comments on
any child in any manner which may have the effect of lowering the reputation or
infringing upon the privacy of the child. These agencies are also restricted from
showing any information which may disclose the identity of the child including
his name, address, photograph, family details etc. Such disclosure may be
permitted in the interest of the child and only with the permission of the Court.
Any failure to follow these directions will lead to punishment which may vary
from six months to one year imprisonment.14

 The Act protects the child from direct face-off with the prosecution or defense
counsel. It provides that the questions to be put during recording the examination
in chief cross examination or re-examination of the child must be communicated
to the court which shall put those questions to the child. The Court shall ensure
that the dignity of the child is maintained during trial and he is not exposed to

12
Section 12, Whistle Blowers Protection Act, 2011
13
Section 13, Whistle Blowers Protection Act, 2011
14
Section 23, POCSO Act, 2012
 aggressive questioning or character assassination. The identity of the child shall
remain confidential throughout the investigation and trial.15

 The Court must ensure that the child is not exposed in any way to the accused
while testifying against him. To avoid such situation the Court may record the
statement of the child through video conferencing or by using single visibility
mirrors or curtains or any other device.16

 The trial should take place in camera in the presence of the parents of the child or
any other person in whom the child has trust and confidence.17

So far the abovementioned provisions of law are concerned both in general and special
law, which clearly reveals that there is no general law on protection of identity of
witnesses in criminal cases except some of the provisions for protection of witnesses in
the special statutes related to terrorist-crimes or sexual offences. But in recent times, the
cases where witnesses are turning hostile at trial due to threats are not confined to such
category of cases. Witness turning hostile of witness has reached to alarming proportion
in the recent times. So, it is the crying need of the hour to protect the witness from
intimidation, muscle power, political power, money power or other methods employed by
the accused especially in sensational cases against witnesses and victims so that witnesses
could adduce evidence freely in the court as a result of which the real culprit will be
punished and it will also enhance the conviction rate and make strengthen our criminal
justice administration system.

5. The Delhi Witness Protection Scheme, 2015:

Very recently the Delhi Government has notified ‘Delhi Witness Protection Scheme,
2015’ which is country’s first such scheme dealing with witness protection. The Scheme

15
Section 33, POCSO Act, 2012
16
Section 36, POCSO Act, 2012
17
Section 37, POCSO Act, 2012
makes it mandatory for the investigating agency and courts to inform the witness about
this Scheme and also the protections provided therein. The Scheme aimed to identify
series of measures that may be adopted to safeguard witnesses and their family members
from intimidation and threats against their lives, reputation and property.18 The Scheme
provides for creation of Witness Protection Fund which will be utilised to meet the
expenses incurred during the implementation of Witness Protection Order passed by the
Competent Authority.

The Scheme divides witnesses in three categories depending on threat perception. These
are
Category ‘A’: Where the threat extends to life of witness or his family members
and their normal way of living is affected for a substantial period, during
investigation/trial or even thereafter.

Category ‘B’: Where the threat extends to safety, reputation or property of the
witness or his family members, only during the investigation process or trial.

Category ‘C’: Where the threat is moderate and extends to harassment and
intimidation of the witness or his family member's, reputation or property, during
the investigation process.

The Scheme also provides for nature of protection which may be afforded to witnesses
depending on the threat posed to such witness. These protections cover among others the
measures to ensure that witness and accused do not come face to face during
investigation or trial; concealment of identity of the witness by giving a changed name or
alphabet, close protection, regular patrolling around the witness’s house, escort to and
from the court and provision of Government vehicle or a State funded conveyance for the
date of hearing, expeditious recording of deposition during trial on day to day basis
without adjournments etc.

18
Aims and Objective, Delhi Witness Protection Scheme, 2015.
This Scheme being first of its kind in the country may have some shortfalls but it’s a
great initiative to prompt other State Governments and Centre Government to come up
with a similar kind of scheme.

6. Judicial initiatives to protect witness identity

It was judiciary which marched ahead of legislature to extend protection to

witness/victim. In many cases the Supreme Court has formulated procedures and
rendered guidelines for the protection of witness/victim in trial of sexual offences which
was later used by the legislature while enacting laws relating to sexual offences.

The case of Zahira Habibulla Sheikh v. State of Gujarat19 is a glaring example of

witness intimidation. It was observed by the Court that the public prosecutor was not
acting in a manner befitting the position held by him. He did not request the trial court for
holding the trial in camera when a large number of witnesses were resiling from the
statements made during investigation. The public prosecutor did not examine the injured
witnesses. Even the trial court failed to exercise power under section 311 of the Code to
recall and re-examine witnesses as their evidence was essential to arrive at the truth and a
just decision in the case.20

“The Court further stated that it is high time to address numerous experiences faced by
courts on account of frequent turning of witnesses as hostile, either due to threats,
coercion, lures and monetary considerations... The State has definite role to play in
protecting the witnesses... As a protector of its citizens it has to ensure that during a trial
in court the witness could safely depose truth without any fear of being haunted by those
against whom he has deposed. If ultimately truth is to be arrived at, the eyes and ears of
justice have to be protected so that the interests of justice do not get incapacitated in the

19
(2004)4SCC158
20
Id at Paras 10 and 11.
sense of making the proceedings before Courts mere mock trials as are usually seen in
movies.”21

“Fair trial means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened
or are forced to give false evidence that also would not result in a fair trial. The failure to
hear material witnesses is certainly denial of fair trial. The Court ordered for re-trial.”22

Such concern for witnesses was again highlighted by the Supreme Court in National
Human Rights Commission v. State of Gujarat.23 The Court observed that witnesses
form the key ingredient in a criminal trial and it is the testimonies of these very
witnesses, which establishes the guilt of the accused. It is, therefore, imperative that for
justice to be done, the protection of witnesses and victims becomes essential.

The Supreme Court in Sakshi v. Union of India24 accepted ‘video conferencing’ and
‘written questions’ in sexual and other trials. It was noted by the Court that 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.
Questions in cross- examination can be put in writing through the presiding officer.25

The Court gave specific directions in holding trial of child sex abuse or rape:

21
Id at Para 41.
22
Id at Para 36.
23
(2009)6SCC342
24
2004(6) SCALE 15
25
Id at Para 32.
 (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 question 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;
(iii) the victims of child abuse or rape, while giving testimony in Court, should be
allowed sufficient breaks as and when required.

Similarly in Swaran Singh v. State of Punjab26, the Supreme Court expressed deep
concern about the trend of routine adjournments in criminal trials. It has been stated by
the Court that a witness in a criminal trial may come from a far-off place to find the case
adjourned. He has to come to the Court many times and at what cost to his own-self and
his family is not difficult to fathom. It has become more or less a fashion to have a
criminal case adjourned again and again till the witness tires and he gives up. It is the
game of unscrupulous lawyers to get adjournments for one excuse or the other till a
witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is
maimed; he is done away with; or even bribed. There is no protection for him. In
adjourning the matter without any valid cause a Court unwittingly becomes party to
miscarriage of justice.

Recently in case of AG v. Shiv Kumar Yadav27 the Supreme Court has looked at the
issue whether recall of witnesses may be allowed on the plea that defence counsel was
not competent and therefore could not effectively cross-examined the witnesses.
Answering the issue in negative the Court has stated that

26
AIR 2000 SC2017
27
Criminal Appeal 1187-1188/2015 dated September 10, 2015
 “It has normally to be presumed that the counsel conducting a case is competent
particularly when a counsel is appointed by choice of a litigant. Taken to its
logical end, the principle that a retrial must follow on every change of a counsel,
can have serious consequences on conduct of trials and the criminal justice
system. Witnesses cannot be expected to face the hardship of appearing in court
repeatedly, particularly in sensitive cases. It can result in undue hardship for
victims, especially so, of heinous crimes, if they are required to repeatedly appear
in court to face cross-examination.”

Following findings of the Court are relevant as far as this discussion is concerned:

 The Court has to keep in mind not only the need for giving fair opportunity to the
accused but also the need for ensuring that the victim of the crime is not unduly
harassed;
 Mere fact that the accused was in custody and that he will suffer by the delay
could be no consideration for allowing recall of witnesses, particularly at the fag
end of the trial;
 Mere change of counsel cannot be ground to recall the witnesses;28

7. Recommendations of Law Commission

The Law Commission in its various reports dwell upon the issue of witness identity
protection and witness protection programmes. As early as in 1958 in its 14th Report, the
Law Commission referred to witness protection but in limited sense which was related to
providing adequate facilities to witnesses attending courts, payment of traveling
allowance to the witnesses to attend the court, proper sitting and waiting facilities within
court premises.29 Later in the year 1996, the 154th Report contained a Chapter on

28
Id at Para 29.
29
14th Report, Law Commission of India, available at http://lawcommissionofindia.nic.in/1-
50/Report14Vol1.pdf
Protection and facilities to Witnesses. The recommendations were mostly related to
allowances and facilities to be made available for the witnesses:

 The allowances payable to the witnesses for attending court should be fixed
and payment should be made by adopting simple procedure to avoid the delay
and inconvenience to the witness.
 Adequate facilities should be provided to them in the court premises for their
stay.
 They should be protected from the wrath of the hardened criminal at any
time.
 Cases should be listed in such a manner that the witnesses can be examined in
a regular basis and in this regard the frequent adjournments should be avoided
and the trial should be continued in regular basis.30

These reports were more focused on an overall reform of the Code of Criminal Procedure
and incidentally discussed the need for victim/witness protection. In the year 2006, the
Law Commission for the first time came out with a Report exclusively dealing with
witness protection. The 198th Report was an outcome of several decisions of the Supreme
Court in which the Court has shown concern for witness protection in our country. The
Report also came up with a draft Witness (Identity) Protection Bill, but so far it has not
been implemented. Some of the recommendations given by the Law Commission to
strengthen the process of witness protection in our country are mentioned below:

 Witness Protection Programmes are necessary in our country and may be

limited to cases of ‘serious’ offences and must apply to victims and
prosecution witnesses alike.
 The concerned witness may be given a different identity. If any statement is
recorded from the witness, the name and address should not be disclosed
30
154th Report, Law Commission of India, available at http://lawcommissionofindia.nic.in/101-
169/Report154Vol1.pdf
 except to the investigation agency, and to the Magistrate who hears the
application for grant of the protection under the programme.
 It may not be sufficient to grant protection only to the witness. There may be
threats to other family members of the witness. Therefore, such protection
must be extended to them as well.31

8. Malimath Committee Report on Reforms of Criminal Justice System:

The Committee was set up for giving a comprehensive scheme for revamping the entire
Criminal Justice System. Among other recommendations, the Committee made following
recommendations pertaining to witness protection:

3 The travelling allowance and other allowance should be fixed by the court which is to
be paid to the witness to compensate him for the expenses which he has spent and
proper procedures are to be adopted for the payment of such allowances.
4 The payment should also be given to the witness in case of any adjournment of the
case and without examining the witness.
5 A comprehensive legislation should be enacted for the protection of the witness.
6 Court should prepare a list of cases where the witness is needed to attend the court
and to adduce evidence. This will avoid him to attend the court again and again. The
trial should be conducted in regular basis and in this context repeated adjournment
should be avoided.32

9. Summary:
To sum up the discussion, it can be stated that our procedural law has incorporated
various facets of fair trial as far as the accused is concerned. He is afforded open trial and
given opportunity to examine witnesses. Even evidence must be taken in his presence

31
154th Report, Law Commission of India, available at
http://lawcommissionofindia.nic.in/reports/rep198.pdf
32
Committee on Reforms of Criminal Justice System, Vol. 1 (2003) available at
http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf
(with some exceptions). As far as victim/witnesses are concerned, the Code of Criminal
Procedure provides protection to the victims of sexual offences by concealing their
identity. The Code prescribes for in camera proceedings in such cases. Even the judiciary
through cases has laid down procedures to be followed during trial of sexual offences.
Under the special laws relating to trial of terrorist cases provisions are found providing
for keeping the identity of witnesses secret during inquiries as well as in trials. We have
also seen that time and again the Law Commission in its various reports has emphasised
for the need of witness identity protection and witness protection programmes.

But these initiatives or developments in limited cases are not enough to curb the menace
of witness intimidation. The law from the point of view of witness protection is yet to
cover other serious cases within its sweep where the witnesses are equally in danger.
Such protection may be extended to all cases and may also cover various stages of
criminal proceedings like investigation, inquiry and trial etc.