14, Dec 2022 | Sanchita Kadam

One of the prime witnesses in the Lakhimpur Kheri massacre case, where Union Minster Ajay Mishra’s son Ashish Mishra is allegedly involved in the murder of protesting farmers, has reported that he was assaulted by Mishra’s henchmen with swords. In the light of this, let us revisit the Witness Protection Scheme, 2018, a scheme that lacks the political will for implementation

Importance of a witness

• The witnesses play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies.
• In the words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences”
• In Mahender Chawla and Others Vs. Union of India and Others (2019) 14 SCC 615, Justice AK Sikri deemed the conditions of witnesses in Indian Legal System to be “pathetic”.

Issues faced by witnesses

• They (witnesses to criminal trials) are deprived of proper legal remedy and they do not get suitable treatment
• Apart from possibly facing life threatening intimidation, the witness has to face the trauma of attending court regularly
• The legal system takes witnesses for granted
• Many a time they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime
• They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc
• Hence conducting time-bound criminal trials is crucial

Hostile Witness

• One of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State
• In Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, the court said, “The State has a definite role to play inprotecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty”. Citizens for Justice and Peace (CJP) were second petitioners in this path-breaking case.
• In Ramesh and Others vs. State of Haryana (2017) 1 SCC 529, the court attributed the following reasons for witnesses retracting their statements and turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness.

Legal safeguards for Witnesses

Under section 195A of the Indian Penal CodeCriminal Intimidation of Witnesses is a  criminal offence punishable with seven years of imprisonment.

In statues namely Juvenile Justice (Acre andProtection of Children) Act, 2015, Whistle BlowersProtection Act, 2011, Protection of Children from SexualCastes and Tribes (Prevention of Atrocities) Act, 1989 alsoprovides for safeguarding witnesses against threats

Guidelines for child witness

• In Sakshi vs. Union of India (2004) 5 SCC 518, the court laid down the following guidelines on the procedure of taking of evidence from a child witness:
• The judges shall allow the use of a videotaped interview of thetestimony of the child in the presence of a child-support person.
• A child could be permitted to testify through closed circuittelevision or from behind a screen to acquire an honest and frankaccount of the acts complained of without any fear.
• Only the judge should be allowed to cross-examine a minor onthe basis of the questions given by the defence in writing after theexamination of the minor.
• During the testimony of the child, sufficient interval should beprovided as and when she requires it.

Guidelines for taking evidence from witness

• While holding the trial of rape or child sex abuse, some sort of arrangements like a screen or something like it may be used so as to make sure that victim or witnesses (who are equally vulnerable and need protection like the victim) do not confront the accused;
• Questions raised during the cross-examination by the counsel of the accused that are directly related to and be reminiscent to the victim or the witnesses of the incident should be written down and given to the presiding officer of the court in advance who will then put forth the question in simple language without making her uncomfortable
• Publication of evidence of the witness only during the course of trial and not after
• Allowing re-trial allowed due to apprehension and threat to the life of witness
• Maintaining anonymity of victim in cases of rape
• Discouraging the practice of obtaining adjournments in cases when witness is present and accused is absent
• Making threatening of witnesses as a ground for cancellation of bail
• Cross-examination by video conferencing, which is specifically helpful to the victims of sexual crimes, particularly, child witnesses

Witness Protection Scheme, 2018

• First ever reference to Witness Protection in India came in 14th Report of the Law Commission of India in 1958.
• The 4th National Police Commission Report, 1980 noted ‘prosecution witnesses are turning hostile because of pressure of Accused and there is need of Regulation to check manipulation of witnesses.”
• The petitioners in the case where Witness Protection Scheme was laid out, included a witness, father of a murdered witness, father of the child rape victim and a journalist who escaped a murder attempt by goons of godman Asaram, who was accused of rape by several girls, including minors
• The draft Witness Protection Scheme was prepared by the Ministry of Home Affairs and placed before the court during the proceedings
• There are 3 categories of witnesses as per threat perception: Category A: where threat extends to life; Category B: where threat extends to safety, reputation or property and Category C: where threat is moderate and extends to harassment or intimidation
• There is supposed to be a Witness Protection Fund in each State for which budgetary allocation is to be made and it can also receive funds from Corporate or other donations

How can a witness get protection

• In order to receive protection, an application in prescribed form is required to be made to the competent Authority (Standing Committee in each District chaired by District and Sessions Judge) which then calls for a Threat Analysis report from the ACP/DSP of the concerned police division.
• The report categorizes threat protection (as per the three categories, ‘A’, ‘B’, and ‘C’) and suggest protection measure.
• The application is to be disposed of within 5 days of receipt of said report and the order thus passed is to be implemented by the Witness Protection Cell which is also set up under this scheme.
• The scheme specifies that the protection should be proportionate to the threat and should be granted for 3 months at a time.
• The measures may include, inter alia, temporary change of residence, phone number, and escort to and from court, in camera trials, concealment of identity of witness, installing CCTV, patrolling around the house, ensuring expeditious recording of deposition during trial and so on
• Special requests can also be made via application for protecting the identity as well as changing the identity of the witness as well as relocation of witness

Related:

Protecting The Eyes And Ears Of Justice: The Witness

Witness Protection

Zahira Speak