SYMBIOSIS LAW SCHOOL, PUNE

SYMBIOSIS INTERNATIONAL UNIVERSITY

Comparitive Criminal Constitution

BBA LL.B(Semester IX)
Internal Assessment-II

SUBMITTED BY:
Neha Choudhary (17010126364 )
4th year BBA LLB
(DIV: D)
INTRODUCTION

Changing times require necessary changes in the law. The concept of Hostile witness was an
exception, decade or two ago, whereas it has now become the rule in every criminal trial.
Prosecution witnesses are being pressurized and persuaded by all means to dilute or even destroy
the prosecution process. The art of cross-examination in criminal trials has virtually lost all its
worth for the simple reason that today; unworthy acquittals can be secured by easy means,
making sure that the prosecution witnesses turn ‘hostile’. Though the Supreme Court while
dealing with section 154 of the Evidence Act has laid down that it is not necessary that the
statement given by the hostile witness is treated in favor of the accused. “There is perhaps no
better test than the efficiency of the judicial system to test the excellence of the government.
Since judiciary is the custodian of the rights of the citizens, any maladministration would result
in jeopardy of civil liberties. Justice Wadhwa in Swaran singh v. State of Punjab 1 termed the
witnesses to be the basis of both direct and circumstantial evidences which form the edifice of
any criminal investigation. Witnesses are the eyes and ears of the Court and thus their protection
becomes paramount to the judicial decision being rendered.” Sensational cases involving the rich
and the powerful are typical cases for expecting that the witnesses will certainly be made to turn
hostile. There are such shocking cases in Delhi, Bombay, Hyderabad and everywhere. The
witness holds a very prominent place in the Criminal Justice System. “According to Bentham
witnesses are the eyes and ears of justice. In the words of Justice, Wadhwa, A criminal case is
built on the edifice of evidence, evidence that is admissible in law. To prove the prosecution’s
case witnesses are required either direct or circumstantial evidence.

Each and every statement of the witness is very crucial that have the capacity to change the
course of the case. But it is very unfortunate in our country that no witness want to come to court
to the testimony because they do feel it is safe for them.2 The witnesses are always have
important place in Administration of Criminal Justice System but in India the witnesses turn
hostile because of which prosecution fails to prove charges against the accused. For that we can’t
blame the witness alone for turning hostile but to whole legal system of India because no proper
care and protection has been given to witness who are important evidence in a criminal case.
1
AIR 2000 SC 2017
2
Zahira Bibi Sheikh v. State of Gujarat, 2004 CriLJ 771
“Unfortunately in India, there is no law relating to the protection of witnesses as in developed
countries like UK, US, Canada and Australia. As a result of this, the witnesses are not at all
treated properly. And at the same time they and their family members are also not secure since
they are sometimes subjected to life threatening intimidations. Now-a-days the vulnerability of
the witnesses is so prominent, that even the courts have broken their silence and have appealed
for the witness protection law.vi The Supreme Court acknowledged that Criminal Law in India
requires considerable reforms. SC stated, no law has yet been enacted, not even a scheme has
been framed by the Union of India or by a State Government for giving protection to the
witnesses. The only provision is Chapter XII of the Code of Criminal Procedure, 1973, which
pertains to the powers exercised by the police to investigate a criminal case. 3 As per The
Criminal Procedure Code, police officers have power to record the statement of witnesses, but
these statements are not admissible in court.”

WHO CAN BE A WITNESS?

According to law all persons are presumed to be qualified to be a witness in any trial. If any
person’s testimony is sought then he has to appear before court to serve as a witness: 1. If he is a
crime victim, 2. If he a person has knowledge of a particular act/crime, 3. If a person has called
an 'expert witness', 4. If a person knows the other person who is connected with the case i.e.
'character witness'.4

WITNESS PROTECTION SCHEME, 2018

Witnesses need to be given the confidence to come forward to assist law enforcement and
judicial authorities with full assurance of safety. The aim and objective of the scheme is to
ensure that the investigation, prosecution and trial of criminal offences are not prejudiced
because witnesses are intimidated or frightened to give evidence without protection from violent
or other criminal recrimination. The scheme intends to promote law enforcement by facilitating
the protection of persons who are involved directly or indirectly in providing assistance to
criminal law enforcement agencies and overall administration of justice. It lays down measures
3
The Witness Protection Scheme need more elaborate and stricter laws’,(Formias Blog, 12 February
2019)<https://blog.forumias.com/answered-the-witness-protection-scheme-need-more-elaborate-and-stricter-laws-
comment/> accessed 7 November 2021.
4
Ms. Neelam Katara Vs. Union of India & Ors, Crl. W. No. 247/2002 (High Court of Delhi), Guidelines,
<https://dslsa.org/wp-content/uploads/2015/07/WITNESS-PROTECTION.pdf> accessed 7 November 2021.
to protect and to safeguard witnesses and their family members from intimidation or threats
against their lives reputation and property.5 Under the scheme, witnesses are categorized on the
basis of threat perception. The three categories formulated on the basis of potential threat are:

 Category A: Pertains to the scenario where the threat is graver and extends to life of a
witness or his family members;
 Category B: Comprises that degree where threat is to the safety, reputation, property of
witness or family members
 Category C: Comprises of the degree where threats are more moderate as compared to the
threats conceptualised in the categories A and B. Category C extends to harassment or
intimidation of the witness or his family members reputation

PROCEDURAL FRAMEWORK

 The first step involves the filing of an application for seeking a protection order before a
competent authority as per jurisdiction. A ‘Competent Authority’ under the clause 7 of
the definition clause includes, the Secretary, District Legal Services Authority (DLSA).
The competent authority alone can pass witness protection order for the witness
protection ,issue orders for protection of identity/change of identity/relocation of a
witness, categorisation of threat, duration and types of protection to be rendered.
 Upon receiving an application for protection of witness, the competent authority may
pass an order for a Threat Analysis Report from the Commissioner of Police of the
district where the case is being investigated. Depending upon the degree of imminent
threat, the Authority may pass an interim protection order for the witness and family
members during the pendency of the application.6
 The Threat Analysis Report must be prepared in full confidentiality and expeditiously
within five days of receipt of the order. The report must categorize the degree of threat
perception and shall provide suggestive measure for providing adequate protection to the
witness and their family.

5
Sampath Meena, ‘Witness Protection Scheme, 2018 :The New
Paradigm’,<https://bprd.nic.in/WriteReadData/CMS/Witness%20Protection%20Scheme-2018.pdf> accessed 8
November 2021.
6
Bhawna Gera, ‘The WPS does not instill confidence’, The Telegraph (22 February, 2019,)
  In order to ascertain the degree of protection requirement of the witness, during the
processing of the application, the Competent Authority shall interact with the witness and
their family members in person or through electronic means.
 All the hearings on Witness Protection Application shall be held in-camera by the
Competent Authority while maintaining full confidentiality.
 An application shall be disposed of within five working days of receipt of Threat
Analysis Report from the Police authorities.
 The Witness Protection Order passed by the Competent Authority shall be implemented
by the Witness Protection Cell of the State or Union Territories. While the overall
responsibility of implementation of the scheme lies upon the Head of Police in the State,
orders passed by the authority for change of identity or relocation shall be implemented
by Department of Home of the State or Union Territory. Upon passing of a Witness
Protection Order, the Witness Protection Cell shall file a monthly follow-up report before
the Competent Authority.7
 In case the Competent Authority finds that there is a need to revise the Witness
Protection Order or an application is moved in this regard, a fresh Threat Analysis Report
may be called for from the Commissioner of Police in the District.
 Review can be filed before the Competent Authority within 30 days, and an appeal can be
filed before the Chairperson of DLSA in case aggrieved by the review order passed by
Secretary, DLSA. The appeal against the orders passed by Competent Authority under
Parts IV& V of the Scheme can be filed before Member Secretary, State Legal Services
Authority. One of the salient features of the scheme is the State Witness Protection Fund,
put in use for all the expenses incurred in the witness protection procedure.8
 The sources of the State Witness Protection Fund are: Budgetary allocation made in the
Annual Budget by the State Government; Receipt of amount of fines imposed (under
Section 357 of the CrPC) ordered to be deposited by the courts or tribunals in the Witness
Protection Fund; Donations or contributions from
International/National/Philanthropist/CharitableInstitutions/Organizations and individuals
permitted by Central/State Governments and Funds contributed under Corporate Social

7
Neelam Katara v. Union of India, ILR. (2003) II Del. 377
8
Swaran Singh v. State of Punjab,1957 AIR 637
 Responsibility scheme. In case the witness has lodged a false complaint, the State Legal
Service Authority can initiate proceedings for recovery of the expenditure incurred to
recoup the Witness Protection Fund.9

CONCLUSION

Although there is Witness Protection Scheme, 2018 but it suffers from major loopholes:

Limited time frame: it provides that the witness will be get the protection only for the period of
three months.

No categorization: there is prescribed no category of offences or types of threat for which the
protection will be provided. It all dependent on the will of the police officers that to whom the
protection will be given.

No penal provisions: although this scheme protects the identity of the witness by maintaining the
confidentiality of the personal information but it does not provide any penal provisions for the
persons who violate this provision.10

9
The Law Commission of India, Reforms in Judicial Administration (Law Com No. 14, 1958).
10
The Law Commission of India, Recommendations for Amending various Enactments, both Civil and Criminal
(Law Com No. 178, 2001).