CASE ANALYSIS OF

NEELAM KATARA

V.

UNION OF INDIA & ORS.

ILR (2003) 2 DEL 377

BY
CHETAN AGARWAL
INTERN
1stYEAR,
SYMBIOSIS LAW SCHOOL,
PUNE
Mob- 9854008405
Mail id-19010122020@symlaw.ac.in

www.probono-india.in

1|Page
 NEELAM KATARA CASE AND IT’S RELEVANCE ON
DEVELOPMENT OF WITNESS PROTECTION GUIDLEINES

BACKGROUND OF THE CASE

In the month of February, 2002 Mr. Nitish Katara son of the petitioner, Mrs. Neelam Katara
went to Ghaziabad, Uttar Pradesh to attend a friend’s marriage. In this time, he was found to
be lost and later a body was recovered. The incident was reported and was found that Mr.
Vishal and Vikas Yadav had abducted Mr. Nitish Katara due to alleged affair with their sister
Bharati Yadav. The accused was son of a sitting member of the Rajya Sabha. Later in the
month of April, 2002 the U.P. Police had filed four-page charge sheet in the case and
accordingly both accused were arrested in the same month from Madhya Pradesh.
In the trial process they were looming threat to the witness and this acted as a barricade in
serving justice. Taking into consideration the real hardships faced by witnesses who are
involved in high profile cases mostly involving accused from renowned backgrounds, the
petition to formulate witness protection in the light of public importance was presented
before the Court. This was presented in view of protecting the interest of the witness and to
safeguard them against the possibility of the witness being harassed or intimidated at the
hands of the accused or any accomplices with the accused. In this light the High Court had
formulated certain guidelines to be termed as “Witness Protection Guidelines” until a suitable
legislation was brought into effect. This guideline was formulated in the present case of
Neelam Katara v. Union of India, which is popularly known as the Witness Protection
Guidelines Case.

INTERNATIONAL LAW RELATED TO WITNESS PROTECTION

The witness protection programmes has been taken seriously in other countries and as such to
ensure such protection various measures are being followed in different countries. As such in
United Kingdom, as has been rightly observed that in order to maintain and formulate the
Witness Protection Programmes, a Director of Prosecutors is appointed by the Attorney
General from amongst the members of the Bar. Whereas in Countries like United States of
America the Attorney General is responsible for Witness Protection and Reallocation
Programme whereby they are responsible for number of activities to safeguard the witness

2|Page
identity and to respect the confidentiality of the witness in any case. Apart from the two
Countries from where India could be said to have borrowed some relative laws to be
addressed in the Country, there are other Countries like Canada and Australia which also
have an active witness protection guideline. In Canada, for witness protection a separate
legislation termed as Witness Protection Act, 1996 has been in force which provides for the
deciding factor to the Attorney General to cover any witness under the guidelines depending
on the guidelines laid down in the legislation. Likewise, in Australia, the Witness Protection
Act, 1994 is in force which also works on the like foot of Canada and provides guidelines to
determine as to which witness should be included by the Commissioner who is designated to
monitor the National Witness Protection Programme.

FACTS IN ISSUE

A Writ Petition is filed by the victim’s mother Mrs. Neelam Katara in the public interest as
per Article 226 of the Constitution of India in the Delhi High Court. The questions put
forward by the petitioner was that pertaining to witness protection in case where there was
continuous delay in the case which was leading to witness uncertainty and rather leading to a
possibility of harassment of the witness or indictment by the accused or any through any of
accomplices. In this regard a Writ Petition was filed where formulation of witness protection
guidelines was stressed upon. The stand was fermented on the principle of Justice as it
doctored the theory that only when witness is free from any coercion or threat that they would
be able to deliver the truth in the Court and further ensure that Justice prevails. It was taken
into account that Law Commission Reports has stated the scenario of witness turning hostile
in its 154th and 178th Reports. Considering the aspect, it was also bought into light that
Government was also well aware of the stance of witness in the Country and was working in
consultation with the State Government to formulate such policies. But apart from it taking
into consideration that whether or not such programme would be feasible in Country like
India where there lies a financial pressure if such act gets incorporated. And, considering also
the fact that whether Court should wait for formulation of legislation or should formulate
certain guidelines till the enactment of legislation in this aspect.

3|Page
 PETITIONER'S ARGUMENT

i. Vohra Committee Report stating criminalisation has struck the very foundation of the Indian
polity.
ii. Urgent need to deal with such criminalisation.
iii. Witness turning hostile due to fear of the accused person.
iv. Law Commission of India 154th and 178th Reports dealing with the witness turning hostile.

RESPONDENT'S ARGUMENTS

i. Law Commission’s 154th and 178th Reports under process with State Governments as it falls
under Concurrent List.
ii. Government is aware of the plight of the witnesses.
iii. Government intends to create a scheme for protection of witnesses.
iv. Government has set up Committee under Chairmanship of Justice V.S. Malimath, to suggest
measures to revamp the Criminal Justice Criminal System in India.
v. Appropriate for the Court to lay down guidelines in respect of protection to be granted to the
witnesses.
WITNESS PROTECTION

The Indian Constitution anyway provides for accused rights under Article 20, but when it
comes to witness protection in general there had been no such guidelines framed and also
need not include any special provision laying down any protection to the witnesses. This has
been earlier seemed as not required but with advent of time it became an area of lading down
many criminal interferences resulting in witness turning hostile.
As has been observed in the Case of Vineet Narain v. Union of India 1 where the Supreme
Court had directed that steps should be taken immediately for establishment of an able and
impartial agency to form functions like the Director of Prosecutions I United Kingdom, who
are appointed by Attorney General and are relatively involved in formulating “Witness
Protection Programmes”.
Under same guidelines in the Case of Abhijeet Singh v. State of Punjab2 where the decision
of the present Case was also referred which talked about witness protection. Moreover, in
light of the case there has been a considerable direction provided in the Case of Mahender
1
Vineet Narain v. Union of India, (1998) 1 SCC 226.
2
Abhijeet Singh v. State of Punjab, 2019(3) RCR (Criminal) 229.

4|Page
Chawla and Ors. v. Union of India & Ors. 3, where the Supreme Court had formulated
guidelines for both Union and States to enforce the Witness Protection Scheme, 2018.
However, a very bright reference was made in the Case of Food Corporation of India
Workers Union & Ors. v. Food Corporation of India & Ors.4,where the basis of the
formulation of witness protection guidelines which was based on international laws and not
violating the fundamental laws were taken into formulation.
Taking into account the Case of the landmark Case of Vishaka v. State of Rajasthan5,
which was taken into consideration in the present case which formulated that in case of an
absence of any domestic laws in the Country any international convention not in violation of
fundamental rights and harmony may be taken into consideration. Falling on such guidelines,
the “Witness Protection Guidelines” were formulated and were to be followed till the time
any legislation was formulated.
In other Case referred in the present case, the Case of Union of India v. Association For
Democratic Reforms and Another 6, the Court while formulating guidelines has taken into
account that in case of any need for any laws the Courts necessarily may step in and cover up
the vacuum until a new legislation in this regard is formulated.
The cases referred in the present case elaborately prescribes the need of witness protection in
that period of time and extensively reflects the guidelines formulated in the Case has now
been replaced by the Witness Protection Scheme, 2018 for which guidelines has been
formulated by the Supreme Court which has relatively given direction to both Union and
State to follow the scheme in the Case of Mahender Chawla and Ors. v. Union of India &
Ors. 7
Having taken into consideration the different cases which were taken in consonance in the
present case along with other cases where the current case was cited upon and used as a
reference. It becomes apt to know the reason for such witness protection guidelines.
As, has been rightly pointed out in the present case, that India has been stuck by
criminalisation. This further means that though India has a judiciously effective means of
punishing the criminal but at the same time such measures have been dwindled with criminal

3
Mahender Chawla and Ors. v. Union of India & Ors., 2019 (3) SCJ 370.
4
Food Corporation of India Workers Union & Ors. v. Food Corporation of India & Ors.,
MANU/DE/1721/2019.
5
Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
6
Union of India v. Association for Democratic Reforms and Another, (2002) 5 SCC 294.
7
Supra 3.

5|Page
activities adhering to stopping or luring the witnesses which resulted in witness turning
hostile and later acquittal of the accused.
This has been considerably observed in number of cases and such needed to halt. For this at
the time of pronouncing of judgement there existed no guidelines or any proper legislation for
protection of witnesses. Witnessing this situation, the Law Commission had already
addressed the issues of witness turning hostile in its 154 th and 178th Report. Also, the Vohra
Committee Report had rightly pointed out the crippling of criminalisation in the Indian Polity
and the need for urgent dealing with it on war footing to prevent its base from expanding.
With Supreme Court clearing the Witness Protection Scheme, 2018 put forward by the
Central Government, the Courts has been making reference of the same and has been issuing
guidelines to the State for implementation of the Scheme in case any need arises and is
covered under the definition provided therewith.
As has also been observed in the Case of Subair T.P. & Ors. v. Union of India 8, where the
guidelines laid down by the Witness Protection Scheme, 2018 was applied and the State was
directed to follow the guidelines laid down as provided in the Scheme.
With formulation of the Witness Protection Scheme, 2018, it could be relatively linked with
the present Case where such guidelines were formulated and were supposed to be in force till
legislation was in place. With such regard it is notable to observe as to how such guidelines
were equally referred and consecutively the Witness Protection Scheme, 2018 was rolled out
upon sanction from the Supreme Court.

COMPARISON

India & United States

As per guidelines laid down in the present case it provides that in case of any witness falling
through the Witness Protection Guidelines then the witness would be provided with police
protection at the most. But, when such guidelines are compared with the already existing
Witness Protection and Reallocation Programme, it not only aims of to provide protection but
it aims in developing a new identity of the witness along with allowing many perks which
would be beneficial for the witness and would act as a standard protection and help in

8
Subair T.P. & Ors. v. Union of India, 2020 (1) KHC 179.

6|Page
 fulfilling the basic necessities the witness would require to survive in case of association with
any organised criminal activity or serious offences.

With this light, though the Court had provided some guidelines for Witness Protection, but in
nowhere stands par with the United States in providing the requisite protection to witnesses in
any such scenario. Though, India has a long way to go, but taking some relevance from the
United States and also considering the financial strain which the Country might develop in
such scheme must be kept in mind.

India & Australia

In India, the witness is to be selected based on statement provided under Section 166 of CrPC
which pertains to a crime punishable by death or life imprisonment. More on this regard there
requires to be an application to the competent authority who would analyse the situation and
provide with police protection to the witness accordingly. In the same light in Australia, they
have elaborated as to what process needs to be followed in case of inclusion of any witness in
National Witness Protection Program. Though the difference lies in the detailing of the
process in Australia as compared with that of India, where no such extensive detailing has
been provided.

JUDGMENT IN A GLANCE

1. Witness Protection Guidelines formulated.

2. Witness to be one whose statement recorded under Section 161 CrPC pertaining to crime
punishable with death or life imprisonment.
3. Competent Authority to be the Delhi Legal Service Authority.
4. Guidelines applicable in two categories of cases.
5. First category is Organised Crimes.
6. Second Category is Crime punishable with the Capital Sentence or Imprisonment for life.
7. Four factors to be considered while determining whether a witness should be provided with
police protection viz., nature of risk, nature of investigation, importance of witness in the
mater and cost of providing police protection.
8. Two obligations of the Police.
9. First obligation to make the witness aware of the Witness Protection Guidelines.
10. Second to provide security to a witness in respect of whom competent authority had directed
police to provide protection.

7|Page
 OVERVIEW OF THE JUDGEMENT
The Judgement delivered by the Delhi High Court introduced the need and concept of
Witness Protection by formulating Guidelines to be in force till a new legislation in this
regard was created. Though, in the Case it could be observed that the Court had taken into
account the long-stranded problem which was even under consideration by the Government.
Likewise it was worth noting by the Court that though it has been established that the accused
must get a fair, just and proper hearing in the adversarial system but the fact that such system
though has been adopted always leads to a possibility of the witness being harassed or
intimidated by the accused or his accomplices. In this case where Neelam Katara, mother of
the victim has field a writ petition in the Delhi High Court citing matter of general public
importance and the need of witness protection programme in the Country with respect to the
reports filed by Vohra Committee along with 154 th and 178th Law Commission Reports
dealing with menace of prosecution witness turning hostile. Taking into consideration the
reasons allured by the petitioner and emphasising on the State’s view of the formulation of
witness protection programme in process in consultation with States had also suggested that
the Court should lay down guidelines in respect of protection to be granted to the witnesses,
as till date there was no legislation and there was uncertainty as to whether the
recommendations would be taken into consideration or not which were suggested by Vohra
Committee Report or the Law Commission Reports. In light of this the State has also
supported the petitioner argument and had pleaded the Court to lay down certain guidelines in
this unoccupied field by the legislation.
Upon consideration of the aspect that there were no laws at present directing any such
programme, the Court had decided to lay down certain guidelines to be known as “Witness
Protection Guidelines”, which was needed to be followed until any legislation is formulated
in this regard.
So, with the judgement delivered it aimed to light a spark and introduce in India the concept
of Witness Protection which was much needed to ensure justice and to further strengthen the
criminal justice delivery system by safeguarding the interest of the witness involved in cases
which had punishment ranging to death or life imprisonment.

8|Page
 SUGGESTIONS
With regards to the judgement delivered by the Hon’ble High Court of Delhi in the crucial
field for safeguarding witness and enhancing a scope for equitable criminal justice delivery
system has provided for a way which is first of its kind. Though the Court had framed certain
guidelines but it only took into account the police protection which could be provided to the
Witness forming request under the Guidelines to the DLSA, waving off any other aspect of
providing any other protection by way of financial protection or any other such protection as
adapted in other Countries. Only restricting the witness to police protection is not sufficient
as though Police is there for safety of the witness but alluring to the condition which might
arise after the accused is convicted and the witness may be in danger as regards to the
statement given by him. As, such after delivery of judgement, the witness will not be entitled
to any protection and to take revenge the convict’s accomplices may turn on to the witness
after delivering of the verdict and withdrawal of the witness rom any police protection
offered. This way the whole motive of safeguarding the witness will dampen and though
justice would be served but for which the innocent would have to pay a high cost. This
further could have included in changing the witness identity and providing some financial
assistance to the witness in such cases which includes death or life imprisonment as
punishment.
Thus, though Court had framed some guidelines but this are not accurate and needs to be
considered again in lieu of the other nations and considering the financial burden in the
Country exchequer. Some aspects of United States legislation could be taken into
consideration with proper classification as to when certain other protection may be offered
based on the severity of the case and the risk to the witness.

CONCLUSION
Upon analysis of the present case it could be concluded that the Hon’ble Court was very
diligent in delivering the judgement with “Witness Protection Guidelines” in order to lay a
significant step in the unoccupied field by the legislation. The guidelines formulated has also
acted as a foundation stone and has been aptly referred in the Witness Protection Scheme,
2018 which was taken into consideration by the Supreme Court upon the draft submitted by
the Central Government. Though, it does not fully encompass the various laws in place in
other countries but it could be regarded as a significant step towards witness protection and

9|Page
 alluring to safeguard the interest of the witness and public at large who still have faith in the
justice delivery system of the Country.

REFERENCES

 Vineet Narain v. Union of India, (1998) 1 SCC 226.

 Abhijeet Singh v. State of Punjab, 2019(3) RCR (Criminal) 229.
 Mahender Chawla and Ors. v. Union of India & Ors., 2019 (3) SCJ 370.
 Food Corporation of India Workers Union & Ors. v. Food Corporation of India & Ors.,
MANU/DE/1721/2019.
 Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
 Union of India v. Association for Democratic Reforms and Another, (2002) 5 SCC 294.
 Subair T.P. & Ors. v. Union of India, 2020 (1) KHC 179.

BRIEF ABOUT THE AUTHOR

Chetan Agarwal is pursuing LL. B from Symbiosis Law School, Pune. He is associated with
Probono as Junior Researcher and Internship Co-ordinator. He is associated with the Rotract
Club of Symbiosis Law School. He did his graduation from Gauhati Commerce College in B.
Com with Accountancy Honours. He is associated with diverse field of knowledge and is
always keen on developing new insights into different available platforms. He has an
inclination towards the changing corporate structure and keeps an apt watch on the changing
landscapes of commerce and trade in the Country. Apart from it likes to be associated in
activities facilitating safeguarding of environment. Being associated with the team he strives
to contribute toward the society and help in spreading legal literacy among people by
consistently focusing on the various socio-legal issues cornering the Country.

10 | P a g e