Witness

Protection and
Criminal Law in
India
Nanditta Batra
Assistant Professor of Law
Protection of what?
Life and All witnesses, whether known or
●

unknown to accused
Property
Disclosure Unknown witness to accused,
●

whether injured or not

of Identity

Trauma
When deposes in Court,
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particularly Sex Abuse

Traditional Method of
Witness Protection
• Arrest of the accused
• Rule of no Bail
• If Bail, Cancellation of Bail if intimidation to witnesses
[Ram Govind Upadhyay v. Sudarshan Singh; 2002]
• But what if arrested person has clout beyond jail-
muscle and money? Phones in Jail?
Why Law is needed for
witness protection?
• Bindeswari Prasad Singh vs. Kali Singh: AIR 1977 SC
2432.
• “there is absolutely no provision in the Code of Criminal
Procedure of 1908 (which applies to this case)
empowering a Magistrate t. review or recall an order
passed by him. Code of Criminal Procedure does contain a
provision for inherent powers, namely, Section 561-A
which, however, confers these powers on the High Court
and the High Court alone. Unlike Section 151 of Civil
Procedure Code, the subordinate criminal courts have
no inherent powers.”
• Criminal Courts at the trial stage, like the Magistrates’
Courts and Sessions Courts in our country cannot pass
orders as to ‘anonymity’ of witnesses as they do not
have inherent powers.
 2003: Malimath Committee
responds to Plight of
Witness’s in Criminal Justice
Administration
• Relates lack of witness protection law to perjury
Zahira Habibula H Sheikh v
State of Gujarat, 2004 SC
• Gujarat Riots, 2002 Best Bakery Case
• The State has definite role to play in protecting the
witnesses to start with at least in sensitive cases
involving those in power, who has political patronage
and could wield muscle and money power, to avert trial
getting tainted and derailed and truth becoming a
casualty. 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.
• General Observations on need for witness protection
but no guidelines laid down, but stressed on duty of
Court under Sec 311 CrPC and 165 IEA
Also read
• Ms. Neelam Katara Vs. Union of India & Ors.” Crl. W.
No. 247/2002 (High Court of Delhi)
• Guidelines issued by Delhi HC for Witness Protection
• But confined to police protection for witnesses+
competent authority to dteremine to what extent and for
what duration.
198TH REPORT ON WITNESS IDENTITY PROTECTION AND
WITNESS PROTECTION PROGRAMMES, Law Commission
of India (2006)
• Victim and witness protection must be available to all
cases where offences are ‘serious’ all criminal cases
relating to offences under the Indian Penal Code, 1860
or under special laws, if they are exclusively triable by
a Courts of Session, or by Courts equivalent in rank to
Courts of Session or by Special Courts trying serious
offences, then they must be treated as ‘serious’ cases
for purposes of victim and witness protection.
• There should be a procedure for granting anonymity (i)
during investigation and (ii) during inquiry and (iii) also
during trial.
• Suggested a comprehensive Witness Protection
Programme and Witness Identity Protection as two
separate measures
Existing Laws and Witness
Protection in India
• Section 16 of the TADA, 1987 and section 30 of the
POTA, 2002 permit the Court to pass an order for
maintaining anonymity of witnesses and also for
prohibiting publication of proceedings of the Court.
Though both these enactments have been repealed,
similar provisions have been brought into the Unlawful
Activities (Prevention) Act, 1967 as section 44 vide
amendments made in the year 2004.
• IPC amendment in 2006  Sec 195A (Also see Sec
195 A CrPC): Threatening any person to give false
evidence
• Whoever 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 shall be punished with
imprisonment of either description for a term which may
extend to seven years, or with fine, or with both;
and if innocent person is convicted and sentenced in
Mahender Chawla v UOI,
2018 SC
• Rape Trial against Asaram-10 witnesses have already
been attacked and three witnesses have been killed-
Petition Under Art 32
• Central Government submitted Witness Protection
Scheme, 2018. Approved by the Court. To be the 'law'
Under Article 141/142 of the Constitution, till the
enactment of suitable Parliamentary and/or State
Legislations on the subject.
• Directions given to the Union of India as well as States
and Union Territories to enforce the Witness Protection
Scheme, 2018 in letter and spirit.
• In all the district courts in India, vulnerable witness
deposition complexes shall be set up by the States and
Union Territories.
Feature of Witness Protection
Scheme, 2018
• Identifying categories of threat perceptions,
preparation of a "Threat Analysis Report" by the Head
of the Police.
• Types of protection measures like ensuring that the
witness and Accused do not come face to face during
investigation etc. protection of identity, change of
identity, relocation of witness, witnesses to be apprised
of the scheme, confidentiality and preservation of
records, recovery of expenses.
• Witness Protection Fund
• Vulnerable Witness Deposition Complexes
• Authorities created to specifically act speedily
• "Competent Authority" means a Standing Committee
in each District chaired by District and Sessions Judge
with Head of the Police in the District as Member and
WITNESS AS PER THREAT
PERCEPTION:

Categ Categ Categ

ory 'A' ory 'B' ory 'C'
Where the threat
● ●
Where the threat Where the threat is
●

moderate and extends

extends to life of extends to safety,
to harassment or
witness or his reputation or
intimidation of the
property of the
family members, witness or his family
witness or his family
during member's, reputation
members, during the or property, during
investigation/trial investigation/trial or the investigation/trial
or thereafter. thereafter. or thereafter.
 Protection Measures
• Ensuring that witness and Accused do not come face to face during investigation
or trial;
• Monitoring of mail and telephone calls;
• Arrangement with the telephone company to change the witness's telephone
number or assign him or her an unlisted telephone number;
• Installation of security devices in the witness's home such as security doors, CCTV,
alarms, fencing etc;
• Concealment of identity of the witness by referring to him/her with the changed
name or alphabet;
• Emergency contact persons for the witness;
• Close protection, regular patrolling around the witness's house;
• Temporary change of residence to a relative's house or a nearby town;
• Escort to and from the court and provision of Government vehicle or a State
funded conveyance for the date of hearing;
• Holding of in-camera trials;
• Allowing a support person to remain present during recording of statement and
deposition;
• Usage of specially designed vulnerable witness court rooms which have special
arrangements like live video links, one way mirrors and screens apart from
separate passages for witnesses and Accused, with option to modify the image of
face of the witness and to modify the audio feed of the witness' voice, so that
he/she is not identifiable;
Implementation of Scheme