2. How it came into force
First ever reference to witness protection in India
came in the 14th Report of the Law Commission in
India in 1958. further references on this subject were
found in the 154th , 178th and 198th Report of the Law
Commission of India. Malimath Committee Report
also spoke about a strong witness protection
mechanism and said that the Courts should be ready
to step in if the witness is harassed during Cross-
examination.
3. References to the importance of witnesses
protection are found in various important
cases of the Hon’ble Supreme Court of India
namely,
(i) State of Gujrat Vs. Anirudh Singh (1997) 6 SCC 514
(ii) Jahira Habibullah Sheikh and Another Vs. State of Gujrat (2004).
The question of protection of witnesses arose out to peculiar behavior of
witnesses turning hostile in most cases over a period of time which also
created problems of low conviction in India.
4. On Analysis of various cases, the following reasons
were discerned which made witnesses retract their
statements before the Court and turn hostile:
(i) threat / intimidation;
(ii) inducement by various means;
(iii) use of muscle and money power by the accused;
(iv) use of stock witness.;
(v) protracted trials;
(vi) hassles faced by the witnesses during investigation and
trial;
(vii) non existence of any clear cut legislation to check the
hostility of witnesses.
5. Finally, the Hon’ble Supreme Court of India in its judgement in
Mahendra Chawla and Others Vs. Union of India and others in Writ
Petition (Criminal) no. 156 of 2016 took up the matter of forming a
draft scheme for witness protection. The draft Witness Protection
Scheme 2018 was prepared by the Ministry of Home Affairs which
was discussed at length in the said judgement and later in the
same form it came to be finalised by the Government.
If we peruse the Witness Protection Scheme 2018 we can see that it
contains as contents the aim and objective of the scheme, some
important definitions, categories of threat perception, State Witness
Protection Fund, procedure of application, types of protection
measures etc.
6. Some of the important definitions in
this scheme are as follows :
7. 1. Concealment of identity of witness
Means prohibiting publication or revealing
directly or indirectly the name , address etc.
which may lead to the identification of
witnesses during investigation, trial or post trial
stage.
8. 2. Competent Authority
Means a standing Committee in each District
with District and Sessions Judge as the
Chairman and Head of the police in the
District as Member and head of the
Prosecution in the District as its Member
Secretary.
9. 3. Family Member
Includes parents, guardians, spouse, live-
in partner, siblings. Children, grandchildren
of the witnesses.
10. 4. Threat analysis report
Means a detailed report prepared by the
head of the police in the District
investigating the case with regard to
seriousness and credibility of threat
perception to the witnesses or family
members.
11. 4. Threat analysis report
Means a detailed report prepared by the
head of the police in the District investigating
the case with regard to seriousness and
credibility of threat perception to the
witnesses or family members.
Apart from these definitions the scheme also defines the
offences which will fall within the purview of Witness
Protection Scheme.
12. Offences
The Offences in which a witness can come forward and
seek relief under the Witness Protection Scheme are
as follows
(I) Offences punishable with death or life imprisonment
(ii) Offences with imprisonment upto 7 years and above
(iii) Offences under section 354/ 354(A)/354(B)/354(C)/
354(D) IPC
(iv) Offences under section 509 IPC (which pertains to
its intending to insult the modesty of a woman)
13. In cases under the above mentioned
sections if any witness, at any stage of
investigation, trial or post trial is exposed
to threat, he can approach the competent
authority of the concerned District where
the offence is committed through its
Member Secretary. (i.e P.P.)
14. In cases under the above mentioned
sections if any witness, at any stage of
investigation, trial or post trial is exposed
to threat, he can approach the competent
authority of the concerned District where
the offence is committed through its
Member Secretary. (i.e P.P.)
15. Categories of witness
This scheme has made three categories of witnesses on the basis of the gravity of
threat to which they are exposed.
Category ‘A’
Where the threat extends to life of the witness or his family
members.
Category ‘B’
Where the threat extend to safety, reputation, property of the witness or his
family members.
Category ‘C’
Where the threat is moderate and extends to harassment or intimidation of
witness or his family members, reputation or property.
16. Procedure for processing the application:
As we have discussed before, a witness seeking protection order under this
scheme shall file an application through the Member Secretary of the competent
authority of the District. Then
(a) the Member Secretary shall forthwith pass an order for calling for the
threat Analysis Report from the ACP/ DSP in charge of the concerned police Sub-
Division. The threat Analysis Report is to be placed before the competent authority
within 5 working days of receipt of order.
(b) depending upon the urgency of the matter, the competent authority can
pass orders for interim protection.
(c) the threat Analysis Report must categorize the threat perception and
include suggestive protection measures for providing adequate protection.
17. (d) while dealing with the application, the competent
authority shall interact in person or through electronic
means with the witnesses or his family members or any
other person deemed fit to ascertain the needs of the
witnesses.
(e) all the hearings on witness Protection Application shall
be held in-camera maintaining full confidentiality.
(f) the Application shall be disposed of within 5 working
days of receipt of the threat Analysis Report.
18. (g) overall responsibility of implementation of all protection orders shall
lie in the hands of the police in the State/ Union Territory.
(h) the witness protection order for change of identity or relocation of
witness shall be implemented by the Home Department of the State/
Union Territory.
(i) upon passing any such order, the witness protection cell shall file a
monthly follow up report before the competent authority. Witness
protection cell means a dedicated cell of police assigned with a duty to
implement witness protection order.
(j) if there is a need to revise the witness protection order, a fresh
threat Analysis Report can be called from the concerned ACP/ DSP.
19. Types of Protection Measures:
The Scheme also lays down the types of protection measures which can be
ordered for protection of the witnesses. This may include:-
(a) ensuring that the witness and accused do not come face to face during
investigation or trial.
(b) monitoring of mail and telephone calls.
(c) arrangement with telephone company to change the witness’s telephone
number and give a unlisted telephone number.
(d) installation of security door, CCTV , alarms, fencing etc in the witness’s home.
20. (e) concealment of identity of witness by referring to him/
her with the changed name or alphabet.
(f) assigning emergency contact persons for the witness
(g) regular patrolling around the witness’s house
(h) temporary change of the residence to a relative’s house
or nearby town.
(i) escorting the witness to and from the Court and provide
a Government vehicle on the date of hearing.
21. (j) holding in-camera trial.
(k) Allowing a support person to remain present during recording of
statement.
(l) Using specially designed vulnerable witness court rooms with
special arrangement like live, video link, one way mirror, separate
passages for witness and accused, with option to modify the image of
face of the witnesses and audio feed of the witness’s voice so that he
or she cannot be identified.
(m) awarding time to time periodical financial aid to the witnesses from
Witness Protection Fund for relocation or starting a new profession by
the witness.
(n) any other form of protection measures considered necessary.
22. State Witness Protection Fund
The scheme provides that for implementation of all the above measures
there shall be a fund called the Witness Protection Fund which comprised of
the following:-
(a) Budgetary allocation made in the annual budget by the State Government.
(b) Receipt of amount of cost ordered to be deposited by Courts in Witness
Protection fund.
(c) Donations or contributions from philanthropist/ charitable
institutions/organizations and individuals permitted by the Government.
(d) Funds contributed under Corporate Social Responsibility.
The said fund shall be operated by the department/ Ministry of
Home under the State/Union Territories.
23. Some other features:-
We have already discussed the salient features of the
scheme and now some other important points which are seen
in the scheme are hereby briefly pointed out--
(i) Every state shall have wide publicity of the scheme. The
I/O and the Court shall inform witnesses about the existence of
the Witness Protection Scheme and its salient features.
(ii) All stake holder including police, the prosecution, Court
staffs, lawyers from both side shall maintain full confidentiality
and ensure that under no circumstances any information to the
proceedings shall be shared with any person.
24. (iii) Once the protection order is passed, the competent
authority would monitor its implementation and shall review
the same on a quarterly basis.
(iv) In case of change of identity of witness,supporting
documents acceptable by the Government Agencies shall
be provided to the witness, the new identities should not
deprive the witness from existing Educational/Professional
/Property rights.
(v) In case the witness has lodged false complaint, the
home Department can initiate proceedings for recovery of
expenditure incurred from the Witness Protection Fund.
25. (vi) All the records pertaining to the proceedings under this
scheme shall be preserved till such time the trial or appeal
is pending before the Court and after one year of disposal
of the last Court proceedings the hard copy of the record
can be weeded out by the competent authority after
preserving the scanned soft copies.
(vii) Lastly in case the witness or police authorities are
aggrieved by the decision of the competent authority, a
review application may be filed withing 15 days of passing
of orders by the competent authority.
