“The public good is nothing more essentially interested, than in the protection of every individual’s private rights”
– William Blackstone
Table of Contents
Introduction
Witnesses act as catalysts and aid the court in delivering judgement. Every statement given by a witness is valuable as it can change the course of the whole case. There is no accurate or established definition of witness provided in any statute or law but according to Jeremy Bentham, “witnesses are the eyes and ears of justice”. But these eyes and ears of justice are turning hostile with unpredictable irregularity because of some high profile personalities who are involved in the commission of crimes, which further leads to the failure of the criminal justice system. The provisions in the existing laws are not sufficient to meet the needs of protecting a witness. One of the major reasons behind the unceremonious acquittals in sensational crimes is the infidelity of witnesses and the lack of witness protection programmes.
It is an established principle that justice should not only be done but must be seen to be done and the principle of free and fair trial is embodied under Article 21 of the Indian Constitution. The main objective of the criminal justice system is to protect the society against criminal conduct and punish those who violate the laws of the land. The provisions regarding the depositions of witness and the procedures and rules regarding their admissibility in the court proceedings are considerably provided under the provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.
According to a report submitted by the Committee on Reforms of Criminal Justice System in the year 2003, under the chairmanship of Justice (Dr.) V.S. Malimath which comprised 158 recommendations; it was recommended that there must be enactment of legislation for the protection of witnesses and their family and it further pointed out that the identity and address of the witness should be kept secret.
Definition of Witness
There is no such definition of witness provided under the Code of Criminal Procedure Code, 1908 or in the Indian Evidence Act, 1872, but it simply means a person who has seen the offence when it was committed or who deposes about what he has seen. According to the Black’s Law Dictionary, it is defined as “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes a transaction.”
There is also a definition of witness provided under The Witness Protection Scheme, 2018, and according to it: “‘witness’ means any person, who possesses information or document about any offence or crime considered by the competent authority as being material to any Criminal proceedings and who has made a statement, or who has given or agreed or is required to give evidence in relation about such proceedings.”
Importance and Role of Witness
A witness plays a huge role in the investigation process and provides first hand information about the crime committed. The witness helps in revealing the truth and the circumstances that led to the crime and they also help the court by providing the facts and details of the crime scene, which is related to the case and help the judge in deciding the criminal matter.
A witness is like a translator in a foreign country who helps in identifying and explaining the aspects of crime from new points of view. They help in enlightening information about an incident or crime, which further helps the lawyers and jury to understand every aspect about the case. There are various factors which led to increased attention for the role of witnesses in criminal proceedings at both the national as well as international level. The two chief reasons behind this are the emergence of interest in the status of victims and witnesses in criminal proceedings and the significant rise in terrorist and organized crimes.
Most of our nation’s progress depends upon a strong and effective judicial system. So, it becomes the responsibility of every witness who knows the commission of a crime to assist the Court by giving evidence and further help in the Indian justice delivery system. The provision for fair trial is embodied under Article 21 of the Indian Constitution which includes the protection of witness; so that unbiased statement which is free from threat and inducement is produced before the court and will help the court in delivering its final decision. The effective witness programmes ensure that the witness is protected and assisted not only while the trial is going but also after the trial as well.
Reasons for Turning Hostile
There are various methods employed to deter or threaten the witnesses from appearing before the court to present evidence. A witness is considered hostile when he/she gives a statement before police with respect to the commission of an offence out of his knowledge but retracts it or changes it when deposing before the court during the trial. There is nothing such to declare witness as hostile under the Indian Evidence Act; under Section 154 of the aforementioned Act, there is a discretion in the court to permit a person who calls a witness to put any question to him which might be put in cross-examination and the Section 145 of the Act allows cross-examination of any witness as to the previous statement made by him in writing.
In the case of Krishna Mochi v. the State of Bihar, it was observed by the Supreme Court that the society suffers by both the wrong convictions and wrong acquittals and one of the main reasons behind witnesses turning into hostile is the threat to life, limb, kin or property they have received for deposing against the accused.
In the landmark judgement of Zahira Habibullah v. State of Gujarat case (“Best Bakery”), the Court emphasized the issue of witness protection apart from the quality and credibility of evidence before the court. The increasing numbers of witnesses turning hostile shows the extreme side of influence and power in the country where seeking justice is in a dismissal state. The witnesses providing false evidence can be charged under Section 195A of the Indian Penal Code, 1860 and they can be imprisoned upto seven years along with a fine.
Witness Protection: International Criminal Justice Perspective
There are various protective measures available to witnesses in testifying before the international tribunals by the International criminal justice system. Under the International Covenant of Civil and Political Rights, to which India is a signatory, the right of an open and fair trial is provided to an accused.
Article 21 of The International Tribunal for Yugoslavia (“ICTY”) which was established in 1993 provides the rights of the defense to examine all his witnesses under the same conditions as witnesses against him, and Article 22 of the same statute deals with the protection of the witnesses and victims, where the Rules of Procedure and Evidence are provided, which further consists of in camera proceedings and maintaining the anonymity of the witness’ identity.
The International Criminal Tribunal for Rwanda (“ICTR”) was constituted by the United Nations Security Council in 1994, which aims to contribute towards maintaining peace in the region, after recognizing the heinous crime of genocide and serious violations of humanitarian law in Rwanda. It is regarded by the tribunal that the reason behind the suitability of safeguarding measures for the witnesses should not be merely based on parties’ portrayal but also the entire state of safety situation influencing the witnesses in question.
Witness Protection Scheme, 2018
In the case of Rajubhai Dhamirbhai Naria and Ors. V. The State of Gujarat and Ors., the Hon’ble High Court of Bombay stressed the State’s role to evolve machinery for protecting witnesses in sensitive matters. In the case of Mahendar Chawla v. Union of India, the Hon’ble Apex Court issued some directions to the States for taking steps for witness protection; and pursuant thereto and based on the recommendations of several States/Union Territories, the Central Government in consultation with National Legal Services Authority, finalized “Witness Protection Scheme, 2018”. The first reference to Witness Protection in India came in 14th Report of the Law Commission, 1958 and after this, there were 154th, 178th and 198th Law Commission Reports which also recommended for witness protection scheme. It was observed by the Hon’ble Supreme Court that the scheme will be the law under Article 141/142 of the Indian Constitution, until there is enactment on the subject by Parliament/State legislatures.
Some of the features of the Witness Protection Scheme, 2018 are discussed below:-
- Witness Protection Fund: Under this scheme, there shall be a witness protection fund controlled by the Ministry or Department of Home Affairs under the State or U.T., from where the expenses for the implementation of the scheme can be carried on. The fund comprises of:-
- The budgetary allocation made by the Annual Budget presented by the State Government;
- Receipt of fines imposed under Section 337 of Code of Criminal Procedure ordered to be deposited by the courts;
- Donations and contributions from different charitable trusts, and individual permitted by the Government;
- Funds which are contributed under Corporate Social Responsibility.
- Protection of identity: The protection of the identity of witnesses is also recognized by the scheme and if the witness desires his identity to be protected, he/she may file an application in the prescribed form as per the Scheme before a competent Authority, and when the order of concealment of identity is passed by the Competent Authority, and it must be assured by the States, Union Territories and witness Protection Cells that identity of the witness or his family members is fully protected.
- Change of Identity: The witness also has the option to change his identity in appropriate cases and this request for the change of identity will be entertained by the Commissioner of Police or the SSP in District Police on the parameters of threat perception.
- Relocation of Witness: In the same aforementioned manner by following the procedural formalities and eligibility, the witness is also provided with the option, after taking into consideration the well-being and welfare of the witness, to relocate himself/herself within the limits of State/Union Territory.
Suggestions
There are some loopholes in the Witness Protection Bill, 2018 which should be removed, which includes various factors should be taken into consideration such as employment of the witness, family of the witness, adaptability of the witness, etc. while relocating the witness. In the cases where the witness materially misrepresents relevant information and provides false documents or contravenes any of his/her duties, the protection must be terminated.
The judiciary also needs to participate, in order to protect the witnesses, in the high profile matters where the risk of intimidation or threat is high. There also must be basic measures taken to protect witnesses such as surveillance, escorting witnesses to work and court, etc. without hampering the privacy of witnesses.
Conclusion
It is an undeniable fact that effective witness protection is required for the better functioning of the Indian Criminal Justice System and also for suppressing organized crime. The responsibility of protection of witnesses is not solely on Judiciary and the police, but on society as a whole. The system failing to address perjury has endangered a callous disregard for the sanctity of court proceedings. The Hon’ble Supreme Court has approved the Witness Protection Scheme, 2018 in the landmark judgement of Mahendra Chawla v. Union of India and asked the States to implement them diligently and effectively. So, these guidelines provided by the Hon’ble Supreme Court must be followed scrupulously for safeguarding “the eyes and ears of justice.”
This article is authored by Akanksha Pandey, student at Law College Dehradun, Uttaranchal University.
WHO IS A WITNESS?
Witness means any person, who possesses information or document about any offence or crime considered by the competent authority as being material to any Criminal proceedings and who has made a statement, or who has given or agreed or is required to give evidence in relation about such proceedings.
IS PROTECTION OF WITNESS INCLUDED UNDER THE FUNDAMENTAL RIGHTS?
The provision for fair trial is embodied under Article 21 of the Indian Constitution which includes the protection of witness; so that unbiased statement which is free from threat and inducement is produced before the court and will help the court in delivering its final decision.
CAN A WITNESS BE CHARGED FOR FALSE EVIDENCE?
The witnesses providing false evidence can be charged under Section 195A of the Indian Penal Code, 1860 and they can be imprisoned up to seven years along with a fine.
WHAT IS THE IMPORTANCE OF WITNESS?
A witness plays a huge role in the investigation process and provides first-hand information about the crime committed. The witness helps in revealing the truth and the circumstances that led to the crime and they also help the court by providing the facts and details of the crime scene, which is related to the case and help the judge in deciding the conclusion.
WHO IS A HOSTILE WITNESS?
A witness is considered hostile when he/she gives a statement before police with respect to the commission of an offence out of his knowledge but retracts it or changes it when deposing before the court during the trial.
