INTRODUCTION:
Jeremy Bentham, a prominent English philosopher, rightly commented, “witnesses are the eyes and ears of justice.” In a criminal judicial system, witnesses play a crucial part in administering justice. The testimony witness determines any trial’s outcome. It is important to emphasize that the witness’s statement aids the Court in reaching a rational decision. But, nowadays, witnesses have been known to become hostile during the process of a trial. The primary source of antagonism is the threat of the accused or his family members influencing the witness to submit testimony in their favour. Whenever a favourable witness turns hostile, it creates a challenging situation that can impact the case’s outcome. After being frightened and pressured by the accused or their family members, they change their opinions before or during the trial. Society will lose faith in the court system if no precautions prevent hostile witnesses, resulting in pandemonium. Because they are no longer afraid of the law, suspects can conduct crimes without fear of repercussions due to the lack of witness protection regulations. Furthermore, in circumstances where the accused or injured parties are influential citizens of a country, the trial may be affected by psychological views of their standing, which the Court should reject and not allow to steer the case. Hence, there is a strong need for strict legislation by the government to protect the witnesses.
DEFINITION OF WITNESS:[1]
As per the Black’s Law Dictionary, “A witness sees, knows, or vouches for something or one who testifies, under oath or affirmation in person, or by oral or written deposition, or affidavit.”
There isn’t any precise definition of the witness given under the Indian Evidence Act. However, Section 3[2] defines “Evidence” as follows:
(1) “all statements made before the Court by witnesses about matters of fact under investigation;
(2) all documents produced for the Court’s inspection; such documents are called documentary evidence.”
EVOLUTION OF THE CONCEPT OF WITNESS PROTECTION:
The concept of protection of witnesses was discussed for the first time in a restricted sense in the 14th Law Commission Report.[3] While examining the predicament of witnesses presenting on behalf of the State in its 154th Report, the Law Commission[4] noted that the witnesses face inconveniences and danger to their lives due to offenders and criminals. It presented proposals to alleviate many annoyances and challenges in this way. Following these studies, the panel on Criminal Justice System Reforms, chaired by Dr. Justice V.S. Malimath, issued a relatively lengthy report with 158 recommendations. The country’s top Court has often emphasized providing proper witness protection to guarantee a free and fair trial. Even though the dust on this issue is not settled, it must resolve many interrelated legal and procedural issues. In numerous cases, the Supreme Court has decided that the witness should be treated with care and concern and that the State bears responsibility for his safety. However, the technique for achieving these objectives has yet to be identified. The issue becomes vital since India lacks a formal mechanism for witness protection. The Indian judiciary has often highlighted the need for witness protection. The Hon’ble Apex Court in National Human Rights Commission v. State of Gujarat and Ors.[5] Recognized the necessity of witness protection and emphasized the role of the State in this regard. The Supreme Court ruled in Delhi Domestic Working Women’s Forum v. Union of India[6] that witnesses in rape trials must remain anonymous. The Delhi High Court established Witness Protection Guidelines in Neelam Katara v. Union of India.[7]Still, the Court neglected to include a section requiring the witness’ name to be kept secret throughout and after trial. The Supreme Court established the Witness Protection Scheme (Draft), 2018, in the AsaramBapu rape case,[8] which all states will enforce till Parliament enacts the bill. The Bombay High Court has ordered the police to offer free protection to survivors and witnesses in cases of sexual assault till the Court issues additional orders.
LEGAL PROVISIONS:
- Indian Evidence Act, 1872:[9]
Evidence which is described under Section 3 of the Act includes:
- witness testimony and
- documentary evidence.
The Act’s Section 134[10] states that “no specific number of witnesses” is required to establish truth, and it recognizes the dictum “evidence must be weighed, not tallied.” Suppose the Court finds a single witness’ testimony worthy even without corroboration. If any unfavourable facts on the record do not shatter the witness’s credibility, it is sufficient. The courts weigh the quality of evidence, not the quantity. The witness has a defence under Section 132,[11] which states that whatever answer he is “compelled to give” will not result in his arrest or prosecution and will not be used against him in any criminal proceedings unless he is charged with supplying false testimony. Fisher v. Ronald[12] was one of the first cases in English law to address the privilege provided to a witness.
- Section 138[13] of the Act specifies how a witness should be cross-examined and re-examined and conferring an implied right of examination-in-chief and re-examination on the party.
- Section 33[14] provides that, in rare circumstances where cross-questioning is impossible, the witness’ previous deposition can be considered relevant for later proceedings if certain conditions are met.
- The Act’s Section 146[15] protects a rape victim from needless and vexatious interrogation about her past character that has no bearing on the case’s difficulties.
- Code of Criminal Procedure, 1973:
Under Section 160[16] of the Cr.P.C., a police officer has the jurisdiction to request the attendance of a witness. Every investigation or trial must be completed as soon as possible. After the examination of witnesses has commenced, it should continue regularly unless the Court adjourns the hearing for a good cause. Under Section 312[17] of the Criminal Procedure Code, the criminal Court has the authority to impose the payment of reasonable expenses paid by the complainant. The government is in charge of disbursing the funds.
- Witness Protection Scheme, 2018:[18]
The above-mentioned Witness Protection Scheme, enacted by the Indian government in 2018, is the country’s first legal framework. For many decades, there had been a pressing need for such legislation. The Supreme Court decided in the case of State of Gujarat v. Anirudh Singh (1997)[19] that every witness must assist the State by giving a statement. The Scheme’s goal is straightforward. The Scheme also allows a witness to be escorted to the courtroom by a police officer. The Act classifies witnesses into three categories in the worst-case scenario:
- Class A: When the witness’s life and the lives of their family members are threatened during the proceedings.
- Class B: When the witness’s security, reputation, and property are in jeopardy at the time of the investigation.
- Class C: The third class is where witnesses and their relatives are harassed and threatened during the proceedings.
- Indian Penal Court,1860:
The provisions of Section 228A[20] of the IPC prohibit the publication of the victim’s identity in certain rape-related offences while allowing for the disclosure of the victim’s identity in specific circumstances. As a result, no matter relating to any of the aforementioned offences may be printed or published without the Court’s approval.
CONCLUSION:
Witnesses in India require immediate and effective protection as few legal provisions are available. This is because the criminal justice system of our country has laid a strong emphasis on protecting the rights of the accused while overlooking the rights of witnesses. Nonetheless, because the Code of Criminal Procedure is included in the Indian Constitution’s concurrent list, both the Centre and the States can legislate on these issues. The Supreme Court recently accepted the Witness Protection System, 2018, in Mahender Chawla &Ors. Vs. Union of India &Ors[21]urged the Central and State governments and Union territories to implement the Scheme in spirit. The more witnesses have given security, the more likely they are to present in Court to testify. The convenience with which an accused person is granted bail in exchange for intimidating a witness should be scrutinized. Hostile witnesses would be a common occurrence in any case until and unless the witness is made to believe that the system is built for him and that he is at ease with it.
Author(s) Name: Tanishka Sai Bablani (Indian Institute Of Management, Rohtak)
References:
[1]Godara P, “Examination of Witness: Legal Aspects – Litigation, Mediation & Arbitration – India” (Welcome to MondaqJune 5, 2020) <https://www.mondaq.com/india/trials-appeals-compensation/947522/examination-of-witness-legal-aspects#:~:text=According%20to%20Black’s%20Law%20Dictionary,deposition%2C%20or%20by%20affidavit%22.> accessed April 17, 2022
[2] “Section 3 of Indian Evidence Act, 1872”
[3] “Law Commission of India” <https://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf> accessed April 26, 2022
[4] Advocatekhoj.com, “154 Th Report of the Law Commission (1996): Witness Identity Protection and Witness Protection Programmes: Law Commission of India Reports: Law Library”
[5]2003(9) SCALE 329
[6] (1995) 1 SCC 14 (India).
[7]Crl.WP 247 of 2002
[8] “Saint Shri Asharam Bapu vs State on 1 October, 2013”
[9]“Section 3 in the Indian Evidence Act, 1872”
[10] “Section 134 in the Indian Evidence Act, 1872”
[11] “Section 132 in the Indian Evidence Act, 1872”
[12] S16A0515, Supreme Court Of Georgia, July 08, 2016
[13] “Section 138 in the Indian Evidence Act, 1872”
[14] “Section 33 in the Indian Evidence Act, 1872”
[15] “Section 146 in the Indian Evidence Act, 1872”
[16] “Section 160 in the Code of Criminal Procedure, 1973”
[17] “Section 312 in the Code of Criminal Procedure, 1973”
[18]– SM and others, “Witnesses Protection in India” (iPleadersDecember 22, 2021)
[19] AIR 1997 SC 2780, 1997 (2)
[20] Indian Penal Court, 1860; Section 228A
[21]“Mahender Chawla vs Union of India Ministry of Home … on 5 December, 2018”; writ petition (criminal) no. 156 of 2016
