CONTENTS

INTRODUCTION.......................................................................................................................................2
DEFINITION OF WITNESS......................................................................................................................2
IMPORTANCE OF WITNESS AND THEIR PROTECTION...................................................................3
REASONS FOR WITNESS TURNING HOSTILE....................................................................................4
DEVELOPMENTS IN INDIA....................................................................................................................4
Indian Statutes.............................................................................................................................................4
Law Commission Reports...........................................................................................................................6
Comments by the Judiciary.........................................................................................................................8
TREATMENT OF WITNESSES................................................................................................................8
Perjury.........................................................................................................................................................9
Section 340 of the Criminal Procedure Code, 1972:....................................................................................9
INSTANCES WHERE WITNESS PROTECTION WAS PROVIDED....................................................10
Judicial Activism.......................................................................................................................................13
CHALLENGES TOWARDS WITNESS PROTECTION.........................................................................17
SUGGESTIONS........................................................................................................................................18
BIBLIOGRAPHY.....................................................................................................................................19

1
INTRODUCTION

“The edifice of administration of justice is based upon witnesses coming forward and deposing
without fear or favour, without intimidation or allurements in Court of law. If witnesses are
deposing under fear or intimidation or for favour or allurement, the foundation of
administration of justice not only gets weakened, but it may even get obliterated.”[i]

In most cases involving influential people, it has been regular practice for witnesses to retract
from their original statements or to go into hiding because of intimidation and threat to life and
destruction of property. The situation gets further aggravated when he realises that there is no
legal obligation by the state for extending any security, if need arises. What India needs at
present is a Witness Protection programme that can guarantee that witnesses will not be harmed
in any way and to ensure that justice and truth prevails in the largest democracy in the world.

DEFINITION OF WITNESS

The ordinary meaning of the term “witness” is a person present at some event and able to give
information about it.[ii] The word has its origin in Old English word ‘witnes’ which means
‘attestation of fact, event, and so on, from personal knowledge,’ also ‘one who so testifies,’
originally “knowledge, wit,” formed from witness  [iii].To witness is to experience important
events or changes, to see things happen[iv].

Black’s Law Dictionary gives the following definition: “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.[v]”

A witness is one of the indispensible parts of the criminal justice system, as his stand determines
the very backbone of the decision of the case. Therefore, the truthfulness of the witness’s
testimony becomes the cornerstone of justice and hence the witness is made to offer statement
under oath. A witness must depose without force, fear and pressure and out of his or her own free

2
will and consent. The quality of the statements given by a witness also determines the pace of a
particular case.

IMPORTANCE OF WITNESS AND THEIR PROTECTION

New Testament of the Holy Bible teaches us: “Thou shalt do no murder, thou shalt not commit
adultery, thou shalt not steal, and thou shalt not bear false witness.” The importance of the
witnesses to the trial process could be inferred from the words of an eminent thinker Jeremy
Bentham: “witnesses are the eyes and ears of justice.” The Hon’ble Supreme Court of India also
held in State of Gujrat v. Anirudh Singh[vi]that: “It is the salutary duty of every witness who has
the knowledge of the commission of the crime, to assist the State in giving evidence.” Committee
on Reforms of Criminal justice System said in its report that “By giving evidence relating to the
commission of an offence, he performs a sacred duty of assisting the court to discover the truth.
It is because of this reason that the witness either takes an oath in the name of God or solemnly
affirms to speak the truth, the whole of the truth and nothing but truth”. In Zahira Habibulla H.
Shiekh and Another  v. State of Gujarat andothers[vii] the definition for a fair trial was given as
one “in which bias or prejudice for or against the accused, the witnesses, or the cause which is
being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that
also would not result in a fair trial. The failure to hear material witnesses is certainly denial of
fair trial.”

The irony is that while offenders have a range of rights, (both Constitutional and legal), the
victims and more particularly, witnesses, have a limited range of rights. Thus, this unequal
distribution of rights results in a situation where witnesses are rendered helpless as they lack
sufficient rights to protect themselves and thereby compelling them to turn hostile.

The issue of Witness Protection should be studied in light of the fact that conviction rate is low
in India and acquittal rate is high. The Supreme Court too observed in Swaran Singh v State of
Punjab[viii], that the procedures being followed is one of reasons for a person to abhor becoming a
witness.

3
The disturbing fact that such a big democracy as India does not have a Witness Protection law. In
the event of the creation of such a law, the focus should be the protection of witnesses, not only
before, but also during and after the trial.

REASONS FOR WITNESS TURNING HOSTILE

The threat to the lives of witnesses is one of the primary reasons for them to retract their earlier
statements during the trial. Apart from these sections, there is nothing in the law to protect
witnesses from external threats, inducement or intimidation. Political pressure, self-generated
fear of police and the legal system, absence of fear of the law of perjury, an unsympathetic law
enforcement machinery and corruption are some of the other reasons for witnesses turning
hostile in the course of trial.[ix]

The Supreme Court in the case of Krishna Mochi v. State of Bihar[x] observed that society
suffers by wrong convictions and it equally suffers by wrong acquittals. In this case the Supreme
Court pointed out that one of the reasons may be that they do not have courage to depose against
an accused because of threats to their life, more so when the offenders are habitual criminals or
high ups in the Government or close to power which may be political, economical or other
powers including muscle power.

According to the People’s Union for Civil Liberties (PUCL), who made a press release on July 2,
2003 pertaining to the Best Bakery case[xi] gave two reasons for witnesses turning hostile. The
first is that the police had recorded the statements incorrectly. The second and more plausible
was that the witnesses retracted from their previous statements because of “intimidation and
other methods of manipulation by accused or defence counsel”.

Another factor responsible for this widespread phenomenon is the snail paced working of the
judicial process. Witnesses tend to be frustrated because of being summoned repeatedly only to
find that the date is adjourned.

4
DEVELOPMENTS IN INDIA

Indian Statutes

The word witness has not been defined anywhere in the Code of Criminal Procedure. Any Court
may, at any stage of any inquiry, trial or other proceeding under the Criminal Procedure Code,
summon any person as a witness, or examine any person in attendance, though not summoned as
a witness, or recall and re- examine any person already examined; and the Court shall summon
and examine or recall and re- examine any such person if his evidence appears to it to be
essential to the just decision of the case.[xxv]

Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit,
order payment, on the part of Government, of the reasonable expenses of any complainant or
witness attending for the purposes of any inquiry, trial or other proceeding before such Court
under this Code.[xxvi]

Evidence as defined in Section 3 of the Indian Evidence Act, 1872 covers evidence of witnesses
and documentary evidences. Chapter IX titled “OF WITNESSES” of the Indian Evidence Act,
1872 consists of seventeen Sections spreading from Sections 118 to 134. The main aspects are
dealt with here are:

1. Competency- A witness is said to be competent when there is nothing in law to prevent

him from being sworn and examined if he wishes to give evidence[xxvii].
2. Compellability- Further a witness though compellable to give evidence may be privileged
or protected from answering certain questions[xxviii].Even if witness be willing to depose
about certain things, the court will not allow disclosure in some cases[xxix]
3. Privileges[xxx]
4. Quantity of Witnesses required for judicial decisions [xxxi] (No particular number of
witnesses is required for proof of any fact and this section enshrines the maxim
that Evidence has to be weighed and not counted.)

Section 151 and 152 of the Evidence Act protects the witnesses from being asked indecent,
scandalous, offensive questions, and questions which intend to annoy or insult them. Also, when

5
an accused is released on bail, one of the terms and conditions imposed by the Court on the
accused is that he shall not tamper the evidence, or approach the witnesses. This, again, is not as
a provision for protection of the witnesses per say, but only to ensure the trial is not tampered
with.[xxxii]

There are provisions to protect witnesses, though not physically, under thespecial statues like
The West Bengal Act of 1932, Juvenile (Care and Protection of Children) Act, 2000. Section 17
of the National Investigation Agency Act, 2008 says that on an application made by a witness in
any proceeding before it or by the Public Prosecutor in relation to such witness, if the Special
Court is satisfied that the life of such a witness is in danger, it may take measures it deems fit for
keeping the identity of such witnesses secret. Any person who contravenes any decision or
direction with regard to this will be punished with imprisonment for a term which may extend to
three tears and with fine up to one thousand rupees.

Law Commission Reports

The Law Commission in its 14th Report (1958)[xxxiii] referred to ‘witness-protection’ in a

limited sense and the main feature with respect to this was the provision for adequate
arrangements for the convenience of the witness within the court premises and provision of
allowance enabling them to arrive for testimony promptly and thus avoiding delay. There was no
mention for the provision of any physical protection for the witness within this report.

The 154th Report of the Law Commission[xxxiv] contains a chapter on Protection and facilities

to Witnesses. One of the recommendations was: “Witnesses should be protected from the wrath
of the accused in any eventuality”, but the Commission did not suggest any measures for the
physical protection of witnesses. This Report suggested to prevent witnesses from turning hostile
by taking the signature of the witness, if he is literate, on his statement, giving a copy of the
statement to the deponent under acknowledgement and to send copies of the statements to the
appropriate magistrate as well as to the superior Police office.

In the 172nd Report of the Law Commission[xxxv], the Law Commission took up the subject on a

request made by the Supreme Court of India in Sakshi v. Union of India[xxxvi]and discussed the
issues raised by the Petitioner NGO and other women organizations. After taking into
6
consideration the various suggestions by these organisations, it was held that a minor who has
been assaulted sexually, should not be required to give his/her evidence in the presence of the
accused. The 178th Report of Law Commission[xxxvii], suggested an amendment to insert
S.164 A to the Code of Criminal Procedure.

The Committee on Reforms of Criminal Justice System[xxxviii]under the chairmanship of

Dr. Justice V. S. Malimath, submitted a Report containing 158 recommendations. It contains a
casual statement that a law should be enacted for giving protection to witnesses and their family
members, without specifying any provision or scheme whatsoever. The prosecution and the
Court could direct that the identity and the address of the witness be kept secret. The Court could
even avoid the mention of the names and addresses in its order or judgement. A chapter of the
report named, “A Hybrid System of Criminal Justice” has sought to incorporate certain features
of the ‘inquisitorial” system of trial into the ‘adversarial’ system, namely “empowering judges
further with the duty of leading evidence with the object of seeking the truth and focusing on
justice to victims.” It is felt that, focusing on “justice to victims” is possible, only if careful
consideration is paid to “the rights of witnesses”, “considering them as a special category of
victims” and acknowledging their insecurity and vulnerability in general.

The Criminal Law (Amendment) Act, 2005 (No.2 of 2006) has made many important
amendments including the introduction of Section 195A to the Penal Code, whereby threatening
or inducing any person to give false evidence is made punishable. Other changes include
amendment of Section 195 of Cr.P.C and Section 154 of Evidence.

In the 198th Report of the Law Commission[xxxix], a Consultation Paper on Witness Identity

Protection and Witness Protection Programmes’ was prepared. In the Final Report, the
Commission identified three categories of witnesses:

(i) victim-witnesses who are known to the accused;

(ii) victims-witnesses not known to the accused (e.g. as in a case of indiscriminate firing
by the accused) and
(iii) witnesses whose identity is not known to the accused.
(iv) Category

7
  requires protection from trauma and categories (ii) and (iii) require protection
against disclosure of identity.

The committee comprising Members of Parliament from the Rajya Sabha was reviewing the
status of promises made by the government in 2009 to amend necessary laws to protect
witnesses. The commission recommended witness anonymity and protection where there is
danger to the witness, to his properties or to those of his relatives, at all stages – investigation,
inquiry, trial, appeal – and thereafter also.[xl]

Comments by the Judiciary

The earliest judgment that dealt with the aspect of witnesses’ protection was in the case
of Naresh Shridhar Mirajkar v. State of Maharashtra[xli], wherein protection of publication of
evidence of the witness was allowed by the High Court and later re-affirmed by the Supreme
Court as otherwise the business interests of the witness would have been hampered.

The most historic and relevant case that brought witness protection into focus was the Zahira
Habibulla Sheikh v. State of Gujarat[xlii]. In this case, the Supreme Court decided to shift the
venue of the case from Gujarat to Maharashtra since the Court felt that the witnesses would not
be able to depose their statements freely in the said state. The Supreme Court reiterated
“legislative measures to emphasise prohibition against tampering with witness, victim or
informant, have become the imminent and inevitable need of the day.”In Delhi Domestic
Working Women’s Forum v. Union of India[xliii], the Supreme Court emphasised the maintenance
of the anonymity of the victims of rape who would be the key witnesses in trials involving the
offence of rape. The guidelines for witness protection laid down by the Delhi High Court
in Neelam Katara v. Union of India[xliv]but they did not deal with the manner in which the
identity of the witness can be kept confidential either before or during the trial. The judgment of
the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa[xlv], which
provides for protection of the witness from the media, does not deal with all the aspects of the
problem.

8
TREATMENT OF WITNESSES

The present judicial system has taken the witnesses completely for granted. Witnesses are
summoned to the Court regardless of the fact that they have no money, or that they cannot leave
their family, children, business etc. and appear before the Court. But that's not all. On reaching
the Court, some are told that the case has been adjourned (for reasons that may run into infinity)
and the respective lawyer politely gives them a further date for their next appearance.

In the matter of Swaran Singh v. State of Punjab, the Supreme Court observed,
"A witness has to visit the Court at his own cost, every time the case is differed for a different
date. Nowadays it has become more or less fashionable to repeatedly adjourn a case. Eventually
the witness is tired and gives up."

The Court further held that while adjourning a case without any valid cause, a Court unwittingly
becomes party to miscarriage of justice.

2 Most witnesses have to wait their turn out. And when their time for deposing or the giving of
evidence comes, the lawyers examine and cross examine them as if they themselves are the
perpetrators of the crime.

Perjury

Since the guilt of the accused is proved to a great extent on the basis of the evidence or the
information given by such a witness, therefore perjury or the giving of false evidence has to be
severely censured.

Perjury today has also become a way of life in the Courts. In some cases the judge knows that
whatever the witness is saying is not true and is going back on his previous statement. The Judge
here ignores this fact and does not even file a complaint against him.

Section 340 of the Criminal Procedure Code, 1972:

9
States the procedure for the prosecution for contempt of lawful authority of the public servants,
for the offences against public justice and for the offences relating to documents given in
evidence.

Section 340(3) of Criminal Procedure Code states:

A complaint made under this section shall be signed:

a) Where the Court making the complaint is the High Court, by such officer of the High Court as
the Court may appoint;

b) In any other case, by the presiding officer of the Court.

It is respectfully submitted that Section 340(3)(b) needs to be amended, empowering any officer
of the Court to file a complaint against such witnesses, thereby putting an end to the notion of
bought over or hostile witnesses.

The High Courts also have to be vigilant is these matters if the criminal justice system is to be
put on a proper pedestal. The system cannot be left at the mercy of the state machinery. In
today's computer age, it's about time that all lower courts are linked up with their respective High
Courts with a computer. A proper check should be maintained on the adjournments and
recording of evidence. Further, the Bar Council of India and the State Bar Councils must play
their part and put the criminal justice system back on track.

INSTANCES WHERE WITNESS PROTECTION WAS PROVIDED

Naroda- Patia: Mohammad Shakur Sayyad, a victim of the Naroda-Patia carnage in the year
2002, who was also a key witness in that case, was attacked and beaten up brutally by a group of
thirty people, while he was sitting outside his shop at the Faisal Park Society in Vatva.
According to him Akram Ahmed, an anti social element of that locality while assaulting him
along with other people of the abovementioned group was shouting "You are very fond of
deposing before the Nanavati Commission, aren't you?"

Sayyad, who lost his three children in the Naroda-Patia massacre, had deposed before the
Nanavati Commission on 1st October 2003 naming several persons in the mob. He is one of the

10
key witnesses in the case and had also been provided with one police guard.

The guard however had retired for the day when Sayyad was attacked. The neighbours of Sayyad
maintain that Akram Ahmed had been threatening others not to depose before the judiciary
during the Naroda trial. About forty-five families of Naroda-Patia have refused to go back to the
area after the riots.

What is shocking in this case is that such a key witness (in this case Sayyad), was provided with
only one police guard who, surely, would have looked to save his own life rather than that of the
witness he was protecting, when the crowd of thirty people attacked.

Ketan Thirodkar case

In another instance, the Bombay High Court had given police protection to an ex-journalist
Ketan Thirodkar, because he had been under threats soon after he had filed the police complaint,
which disclosed a series of illegal acts allegedly committed by the police in connivance with the
underworld. Thirodkar had filed a petition seeking police protection as well as a police enquiry
into the police underworld nexus. However, the public prosecutor opposed the grant of police
protection on the ground that Thirodkar himself was involved with the underworld.

Here the public prosecutor failed to comprehend the fact that:

a) Thirodkar has admitted his links with the underworld and is ready to face the legal
consequences.

b) That even former criminals/ mobsters are also given police protection if they turn approver.
The High Court, in this case, had given Thirodkar police protection only for a limited period, not
realizing that the persons that he is to implicate would cause serious injury to him the moment
the temporary police protection is removed.

The police had failed to realize that Pandey was an important prosecution witness in a very
sensitive case. Since the police are yet to arrest more persons in regard to this case, Pandey is a
crucial witness in identifying such persons. In such cases the police should take extra precaution

11
and issue a circular or directive to all officers in the department to maintain silence on all the
investigations.

In this case the Mumbai police have contravened Section 30 of the Prevention of Terrorism Act
(POTA), by failing to protect the identity of the prosecution witness.

Section.30 of Prevention of Terrorism Act states:

"Since the life of the witness is in danger, adequate measures should be taken to keep the identity
and address of such a witness a secret. The mention of the names and address of the witness
should be avoided in any records of the case and even in the Court orders or judgment."

While Pandey had been kept at an undisclosed place with police guards, his family had not been
given protection, whereas, it could have been possible that under the guise of a political activist,
some terrorist could have approached Pandey or his family members. They could have bribed
Pandey or his family members or for that matter done anything to make sure tat Pandey turns
hostile.

The prosecution, in a large number of cases including the BMW and the Jessica Lal murder
cases, beside the ones registered under the Terrorist and Disruptive Activities Act (TADA), 1987
has time and again failed due to the backing out of witnesses.

Time and again the prosecution in some of the most sensitive cases had failed because the
witnesses, initially responsible for setting into motion the state machinery, had changed their
mind when examined in the Court. This has happened in a majority of cases registered in many
states under TADA.

In sensational cases like the BMW and the Jessica Lal murder cases; and most recently in the
Best Bakery case, wherein the Human Rights Commission intervened when the witnesses
changed their statements in the Court due to the lack of protection to them and their families.
Whereas in the earlier cases (the BMW and Jessica Lal murder case) most of the eyewitnesses
did not open up to pin point the possible reason which compelled them to change their original
stand.

12
The fact is that the accused are able to intimidate the witnesses because there was and is no
program available under which, after the assessment of the need for protection to a particular
witness, the administration could give him/her the requisite security cover.

In April 2003 a High level Committee headed by Justice V.S. Malimath (former Chief Justice,
High Court of Gujarat) was appointed by the Home Ministry to reform the existing criminal
justice system. The Commission said that the time has come to enact a law putting in place a
Witness Protection Program in India as well.

Recommending the Witness Protection Program, the Malimath Committee however did not
focus on any particular case. It spoke generally of the need to check the growing trend of hostile
witnesses.

The committee said nothing beyond making a bald recommendation of adopting such a law. It
made no effort to go into how the concept of witness protection program can be adapted to the
legal topography of India. It did not deal with the obvious issue whether witness protection
program is a luxury that a poor country like India cannot afford.

Also, until our police officers are not liberated from the political diktats, as recommended by the
National Police Commission over two decades ago, it is not worth our while to try witness
protection program even in the gravest of cases.

Judicial Activism

In recent time the judiciary has been giving significant amount of encouragement to establishing
witness protection programs in India.

In one such instance, the Delhi High Court, has on 14th October 2003, issued certain guidelines
to the police in providing protection to the witnesses in cases pertaining to life imprisonment or
death sentences. The ruling is an attempt to check witnesses from turning hostile under threats
from the accused.

13
The guidelines have been issued by Usha Mehra and Pradeep Nandrajog., JJ on a petition filed
by Neelam Kataria, whose son Nitesh was allegedly murdered by Rajya Sabha MP D.P. Yadav's
son Vikas and nephew Vishal.

The Delhi High Court has given the following guidelines in giving witness protection:

1. The Court has also made it compulsory for the investigating officer of a case to inform the
witness about the new guidelines.

2. The Court has appointed the Member Secretary of the Delhi Legal Services Authority to
decide whether a witness requires police protection or not.

3. The competent authority shall take into account the nature of security risk to him/her from the
accused, while granting permission to protect the witness.

4. Once the permission is granted, it shall be the duty of the Commissioner of Police to give
protection to the witness.

The High Court said that its order would operate until legislation is passed in this regard.
Initiatives By The Police with terrorist activities on the rise, the Mumbai police have formulated
a four-point plan to protect vital witnesses in the bomb blasts and other sensitive cases. Though
this plan is still under deliberation, it shall soon be sent to the State Government for its approval,
after which it will be enacted as a law.

The abovementioned 4-point plan is made on the following guidelines:

1. Transferring the witness from his city of residence to another city.
2. Government will provide the witness with a job similar to the one he is/was doing.
3. The witness shall be given a new name, identification, ration card; and a new passport.
4. The government will accept the responsibility of the witness's entire family and provide it with
security cover.

In other countries like America even plastic surgery of the witness for his new identity is
considered as an option. However, the Mumbai police it seems has not thought about this. But as

14
stated by Rakesh Maria (Additional Commissioner of Police, Crime), if need be, the police shall
take it under consideration.

Therefore, a person who has given or has agreed to give information or evidence or participates
or has agreed to give information or evidence or participates or has agreed to participate in a
matter pertaining to inquiry into the investigation or prosecution of an offence and who may
require protection because of the risk to the security of the person arising in relation to the
inquiry, investigation or prosecution be given witness protection by the police. Which as
observed from the above instances may include relocation, accommodation, and change of
identity in order to ensure the security of the protectee or to facilitate the protectee’s re-
establishment or his/her becoming self-sufficient?

15
Conclusion

Today, under present circumstances, the Indian Government is evaluating the American laws
pertaining to witness protection, where gang men after turning approver are given a new name
and identity and relocated to a new place. In the USA, the Federal Witness Protection Program
was created in response to the dangers faced by the witnesses who testified against mobsters. In a
high threat environment including pre-trial conferences, trial testimonials and other court
appearances, a round the clock protection is provided to all the witnesses through the U.S
Marshall Service.

The Witness Protection Program has been in existence in the United States since 1967. It has so
far been used to rehabilitate not more than eight thousand witnesses and their fifteen thousand
family members. The American system employs witness protection program typically to help a
mafiso who turned approver in the Court, whereas it also employs witness protection program to
crack down on drug and international terrorist activities.

Recently Canada gave witness protection cover under its Witness Protection Act, 1996 to a Sikh
woman, Satnam Kaur Reyat, who threw fresh light in the Kanishka Bombing Case.

While the government is presently deliberating over making laws pertaining to hostile witnesses
and laws for witness protection, it is imperative to note that witness protection program works on
the premise that all the officials involved in the secret exercise of changing somebody's identity
are absolutely trustworthy. The plain fact is that the level of professionalism demanded by the
witness protection program is considered to be beyond the capability of our police in the existing
system, making it as susceptible as it is to extraneous influences.

In a recent case, where an IIT engineer (Satyendra Dubey) who was working as a manager in the
NAHI; and had filed complaints to the Prime Ministers' office, regarding the misappropriations
in the prestigious Golden Quadrilateral Highway project, was murdered, simply because he had
filed those complaints. Today, the National Human Rights Commission has taken note of the
media reports into the 'Lapses' on part of the Bihar Police; and has asked it to submit a report

16
explaining its failure to investigate the case properly3. Therefore, if the Prime Ministers' Office
can be penetrated, it is little wonder, which other place cannot be.

Today, stringent laws against persons giving false evidence and against witnesses that turn
hostile are very much the need of the hour. In many cases, it is on the basis of the evidence given
by witnesses that the State initiates the prosecution process. However, during the trial of those
accused, it is often the case that those witnesses (on the basis of whose evidence the prosecution
was initiated), turn hostile. Resulting in the acquittal of the accused. An instance of such
happening is available in the recent times, wherein, in trial of one Mr. Mukhtar Ansari
(legislator- Bahujan Samaj Party, Lucknow), who was being tried for the murder of a Jail
Superintendent (Mr. R.K Tiwari), was acquitted because all the witness in the case (36 in
number) turned hostile. It could also perhaps be because of the inadequate protection given to the
witnesses, because of which they were influenced to change their earlier statements. But either
ways this case portrays the inadequacy of the present justice system in India.

It is therefore not a question of funds, as they could be generated in due time by some means or
the other; but a question put to the integrity of the system upon which thrives the sustainability of
the witness protection program as well as the life of the witness and his family

CHALLENGES TOWARDS WITNESS PROTECTION

There are many practical problems like costs of implementation and infrastructure. When talking
about providing bodyguards, security, relocation to another area etc., the costs that are involved
are bound to be enormous. But the more pertinent problem is that of corruption in the
administration and judiciary. The first step in developing a witness protection law is to
acknowledge that witness protection is a duty of States. Other problem is whether the statements
of the witnesses should be recorded by a Judicial Magistrate. It is practically not viable in the
present set-up with the low number of Courts and staff deficient Judiciary.[xlvi]

At present in India even the expert witnesses of the various forensic disciplines do not have any
protection. A witness in Indian situation, who is living comfortably with a job and family may

17
not intend to undergo such drastic changes in his life for the sake of being a witness in a Court of
law

[xlvii]. In the Indian situation, where we have so many social obligations and relatives to attend
to, proper implementation of the Witness protection programmes will not be possible for a
variety of reasons.

SUGGESTIONS

Protection may be given before, during and/ or after the judicial proceeding depending on the
type of the witness or the degree of co- operation. Effective witness protection legislation, should
ideally involve all the three concerned agencies – police, government and judiciary. The
government should display a political will to implement necessary Acts, the judiciary can look
into the legal aspects and the execution may be entrusted to the police.

An independent witness protection cell should be constituted and it must arrange for the
provision of false identities, relocation and follow up. The witnesses should be treated with
fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout
the criminal justice process. They should have access to information of the status of the
investigation and prosecution of crime. Medical facilities, social services, state compensation,
counselling, treatment and other support may be provided. Right to a speedy trial and prompt and
final conclusion of the case after the conviction and sentence must also be ensured. [xlviii]If
violations are found to exist on part of witnesses enrolled in this programme, they should be
penalized.

The police force should be given the freedom to take basic measures to protect witnesses like
surveillance, escorting the witness to work and court, assisting with emergency relocation etc.
Measures should be taken by the courts to restrict public access to the witness’s identity
including having a witness testify under a pseudonym. The use of practices such as
videoconferencing, teleconferencing, voice and face distortion, and other similar techniques must
be encouraged as well as allowing witnesses to conceal their address or occupation. Rebuilding
trust of the people in the formal system of law is the best form of witness protection. The

18
witnesses should be assured that those who want to testify have, on their side, the police and an
impartial system.

Critics like Fali. S. Nariman, he says that criminal jurisprudence in India being a British concept,
the Best Bakery case relies heavily on the Blackstonian maxim that “It is better that guilty
persons go unpunished than one innocent person suffers” and that it is why all the 21 accused
were acquitted due to the supposed “lack of proper evidence.” He quotes Dr. Owen Dixon, who
said that in a court of appeal, a large number of the facts are excluded, either because of
negligence of the legal profession, fading memory and also by archaic laws of evidence. The
tools under the Criminal Procedure code are not properly used in a trial court at the stage of
inquiry, trial and other proceedings or in the summoning of witnesses, their examination, cross
examination and re examination[xlix]. The judge, in his anxiety to maintain neutrality never takes
an initiative to discover the truth and he relies on the excuse that ours is an adversarial system
which does not impose a positive duty on the judge to discover truth.Law is a means to achieve
an end, and that is justice. If this end is to be achieved law cannot remain stagnant and must
change according to the transition of the society. No nation may afford to expose its righteous
and morally elated citizens to the peril of being haunted or harassed by anti social elements, for
the simple reason that they testified the truth in a court of law.

19
BIBLIOGRAPHY

[i]Neelam Katara v. Union of India, ILR (2003) II Del 377 260.

[ii]Dorling Kindersley Illustrated Oxford Dictionary, 958 (1998).

[iii]Online Etymology Dictionary, available at http://www.etymonline.com/index.php?

term=witness&allowed_in_frame=0, (last visited on September 19, 2013).

[iv] D. Murali, Thou shalt not bear false witness, Business Line, Dec. 24, 2004 available at
http://www.thehindubusinessline.in/2004/12/24/stories/2004122400270900.htm(last visited on
September 19, 2013).

[v]Black’s Law Dictionary, available at http://thelawdictionary.org/witness-

n/#ixzz2cm686Dz8(last visited on September 19, 2013).

[vi](1997)6 SCC 514.

[vii](2004)4SCC158.

[viii]AIR 2000 SC 2017.

[ix]Supra note 13, p. 152- 157

[x] AIR 2003 SC 886.

[xi]Supra note 9

[xii]Supra note 13, p. 13- 14

[xiii] Warisha Farasat, Plea for witness protection laws, The Hindu, July 23, 2013 available at
http://www.thehindu.com/opinion/op-ed/a-plea-for-witness-protection-
laws/article4944925.ece(last visited September 19, 2013).

[xiv] (1996) 22 EHRR 330.

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[xv]Tanuj Bhushan, Witness Protection in India and United States:A Comparative Analysis, 2(1)
INTERNATIONAL JOURNAL OF CRIMINAL JUSTICE SCIENCES 13(2007) available at
http://webcache.googleusercontent.com/search?
q=cache:http://www.sascv.org/ijcjs/tanujpranatijcjsjan2007.pdf (last seen on September 20,
2013).

[xvi]Gareth Newham , Keeping the Wolves at Bay: Issues and Concerns in Establishing a

Witness Protection Programme in South Africaavailable at

http://www.csvr.org.za/index.php/publications/1720-keeping-the-wolves-at-bay-issues-and-
concerns-in-establishing-a-witness-protection-programme-in-south-africa.html(last visited on
September 19, 2013).

[xvii]Halsbury’s Laws (5th edn, 2010)

[xviii] Coroners and Justice Act, 2009, s. 97 (1)

[xix]Id. s 86(2)(a)(i)

[xx]Id.s 86(2)(a)(ii)

[xxi]Id. s 86(2)(b)

[xxii]Id. s 86(2)(c)

[xxiii]Id. s 86(2)(d)

[xxiv]Id. s 86(2)(e)

[xxv] The Code of Criminal Procedure, 1973, s. 311.

[xxvi]Id. , s 312

[xxvii]Indian Evidence Act, 1872, ss.118 – 121, 133.

[xxviii]Id.,ss. 122,124,125, 129.

21
[xxix]Id.,ss.123,126, 127.

[xxx]Id.,ss. 122 – 131.

[xxxi]Indian Evidence Act, 1872, s. 134

[xxxii]Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, Ratanlal & Dhirajlal’s the Law of
Evidence (Act I of 1872), (21st edn. 2004).

[xxxiii]14th Report of the Law Commission of India, Reform of Judicial Administration (1958 ).

[xxxiv]154th Report of the Law Commission of India, Code of Criminal Procedure, 1973 (Act
No. 2 of 1974) (1996).

[xxxv]172nd Report of the Law Commission of India, Review of Rape Laws (2000).

[xxxvi]2004(6) SCALE 15.

[xxxvii]178th Report of the Law Commission of India,  Recommendations for Amending

Various Enactments, Both Civil and Criminal (2001).

[xxxviii]Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal

Justice System  (2003).

[xxxix]198thReport of the Law Commission of India, Witness Identity Protection and Witness

Protection Programme (2004).

[xl]Gangadhar S Patil, 5 years on, witness protection proposal gathers dust, Daily News And
Analysis Jan 14, 2013, available at http://www.dnaindia.com/mumbai/1788659/report-5-years-
on-witness-protection-proposal-gathers-dust(last visited on September 19, 2013).

[xli]1966 SCR (3) 744.

[xlii]Supra note 9

[xliii] (1995) 1SCC 14.

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[xliv]Supra note 1

[xlv]AIR 1988 P&H 95

[xlvi]Ankit Kejriwal, Need For A Witness Protection Programme: The Solution To The Problem
Of Hostile Witness, available at http://www.legalserviceindia.com/article/l259-Witness-
Protection-Programme.html(last visited on September 19, 2013).

[xlvii] Dr G V Rao, Witness Protection Program : Are we ready, available at

http://www.lawyersclubindia.com/articles/Witness-Protection-Program-Are-we-ready-5036.asp
(last visited on September 20, 2013)

[xlviii]H Suresh, New Law Needed for Witness Protection, 4 Combat Law. (2005),  available at

http://www.indiatogether.org/combatlaw/vol4/issue1/witness.htm(last visited September 19,
2013)

[xlix]Fali S. Nariman, India’s Legal System: Can it be saved? (1st ed. Penguin Books India Pvt.
Ltd 2006).

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