Emerging Need for Witness Protection Laws in India – Analyzing the

Success and Failures

Vijay Kumar Singh
Assistant Professor (Law)
Hidayatullah National Law University, Raipur

It is a common scene in a movie where the villain detains the family

members of the witness so as to stop him to depose. At times, offers money
for not deposing or deposing in false. Sometimes, it is shown that after a
deposition, the witness is killed by the survivors of gang or even in a
situation villain comes out of jail after completion of his sentence and
takes revenge. These are not only the instances shown in the Bollywood
movies, but can be witnessed in real life, for example Zaheera Sheikh,
Shayan Munshi, Sateyndra Dubey, and others. Witnesses play a vital role
in prosecution of a criminal case. In absence of witnesses, no accused can
be brought to conviction. There are various factors which make a witness
to an incident reluctant to depose or to depose falsely or irrelevantly
(hostile witness). Least level of protection afforded to witnesses is one of
the major reasons for this. The present paper discusses the issue of
protection of witnesses.

Jatro dharmo hyadharmena

Satyam Jatranrutenacha
Hanyate prekshyamananam
Hatastrata Sabhasadah1

Padodharmasya Kartaram
Padah sakshinomruchhati
Padah sabhasadah sarban
Pado rajanmruchhati2

The First Code in India provided for the qualification of witnesses, assessing testimony of
witnesses, false testimony and punishment of perjury. At all times, witnesses have been a
key to justice administration3.

1
Stanza 14 Manusmriti - Where in the presence of Judges "dharma" is overcome by "adharma" and "truth"
by "unfounded falsehood", at that place they (the Judges) are destroyed by sin., cited in Zahira III, see infra
note 11
2
Stanza 14 Manusmriti - In the adharma flowing from wrong decision in a Court of law, one fourth each is
attributed to the person committing the adharma, witness, the judges and the ruler" cited in Zahira III, see
infra note 11
3
See Patrick Olivelle, Manu’s Code of Law: A Critical Edition and Translation of the MANAVA
DHARMASASTRA, Oxford, 2004, Chapter 8 at p.170-73

Electronic copy available at: https://ssrn.com/abstract=1351136

1. Who is a Witness?

Witness is one who can give a firsthand account of something seen, heard, or
experienced.4 He furnishes ‘evidence’. Witness, in law, in Britain and the United States,
is a term used to designate either a person who testifies or gives evidence in a judicial or
quasi-judicial proceeding or someone who attests to or is present at the execution of a
legal instrument such as a deed, affidavit, or will. An oath is required of every person
called to testify at a judicial proceeding. Not every person may be competent to testify as
a witness, such as a person of unsound mind. The attendance of a witness at a judicial or
quasi-judicial proceeding is compelled by the issuance of a subpoena5. However, in this
paper, researcher is dealing with the former class of witness who gives evidence in a
judicial proceeding, more specifically in a criminal trial.

As per the proposed Bill6, “witness” means (i) any person who is acquainted with the
facts and circumstances, or is in possession of any information or has knowledge,
necessary for the purpose of investigation, inquiry or trial of any crime involving serious
offence, and who is or may be required to give information or make a statement or
produce any document during investigation, inquiry or trial of such case, and (ii) includes
a victim of such serious offence.

There are 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. Category (i) requires protection from trauma and categories (ii) and (iii)
require protection against disclosure of identity7.

A reader interested in knowing about the possible varieties of witnesses may refer to
Halsbury’s Laws of India8. However, the list is not exhaustive. Therein we come across
different categories viz; eye witnesses, natural witnesses, chance witnesses, official
witnesses, sole witnesses, injured witnesses, independent witnesses, interested, related
and partisan witnesses, inimical witnesses, trap witnesses, rustic witnesses, child
witnesses, hostile witnesses, approver, accomplice etc9.

2. Role of Witnesses:

Right from the inception of the judicial system it has been accepted that discovery,
vindication and establishment of truth are the main purposes underlying existence of
courts of justice. The operating principles for a fair trial permeate the common law in

4
The American Heritage Dictionary of the English Language, Third Edition Copyright © 1992 by
Houghton Mifflin Company
5
id.
6
Section 2(g) - The Witness (Identity) Protection Bill, 2006
7
Law Commission of India - One Hundred and Ninety Eighth Report – Witness Identity Protection and
Witness Protection Programmes, (Chairman – Justice M. Jagannandha Rao), August 31, 2006, at p.4.
8
Butterworths - 2000 edition – Vol.15
9
A. Hariprasad, Witness Protection-Bird’s-Eye View, 2006 (1) J.V. (discusses the problem of Hostile
Witnesses)

Electronic copy available at: https://ssrn.com/abstract=1351136

both civil and criminal contexts. Application of these principles involves a delicate
judicial balancing of competing interests in a criminal trial, the interests of the accused
and the public and to a great extent that of the victim have to be weighed not losing sight
of the public interest involved in the prosecution of persons who commit offence10.

Witnesses are as important as the lawyers and judges because without the light thrown by
witnesses, lawyers and judges would be lost in the jungle of facts and it would be
difficult to impart justice. This is the reason why Bentham states that they are eyes and
ears of justice. If the witness himself is incapacitated from acting as eyes and ears of
justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial11.

Malimath Committee Report adequately explains the role of Witnesses in Criminal

Justice Administration in the following words12:

“Witness is an important constituent of the administration of justice. By

giving evidence relating to the commission of the offence he performs a
sacred duty of assisting the court to discover truth. That is why before
giving evidence he either takes oath in the name of God or makes a
solemn affirmation that he will speak truth, the whole of truth and nothing
but truth. The witness has no stake in the decision of the criminal court
when he is neither the accused nor the victim. The witness performs an
important public duty of assisting the court in deciding on the guilt or
otherwise of the accused in the case. He sacrifices his time and takes the
trouble to travel all the way to the court to give evidence. He submits
himself to cross-examination and can not refuse to answer questions on
the ground that the answer will criminate him. He will incur the
displeasure of persons against whom he gives evidence. He takes all this
trouble and risk not for any personal benefit but to advance the cause of
justice.”

3. Examination of Witnesses and Law in India

Examination of witnesses forms one of the key steps in the four essential steps of
criminal trial13. As far as back as 1932, the Section 31 of Bengal Suppression of Terrorist

10
Zahira I –: Zahira Habibullah H Sheikh and Others vs. State of Gujarat (popularly known as Best Bakery
Case) (2004) 4 SCC 158
11
Zahira Habibullah H Sheikh and Others vs. State of Gujarat, MANU/SC/1344/2006: AIR2006SC1367 –
decided on March 8, 2006 - Arijit Pasayat and H.K. Sema, JJ. para 38 [the matter in this case relates to the
perjury committed by Zahira and enquiry there into.] – hereinafter referred to as Zahira III. Also see
Zahira I –: Zahira Habibullah H Sheikh and Others vs. State of Gujarat (popularly known as Best Bakery
Case) (2004) 4 SCC 158: 2004(4) SCALE 375 – decided on April 12, 2004 - Doraiswamy Raju and Arijit
Pasayat, JJ., [A batch of appeals by Gujarat Riot Victims for transfer of trial from Gujarat] and Zahira II –
Zahira Habibullah H Sheikh and Others vs. State of Gujarat, MANU/SC/0489/2004: AIR2004SC3467 –
decided on May 7, 2004 - Doraiswamy Raju and Arijit Pasayat, JJ., [for directions and modification of the
judgment in (2004) 4 SCC 158 ordering fresh trial outside the State of Gujarat]
12
Para 11.1, Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home
Affairs, Chairman - Dr. Justice V.S. Malimath, at page 160

3
Outrages Act, 1932 empowered the Special Magistrate to exclude persons or public from
the premises of the Court in order to protect the identity of certain witnesses14. Apart
from this, there are other provisions also under Indian laws which speak about dealing
with witnesses.

3.1 Evidence Act - Under S.151 and 152 of Indian Evidence Act, 1872, victims and
witnesses are protected from being asked indecent, scandalous, offensive questions, and
questions intended to annoy or insult them. Otherwise, there is no other provision for
protection of witnesses, as against threats, intimidation or any inducement whereby they
are prevented from telling the truth. Very often, when 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 witnesses15.

3.1.1 Hostile Witnesses – Section 154 of the Evidence Act prescribes for dealing with
the hostile witnesses. Hostile witness has not been defined under the Act. A ‘hostile
witness is one who from the manner in which he gives evidence shows that he is not
desirous of telling the truth to the Court16. Where a party calling a witness and
examining him discovers that he is either hostile or unwilling to answer questions put to
him, he can obtain permission of the Court to put questions to him which may be put to
him by way of cross-examination17. The problem of hostile witnesses is increasing and
one of the main reasons for the same is lack of witness protection measures.

3.2 Indian Penal Code – Disclosing the identity of the victim under section 376,
section 376A, section 376B, section 376C or section 376D of IPC is punishable18.
However, this protection does not extend to the witnesses.

3.2.1 Perjury – Giving false or misleading testimony under oath amounts to committing
the offence of perjury. Perjury is punishable since the time of Manu 19. This is another

13
Four principal steps in a criminal trial are (1) informing the accused of the offence he is charged with
having committed; (2) Examining the prosecution witnesses in his presence and giving him an opportunity
to test that evidence by cross-examination; (3) giving the accused an opportunity of explaining the
circumstances in the evidence against him; and (4) giving him an opportunity to produce his evidence in
defence (see Fourteenth Law Commission Report, see infra note 36, para 39
14
Pankaj Singh, Witness Protection Programme, available at <http://pankaj-ips.blogspot.com/2007/04/
witness-protetcion-full-length.html>, last accessed on February 28, 2009.
15
H. Suresh, New Law Needed for Witness Protection, Combat Law, Vol. 4, Issue 1, April-May 2005,
available at <www.indiatogether.org/combatlaw/vol4/issue1/witness.htm> last accessed on February 20,
2009
16
Panchanan Gogai v. Emperor, (1930) 42 Cal 957, Sec. 161(3) of the Cr.P.C. vests in police officers the
power to record statement of witnesses. However, these statements are not admissible in court by virtue of
Sec. 162(1). The aim of Sec. 162 is to protect accused persons from being prejudiced by statements made
to police officers who may coerce the witnesses. Therefore, the witness has to restate in the court the
statements that he made to the police. Here the statements recorded by the police constitute a reference to
which the veracity of the witness may be tested. If the witness goes back on his/her earlier he/she may have
turned hostile. (see Satish Mrinal, The Problem of Hostile Witnesses, In The Hindu, 02 September 2003
available at <http://www.hinduonnet.com/thehindu/op/2003/09/02/stories/2003090200130300.htm> last
accessed on February 20, 2009)
17
Ratanlal & Dhirajlal, The Law of Evidence, 19th Ed, Nagpur: Wadhwa, 1997, at p.465
18
Section 228A of Indian Penal Code, 1860

4
evil in the criminal justice administration. Chapter XI of IPC provides for the offence of
giving false evidence (offence against public justice)20. and Section 340 of the Cr.P.C.
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 of Cr.P.C. prescribes the procedure with dealing such
offences.

3.3 Criminal Procedure Code – Normally the criminal trial is to be conducted in an

open court, however, the Judge presiding may order that the public generally, or any
particular person, shall not have access to, or be or remain in, the room building used by
the Court21. The inquiry into and trial of rape or an offence under section 376, section
376A, section 376 B, section 376C or section 376D of the IPC shall be conducted in
camera22. As a principle of natural justice the accused is entitled to the statements
recorded under sub-section (3) of section 161 of all persons whom the prosecution
proposes to examine as its witnesses, excluding therefrom any part in regard to which a
request for such exclusion has been made by the police officer under sub-section (6) of
section 17323. Further, Section 273 of Cr.P.C. mandates that all evidence taken in the
course of the trial or other proceeding shall be taken in the presence of the accused or,
when his personal attendance is dispensed with, in the presence of his pleader. Section
200 to 202 provides for examination of witnesses in front of complainant by the
Magistrate.

3.4 Special Acts – Section 16 of Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA) and 30 of the Prevention of Terrorist Act, 2002 (POTA) provided for the
protection of witnesses.

3.5 National Investigation Agency – Recently, in the wake of Mumbai Terror Attacks,
NIA Act 2008 was passed in which there is a provision for witness identity protection.
For the reasons to be recorded in writing proceedings under this Act may be conducted in
camera. If the Special Court is satisfied on an application made by the witness or the
Public Prosecutor that the life of such witness is in danger, it may, for reasons to be
recorded in writing, take such measures as it deems fit for keeping the identity and
address of such witness secret24 and avoid mentioning their names in the judgments and
records. Whoever contravenes, shall be punishable with imprisonment for a term which
may extend to three years and with fine which may extend to one thousand rupees

4. International Witness Protection Laws:

19
See Chapter VIII, Stanza 118-122-124 – which prescribes a fine for perjury due to fear double the middle
amercement (bhayadwadao madhyamao dandao maitrapur chaturgunum), see J. M. Rama Jois, Ancient
Indian Law: External Values in Manu Smriti, Delhi: Universal, 2002, at p.91
20
Particularly Section 195 of IPC.
21
Section 327(1) of Cr.P.C.
22
Section 327(2) of Cr.P.C.
23
Section 207 and 208 of the Cr.P.C.
24
Section 17 of the National Investigation Agency Act, 2008

5
Witness protection programs (both identity and physical protection) are recognized in all
prominent jurisdictions of the world. Law Commission in its 198th Report discusses the
witness identity protection programs in (a) United Kingdom, (b) Australia (c) New
Zealand (d) Canada (e) South Africa (f) United States of America (g) European Court of
Human Rights (h) Portugal (i) International Criminal Tribunal for Yugoslavia and (j)
International Criminal Tribunal for Rwanda25.

Law Commission’s 198th Report also discusses the witness protection (physical) program
in various countries, i.e., (a) Australia [(i) Victoria (ii) National Capital Territory (iii)
Queensland] (b) South Africa (c) Hong Kong (d) Canada (e) Portugal (f) Philippines (g)
United States of America (h) France (i) Czechoslovakia (j) Republic of Korea (k) Japan
(l) Netherlands (m) Germany and Italy26. It is not fruitful to discuss all of these
jurisdictions for this paper, however, a reference to the position in USA and UK will be
made.

4.1 Position in USA – In the United States, the Organised Crime Control Act, 1970
and later the Comprehensive Crime Control Act, 1984 authorised the Witness Security
Program. The Witness Security Reform Act, 1984 provides for relocation and other
protection of a witness or a potential witness in an official proceeding concerning an
organised criminal activity or other serious offence. Protection may also be provided to
the immediate family of, or a person closely associated with, such witness or potential
witness if the family or person may also be endangered on account of the participation of
the witness in the judicial proceeding.

The Attorney General takes the final decision whether a person is qualified for protection
from bodily injury and otherwise to assure the health, safety and welfare of that person.
In a large number of cases, witnesses have been protected, relocated and sometimes even
given new identities. The Program assists in providing housing, medical care, job training
and assistance in obtaining employment and subsistence funding until the witness
becomes self-sufficient. The Attorney General shall not provide protection to any person
if the risk of danger to the public, including the potential harm to innocent victims,
overweighs the need for that person's testimony27.

4.2 Position in UK – Under the English law, threatening a witness from giving
evidence, is contempt of Court. So also any act of threat or revenge against a witness
after he has given evidence in Court, is also considered as contempt. Recently the U.K.
Government has a law known as Criminal Justice and Public Order Act, 1994 which
provides for punishment for intimidation of witnesses. S.51 of the Act not only protects a
person who is actually going to give evidence at a trial, but also protects a person who is
helping with or could help with the investigation of a crime.

Under Section 23(1) of the U.K. Criminal Justice Act 1988, a statement made by a person
in a document is admissible in criminal proceedings (without cross-examination) as

25
See Part II, Chapter VI of 198th Law Commission Report, pp. 82-230, supra note 7
26
See Part III, Chapter VII of 198th Law Commission Report, pp. 231-297, supra note 7
27
H. Suresh, New Law Needed for Witness Protection, see supra note 15

6
evidence of any fact of which direct oral evidence by that person would be admissible, if
(i) the person who made the statement is dead; or (ii) by reason of his bodily or mental
condition is unfit to attend as a witness; or (iii) that the person who made it does not give
oral evidence through fear or because he is kept out of the way.

A prominent lawyer of the country, Mr. Fali S. Nariman remarks28:

Jurisprudence in the West has accommodated itself to the idea that even
though a criminal trial must be "fair" it need not always be "wrinkle-free."

5. Cases Relating to Witnesses Protection in India

India has been a witness of lots of cases in which conviction was not achieved due to the
problem of witnesses turning hostile. These witnesses turned hostile because they were
not provided adequate protection from the accused and at times were interfered with
giving the true testimony. Each time the statement in Jennison v. Backer29 was defied.
The following are the few cases which got attention of public through media due to their
peculiar circumstances.

5.1 Naroda- Patia: Mohammad Shakur Sayyad had deposed before the Nanavati
Commission on 1st October 2003 naming several persons in the mob responsible for the
Naroda-Patia massacre. He was one of the key witnesses in the case and had also been
provided with one police guard30.

5.2 Ketan Thirodkar case: 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. However, the protection was a temporary
one31.

5.3 Twin Blast case: The identity of the witness (Shivnarayan Pandey, a taxi driver
who gave clues relating to the blast in August 2003) in this case was leaked to the media
by an inspector on the day of the blasts. This officer allegedly circulated Xerox copies of
a document bearing the name of the witness and the registration number of his vehicle.
After that an extra protection was extended to the witness32.

5.4 Jessica Lal: Lack of a substantiate witness protection program was made evident
in this case. This case saw several twists over the seven years of its trial, during which as

28
Fali S. Nariman, Complexities of Witness Protection, available on <http://www.hindu.com/2007/03/27/
stories/2007032702731100.htm> last accessed on January 10, 2009
29
(1972 (1) All E.R. 1006). "The law should not be seen to sit limply, while those who defy it go free and,
those who seek its protection lose hope"
30
Dhruv Desai, Treatment And Protection of Witnesses In India, available at <http://www.legalserviceindia
.com/articles/witnesses.htm> last accessed on February 28, 2009.
31
Id.
32
Id.

7
many as 99 of the 100 witnesses turned hostile33. However, thanks to the brave witness,
Bina Ramani due to whom the killers were finally brought to justice.

5.5 Zahira Sheikh – Zahira was an eye-witness to macabre killings in Gujarat, known
as Best Bakery case, after the Godhra incident. The case raised an important issue
regarding witness protection besides the quality and credibility of the evidence before the
court. Zahira went to NHRC stating that she was threatened by powerful politicians not
to depose against the accused persons. Supreme Court ordered for a fresh trial outside
the State of Gujarat in this case and also ordered for protection of witnesses. But, it is
interesting to note that two years later, Zahira was found guilty of perjury by the Apex
Court, reason being the several twists and turns in the case due to lack of witness
protection and lax attitude of the state34.

It is shocking to note that, even in these singular cases35 the police was not able to extend
a proper witness protection. This throws light on the dismal condition of witness
protection laws in India. There is a long way to go in having a comprehensive witness
protection program for all witnesses in the country.

6. Law Commission of India on Witness Protection:

Law Commission has started emphasizing the need for protection of witnesses way back
in 1958 with its 14th Report followed by its 154th, 172nd and 178th Report and ultimately
the 198th Report on Witness Identity Protection and Witness Protection Programmes in
2006.

6.1 Fourteenth Law Commission - The Police officers often complain that
investigation is hampered by lack of cooperation on the part of the public. It is said that
it is not unusual for even persons who have been eye-witnesses to the commission of an
offence to evade or attempt to evade giving evidence. In the view of 14 th Law
Commission, one of the reasons for this lack of cooperation is the scant regard which the
police department pays to the convenience of persons who may offer to give evidence
and the general discourtesy and even suspicion with which they are treated36.

Witnesses should receive a far better treatment both when they appear before the police
and in court than they actually receive. The manner of their cross-examination by the

33
Jessica Case: Need To Revamp Witness Protection Program, available at <http://indiastandard.com/
Opinion/Editorial/Witness-protection-program.html> last accessed on January 10, 2009. Also see “Shaking
the Foundations of Criminal Justice-The Jessica Disaster” Dipa Dube (discussing Jessica Lal’s case),
available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=938949> last accessed on March 1, 2009.
34
See Zahira I, supra note 11
35
Some other celebrated cases were BMW case (Hit-and-run case involving Sanjeev Nanda, the grandson
of S M Nanda, an Indian ex-Chief of Naval Staff, turned businessman from New Delhi), Priyadahsini
Mattoo case (Rape and murder by one Santosh Kumar Singh, a law student in the University of Delhi and
the son of a senior officer of the Indian Police Service. He was acquitted of the charges for want of
evidence. Recently, however, the High Court has convicted the accused).
36
Law Commission of India – Fourteenth Report – Reform of Judicial Administration, (Chairman – M.C.
Setalvad), Vol. II – Chapters 30-57, September 26, 1958, para 29, at p.744

8
opposing counsel not unoften borders on the insulting and offensive. This naturally leads
to a disinclination on their part to appear in court. No one can expect a citizen, zealous
though he may be, to assist in the detection of crime and the promotion of justice, to
interrupt his normal life and avocation if he is to be subjected to such treatment. Very
often the provision of elementary conveniences to persons appearing courts as witnesses
is sadly lacking. Witnesses in the rural and smaller urban areas are not assured even of
their expenses of going to and coming from police stations and courts. All these factors
undoubtedly add to the difficulties of investigation37.

6.2 One Hundred and Fifty Fourth Report – One of the areas to be redesigned and
restructured under this report was ‘Protection and Facilities to Witnesses38.’ It was
highlighted by the report that apart from the inconveniences caused to the witnesses due
to the adjournments and delay in criminal trials, they have to incur the wrath of the
accused, particularly hardened criminals which results in their life being at great peril.
Though there are provisions for punishing a witness who does not turn to give testimony,
but there are no provisions for compensating their day’s loss.

6.3 One Hundred and Seventy Second39 Report – Suggested that the testimony of a
minor in the case of child sexual abuse should be recorded at the earliest possible
opportunity in the presence of a Judge and a child support person. It further urged that the
court should permit the use of video-taped interview of the child or allow the child to
testify by a closed circuit television and that the cross examination of the minor should be
carried out by the Judge based on written questions submitted by the defence. The
Commission also recommended insertion of a proviso to sec. 273 Cr.P.C to the effect that
it should be open to the prosecution to request the court to provide a screen so that the
child victim does not see the accused during the trial40.

6.4 One Hundred and Seventy Eighth Report41 - Recommended that in the case of
investigation in to offences punishable with more than 10 years imprisonment or death,
Magistrate to record statement and the statement of witnesses straight away to be treated
as evidence.

6.5 One Hundred and Ninety Eighth Report42 – This report provides a comprehensive
report of 507 pages on Witness Identity Protection and Witness Protection Programmes.
This report of Law Commission is followed by a Consultation Paper to which a
37
Id.
38
Law Commission of India - One Hundred and Fifty Fourth Report – Code of Criminal Procedure, 1973,
(Chairman – K. Jayachandra Reddy), August 22, 1996, Chapter X, p.43-44
39
Law Commission of India - One Hundred and Seventy Second Report – Review of Rape Laws,
(Chairman – B.P. Jeevan Reddy), March 25, 2000
40
Law Commission of India’s Consultation Paper on Witness Protection, available at <
http://lawcommissionofindia.nic.in/Summary%20of%20the%20Consultation%20paper%20on%20Witness
%20protection%20AND%20Questionnaire.pdf> last accessed on March 1, 2009.
41
Law Commission of India - One Hundred and Seventy Eighth Report – Recommendations for Amending
Various Enactments, both Civil and Criminal, (Chairman – B.P. Jeevan Reddy), December 14, 2001, at p.
117 (amendment to section 164 introduction of sub-section 1(A).
42
Law Commission of India - One Hundred and Ninety Eighth Report – Witness Identity Protection and
Witness Protection Programmes, (Chairman – Justice M. Jagannandha Rao), August 31, 2006.

9
Questionnaire was attached seeking responses from various quarters which included State
Governments, Directors General of Police/Inspectors General of Police, High Court
Judges, international and local organizations, Judges of the subordinate judiciary, jurists,
advocates and public prosecutors, of criminal justice administration. The report
compares the witness protection laws of various countries as well as puts forth a Draft
Bill on witness identity protection which will be discussed elsewhere in this paper.

6. A. Fourth Report of National Police Commission:

This report mentioned that out of 96,815 witnesses who attended courts during the test
period, 6697 witnesses only were paid some allowance and recommended payment of
daily allowance to witnesses for appearance in the court43. The commission considered
that it would greatly help cordial police-public relationship if the examination of
witnesses is conducted, as far. as practicable, near the scene of offence or at the residence
of the witnesses concerned or at some convenient place nearby44.

Further, in the Conference of Director Generals of Police held in 1974, it was also
recommended that the witnesses should be provided sufficient protection. It has to be
remembered that in the present system a poor witness is caught between the devil and
deep sea. If he fails to attend the court, he shall be penally liable and if he attends, he
undergoes an agonizing experience resulting in great inconvenience and loss. In this
situation, all the measures necessary to create good atmosphere, instilling confidence and
faith in the system in the minds of the witnesses have to be immediately chalked out and
implemented45.

6. B. Malimath Committee on Reforms of Criminal Justice System –

Malimath Committee throughout its report emphasizes the importance of witnesses and it
went to the extent of saying that “the witness should be treated with great respect and
consideration as a guest of honour” while referring to the problems faced by witnesses
during trial46. Along with the issue of witness protection, it deals with a host of issues
relating to witnesses and their treatment for example, compensating witnesses for their
loss while attending the trial, sensitizing judges about the responsibility to regulate cross
examination so as to ensure that the witness is not ill-treated affecting his dignity and
honour, and many more.

7. Witness Protection and Human Rights

Article 6 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms also speaks of a ‘fair and public hearing’ but says that the ‘press
and public may be excluded from all or part of the trial in the interests of morals, public

43
Para 28.15, Fourth Report on National Police Commission, 1980, available at <http://police.pondicherry
.gov.in/Police%20Commission%20reports/4th%20Police%20Commission%20report.pdf> last accessed on
February 28, 2009
44
Para 27.10, id.
45
Cited in 154th Law Commission Report, see supra note 38.
46
Para 11.1, Malimath Committee, at p.151, see supra note 12.

10
order or national security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent strictly necessary in
the opinion of the Court in special circumstances where publicity would prejudice the
interest of justice’47.

Supreme Court in Zahira48 emphasized the human rights aspect of the witness protection
and fair trial in the following words:
“The principles of rule of law and due process are closely linked with human rights
protection. Such rights can be protected effectively when a citizen has recourse to the
Courts of law. It has to be unmistakably understood that a trial which is primarily aimed
at ascertaining the truth has to be fair to all concerned. ….. Fair trial obviously would
mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm.
Fair trial means a trial 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.”

7. Judiciary on Witness Protection:

Judiciary in India has played a prominent role in development of laws in the country.
Either it may be constructive, harmonious, or plain interpretations of the law or it may be
entertaining public interest litigations and providing laws in the form of guidelines to fill
the vacuum in a specific sector. As regards the protection of witnesses, the Supreme
Court and High Courts has time and again emphasized the need for witness protection
and ultimately fair trial.

Prior to Maneka Gandhi,49 the Supreme Court, in Gurbachan Singh v. State of Bombay50,
upheld a provision of the Bombay Police Act, 1951 that denied permission to a detenue to
cross-examine the witnesses who had deposed against him. It was held that the law was
only to deal with exceptional cases where witnesses, for fear of violence to their person
or property, were unwilling to depose publicly against bad character.

At this stage, the issue was not examined whether the procedure was ‘fair’. The decisions
in G.X. Francis v. Banke Bihari Singh51 and Maneka Sanjay Gandhi v. Ram Jethmalani52
stressed the need for a congenial atmosphere for the conduct of a fair trial and this
included the protection of witnesses.

47
Cited in 198th Law Commission Report, see supra note 7; also see cases of Kostovski (1989), Vissier
(2002) and Fitt (2000) in European Courts of Human Rights
48
Zahira I, see supra note 10
49
Maneka Gandhi vs. Union of India, AIR 1978 597
50
AIR 1952 SC 221 – [Patanjali Sastri, C.J., Meher Chand Mahajan, Mukherjea, Das and Chandrasekhara
Aiyar, JJ.]
51
AIR 1958 SC 209 [Jafer Imam, J.L. Kapur and Vivian Bose, JJ.]
52
(1979) 4 SCC 167 [A.D. Koshal, P.S. Kailasam and V.R. Krishna Iyer, JJ.]

11
In Kartar Singh v. State of Punjab53 the Supreme Court upheld the validity of ss.16 (2)
and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) which
gave the discretion to the Designated Court to keep the identity and address of a witness
secret upon certain contingencies; to hold the proceedings at a place to be decided by the
court and to withhold the names and addresses of witnesses in its orders. The court held
that the right of the accused to cross-examine the prosecution witnesses was not absolute
but was subject to exceptions. The same reasoning was applied to uphold the validity of
Sec. 30 of the Prevention of Terrorism Act, 2002 (POTA) in People’s Union of Civil
Liberties v. Union of India54.

In Delhi Domestic Working Women’s Forum v. Union of India55 the Supreme Court
emphasized the maintenance of the anonymity of the victims of rape who would be the
key witnesses in trials involving the offence of rape. The importance of holding rape
trials in camera as mandated by s.327 (2) and (3) Cr.P.C. was reiterated in State of
Punjab v. Gurmit Singh56. In Sakshi v. Union of India57 the Supreme Court referred to the
172nd Report of the Law Commission and laid down that certain procedural safeguards
had to be followed to protect the victim of child sexual abuse during the conduct of the
trial. In the Best Bakery Case58, in the context of the collapse of the trial on account of
witnesses turning hostile as a result of intimidation, the Supreme Court reiterated that
“legislative measures to emphasise prohibition against tampering with witness, victim or
informant, have become the imminent and inevitable need of the day.”

In Swaran Singh v. State of Punjab59, D.P. Wadhwa J., again emphasized the need for
witness protection in following words:
“A criminal case is built on the edifice of evidence, evidence that is
admissible in law. For that witnesses are required whether it is direct
evidence or circumstantial evidence. Here are the witnesses who are a
harassed lot. A witness in a criminal trial may come from a far-off place to
find the case adjourned. He has to come to the court many times and at
what cost to his own self and his family is not difficult to fathom. It has
become more or less a fashion to have a criminal case adjourned again and
again till the witnesses tries and he gives up. It is the game of
unscrupulous lawyers to get adjournments for one excuse or the other till a
witness is won over or is tried. Not only that a witness is threatened; he is
abducted; he is maimed; he is done away with; or even bribed. There is no
protection for him.” (emphasis provided)

Recently, Delhi High Court in Neelam Katara v. Union of India60 laid down the
guidelines for witness protection, however, they do not deal with the manner in which the

53
(1994) 3 SCC 569 [S. Mohan and B.P. Jeevan Reddy, JJ.]
54
(2003) 10 SCALE 967
55
(1995) 1 SCC 14 [M.N. Venkatachaliah, C.J., S. Mohan and S.B. Majmudar, JJ.]
56
(1996) 2 SCC 384 [A.S.Anand and Saghir Ahmad, JJ.]
57
(2004) 6 SCALE 15 [S. Rajendra Babu, C.J. and G.P. Mathur, J.]
58
See supra note 11
59
MANU/SC/0320/2000: (2000)5 SCC 668, para 37 [D.P. Wadhwa and Ruma Pal, JJ.]

12
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
Khalsa61, also provides for protection of the witness from the media, however, does not
deal with all the aspects of the problem. These judgments highlight the need for a
comprehensive legislation on witness protection62.

8. Practical Problems in having a Comprehensive Witness Protection

Mechanism:

The Consultation Paper on Witness Identity Protection involves dealing with a range of
practical problems like63:
 If a person’s identity is to be changed, he will have to be given not only a new
name and address but also a fresh birth certificate, ration card and other such
official documents.
 Similar police protection may have to be given to his family members as well.
 To reduce the chances of his being traced by the side of the accused, the police
may have to resort to, as the paper put it, ‘‘changes in the physiognomy or the
body of the beneficiary.’’
 If the witness and his family have to be shifted elsewhere in the country or
abroad, the authorities will have to determine the period of their stay in the new
place, the maintenance they may have to be paid or the fresh employment they
may have to be provided.
 Should a person entering the programme be required to enter into a memorandum
of understanding setting out his rights and obligations? If so, what are the means
of enforcing such rights and obligations?

60
(Judgment dated 14.10.2003), Judgment given by Justice Usha Mehra and Justice Pradeep Nandrajog on
a petition filed by Neelam Katara whose son Nitish was allegedly kidnapped form a marriage party in
Ghaziabad by Rajya Sabha MP DP Yadav’s son Vikas and his nephew Vishal and killed in Febuary last
year. Court laid down the guidelines for witness protection in this case: The Member Secretary, Delhi
Legal Services Authority, was appointed as the competent authority to administer the guidelines in the
Capital. The judges directed that it would be the duty of the investigating officer to inform a witness about
the protection programme and the Commissioner of Police’s responsibility to provide the protection. The
State was also ordered to give adequate publicity to the programme. Such protection would be given to
witnesses in crimes where punishment was either death or life imprisonment. Before granting protection
the competent authority would have to consider the threat to the witness from the accused or his associates,
the stage of the investigation, the importance of the witness to the case and the value of his testimony and
the cost of such protection. Either the witness himself could approach the competent authority seeking
protection or the investigating officer could recommend the witness to the competent authority for
protection. Independent of the guidelines, a court could still give directions to the police for protection of a
witness in a case, if it deemed fit. The judges, however, made it clear that the said guidelines were only to
be in place till an appropriate legislation in the regard was brought in, available at
http://www.tribuneindia.com/2003/20031015/ncr1.htm, last accessed on March 1, 2009.
61
AIR 1988 P&H 95
62
Law Commission of India’s Consultation Paper on Witness Protection, 2006, see supra note 40
63
Manoj Mitta, Urgent Need for a Witness Protection Programme: Law Panel Tells Govt., available at
<http://www.indianexpress.com/oldstory.php?storyid=53483> last accessed on February 28, 2009, also
refer to Law Commission of India’s Consultation Paper on Witness Protection, supra note 40.

13
 Given the enormous expenditure involved in implementing the witness protection
programme, the Law Commission has also asked the public to ponder whether
India can afford it at all.

In spite of these complexities, there is a need to find out solutions for a comprehensive
witness protection program. As appropriately put by Fali S. Nariman64 “There are
several ways vulnerable witnesses can be protected from a powerful accused person. But
every law is only as good as it works.”

9. Other Problems of Witnesses:

Apart from the problem of threat to witness from the accused there are several other
problems associated with witnesses. Some of these can be enumerated as follows:

9.1 No Respect - A witness is then not treated with respect in the court. He is pushed
out from the crowded courtroom by the peon. In most of the courts there is no designated
place with proper arrangements for seating and resting while waiting for his turn to be
examined as a witness in the court.

9.2 Adjournments – A notorious problem in the functioning of the courts, particularly

in the trial courts is the granting of frequent adjournments, mostly on flimsy grounds.
This malady has considerably eroded the confidence of the people in the judiciary. If the
case is adjourned a witness is required to go to the court repeatedly. He is bound to feel
unhappy and frustrated. This also gives an opportunity to the opposite party to threaten or
induce him not to speak the truth.

9.3 Appropriate Diet-Money – The witnesses are not provided with adequate diet-
money and on a cost –benefit analysis, a witness finds it proper not to become a witness.

9.4 Prolonged Cross Examination – If a witness does appear in Court, he is subjected

to unchecked and prolonged examination and cross-examination and finds himself in a
hapless situation.

10. The Witness (Identity) Protection Bill, 200665

Law Commission proposed a Bill to provide for identity66 protection to threatened

witnesses67 in criminal cases involving serious offences68 and to provide for procedure
and mechanism for such protection and for such other matters incidental thereto.

64
Fali S. Nariman, Complexities of Witness Protection, supra note 28
65
Annexure I to 198th Law Commission Report, at p.199, see supra note 7
66
Clause 2 (a) of the Witness (Identity) Protection Bill, 2006 - “identity” in relation to a person includes
name, sex, names of parents, occupation and address of such person
67
Clause 2 (e) of WIPB 06 “threatened witness” means any witness in respect of whom, there is likelihood
of danger to the safety of his life or life of his close relatives; or serious danger to his property or property
of his close relatives, by reason of his being a witness;
68
Clause 2 (d) of WIPB 06 “serious offence” means an offence which is described as triable by a Court of
Session in the First Schedule to the Code of Criminal Procedure, 1973 (2 of 1974) and includes any offence

14
Proposed Bill provides for protection of identity during investigation in Part I of the Bill
and Part II provides for Identity Protection after completion of the Investigation. Chapter
III provides for protection of witnesses and victims at the trial.

10.1 Identity Protection Order during Investigation – If the officer in-charge of the
investigation during the course of the investigation of any serious offence is of the
opinion that it is necessary to protect the identity of any threatened witness, for the
purposes of the effective investigation, may through the Public Prosecutor apply for a
Identity Protection Order to the Magistrate69. Such application shall not disclose the true
identity of the witness concerned, but should be referred to as pseudonym or a letter of
English alphabet. Such an application has to be supported by the evidence to show that
witness is a threatened witness and also a certificate certifying the same from
Superintendent of Police or Commissioner of Police.

10.2 Consideration for granting an Order: On the application, the Magistrate may
conduct such enquiry as required in camera. While passing an order of Identity
Protection the magistrate shall have due regard to70:
(i) the general right of the accused to know the identity of witness;
(ii) the principle that witness anonymity orders are justified only in exceptional
circumstances;
(iii) the gravity of the offence;
(iv) the importance of the threatened witness’s evidence in the case;
(v) whether the witness’s statement, if any, under subsection (3)71 as to why he is a
threatened witness and as to why there is necessity to pass a protection order, is
reliable; and
(vi) whether there is other evidence, which corroborates the threatened witness’s
evidence in respect of the offence.

If the Magistrate is satisfied that (a) the witness who is subject of the application is a
threatened witness; (b)withholding the threatened witness’s identity until the
investigation is completed and final report or charge sheet is submitted in the court,
would not be contrary to the interests of justice; and (c) the need for passing a protection
order outweighs the general right of the accused to know the identity of the witness, may
pass a reasoned judicial order that until the investigation is completed and the police
report referred to in sub section (2) of section 173 of the Code of Criminal Procedure,
1973 or charge sheet under any other law is forwarded to the Magistrate or Judge, the
identity of threatened witness shall not be reflected in any of the documents72. Revealing
the true identity of witness who is subject of the application is prohibited even in any

which is required to be tried by a Court of Session or any other equivalent designated court or special court,
by a special law.
69
Clause 4 of WIPB 06
70
Clause 5(6) of WIPB 06
71
The Magistrate shall hear the prosecution and, in his discretion, may examine any person including the
witness who is subject of the application orally, and shall record the substance of the statement.
72
Clause 6 of WIPB 06

15
order sheet or proceeding under this part as well as any publication of the same in any
manner73.

10.3 Protection Order after Investigation – After the forwarding of Police Report or
Charge Sheet to the Magistrate but before the examination of the witnesses, the Public
Prosecutor or the threatened witness himself may by an application seek a protection
order, irrespective of the fact that no application for Identity Protection Order has been
made or an proceeding for the same is pending74. The Magistrate or the Judge would
conduct an inquiry in camera to determine whether the witness concerned is a threatened
witness or not. Further, if the accused or his pleader wants to elicit further information
from the prosecution of the threatened witness on the question of likelihood of danger to
the life or property of the said witness or his close relatives, they may be permitted to
furnish a list of questions to be answered by the prosecution or the said witness but no
question or information which may lead directly or indirectly to the identification of the
said witness shall be permitted75. Keeping into view the aforesaid consideration as
applicable to Identity Protection Order, a Protection Order may be passed which shall be
a reasoned judicial order that until the judgment in trial is given and if any appeal or
revision is presented against the judgment, until the decision of the appeal or revision, as
the case may be, is given, the identity of threatened witness shall not be reflected or
mentioned in any copy or records thereof76.

10.4 Protection of Witnesses – Examination of a threatened witness for which an order

has been passed as aforesaid shall be recorded by using two-way closed circuit television
or video link in such a manner that the accused and his pleader shall not be able to see the
face or body of the witness77. While recording the statement of the witness Judge on his
own or on an application may direct that the voice of the witness shall be distorted, and in
that event, the accused or his pleader shall be entitled to hear the distorted voice.
Undistorted voice shall be in sealed cover and the exclusive right to hear would be with
the presiding officer. Publication of Identity of such witness is prohibited. All persons
concerned including the technical personnel operating the two-way television or video
link and the two-way audio system and the courtmaster or stenographer of the Judge shall
be administered an oath of secrecy in respect of the identity and other particulars of the
threatened witness and it would not be lawful to disclose the same78. Offence under this
Act is punishable with imprisonment of either description which may extend to two years
and shall also be liable to fine which may extend upto rupees ten thousand79.

An analysis of the aforesaid Bill on Witness Identity Protection is laudable, but as is

evident is incomplete and is not a solution for complete witness protection. The proposed
Bill speaks about two kinds of protection i.e. before submission of investigation report
and after submission of investigation report and relates only to the identity of the witness.
73
Clause 7 of WIPB 06
74
Clause 8 of WIPB 06
75
Clause 9 of WIPB 06
76
Clause 10 of WIPB 06
77
Clause 12 of WIPB 06; under clause 13 similar protection is extended to the Victim.
78
Clause 14 of WIPB 06
79
Clause 16 of WIPB 06

16
It does not provide for physical protection of witnesses. Definitely, High Courts have
power to frame Rules under the Act and once the Act comes into force, there would be
more detailed provisions.

11. Whistle Blowing

Whistleblowing is distinguished from laws and policies on protection of witnesses.

There is some overlap between the two, often including a promise to keep the identity of
the individual confidential. However, witness protection is a much more serious matter,
involving usually the physical protection of the individual who will not testify in a
criminal case unless such protection is promised80. Though different, whistle blower may
become a witness for a case; hence this policy cannot be totally dissociated from the
purview of witness protection program, which has been done eventually in the law
commission reports. One cannot forget Sateyndra Dubey who was murdered for his
whistle blowing.

CONCLUSION

Recently, there were new channels reporting the Mumbai Police attitude towards
witnesses. Protection provided to a witness who gave evidence against the brother of
Don Daud Ibrahim was lifted as soon as the witness made her deposition. The witness
was left on his own to be killed by the aides of Daud. This is not unusual in India.

There are two broad aspects to the need for witness protection. The first is to ensure that
evidence of witnesses that has already been collected at the stage of investigation is not
allowed to be destroyed by witnesses resiling from their statements while deposing on
oath before a court (problem of hostile witness). Which necessitates the introduction of
procedure for maintaining anonymity of witnesses. The other aspect is the physical and
mental vulnerability of the witness and to the taking care of his or her welfare in various
respects which call for physical protection of the witness at all stages of the criminal
justice process till the conclusion of the case (or even after that), by the introduction of
witness protection programmes.

The 198th Law Commission Report discusses these problems elaborately, but while
proposing for a draft bill it takes care of only the former aspect of witness protection
only. The second aspect is only touched upon peripherally by providing mechanisms for
recording evidence of witness in camera.

There is an immediate need to have legislative measures emphasizing prohibition against

tampering with witness and witness protection not only during the trial but even after the
trial.

80
David Banisar, Whistleblowing International Standards and Developments, available at
http://www.corrupcion.unam.mx/documentos/investigaciones/banisar_paper.pdf, last accessed on January
14, 2009; also see Vijay Kumar Singh, Whistle Blowers Policy vis-à-vis Corporate Governance –
Challenges and Solutions for India, for a comparative discussion on Whistle Blowers Policy in India,
available at <http://ssrn.com/abstract=1351124>.

17
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 deposed81.

Further, there is a role of judiciary in properly monitoring the trial as outlined by Justice
D.P. Wadhwa in Swaran Singh’s Case82:
If the criminal justice system is to be put on a proper pedestal, the system
cannot be left in the hands of unscrupulous lawyers and the sluggish State
machinery. Each trial should be properly monitored. Time has come that
all the courts, direct courts, subordinate courts are linked to the High Court
with a computer and a proper check is made on the adjournments and
recording of evidence.

Even the Bar Council of India and the State Bar Councils must play their part and lend
their support to put the criminal system back on its trial. Active part of lawyers in
protecting the witnesses is need of the hour. Former Chief Justice of India, Justice V.N.
Khare had suggested that autonomous investigative agencies be set up on the lines of the
Election Commission and outdated laws be changed so that people do not loose faith in
the Indian judicial system.

It would be proper to conclude with the statement of Supreme Court in Zahira83:

The time has become ripe to act on account of numerous experiences
faced by Courts on account of frequent turning of witnesses as hostile,
either due to threats, coercion, lures and monetary considerations at the
instance of those in power, their bench men and hirelings, political clouts
and patronage and innumerable other corrupt practices ingenuously
adopted to smoother and trifle truth and realities coming out to surface
rendering truth and justice, to become ultimate casualties. Broader public
and societal interests require that the victims of the crime who are not
ordinarily parties to prosecution and the interests of State represented by
their prosecuting agencies do not suffer even in slow process but
irreversibly and irretrievably, which if allowed would undermine and
destroy public confidence in the administration of justice, which may
ultimately pave way for anarchy, oppression, and injustice resulting in
complete breakdown and collapse of the efifice of rule of law, enshrined
and jealously guarded and protected by the Constitution. There comes the
need for protecting the witness. Time has come when serious and
undiluted thoughts are to be bestowed for protecting witnesses so that

81
See Zahira I, para 41, supra note 10
82
See supra note 59, Para 37
83
See para 41, Zahira I, see supra note 10.

18
ultimate truth is presented before the Court and justice triumphs and that
the trial is not reduced to mockery.

19