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PROTECTION TO THE WITNESSES UNDER CRPC

Research · May 2022

DOI: 10.13140/RG.2.2.14947.22566

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

PROTECTION TO THE WITNESSES UNDER CRPC

Arthita Halder, BBA LLB (Hons.) Alliance School of Law

ABSTRACT

The capacity of courts to punish the perpetrator and provide justice to the
victim can be used to assess the success of criminal justice administration.
During the process of determining guilt, courts rely on evidence presented
by the parties, whether oral or documented. The oral evidence is presented
through witness versions. Witnesses are a vital source of information for
courts in determining the guilt of the accused. The witness versions make it
easier for the courts to reach a fair conclusion. As a result, the witness plays
an important part in criminal justice administration. For this reason,
Whittaker Chambers said, “In search of truth, he plays that sacred role of the
sun, which eliminates the darkness of ignorance and illuminates the face of
justice, encircled by devils of humanity and compassion.” 1 Reports of
witness inducement, threatening, harassing, and intimidation are coming in
on a daily basis. All of these incidents instil dread in the minds of witnesses,
causing them to hesitate to come forward to participate in the court process
and frequently turn antagonistic. Furthermore, a witness falters due to our
country's absence of a witness protection framework. The Law Commission
of India, in its different findings, underlined the problems that witnesses
encountered over the course of the trial and suggested that a complete
strategy on witness protection be incorporated. In this research paper, the
researcher seeks to highlight the problem faced by the witnesses in the
criminal justice system and discuss the issue of witness protection in India.
Also, under Criminal Code Procedure there is no such sections for the
protection and safeguard of witnesses. Therefore, the researcher will also
focus on how CrPC should protect the witnesses. This paper has analysed the
scheme for the protection of witness and also its drawbacks. The Law
Commission of India has suggested and recommended to incorporate a
comprehensive policy on the protection of witness in India which has been
analysed in this paper. Therefore, the need for fair trial in highly important
for the jurisdiction which is the main focus in this paper.

Keywords: Witnesses, Law Commission of India, Criminal justice

administration, oral evidence

1
https://www.scconline.com/blog/post/tag/sit-and-cbi-probe/

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

INTRODUCTION

The administration of criminal justice preserves law and order in society. It assures the
preservation of the rights of all people who live in society. It fosters peace and harmony by
punishing offenders and therefore preserving the rule of law. Only by following the proper
process of law could this be accomplished. During the process of delivering justice to the
victim, the courts depend heavily on the testimony of witnesses. The trustworthy information
provided by the witness aids the court in reaching the right case conclusions. They serve as a
wake-up call for the judges. Therefore, in a trial, the role of a witness is important. He is a
necessary component of every civilized society's judicial system. 2According to Bentham,
witnesses are the eyes and ears of justice. They’re each and every statement is very important
as it has a magic force to change the course of the whole case. In India, justice is administered
through an adversarial system in which witnesses actively engage in the trial process.

Since witnesses are important to produce in the trial process, it is the duty of the court to provide
protection to them because they are the part of evidence in any criminal case. Although few
states like National Capital Territory of Delhi and Maharashtra have their own witness
protection law governing in their states. However, there was no central law on witness
protection in India.

Witnesses are recognised as one of the most important components of the criminal justice
system. It is because of them that the trial is able to reach a reasonable result. However, the
laws relating to the protection of witnesses is inadequate and also the need for a witness
protection programme in India is highly required for safeguarding them. The Criminal Code
Procedure do not include any such sections for the protection of witnesses which is another
problem looked into this paper. This are some of the major problems faced by the witnesses as
sometimes they are threatened by the opposite party and protection for them is highly required
for a fair trial.

LITERATURE REVIEW

The first article is by the author Himeesha Dhiliwal, ‘Witness Protection Law in India: A

2
https://www.researchgate.net/publication/228275036_Evidentiary_Value_of_Hostile_Witness_Chronological_
Case_Law_Study_to_Address_Current_Position_in_India.

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

Judicial Endeavour’3. This article is very helpful for this research paper because the researcher
has understood the main purpose of Law Commission Resort for the protection of witness. The
researcher has come to know that Law Commission’s 14th Report (1958) protection of
witnesses from courtroom discomfort and travel inconvenient. The 154th Law Commission
Report included a chapter on witness protection, which suggested that witnesses be protected
from the anger of the accused, but did not provide any safeguards against physical assault. The
172nd Report of the Law Commission addressed a claim made in Sakshi v. Union of India that
an attacked juvenile was barred from delivering a testimony in the presence of the offender. In
the 178th Report of the Law Commission, it was proposed that Section 168 of the Cr.P.C. be
added. The various challenges faced by the witnesses are drawn in this research paper.

‘Treatment and Protection of Witnesses In India’, by Dhruv Desai4, this article is very helpful
for understanding the imposition of sections for the protection of witnesses. Section 340(3)(b)
should be amended to allow any Court official to submit a petition against such witnesses,
thereby eliminating the concept of bought over or hostile witnesses. Various cases are observed
by the researcher from this article in the case Twin Blast the researcher observed that by failing
to preserve the identity of the prosecution witness, the Mumbai police have broken Section 30
of the Prevention of Terrorism Act (POTA). Therefore, this case has been referred by the
researcher in this paper.

Witness Protection for Effective Legal Regime in India’, by Akshat Aggarwal5, this article is
important for this research paper because the researcher has understood and referred the
importance of witnesses for a fair trial. It gives a crystal-clear view of the significant in the
investigation, inquiry, or trial of any crime, including a serious felony, and who is or may be
needed to provide data, form an impression, or produce any record during such investigation,
inquiry, or trial. Various cases are referred from this article. The witness protection scheme
2018 is also been given in this article along with its aim and objective.

METHODOLOGY

This paper will employ research on the basis of primary sources i.e., statutes and bare act of

3
https://www.iralr.in/post/witness-protection-law-in-india-a-judicial-endeavour.
4
https://www.legalserviceindia.com/articles/witnesses.htm.
5
https://www.latestlaws.com/articles/witness-protection-for-effective-legal-regime-in-india-by-akshat-
aggarwal/.

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

CrPC, also secondary data from various related website, article, journals, books and blogs to
understand the Criminal Judiciary System and also the Schemes for the Protection of Witnesses
and how is it applied in the real world.

MEANING OF WITNESS

The term "witness" is not defined in the Code of Criminal Procedure, 1973, but it's meaning
can be inferred from the term "evidence," which is defined in section 3 of the Indian Evidence
Act, 1872. 6Section 3 of the Act divided the term "evidence" into two categories: oral and
documented. Section 3 subsection (1) stated unequivocally that any remarks made by the
witness throughout the course of the trial will be considered oral evidence. According to
Black’s Law Dictionary ‘witness’ has been defined as: “In the primary sense of the word, a
witness is a person who has knowledge of an event. As the most direct mode of acquiring
knowledge of an event is by seeing it, “witness” has acquired the sense of a person who is
present at and observes a transaction.” Also, the Witness Protection Scheme, 2018 defined the
term ‘witness’ under Section – 2 (k) - which means witness is “any person, who possess
information or document about any offence”.7 As a result, a witness is someone who knows
something about the commission of an offence or has a documentary record of it.

PROBLEMS FACED BY WITNESS

Witnesses play an important role in criminal trials. They have the power to alter the course of
the trial. As a result, the witness occupies an important place in the criminal court system.
However, in practise, they are in a bad condition. Throughout the trial, they are in a lot of
agony. They travel a considerable distance from home, wasting their time and money, just to
help with inquiry and prosecution. In court, the witness is handled inhumanely, instead of with
proper respect and care. They are not equipped with enough infrastructure. They sometimes
have to wait outside the courts or on verandas until their turn to testify. In court, they are not
even supplied with potable drinking water or decent bathroom facilities (particularly for people
with disabilities). Aside from these difficulties, witnesses are subjected to unjustified
adjournments. The travel allowance, or Bhattas, provided to witnesses is exceedingly low, if
not non-existent in the current situation. Furthermore, witnesses are blackmailed, intimidated,
harassed, and encouraged to testify against the accused and his kin. Torture incidents can result

6
Indian Evidence Act. 1872 Bare Act
7
Witness Protection Scheme, 2018

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in the death of a witness or a member of his family. The problem worsens when the witness is
unable to discover any precaution or protective mechanism to shield them from these events.
All of these instances of impoverishment create resentment in the minds of the witnesses,
causing them to be hesitant to come forward to assist the court throughout the trial process.
This is also one of the grounds for witness animosity.

WITNESS IN NEED OF PROTECTION

Witness protection is one of the characteristics of a fair trial mandated by Article 21 of the
Indian Constitution. However, under our justice administration system, the witness's situation
is still deteriorating. When witnesses testify against the accused, they are persuaded,
intimidated, and threatened. Furthermore, witnesses are even killed if they speak out against
the accused. All of these instances of torture occurred primarily as a result of our country's lack
of an efficient witness protection mechanism. As a result, criminals have no fear of the law,
allowing them to threaten witnesses. This has also resulted in a high percentage of acquittal
and a decline in convictions in the justice administration system.

In the case 8Zahaira Habibulla H. Sheikh & anor v. State of Gujarat and Others, 2004 observed
that the state has a clear role to play in safeguarding witnesses, at least in sensitive situations
involving people in authority, who have political patronage and can wield muscle and money
power, in order to prevent trials from becoming contaminated and derailed, and truth from
becoming a victim. As a defender of its inhabitants, it must ensure that throughout a trial in
Court, the witness can securely testify the truth without fear of being haunted by those he has
testified. Every state has a constitutional commitment and duty to defend its inhabitants' lives
and liberties. That is the fundamental requirement for the rule of law to be followed. This
criterion cannot be deviated from due to any outside reasons such as caste, creed, religion,
political conviction, or philosophy. Every state is expected to be aware of these essential
criteria, and there is no need for retribution.

Given these concerns, it is underlined that witnesses should be protected from such hardships,
and the state is obligated to defend the rights of witnesses in such delicate matters.

8
(2004) 4 SCC 158.

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

WITNESS PROTECTION SCHEME, 2018

The Witness Protection Scheme, 20189 defines ‘witness’ as: “‘Witness’ means any person, who
possesses information or document about any crime regarded by the competent authority as
being material to any Criminal proceedings and who has made a statement, or who has given
or agreed or is required to give evidence in relation to such proceedings.”

On December 6th, 2018, the Supreme Court granted approval to the Draft Witness Protection
Scheme, which had been prepared with input from 18 states/union territories, various open
sources soliciting suggestions from police personnel, judges, and civil society, and was then
finalised by the National Legal Services Authority. The bench, which included Justices A.K.
Sikri and S. Abdul Nazeer, determined that the witness's right to testify fell under the purview
of Article 21 of the Constitution. Furthermore, the bench considered the plan as a "law" within
the meaning of Article 141/142 of the Constitution, and the centre and state must adhere to it
until suitable legislation on the same topic is enacted. In the words of Jeremy Bentham
“Witnesses are eyes and ears of the Courts”, hence, it becomes imperative on part of the State
to provide adequate protection to the witness to ensure ideal working of the wheel of justice.
In the case State of Gujarat v. Anirudh Singh, the hon’ble Supreme Court of India also held
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.” Various reports of the Law Commission of India
and the Malimath Committee had foreseen the necessity for this system.

The state must provide a sense of safety to the witness who comes forward to testify, and it is
the State's obligation to provide appropriate security to the witness. The Witness Protection
Scheme and several Law Commission Reports had highlighted specific rights that a witness
has-

• Right to secure waiting place while at Court proceedings;

• Right to information of the status of the investigation and prosecution of the
crime;
• Right to be treated with compassion and dignity and respecting privacy;
• Right to protection from harm and intimidation;
• Right to give evidence without revealing identity; and,

9
https://www.indiafilings.com/learn/witness-protection scheme-2018/

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

• Right to a stay at a safe place and transportation.

According to the requirements of the Witness Protection Scheme, 2018, the magnitude of
protective measures implemented by the competent authorities must always be commensurate
to the threat experienced by the witness over a certain period of time. The scheme ensure that
the accused and the witness are not put up together during a trial or investigation, giving
adequate security to the witness in form of body protection, regular patrol and by use of security
devices such as CCTV, fencing, security doors in his home, changing the residence of the
witness to somewhere else etc. Even there are few Procedures for filing and processing the
application under the scheme. Protection of witness is directly proportional to the threat level
perception is also categorised in the scheme. The programme provides for the establishment of
a Witness Protection Fund, which will be managed by the Ministry or Department of Home
Affairs of the State or Union Territory and will be used to cover the costs of implementing the
Witness Protection Order.

Drawbacks of the Scheme

Despite the fact that the plan provides significant relief to witnesses regarding their safety
during the course of the trial and, in extreme circumstances, even after the trial is over, it has
several flaws, including:

• The functional criminal justice system is the duty of the state, and certain states
may lack the resources to successfully execute this scheme. The alternative is
help from the centre, yet nowhere in the system does the centre have the
authority to contribute a single dime to the Witness Protection Fund.
• The duration of the Witness Protection Order has been reduced to three months.
• The task of deciding the contents and preparing the Threat Analysis Report has
been assigned to the district's chief of police, so in high-profile cases involving
politicians or influential people, the police officer may be put under pressure to
provide those people with information about the witness.

LAW COMMISSION OF INDIA ON WITNESS PROTECTION

The Law Commission of India is an executive body of the Government of India that was
established to provide recommendations on existing law changes and the need for new

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

legislation.10 The Indian Law Commission has repeatedly urged and advocated including a
complete strategy on witness protection in India. In its numerous findings, the Law
Commission has underlined the difficulties that witnesses experience during the course of an
investigation and prosecution, highlighting the necessity for witness protection legislation in
India. Some of the reports dealing with the aspect of witness protection are discussed below:

• 14th Law Commission Report- The Law Commission of India proposed reforms to
current substantive, procedural, and revenue laws in its 14th report. While discussing
the reasons for the acute delay in criminal trials is because of lack of cooperation from
the witnesses and this is because this non-cooperation is that witnesses faced lots of
hardship when they approach the court. They travel far distance from their residence,
waste their time and money and wait whole to get their turn to testify. The travel
allowance which paid to witness is very less or some time it is not even paid. Due to all
these reasons, witnesses are not willing to participate in the court process.
• 42nd Law Commission Report- The Law Commission of India proposed revising the
Indian Penal Code in its 42nd report. The suggested proposal was to make intimidating
and inducing witnesses an offence, but no attempts were taken to offer appropriate
protection to the witness.
• 154th Law Commission Report- According to the Report, the witness was subjected to
a great deal of inconvenience and harassment when they appeared in court. Without
enough infrastructure, individuals may be forced to sit for the entire day while waiting
for their turn to be inspected. The witness should be provided with good infrastructural
facilities in court, given daily allowances with upgraded yardsticks and adequate
protection.
• 172nd Law Commission Report - Law Commission of India in its 172nd report
recommended to review the existing provisions relating to Rape laws in India. The
panel recommended that the court record such testimony in the first instance, and that,
if possible, the statement of the victim/witness be documented using modern techniques
such as videotape or closed-circuit television. The Report also stated that it is the court's
responsibility to guarantee that the victim/witness of child abuse does not meet face to
face with the accused during the examination.

10
https://www.mha.gov.in/sites/default/files/Documents_PolNGuide_finalWPS_08072019.pdf

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

• 178th Law Commission Report - Law Commission of India in its 178th report discussed
the problem of hostile witnesses. The Commission proposed inserting section 164A
under CrPC. to outline preventive measures. Furthermore, the Commission advised that
the Magistrate record the version of witnesses from the start of the trial to avoid any
influence. Furthermore, all statements given by witnesses before a police officer must
be signed by him and sent to the magistrate as soon as possible.

JUDICIAL APPROACH

In the case Twin Blast11, 2007, after Shivnarayan Pandey, the cab driver who provided evidence
in the August 25, 2003 Twin Blast case, had to be granted special security by the Mumbai
Police, the role of witnesses and the question of their safety has become a hot topic. An
inspector revealed the identity of the witness (Pandey) in this case to the media on the day of
the explosions. This officer reportedly distributed Xerox copies of a document including the
witness's identity and car registration number. A crime branch officer is suspected of leaking
his address in Kandivali, a faraway Mumbai neighbourhood, to the media a few days later. The
cops had overlooked the fact that Pandey was a key prosecution witness in a very sensitive
case. Because additional people have yet to be arrested in this case, Pandey is an important
witness in identifying them. In such instances, the police should exercise extreme caution and
issue a circular or instruction to all officers in the department instructing them to remain silent
during the inquiry.

In the case Swaran Singh v. The State of Punjab, 26th April 200012, the challenges that the
witness experienced during the trial were underlined by the Supreme Court in this landmark
decision. The witness is an essential component of the legal system. However, a witness suffers
greatly from the start of an inquiry until the end of the trial, or even after the trial. They drive
a considerable way to attend the court proceedings, wasting time and money while also losing
their day's pay. In exchange, they are subjected to ill-treatment and harassment. They aren't
even paid a decent travel allowance yet are treated well in court. Instead of facing all of these
difficulties, they are subjected to unjustified adjournments and are often intimidated and

11
https://www.bbc.com/news/world-asia-india-
45294290#:~:text=An%20Indian%20court%20has%20convicted,air%20auditorium%20and%20a%20restaurant
12
1957 AIR 637, 1957 SCR 953

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Indian Journal of Law and Legal Research Volume IV Issue II | ISSN: 2582-8878

harassed by the accused for testifying against them. As a result, the witness's rights must be
safeguarded and they must be adequately protected.

In the case Neelam Katara v. Union of India, 14th October 200313, the Delhi High Court
underlined the importance of witness protection in this important decision. The High Court
referred to numerous law commission studies and witness protection laws in different nations
before formulating its decision, and gave recommendations until the Delhi government enacted
an adequate statute. According to the rules, police officers must provide appropriate security
to the witness based on the severity of the threat.

In the case State of Maharashtra vs Praful Desai, 1st April 200314, in this decision, the Hon’ble
Supreme Court agreed with the Appellant's claim that the testimony of a witness should be
recorded via video-conferencing technology. The Supreme Court cited section 3 of the Indian
Evidence Act, 1872, and stated that the term "evidence" includes electronic evidence. As a
result, in the event of an emergency, a witness' testimony can be recorded via video-
conferencing.

In the case National Human Rights Commission v/s State of Gujarat and Ors., 8th August
200315, it an important decision, the Supreme Court addresses the issue of a fair trial. It was
stated that if a witness is unable to testify freely in a court of law, the whole purpose of the trial
is defeated. As a result, the court should establish a process to guarantee that the witness is in
an atmosphere in which he may give his testimony without fear.

In the case Zahira Habibullah H. Sheikh & Another v. State of Gujarat and ors. (The Best
Bakery Case), 7th May 200416. The Best Bakery Case is another name for this case. The
Supreme Court stated in this historic decision that witnesses have a right to a fair trial, which
is also incorporated as a basic right under Article 21 of the Indian Constitution. During the
course of the trial, however, witnesses are frequently threatened and harassed in order to
persuade them to provide false testimony. As a result, it is the state's responsibility to protect
the witness from these hardships and offer sufficient protection.

13
ILR (2003) 2 DEL 377
14
(2003) 4 SCC 601
15
Crl. M.P. 5007/2004 in SLP (Crl.) 3770/03
16
(2004) 4 SCC 158.

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SUGGESTIONS AND CONCLUSION

It is critical that we have a stronger judicial system that offers appropriate protection for
witnesses. With the exception of a few parts of the Indian Evidence Act, 1872, there is no
legislation in India that protects witnesses. The witnesses are protected under Sections 151 and
152 from being asked indecent, scandalous, or insulting questions, as well as inquiries intended
to irritate or offend them. Apart from these provisions, there is no provision in India for witness
protection. This fact was recognised by the Supreme Court in the case of NHRC v. State of
Gujarat, which said that no legislation or plan has yet been established by the Union of India
or the State Government to provide witness protection. It is past time for India to implement a
witness protection scheme. The Law Commission, in fact, recognised the necessity for it and
issued a consultation paper on witness protection on August 13, 2004.

The first element has gotten considerable attention to a proposed change to Section 164 of the
Criminal Procedure Code. In its 178th Report (2001), the Law Commission suggested that
section 164A of the Criminal Procedure Code be added to allow for the recording of material
witness statements in the presence of Magistrates on oath when the offences were punished by
10 years or more imprisonment. The Criminal Law (Amendment) Bill, 2003 was introduced in
the Rajya Sabha based on this suggestion and is currently pending. Therefore, CrPC needs to
take measures and convenient sections need to be imposed for the protection of the witness.
The physical and mental harassment of the witness are one of the major problems in the fair
trial CrPC need to impose certain section for safeguarding them with due protection from the
police force.

The role of the witness in the criminal justice system is crucial. They collaborate in the
courtroom by giving testimony. Witnesses are sometimes considered to be performing a holy
obligation when they provide evidence. As a result, they should be treated with respect.
However, a number of incidents have surfaced that reveal the predicament of witnesses. They
are not only mistreated and tormented in the courts, but they are also subjected to intimidation
and torture by the accused throughout the trial. In several reports, the Law Commission of India
has frequently underlined the witness's difficulties during the trial. The difficulty that witnesses
encounter is discussed by the Supreme Court in numerous declarations, and the need for
facilities to be provided to them is acknowledged. In a recent ruling, the Supreme Court also
approved the Witness Protection Scheme, 2018 since there was no central statute regarding

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witness protection. According to the ruling, the Scheme will be recognised as law until
Parliament passes appropriate legislation. Various section under CrPC is important to enact to
safeguard the witnesses from ill-treatment and police force but be given to protect them as they
are vital as oral evidence in any fair trial. Furthermore, the witness's grief and suffering caused
by aiding in the court process can only be alleviated by instilling a sense of pleasure in their
minds and treating them with respect and protection at all phases of the investigation and trial.

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