LAW OF CRIMES - II - CRPC

B.A. / B.B.A. LL.B – SEMESTER I

WITNESS PROTECTION / INHERENT POWERS - HC
 Witness Protection:

• Witness are the eyes and ears of justice – Jeremy Benthem

• The term "witness" has not been defined anywhere in the Criminal Procedure Code
• A witness may be defined as a person who gives evidence or deposes before a judicial tribunal.
• One who gives evidence / testifies in a cause before a court someone whose testimony is to be used in a
legal proceeding
• Indian Evidence Act 1872 – Who may testify Section 118
• All persons shall be competent to testify unless the Court considers that they are prevented from
understanding the questions put to them, or from giving rational answers to those questions, by
tender years, extreme old age, disease, whether of body or mind, or any other cause of the same
kind.
• Can a minor / lunatic be a witness?
• Is there a need to protect a witness? – bullied / coerced / emotionally manipulated / physical and mental
torture.
• Taking the fair trial story ahead – not to be vitiated – Discuss.
 Witness Protection:
• Case Law – Zahira Habibulla Sheikh v. State of Gujarat.
• If the witness gets threatened or are forced to give false evidence it would not result in a fair trial.
• Case Law: Mahendra Chawala v. UOI Ministry of HA
• It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that
they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those
cases where the accused persons/criminals are tried for heinous offences, or where the accused
persons are influential persons or in a dominating position that they make attempts to terrorize or
intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain
from deposing truthfully.
• Various Law Commission Reports pointed out a need for victim protection.
• 2006 Amendment to IPC –
• Section 195A. Threatening any person to give false evidence.
• —Whoever threatens another with any injury to his person, reputation or property or to the
person or reputation of any one in whom that person is interested, with intent to cause that
person to give false evidence shall be punished with imp
• Government of India – Ministry of Home Affairs – Victim Protection Scheme 2018 - consultation with
the National Legal Service Authority, Bureau of Police Research & Development and the State
Governments.
 Witness Protection:
• Case Law: Mahendra Chawala v. UOI Ministry of HA
• The Union of India as well as States and Union Territories shall enforce the Witness Protection
Scheme, 2018 in letter and  spirit. It shall be the ‘law’ under Article 141/142 of the Constitution, till
the enactment of suitable Parliamentary and/or State Legislations on the subject.
• Key Pointers:
• Objective of the Scheme:
• The objective of this Scheme is to ensure that the investigation, prosecution, and trial of criminal
offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without
protection from violent or other criminal recrimination
• Threat assessment:
• Category 'A': Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.
• Category 'B': Where the threat extends to safety, reputation or property of the witness or his family
members, during the investigation/trial or thereafter.
• Category 'C': Where   the   threat   is   moderate   and   extends   to harassment or intimidation of
the witness or his family member's, reputation or property, during the investigation/trial or
thereafter
• Witness protection fund to be set up operated by the department of home - of the states or the union
delegates
 Witness Protection:
• Witness protection fund to be set up operated by the department of home - of the states or the union
delegates
• Application to be made to the competent authority for protection - A Standing Committee in each district
chaired by District and Sessions Judge with Head of the Police in the District as Member and Head of
the prosecution in the District as its Member Secretary.
• Application to be processed – Threat Analysis Report – 5 days – Interim protection – witness and family
members – In camera – confidentiality to be maintained.
• Types of protection measures – Proportionate to the threat – specific duration – not exceeding 3 months
at a time – reviewed regularly.
• Ensuring that witness and accused do not come face to face during investigation or trial
• Monitoring of mail and telephone calls – changing / unlisted phone number.
• Installation of security devices in the witness‟s home such as security doors, CCTV, alarms, fencing
etc.;
• Concealment of identity of the witness by referring to him/her with the changed name or alphabet
• Close protection, regular patrolling around the witness‟s house - Temporary change of residence.
Witness Protection:

• Close protection, regular patrolling around the witnesss’ house - Temporary change of residence.
• Escort to and from the court - State funded conveyance for the date of hearing
• Holding of in-camera trials – Vulnerable witnesses court rooms to be used.
• Ensure - deposition during trial on day to day basis without adjournments.
• Protection / Change of identity – new name or profession or parentage occupation finger prince
digital records etc
• State to publicize this scheme
• In case of false claims expenditure to who be recovered.
 Inherent Powers of HC:
• Deciphering Inherent Powers – a power that necessarily derives from an office, position or status.
• Does Section 482 confer the HC Inherent Powers? – Discuss.
• Section 482: Saving of inherent powers of High Court.
• Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice.
• Preserve these powers – already possessed.
• Ends of Justice – Salutary provision.
• Quash proceedings for the purpose of preventing the abuse of the court process all for securing ends of
justice
• Case Law - The State of Uttar Pradesh v Mohammad Naim,
• This section has not given increased powers to the High Court which it did not possess before the
section was enacted. It gives no new powers. It only provides that those which the Court already
inherently possessed shall be preserved, and is inserted lest it should be considered that the only
powers possessed by the Court are those expressly conferred by the Code and that no inherent
power had survived the passing of the Code.
 Inherent Powers of HC:
• Case Law: Madhu Limaye v State of Maharashtra,
• The Supreme Court has held that the following principles would govern the exercise of the inherent
jurisdiction of a High Court given by section 482:
• The power is not to be resorted to if there is a specific provision in the Code for the redress of
the grievance of the aggrieved party;
• It should be exercised very sparingly to prevent abuse of the process of any Court or otherwise
to secure the ends of justice;
• It should not be exercised as against the express bar of the law engrafted in any other provision
of the Code

• Case Law: Puran v Rambilas

• Inherent power under section 482 in a matter of quashment of FIR has to be exercised sparingly and
with caution and when only search exercise is justified. The power under section 482 is very wide
and conferment of white power requires the court to be more cautious it casts an onerous and more
diligent duty on the court and the set power is not to be used to choke or smother a legitimate
prosecution.
 Inherent Powers of HC:

• Case Law: Kurukshetra University And Anr. vs State Of Haryana And Anr. 
• It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court
to act according to whim or caprice. That statutory power has to be exercised sparingly, with
circumspection and in the rarest of rare cases.
 Transfer of Criminal Cases:
• Section 407 – Power of SC to transfer cases and appeals:
• Whenever it is made to appear to the SC - that an order under this section is expedient for the ends
of justice - it may direct
• that any particular case or appeal be transferred from one HC to another HC or
• From a Criminal Court subordinate to one HC to another Criminal Court of equal or superior
jurisdiction subordinate to another HC
• Section 407 – Power of SC to transfer cases
• Only on the application of the Attorney-General of India or a party interested – If by a party
interested - be supported by affidavit.
• If application – dismissed – SC may if application was frivolous or vexatious - order the applicant
to pay by way of compensation to any person who has opposed the application – 1k max.
• Case Law – Smt. Kaushalya Devi vs Shri Mool, Raj And Others
•  If a Magistrate chooses to make an affidavit challenging the application made by an accused
person whose case is pending in his court, opposing the transfer, all essential attributes of a fair
and impartial criminal trial are immediately put in jeopardy. Even without considering the merits of
the contentions raised by the petitioner, we think it is expedient for the ends of justice that the case
pending against the petitioner and three other persons should be transferred.
 Transfer of Criminal Cases:
• Section 407. Power of HC to transfer cases and appeals.
• Whenever it is made to appear to the High Court
• that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate
thereto, or
• that some question of law of unusual difficulty is likely to arise, or
• that an order under this section is required by any provision of this Code, or
• will tend to the general convenience of the parties or witnesses, or
• is expedient for the ends of justice –either on report of a lower court / suo motu / application
of an interested party - the HC may order that:
• any offence be inquired into or tried by any Court not qualified under sections 177 to 185
– jurisdictional matters - but in other respects competent to inquire into or try such offence;
• any particular case or appeal, or class of cases or appeals, be transferred from a Criminal
Court subordinate to its authority to any other such Criminal Court of equal or superior
jurisdiction;
• any particular case be committed for trial to a Court of Session
• any particular case or appeal be transferred to and tried before itself.
 Transfer of Criminal Cases:

• Section 407. Other Compliances

• Application filed by any person other than the - Advocate General – affidavit.
• If made by accused:
• Notice to PP – 24 hours
• Bond – for covering the possibility of frivolous / vexatious application – 1k max
compensation.
• Court may stay proceedings on receipt of application – if expedient in the interest of justice.
 Transfer of Criminal Cases:

• Section 408. Power of Sessions Judge to transfer cases and appeals.

• Whenever it is made to appear to the Session Judge:
• Order is expedient for the ends of justice, he may order that any particular case be transferred
from one Criminal Court to another Criminal Court in his sessions division.
• either on report of a lower court / suo motu / application of an interested party
• Other provisions of 407 to apply – compensation the only difference – now 250 Rs.
• Section 409. Withdrawal of cases and appeals by Session Judge
• Section 410. Withdrawal of cases by Judicial Magistrate.
• Section 411. Making over or withdrawal of cases by Executive Magistrates.
• Section 412. Reasons to be recorded.