Witnesses are the eyes and ears of justiceBENTHAm
Witnesses are the most important factor in any legal proceeding, especially in criminal matters. Witnesses occupy a great place in society right from the ancient period. The inputs provided by the witnesses may have a direct bearing on the conviction and acquittal of an accused. Therefore, it is desired that such witness be protected from the wrath of extraneous factors that have the capability to change his stance over a particular case.
In the primary sense, a witness is a person who has the knowledge of an event. According to the Witness Protection Scheme, 2018 (Draft-2), witness means:
“any person, who possesses information or document about any crime regarded by the competent authority as being material to any Criminal proceeding and who has made a statement, or who has given or agreed or is required to give evidence in relation to such proceedings“
In 1958, the 14th Report of Law Commission indicated the need to protect witnesses. The 4th Report of the National Police Commission also dealt with the said subject. In the 154th Report (1996), The Law Commission dealt with the plight of the witnesses.
Zahira Habibulla H. Sheikh and Another v. State of Gujarat (2004)(4) SCC 158 SC
In this case, the Hon’ble Supreme Court while emphasizing on the need to protect witnesses, observed that ‘if the witnesses get threatened or are forced to give false evidence that would not result in the fair trial.’
The bench headed by Justice A.K.Sikri and Justice S. Abdul Nazeer stated that if one is unable to testify in courts due to threats or other pressure then it is a clear violation of Article 21 of the Constitution.
State of Gujarat v. Anirudh Singh
In this case, the Hon’ble Supreme Court 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.
The SC on December 6th, 2018 gave its nod for the approval of the Draft Witness Protection Scheme. The objective of this scheme is to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced. Also, it is aimed to identify the series of measures that may be adopted to safeguard witnesses and their family members.
The scheme applies to the whole country except the state of Jammu and Kashmir. The scheme offers several rights to the witnesses. These rights ensure the safety and privacy of the witness. The scheme mentions theThreat Perception and further divides the same into three categories. First, where a threat is a graver; second, where a threat is to the safety, reputation, property if the witness or family members and third, where the threat is moderate and extends to the harassment or intimidation.
The Procedure For Protection Under The Scheme
Firstly, the application for seeking protection under the scheme is filed before the Competent Authority as per area Jurisdiction along with supporting documents. After that, the Competent Authority will pass an order for calling the Threat Analysis Report (TAR). The Threat Analysis Report will be prepared by the Commissioner of Police/ SSP within five working days of the receipt of the order. The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the State. The Witness Protection Cell will file a monthly follow-up report to the Competent Authority. In order to revise the Witness Protection Order, a fresh Threat Analysis Report may be called by the Competent Authority. Various measures can be adopted by the Competent Authority but they will be proportional to the threat faced by the witnesses. Some of those measures are:
- to ensure that the accused and the witness are not put up together during a trial or investigation;
- allotting the witness an unlisted telephone number;
- changing the identity of the witness;
- changing the residence of the witness;
- holding of in-camera trials;
- other measures may also be taken up at the request of the witness.
The scheme also provides for ‘Review and Appeal’.
In a nutshell, the Witness Protection Scheme, 2018 is a first attempt at the National level to holistically provide for the protection of the witnesses which will help in eliminating secondary victimization. The witnesses being eyes and ears of justice play a vital role in bringing culprits to justice. Therefore, it is the responsibility of the state to protect the witnesses so that the Criminal Justice system may function blithely.
BA LLB (Hons.)