Protection of Witness: Balancing under Criminal Law

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Introduction

Protection of Witness: Balancing under Criminal Law. If we will talk about the word witness then then in simple terms the word witness means the person who was present at the scene. It is regarded as one of the most essential elements in a criminal legal system. The statement provided by the witness is said to be as important statement which acts as a prime factor in any kind of judgement. From these inputs and statements, the court reach a solid conclusion. The statement of witness really matters to the court and it needs to be protected.

The main factors of the victims of the crime which works as a main factor and these are the things which were adopted on ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ by the United Nations General Assembly on the year 1985 and it aims in maintaining the justice towards the victims and the rights of the witness which is rarely followed. So, the factors are-

  • Fair treatment and justice
  • Restitution
  • Compensation
  • Assistance

The protection of witness should be a concern for us and there is a need of proper protection law at this hour. If the main thing of a building misses the building would never be completed. Similarly, it is not wrong to say that the missing f witness puts a huge impact on the case and due to absence of proper laws the crime related to this is increasing day to day. Furthermore, the witness is also not provided proper care in some cases. 

New Schemes

Witness Protection Scheme, 2018

On 6th December 2018 Supreme Court decides to approve the new witness protection scheme and this scheme was prepared with the permission of various states of India and their inputs. The suggestion of various authorities was taken like ex policemen, judge, police officers and many government officers. After everything NALSA finalised this thing.  The bench which consisted of various judges made the statement about the witness and this rights as per Article-21 of the constitution. They stated that the court should conduct the trial in a free and fair manner and everything should be conducted with transparency. If they fail in conducting these things then it is clear violation of article 21 of the constitution. It was held that this article will be Article 141/142 of the constitution and centre should follow it until and unless any new legislation is made.

Why this scheme is needed?

In many cases the rights of the witness is violated and the witness cant do anything about it. There is a rule of law regarding the right of a witness and in what way it should be dealt. Many times, the witness face different things which result in change of statement. Amongst these things corruption and threats are the main things which was noticed. Witness is often called as an eye and ear of the court, if the witness it self has no right then how will it work? For this there was a strong need of schemes and appropriate legislation which should work for the right of the witness.[1]

Laws Related To This Topic

Section 118 of the Indian Evidence Act, According to this section a person will be considered as a witness if he understands and respond every question put to him in the court.[2]  

Under Criminal Procedure Code

Section 311- It states about Power to summon material witness, or examine person present.

Section 313- It states about Power to examine the accused- The court has the power to ask any questions to the witness under any conditions.

Under this section the examination is considered as not to oath.

Section 315– It states about Accused person to be competent witness-

In this section the person who is accused shall act as a competent witness for defence. He is permittable to give his view on the things which he should be asked. Either he can agree or can disagree. He is permitted to give his statement and on the charges against him.[3]

Cases Related to the Topic

Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others;

Here in this case the need for the protection of the witness was noticed and the supreme court saw that the witness was threatened and is forcefully pressured to give false evidence and this thing will not be considered as a fair trial. Here the further the court stated that one need to understand the role how the judiciary works. The judiciary is absolute.[4] 

Mahendra Chawla v. Union of India;

In this case as per Article 32 a writ petition was filed and an important thing was questioned about the working and efficiency of the Indian Legal system. The judicial system of India was questioned and how efficient was it needed to be tested. Here it was seen that the witness plays an important role in any kind of case to reach a conclusion and witness becomes a prime instrument to reach in any kind of judgement.

Here in this case the main issue was regarding the protection and security of a witness during the court proceeding. In this case there was a report of multiples of rapes in an ashram and the witness was quite scared regarding the case. A godman here was held responsible for the multiple rapes which was being taken place in the ashram. It was seen that the 10 witnesses were harmed and out of them 3 were killed laying down a question on the safety of witness.

The main argument on behalf of the petitioner was that there were multiple witnesses and out of 10, three witnesses were killed and there was an attack on petitioner also but anyhow he survived. He was petitioner number-1 and there were multiple assassination attempts were there and he survived anyhow. The third petitioner was the father of the raped child and fourth witness was a journalist who survived. Even if they were threatened the police withdrew half of its security leaving their life in danger. For this reason, the attorney general was quite concerned and requested the courts to form a draft regarding the safety of witnesses. The main reason for this was so that there should be transparent and proper justice should be done.[5]

State of Gujarat v. Anirudh Singh and another;

Here in this case the task of witness was reviewed what is his common task was held here. The witness should help the court by every means so that the court may proceed. Although it is not wrong to say that it is only the witness who can act as a prime factor in the case but it is not properly functioned. For these things it is really important for the law commission to look into this matter. There is a need of protection to the witnesses so that the case becomes easier and more transparent.[6]

Importance of Witness Protection

It will not be regarded as wrong if we say that the witness acts as eye and ear of Legal system. Thus, making it an important part of legal system which plays a huge role. The evidence provided by them are natural and real and holds an important position to the court. It should concern the court how its protection is needed and what should be done so that they will remain protected and will not face any kind of threats or problem.

There is a strong need to bring the witness protection policy in this immediate hour. The most essential thing in this court of law is the statement and the evidences provided by the witness. If there will be no witness then there will be no justice served properly. So, it is advisable to study the loopholes that had been preventing the creation of laws and provisions regarding the protection of witness and it should be solved immediately. With respect to the Criminals and bad persons the laws should be formed so that there will be strict actions taken against the culprit.

It is not wrong to say that witness acts as a major asset in any case in the Legal system. So, it requires necessary care and protection. The increase in offences against the witness is really a matter of concern to the court for which it is necessary to protect the witness from turning hostile. The witness is most of the times noticed not to be represented in proper way neither he is respected which is not acceptable at all. The necessary steps should be taken to prevent these wrong doings and the court should work on it. There should be a introduction of various types of protection of witness. In different conditions different systems should work. There is a need of proper protocol which should be taken to protect the witness. The privacy and secrecy in case of witness should be noticed and they should be protected properly.[7]

Conclusion

The protection is witness of really necessary in our system and we should care about it. It is the duty of government to bring proper legislations which can work as a safety tool for the witness and the it would be easy for the court to judge the manner. So strong laws should be introduced as soon as possible as we are seeing the rise in crime now days.

With witness there arises a question, a question for the protection of witness. Is the witness in this country protected by Law? All this sort of question arises in our mind and somewhere we know that the Indian legal system is lagging behind if we will talk about certain loopholes are not being filled and these things should be solved as soon as possible. Sometimes in some cases we notice that the witness does not feel free to come to court and give his statement. These things happen mostly in India. Due to fear or thread from the person who committed crime these things take place. Sometimes the criminals who were involved in the particular crime they directly kill the witness and the laws against them gets fluctuated and paper legal action was not taken.

So, the government must take adequate steps and should try to impose strict actions and rules to prevent all these things. Many times, the witness turns hostile and the government cannot do anything to prevent these. This thing should be a thing and it should make concern to the appropriate government. If these types of things continues then it will really be a main reason for ill maintenance of legal system in India and the appropriate person will not get the justice.

The final thing which should be taken care by the government is at least it can give proper protection to the witness till the hearing. Many other steps should also be introduced by the government and they should try to keep the flow of proper legal functioning in India.


[1] Shrey Verma; Witness Protection Scheme in India; ipleaders; December 31, 2018 https://blog.ipleaders.in/witness-protection-scheme-india/

[2] Witness And Types Of Witness Under Indian Evidence Act;  https://www.writinglaw.com/witness-and-types-of-witness/

[3] Power of Court to Summon, DT Legal; https://dtlegal.in/power-of-court-to-summon/#page-content

[4] (2004) 4 SCC 158.

[5] 2018 SCC Online SC 2679.

[6] AIR 1997 SC 2780.

[7] Aashna Sheath; The importance of witness protection Policies; Qrius; 28 December 2014; https://qrius.com/witness-protection-policies/.

Written By

Nitish Pattanaik

Amity Law School, Kolkata

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