The role of a witness is very important in a trial. He is an indispensable part of the justice delivery system of any country. According to Bentham, witnesses are the eyes and ears of justice. Their each and every statement is very important as it has a magic force to change the course of the whole case. The criminal justice system has become inefficient and does not function in a fluent fashion. The most overwhelming reason of this weakness is the prosecution witnesses retract from statements made earlier before the police and turn hostile. Witnesses are turning hostile with predictable regularity in cases involving heinous crimes or high profile personalities due to external pressures, thereby leading to the failures of the criminal justice system.The whole issue of hostile witness came under sharp public scrutiny after the judgment in the landmark Jessica Laland Best Bakery case. These cases came as an eye-opener showing glaring defects in the judicial system.
This project discusses how the law relating to the protection of witnesses is inadequate and also focuses on the need for a witness protection program.
Hostile Witness: When Does A Witness Become Hostile
The role of a witness is paramount in the criminal justice system of any country. To understand the meaning of hostile witness, we have to understand the process by which a witness becomes ‘hostile’. The Code of Criminal Procedure, 1973, Chapter XII deals with the police powers to investigate. The Code of Criminal Procedure, 1973, s. 161(3) vests in police officers the power to record statement of witnesses. However, these statements are not admissible in court by virtue of s. 162(1). The aim of s. 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.
REASONS FOR WITNESS TURNING HOSTILE:
There are various reasons why a witness may turn hostile. Witnesses are extremely vulnerable to intimidation in the form of threats by the accused. The People’s Union for Civil Liberties (PUCL) made a press release on 02 July 2003 pertaining to the Best Bakery case saying there were two ways to explain why witnesses turn hostile. The first is that the police had recorded the statements incorrectly. The second and more plausible was that the police had recorded the statements correctly but were retracted by the witnesses because of ‘intimidation and other methods of manipulation’. Another major reason of this growing menace is protracted trials. The working of judicial process is very slow. Several dates are fixed for cross examination of witnesses, who becomes frustrated over because of being summoned again and again only to find that the date is adjourned. This frustration takes its toll, and the witness decides to turn hostile to get rid of the harassment. The 4th Report of the National Police Commission (1980) acknowledged the troubles undergone by witnesses attending proceedings in courts. The witnesses are not at all treated properly in our judicial system. The Mallimath Committee has expressed its opinion about such witnesses by saying, ‘the witness should be treated with great respects and should be considered as a guest of honour’. Lack of a witness protection program, unsympathetic attitude of the police, bribery and corruption are other reasons which add to the malaise. For all these reasons and others a person abhors becoming a witness.
Need Of The Hour: A Witness Protection Law
It is imperative that we come up with a better justice system, one that provides adequate safeguards to the witness. There is no law for the protection of witness in India barring few provisions of Indian Evidence Act, 1872. Ss. 151 and 152 protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them.. Apart from these provisions, there is no provision for the protection of witnesses in India. This fact was acknowledged by Supreme Court in the case of NHRC vs. State of Gujarat where it said that ‘no law has yet been enacted, not even a scheme has been framed by the Union of India or by the state government for giving protection to the witnesses’. It is high time that India introduced a witness protection program In fact the Law Commission recognised the need for the same and came up with a consultation project on witness protection on 13 August 2004.
It first must be understood that a witness protection program has two aspects:
(1) To ensure that the evidence of witnesses is protected from the danger of them turning hostile; and The Supreme Court said ‘that 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 ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery. Legislative measures to ensure prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day’.
(2) To relieve the physical and mental vulnerability of the witnesses. Therefore, any law for witness protection must take into account both the points. The first aspect has received attention in the form of proposed amendment to the Code of Criminal Procedure, 1973, s. 164. In its 178th Report (2001), the Law Commission recommended the insertion of s. 164A to provide for recording of the statement of material witnesses in the presence of magistrates on oath where the offences were punishable with imprisonment of 10 years and more. On the basis of this recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya Sabha and is still pending. However, the second aspect has hardly received any attention in India. The Law Commission looked for the second aspect in the consultation project on witness protection and has suggested measures like witness anonymity and physical protection to the witnesses. It also drew attention to special statues on terrorism like TADA and POTA which have provisions for protecting the identity and address of witnesses; and suggested a general law dealing with witness anonymity be implemented. Both the Law commission and the courts are advocating for a witness protection program. India should soon implement a witness protection program if it does not want its criminal justice system to fall. 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. This phenomenon of witnesses turning `hostile’, on account of the failure to `protect’ their evidence, is one aspect of the problem. This in turn would entail special procedures to be introduced into the criminal law to balance the need for anonymity of witnesses on the one hand and the rights of the accused, on the other, for an open public trial with a right to cross- examination of the witnesses, after knowing all details about 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, by the introduction of witness protection programee’s.
While the first aspect of protecting the evidence of witnesses from the danger of their turning ‘hostile’ has received limited attention at the hands of Parliament in some special statutes dealing with terrorism, there is an urgent need to have a comprehensive legislative scheme dealing with the second aspect of physical protection of the witness as well. Further, both aspects of anonymity and witness protection will have to be ensured in all criminal cases involving grave crimes not limited to terrorist crimes. The implementation of such a law would involve drawing up (a) procedures for granting anonymity to witnesses and also (b) introducing Witness Protection Programmes as well in which personal protection is granted to the witness; sometimes by shifting the witness to a different place or even a different country; or by providing some money for maintenance or even by providing employment elsewhere.
The Law Commission has taken up the subject suo motu on account of the observations of the Supreme Court in certain important cases and also because of immediate importance of the subject in our country. The situation in India with respect to witness protection is very grim and constricted in every sense of the term. It is important to note that there is no comprehensive policy that has been developed by the law-makers of this country to provide a comprehensive legal framework, irrespective of the pleas of various law committee reports asking the Parliament to do so.
The 14th Report of the Law Commission is one such highlighted feature. The 14th Report can be considered as the starting point. It highlighted the failure of conviction rates due to lack of protection of witnesses. However, the said Report was very limited in purpose as it dealt with only provision of facilities to the witness as a method for protecting them. The main feature with respect to witness protection under the said Report can be analyzed as follows:
Ø Provision for Adequate Arrangements for the convenience of the witness within the court premises.
Ø Provision of Allowance enabling them to arrive for testimony promptly and thus avoiding delay.
Ø There was no mention for the provision of any physical protection for the witness within this report.
Further, in its 154th Report, the Law Commission reiterated upon the recommendations within the abovementioned report. It also tried to provide a basic structure with regards to provision of allowance to witnesses. The main feature of the said report was its qualitative and admissive nature. It admitted to serious lapses in the judiciary as to not provide for adequate facilities enabling the witnesses to successfully depose off their statements. There are two main features that stand out in the said Report:
Ø Responsibility on the High Courts: It stated that listing of cases should be done in such a manner that witnesses are able to give their testimony on the said day, and adjournments are suitably thus avoided, Also, it would be the responsibility of the High Courts to provide guidelines to the lower courts to create a schedule that would allow proceedings with trial on a day-to-day basis and the listing of the cases would be on those lines.
Finally, what came into force as a concrete step towards implementation of protection of witness, to a certain extent, was the amendment of the Code of Criminal Procedure, leading to the creation of Section 164 A. This section had two characteristics and helped to create a link between the Magistrate and the Witness to ensure speedier disposal of justice:
Ø Responsibility of the Police Officer: Every Police Officer investigating into an offence punishable with imprisonment with note less than ten years was supposed to forward all statements to the Magistrate for the consideration of the recording of statements.
Ø Responsibility of the Magistrate: The statement of any witness would be recorded only when he is produced and examined before the Magistrate. Such recording would be taken in as evidence subject to the principles in Evidence Act, 1872.
What was most comprehensive that provided thorough guidelines in the direction for the implementation of witness protection guidelines has been the Malimath Committee Report. Even though it did not push for stringent laws to be adopted by the country to effectively deal with witness protection, it stated that evolution of a witness programme should be one of the goals in the future of the country so as to plug the loopholes within the judicial system. Further, the said Report gave only brief references to protection of witnesses outside the courtroom. The crux of the protection dealt with the witness being within the court premises. Thus, an effective policy was not pursued with only vague guidelines being set within the said Report.
However, this report was responsible for churning up the debate with respect to the obligation of the state and its resources for providing adequate services for the protection of the witnesses. Should the State spend its resources for ensuring the protection of the witness? Should such protection fall beyond the boundaries of the courtroom premises and extend to their protection during their everyday lives? Such questions, with specific reference to the relevance of the American Model of Witness Protection were discussed after the said Report was published.
Physical Protection for witnesses has been a distant dream. Apart from the Malimath Committee Report, hardly any other law report delved into this aspect of witness protection. Even the Malimath Report offered only one single line in the form of Recommendation 87 with specific reference to provision of physical protection to the witnesses.
The only two effective legislations providing for effective physical protection of witnesses have been the Terrorist and Disruptive Activities (Prevention) Act, 1987 and its avatar, the Prevention of Terrorism Act, 2002. Some of the sections of these Acts provided effective methods to provide for witness protection with respect to specific cases:
Ø Secrecy of Witness’ Identity: Section 13 of TADA, the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 30 of POTA, the Prevention of Terrorism Act, 2002 (now repealed) provides that the court may take such measures as it deems fit to keep the identity and address of witnesses secret.
Ø Provision for trial of sexual offences: Section 13 of TADA and Section 30 of POTA provide that proceedings of these nature shall be held in camera, so that there is adequate protection of the witnesses who are giving their testimony.
Further, the development of the need for Witness Protection program can be highlighted through the development of the plethora of judgments that have been passed by the various courts in the country. The judiciary has constantly urged the Parliament to evolve a definite and regulatory mechanism to deal with witness protection as a lack of such a scheme clearly hampers the deliverance of justice.
Public trial and cross-examination of witnesses in open court:
Sec.327 Cr.PC provides for trial in the open court and 327 (2) provides for in-camera trials for offences involving rape under s.376 IPC and under s.376 A to 376 D of the IPC. Sec. 273 requires the evidence to be taken in the presence of the accused. Sec. 299 indicates that in certain exceptional circumstances an accused may be denied his right to cross-examine a prosecution witness in open court. Further, under Sec.173 (6) the police
officer can form an opinion that any part of the statement recorded under Sec.161 of a person the prosecution proposes to examine as its witness need not be disclosed to the accused if it is not essential in the interests of justice or is inexpedient in the public interest.
Sec. 228A IPC prescribes punishment if the identity of the victim of rape is published. Likewise, Sec. 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 prohibits publication of the name, address and other particulars which may lead to the identification of the juvenile.
Under Sec. 33 of the Evidence Act, in certain exceptional cases, where cross examination is not possible, previous deposition of the witness can be considered that relevant in subsequent proceedings. The Evidence Act requires to be looked into afresh to provide for protection to a witness.
Ø Restraint of Publication of Evidence: The earliest judgment that comes to mind is that in the case of Naresh Shridhar Mirajkar v. State of Maharashtra, wherein protection of publication of evidence of the witness was allowed by the High Court and later re-affirmed by the Supreme Court as otherwise the business interests of the witness would have been hampered.
Ø Specific Guidelines for victims of Trafficking: The Supreme Court of India in Gaurav Jain v. Union of India gave various directions for the rehabilitation and welfare of victims crimes related to trafficking. It was an essential judgement in the sense that it sought to provide protection for the victims or the witnesses who would be required to give their statements before the court in the future. Various steps like that of counseling etc. were sought to be rendered to such victims so as to effectively protect them from further exploitation.
“anonymity of the victims must be maintained as far as necessary so that the name is shielded from the media and public. The experience of giving evidence in court has been negative and destructive and the victims often expressed that they considered the ordeal of facing cross-examination in the criminal trial to be even worse than the rape itself.”
The importance of holding rape trials in camera as mandated by s.327 (2) and (3) Cr.PC was reiterated in State of Punjab v. Gurmit Singh (1996) 2 SCC 384. In Sakshi v. Union of India (2004) 6 SCALE 15 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.
Ø Video-conferencing for recording of statements: This was laid down and allowed in the case of State of Maharashtra v. Dr Praful B. Desai. It was stated that when a statement is recorded through this method, the victim would feel more comfortable and will give answers without any fear or pressure.
The most historic and relevant case that brought witness protection back into focus was the Zahira Habibulla Sheikh v. State of Gujarat. The main points with respect to witness protection within the said case were as follows:
Ø Evolution of a balance of competing interests: It was stated by the Supreme Court that 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 offences.
Ø Change in place of trial: In the present case, the Supreme Court decided to shift the venue of the case from Gujarat to Maharashtra since the Court felt that the witnesses would not be able to depose their statements freely in the said state. It was a landmark step taken by the Court as it provided another avenue for the witness protection. Thus, it has been provided that the venue of the trial may be shifted if the witnesses or victims are not in a position to depose freely due to various reasons.
As it can be observed the situation with respect to witness protection in India has been grim and instances where strong, affirmative action have been taken has been far and few to mention the least. It is high time that an effective witness protection strategy should be evolved in comparison to the U.S. Protection System so as to expedite justice in a rational and reasonable manner.
Protection of identity of witnesses v. Rights of accused – Principles of law developed by the Supreme Court and the High Courts In the pre-Maneka Gandhi phase the Supreme Court, in Gurbachan Singh v. State of Bombay 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 Singh AIR 1958 SC 209 and Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167 stressed the need for a congenial atmosphere for the conduct of a fair trial and this included the protection of witnesses.
In Kartar Singh v. State of Punjab 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 India. In the Best Bakery Case 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.”
Although, the guidelines for witness protection laid down by the Delhi High Court in Neelam Katara v. Union of India require to be commended, they do not deal with the manner in which the 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 Khalsa, which provides for protection of the witness from the media, does not deal with all the aspects of the problem. These judgments highlight the need for a comprehensive legislation on witness protection.
It is high time that the malaise of ‘hostile witness’ be tackled. No nation may afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law25. Adequate steps must be taken for the protection of witnesses who appear before the court so as to render a helping hand in the dispensation of justice. As long as witnesses continue to go hostile and do not make truthful deposition in Court, justice will always suffer and people’s faith in the credibility of judicial process and justice system will continue to erode and shatter.
If the cases like Best Bakery or Jessica Lal are repeated, it would shatter the strength and credibility of our criminal justice system. The government must take a stand on this matter and implement a system that is not a new or novel concept to criminal justice systems around the world. Enough witnesses have turned hostile, enough people have been murdered and yet no solution from the government’s side appears to be in the offing. Therefore, it is suggested that the Indian Parliament should implement a witness protection programme. A witness protection cell should be constituted to provide protection to the witnesses during all stages of trial. It would be an independent body that will lie outside political control. The cell may also arrange for the provision of false identities, relocation and follow up. The members of the witness protection cell should be made liable criminally if they do not discharge their responsibility properly.
1. “Law of Evidence”, Dr. V. Krishnamachari, 3rd ed. 1998, S. Gogia and Company, Hyderabad.
2. “Law relating to Witnesses with Examination of Witnesses along with Law relating to Accomplices and Approvers”, Gopal S. Chaturvedi, 2nded. 2006, Delhi Law House, Delhi.
3. “Sarkar on Evidence”, M.C. Sarkar, S.C. Sarkar and Prabhas C. Sarkar, 15th ed.2004 (rep.), Vol. II, Wadhwa and Company Nagpur.
4. “The Law of Evidence”, Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, 21st ed. 2004, Wadhwa and Company Nagpur.
5. “The Principles of the Law of Evidence”, Dr. Avtar Singh, 7th ed.1990 (rev.), Central Law Agency, Allahabad.
Sections 161 and 162 of the Criminal Procedure Code, 1973, (2004) 8 ACE (J) 47,
Zahira Habibullah Sheikh vs. State of Gujarat, 2004 INDLAW SC 408, 2004 Cri LJ
Criminal Justice Reform in India-ICJ Position Paper, ‘Review of the Recommendations made by the Justice Malimath Committee from an international human rights perspective’, http://www.icj.org/IMG/pdf/India_crim_justice_reform.pdf.
 Aisha Sultanat, Dispensing Best Justice ? III: Executing the Witness Protection Program, Article 1174, Institute of International Peace and Conflict Studies, 7th October, 2003,
ADMINISTRATION,http://www.humanrightsinitiative.org/jc/papers/jc_2003/judges_papers/lokur.pdf, Last Visited on 9th December 2007