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Introduction
Witness protection program and witness protection laws are simply
the need of the hour. In fact, it is the absence of these laws
that has helped in further strengthening the criminals and
offenders. But ironically in India, such programs and laws are a
far cry from reality, where leave alone protection, the witness is
not even treated with respect or asked for water.
A criminal case is built upon the edifice of evidence that is
admissible in law. For that, witnesses are required, whether it is
direct evidence or circumstantial evidence. Today the witnesses
are a harassed lot. Not only that the witness is bribed,
threatened, abducted, even maimed or done away with. For all these
reasons and many more, a person abhors from becoming a witness.
Treatment Of Witnesses
The present judicial system has taken the witnesses completely for
granted. Witnesses are summoned to the Court regardless of the
fact that they have no money, or that they cannot leave their
family, children, business etc. and appear before the Court. But
that's not all. On reaching the Court, some are told that the case
has been adjourned (for reasons that may run into infinity) and
the respective lawyer politely gives them a further date for their
next appearance.
In the matter of Swaran Singh v. State of Punjab, the
Supreme Court observed,
"A witness has to visit the Court at his own cost, every time
the case is differed for a different date. Nowadays it has become
more or less fashionable to repeatedly adjourn a case. Eventually
the witness is tired and gives up."
The Court further held that while adjourning a case without any
valid cause, a Court unwittingly becomes party to miscarriage of
justice.2 Most witnesses have to wait their turn out. And when
their time for deposing or the giving of evidence comes, the
lawyers examine and cross examine them as if they themselves are
the perpetrators of the crime.
Perjury
Since the guilt of the accused is proved to a great extent on the
basis of the evidence or the information given by such a witness,
therefore perjury or the giving of false evidence has to be
severely censured.
Perjury today has also become a way of life in the Courts. In some
cases the judge knows that whatever the witness is saying is not
true and is going back on his previous statement. The Judge here
ignores this fact and does not even file a complaint against him.
Section 340 of the Criminal Procedure Code, 1972 states the
procedure for the prosecution for contempt of lawful authority of
the public servants, for the offences against public justice and
for the offences relating to documents given in evidence.
Section 340(3) of Criminal Procedure Code states:
A complaint made under this section shall be signed-
a) Where the Court making the complaint is the High Court, by such
officer of the High Court as the Court may appoint;
b) In any other case, by the presiding officer of the Court.
It is respectfully submitted that Section 340(3)(b) needs to be
amended, empowering any officer of the Court to file a complaint
against such witnesses, thereby putting an end to the notion of
bought over or hostile witnesses.
The High Courts also have to be vigilant is these matters if the
criminal justice system is to be put on a proper pedestal. The
system cannot be left at the mercy of the state machinery. In
today's computer age, it's about time that all lower courts are
linked up with their respective High Courts with a computer. A
proper check should be maintained on the adjournments and
recording of evidence. Further, the Bar Council of India and the
State Bar Councils must play their part and put the criminal
justice system back on track.
Instances Where Witness Protection Was
Provided
Naroda- Patia: Mohammad Shakur
Sayyad, a victim of the Naroda-Patia carnage in the year 2002, who
was also a key witness in that case, was attacked and beaten up
brutally by a group of thirty people, while he was sitting outside
his shop at the Faisal Park Society in Vatva. According to him
Akram Ahmed, an anti social element of that locality while
assaulting him along with other people of the abovementioned group
was shouting "You are very fond of deposing before the Nanavati
Commission, aren't you?"
Sayyad, who lost his three children in the Naroda-Patia massacre,
had deposed before the Nanavati Commission on 1st October 2003
naming several persons in the mob. He is one of the key witnesses
in the case and had also been provided with one police guard.
The guard however had retired for the day when Sayyad was
attacked. The neighbours of Sayyad maintain that Akram Ahmed had
been threatening others not to depose before the judiciary during
the Naroda trial. About forty-five families of Naroda-Patia have
refused to go back to the area after the riots.
What is shocking in this case is that such a key witness (in this
case Sayyad), was provided with only one police guard who, surely,
would have looked to save his own life rather than that of the
witness he was protecting, when the crowd of thirty people
attacked.
Ketan Thirodkar case: In
another instance, the Bombay High Court had given police
protection to an ex-journalist Ketan Thirodkar, because he had
been under threats soon after he had filed the police complaint,
which disclosed a series of illegal acts allegedly committed by
the police in connivance with the underworld. Thirodkar had filed
a petition seeking police protection as well as a police enquiry
into the police underworld nexus. However, the public prosecutor
opposed the grant of police protection on the ground that
Thirodkar himself was involved with the underworld.
Here the public prosecutor failed to comprehend the fact that:
a) Thirodkar has admitted his links with the underworld and is
ready to face the legal consequences.
b) That even former criminals/ mobsters are also given police
protection if they turn approver.
The High Court, in this case, had given Thirodkar police
protection only for a limited period, not realizing that the
persons that he is to implicate would cause serious injury to him
the moment the temporary police protection is removed.
Twin Blast case: The role of
witnesses and the issue of their protection has come in for much
discussion after Shivnarayan Pandey, the taxi driver who gave
clues in the August 25th 2003 Twin Blast case had to be given
extra protection by the Mumbai Police.
The identity of the witness (Pandey) in this case was leaked to
the media by an inspector on the day of the blasts. This officer
allegedly circulated Xerox copies of a document bearing the name
of the witness and the registration number of his vehicle. A
couple of days later, a crime branch officer is believed to have
leaked his address in Kandivali- a distant Mumbai suburb- to the
media persons.
The police had failed to realize that Pandey was an important
prosecution witness in a very sensitive case. Since the police are
yet to arrest more persons in regard to this case, Pandey is a
crucial witness in identifying such persons. In such cases the
police should take extra precaution and issue a circular or
directive to all officers in the department to maintain silence on
all the investigations.
In this case the Mumbai police have contravened Section 30 of the
Prevention of Terrorism Act (POTA), by failing to protect the
identity of the prosecution witness.
Section.30 of Prevention of Terrorism Act states:
"Since the life of the witness is in danger, adequate measures
should be taken to keep the identity and address of such a witness
a secret. The mention of the names and address of the witness
should be avoided in any records of the case and even in the Court
orders or judgment."
While Pandey had been kept at an undisclosed place with police
guards, his family had not been given protection, whereas, it
could have been possible that under the guise of a political
activist, some terrorist could have approached Pandey or his
family members. They could have bribed Pandey or his family
members or for that matter done anything to make sure tat Pandey
turns hostile.
The prosecution, in a large number of cases including the BMW and
the Jessica Lal murder cases, beside the ones registered under the
Terrorist and Disruptive Activities Act (TADA), 1987 has time and
again failed due to the backing out of witnesses.
Time and again the prosecution in some of the most sensitive cases
had failed because the witnesses, initially responsible for
setting into motion the state machinery, had changed their mind
when examined in the Court. This has happened in a majority of
cases registered in many states under TADA.
In sensational cases like the BMW and the Jessica Lal murder
cases; and most recently in the Best Bakery case, wherein the
Human Rights Commission intervened when the witnesses changed
their statements in the Court due to the lack of protection to
them and their families. Whereas in the earlier cases (the BMW and
Jessica Lal murder case) most of the eyewitnesses did not open up
to pin point the possible reason which compelled them to change
their original stand.
The fact is that the accused are able to intimidate the witnesses
because there was and is no program available under which, after
the assessment of the need for protection to a particular witness,
the administration could give him/her the requisite security
cover.
In April 2003 a High level Committee headed by Justice V.S.
Malimath (former Chief Justice, High Court of Gujarat) was
appointed by the Home Ministry to reform the existing criminal
justice system. The Commission said that the time has come to
enact a law putting in place a Witness Protection Program in India
as well.
Recommending the Witness Protection Program, the Malimath
Committee however did not focus on any particular case. It spoke
generally of the need to check the growing trend of hostile
witnesses.
The committee said nothing beyond making a bald recommendation of
adopting such a law. It made no effort to go into how the concept
of witness protection program can be adapted to the legal
topography of India. It did not deal with the obvious issue
whether witness protection program is a luxury that a poor country
like India cannot afford.
Also, until our police officers are not liberated from the
political diktats, as recommended by the National Police
Commission over two decades ago, it is not worth our while to try
witness protection program even in the gravest of cases.
Judicial Activism
In recent time the judiciary has been giving significant amount of
encouragement to establishing witness protection programs in
India.
In one such instance, the Delhi High Court, has on 14th October
2003, issued certain guidelines to the police in providing
protection to the witnesses in cases pertaining to life
imprisonment or death sentences. The ruling is an attempt to check
witnesses from turning hostile under threats from the accused.
The guidelines have been issued by Usha Mehra and Pradeep
Nandrajog., JJ on a petition filed by Neelam Kataria, whose son
Nitesh was allegedly murdered by Rajya Sabha MP D.P. Yadav's son
Vikas and nephew Vishal.
The Delhi High Court has given the following guidelines in giving
witness protection:
1. The Court has also made it compulsory for the investigating
officer of a case to inform the witness about the new guidelines.
2. The Court has appointed the Member Secretary of the Delhi
Legal Services Authority to decide whether a witness requires
police protection or not.
3. The competent authority shall take into account the nature
of security risk to him/her from the accused, while granting
permission to protect the witness.
4. Once the permission is granted, it shall be the duty of the
Commissioner of Police to give protection to the witness.
The High Court said that its order would operate until legislation
is passed in this regard.
Initiatives By The Police
With terrorist activities on the rise, the Mumbai police have
formulated a four-point plan to protect vital witnesses in the
bomb blasts and other sensitive cases. Though this plan is still
under deliberation, it shall soon be sent to the State Government
for its approval, after which it will be enacted as a law.
The abovementioned 4-point plan is made on the following
guidelines:
1. Transferring the witness from his city of residence to
another city.
2. Government will provide the witness with a job similar to
the one he is/was doing.
3. The witness shall be given a new name, identification,
ration card; and a new passport.
4. The government will accept the responsibility of the
witness's entire family and provide it with security cover.
In other countries like America even plastic surgery of the
witness for his new identity is considered as an option. However,
the Mumbai police it seems has not thought about this. But as
stated by Rakesh Maria (Additional Commissioner of Police, Crime),
if need be, the police shall take it under consideration.
Therefore, a person who has given or has agreed to give
information or evidence or participates or has agreed to give
information or evidence or participates or has agreed to
participate in a matter pertaining to inquiry into the
investigation or prosecution of an offence and who may require
protection because of the risk to the security of the person
arising in relation to the inquiry, investigation or prosecution
be given witness protection by the police. Which as observed from
the above instances may include relocation, accommodation, and
change of identity in order to ensure the security of the
protectee or to facilitate the protectee's re-establishment or
his/her becoming self-sufficient.
Conclusion
Today, under present circumstances, the Indian Government is
evaluating the American laws pertaining to witness protection,
where gang men after turning approver are given a new name and
identity and relocated to a new place. In the USA, the Federal
Witness Protection Program was created in response to the dangers
faced by the witnesses who testified against mobsters. In a high
threat environment including pre-trial conferences, trial
testimonials and other court appearances, a round the clock
protection is provided to all the witnesses through the U.S
Marshall Service.
The Witness Protection Program has been in existence in the United
States since 1967. It has so far been used to rehabilitate not
more than eight thousand witnesses and their fifteen thousand
family members. The American system employs witness protection
program typically to help a mafiso who turned approver in the
Court, whereas it also employs witness protection program to crack
down on drug and international terrorist activities.
Recently Canada gave witness protection cover under its Witness
Protection Act, 1996 to a Sikh woman, Satnam Kaur Reyat, who threw
fresh light in the Kanishka Bombing Case.
While the government is presently deliberating over making laws
pertaining to hostile witnesses and laws for witness protection,
it is imperative to note that witness protection program works on
the premise that all the officials involved in the secret exercise
of changing somebody's identity are absolutely trustworthy. The
plain fact is that the level of professionalism demanded by the
witness protection program is considered to be beyond the
capability of our police in the existing system, making it as
susceptible as it is to extraneous influences.
In a recent case, where an IIT engineer (Satyendra Dubey) who was
working as a manager in the NAHI; and had filed complaints to the
Prime Ministers' office, regarding the misappropriations in the
prestigious Golden Quadrilateral Highway project, was murdered,
simply because he had filed those complaints. Today, the National
Human Rights Commission has taken note of the media reports into
the 'Lapses' on part of the Bihar Police; and has asked it to
submit a report explaining its failure to investigate the case
properly3. Therefore, if the Prime Ministers' Office can be
penetrated, it is little wonder, which other place cannot be.
Today, stringent laws against persons giving false evidence and
against witnesses that turn hostile are very much the need of the
hour. In many cases, it is on the basis of the evidence given by
witnesses that the State initiates the prosecution process.
However, during the trial of those accused, it is often the case
that those witnesses (on the basis of whose evidence the
prosecution was initiated), turn hostile. Resulting in the
acquittal of the accused. An instance of such happening is
available in the recent times, wherein, in trial of one Mr.
Mukhtar Ansari (legislator- Bahujan Samaj Party, Lucknow), who was
being tried for the murder of a Jail Superintendent (Mr. R.K
Tiwari), was acquitted because all the witness in the case (36 in
number) turned hostile. It could also perhaps be because of the
inadequate protection given to the witnesses, because of which
they were influenced to change their earlier statements. But
either ways this case portrays the inadequacy of the present
justice system in India.
It is therefore not a question of funds, as they could be
generated in due time by some means or the other; but a question
put to the integrity of the system upon which thrives the
sustainability of the witness protection program as well as the
life of the witness and his family.
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"Treatment And
Protection Of Witnesses In India" 
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The
author can be reached at: dhruv_d_desai@rediffmail.com /
