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Treatment And Protection Of Witnesses In India

Written By : Dhruv Desai - 4th year law- Symbiosis Society's law college, Pune
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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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The author can be reached at: dhruv_d_desai@rediffmail.com / Print This Article

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