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Guidelines for the implementation of witness Protection Scheme 2019

Guideline For Witness Protection Scheme, 2019

Importance of Witness in Criminal Justice system:

The witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. In the words of Whittaker Chambers, a witness is a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.

The importance of witness particularly in criminal trial has to be expressed as:
 in search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.

Process step by step:
  1. Submission of FORM by a witness

    Note: section 2 (j) Witness means any person, who posses information or document about any offence;
     
  2. Form

    Note: Form means as per section 2(e) - Witness Protection Application Form appended to this Scheme.
     
  3. Who submit the witness protection Application form:

    According to Section 2 (k) It can be moved by:
    • The witness, or
    • his family member, or
    • his duly engaged counsel or
    • IO/SHO/SDPO/Prison SP concerned and the same shall preferably be got forwarded through the Prosecutor concerned;

     
  4. Submission of Form by the witness before Competent Authority

    Note: As per section 2(b) Competent Authority means a Standing Committee in each District chaired by District and Sessions Judge with Head of the Police in the District as Member and Head of the Prosecution in the District as its Member Secretary:
    • District and session judge- Chairperson
    • Head of the police - Member
    • Head of the prosecution - Member Secretary

      Competent Authority
      Chairperson
      (Public Prosecutor)
      Member Member Secretary
      (District cum Session Judge)
      (Superintendent Of Police)

     
  5. Procedure for processing the application:

    1. As and when an application is received by the Member Secretary (PP) of the Competent Authority, in the prescribed form.
      Note: Application is received by the Member Secretary (PP) of the Competent Authority.
       
    2. It shall forthwith pass an order for calling for the Threat Analysis Report from the Assistant Commissioner of Police / Deputy Superintendent of Police in charge of the concerned Police Subdivision.
      Note: Threat analysis report call for from ACP/ DSP by Public Prosecutor.
       
    3. Depending upon the urgency in the matter owing to imminent threat, the Competent Authority can pass orders for interim protection of the witness or his family members during the pendency of the application.
      Note: Competent Authority can pass orders for interim protection.
       
    4. The Threat Analysis Report shall be prepared expeditiously while maintaining full confidentiality and it shall reach the Competent Authority within five working days of receipt of the order.
      Note: Threat Analysis Report shall be submitted within 5 working days receipt of the order.
       
    5. The Threat Analysis Report shall categorize the threat perception and also include suggestive protection measures for providing adequate protection to the witness or his family.
      Note: categorize the threat perception (Type- A/B/C) and also include suggestive protection measures (As per sec 7).
       
    6. While processing the application for witness protection, the Competent Authority shall also interact preferably in person and if not possible through electronic means with the witness and/or his family members or employers or any other person deemed fit so as to ascertain the witness protection needs of the witness.
      Note: Competent Authority shall also interact preferably with witness and his family members.
       
    7. All the hearings on Witness Protection Application shall be held in-camera by the Competent Authority while maintaining full confidentiality.
      Note: All hearing shall be held in camera with confidence.
       
    8. An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police Authorities.
      Note: Application disposal period is 5 working days.
       
    9. The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the State or the Trial Court, as the case may be.
      Note: Order passed by the Competent Authority shall be implemented by the Witness Protection Cell.
       
    10. Overall responsibility of implementation of all witness protection orders passed by the Competent Authority shall lie on the Head of the Police in the State. However, the Witness Protection Order passed by the Competent Authority for change of identity and/or relocation shall be implemented by the Department of Home of the State.
      Note: In all cases responsibility to implement protection order shall be bear by Head of the police department of state but the change of identity and/or relocation shall be bear by the Department of Home of the State.
       
    11. Upon passing of a Witness Protection Order, the Witness Protection Cell shall file a monthly follow-up report before the Competent Authority.
      Note: The witness protection cell shall file follow-up report on each month.
       
    12. In case, the Competent Authority finds that there is a need to revise the Witness Protection Order or an application is moved in this regard, and upon completion of trial, a fresh Threat Analysis Report shall be called from the Assistant Commissioner of Police/Deputy Superintendent of Police in-charge of the concerned Police Subdivision.
      Note: The authority may revise the order. On completion of trial, a fresh 'Threat analysis report' shall be called from ACP/DSP.
       
  6. Initiation Of In Camera Proceedings

    • Section 2(f) - It means proceedings wherein the Competent Authority or Court allows only those persons who are necessary to be present while hearing and deciding the witness protection application or deposing in the court;
       
    • OFFENCE: "Offence" means those offences which are punishable with death or life imprisonment or an imprisonment up to seven years and above and also offences punishable under Sections 354, 354A, 354B, 354C, 354D and 509 of the Indian Penal Code.

     
  7. Preparation of Threat Analysis Report

    Section 2 (i)- it means a detailed report prepared and submitted by the Head of the Police in the District Investigating the case with regard to the seriousness and credibility of the threat perception to the witness or his family members.

    It shall contain specific details about the nature of threats by the witness or his family to their life, reputation or property apart from analyzing the extent, the or persons making the threat, have the intent, motive and resources to implement the threats. It shall also categorize the threat perception apart from suggesting the specific witness protection measures which deserves to be taken in the matter.

    1. Superintendent of Police submit the report.
    2. Evaluate the seriousness and credibility of the threat.
    3. Specify details about threat.
    4. Specify type of threat perception; Type- A, B, C
    5. If he thinks fit may provide intermediate Protection till the Order.
    6. Specify what type of protection measures deserves to be taken.
    7. Specify the duration of protection; such duration shall be a specific duration not exceeding three months at a time.
    • As per Section 3- Categories of witness as per threat perception:
    • Category 'A': Where the threat extends to life of witness or his family members, during investigation or trial or thereafter.
    • Category 'B': Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation or trial or thereafter.
    • Category 'C': Where the threat is moderate and extends to harassment or intimidation of the witness or his family member's, reputation or property, during the investigation or trial or thereafter.
    • Types of protection measures:? As per section 7
      1. The witness protection measures ordered shall be proportionate to the threat and shall be for a specific duration not exceeding three months at a time.
      2. Such measures may include:
        1. Ensuring that witness and accused do not come face to face during investigation or trial;
        2. Monitoring of mail and telephone calls;
        3. Arrangement with the telephone company to change the witness's telephone number or assign him or her an unlisted telephone number;
        4. Installation of security devices in the witness's home such as security doors, CCTV, alarms, fencing etc.;
        5. Concealment of identity of the witness by referring to him or her with the changed name or alphabet;
        6. Emergency contact persons for the witness;
        7. Close protection, regular patrolling around the witness's house;
        8. Temporary change of residence to a relative's house or a nearby town;
        9. Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing;
        10. Holding of in-camera trials;
        11. Allowing a support person to remain present during recording of statement and deposition;
        12. Usage of specially designed vulnerable witness Court rooms which have special arrangements like live video links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness' voice, so that he or she is not identifiable;
        13. Ensuing expeditious recording of deposition during trial on day-to-day basis without adjournments;
        14. Awarding time to time periodical financial aids or grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting a new vocation or profession, if desired;
        15. Any other form of protection measures considered necessary.

Witness Protection Cell:
Section 2(L): Witness Protection Cell means a dedicated Cell of the State Police or Central Police Agencies assigned with the duty to implement the witness protection order;
Suggestion for Cell:
1. DSP 01
2. Inspector 02
3. Sub-Inspector 04
4. Constable 03
Total = 10 Persons

Monitoring and Review:
Once the protection order is passed, the Competent Authority would monitor its implementation and can review the same in terms of follow up reports received in the matter. However, the Competent Authority shall review the Witness Protection Order on a quarterly basis based on the monthly follow up report submitted by the Witness Protection Cell.

ANNEXURE-I

Witness Protection Scheme, 2019 (See Clause-5)
Witness Protection Application under
Witness Protection Scheme, 2019

Before, (To be filed in duplicate)
The Competent Authority, District................................................................
Application for:

  1. Witness Protection
  2. Witness Identity Protection
  3. New Identity
  4. Witness Relocation
1 Particulars of the Witness (Fill in Capital):
  1. Name
  2. Age
  3. Gender (Male/Female/Other)
  4. Father's/Mother's Name
  5. Residential Address
  6. Name and other details of family members of the witness who are receiving or perceiving threats
  7. Contact details (Mobile/e-mail)
 
2 Particulars of Criminal matter:
  1. FIR No.
  2. Under Section
  3. Police Station
  4. District
  5. D.D. No. (in case FIR not yet registered)
  6. Cr.Case No. (in case of private complaint)
3 Particulars of the Accused (if available / known):
  1. Name
  2. Address
  3. Phone No.
  4. Email id
4 Name & other particulars of the person
giving/suspected of giving threats
5 Nature of threat perception. Please give brief
details of threat received in the matter with specific date, place, mode and words used
6 Type of witness protection measures prayed by/for the witness
7 Details of Interim / urgent Witness Protection
needs, if required
  • Applicant/witness can use extra sheets for giving additional information.

Date ..............................
Place.............................. (Full Name with signature)

UNDERTAKING

  1. I undertake that I shall fully cooperate with the Competent Authority and the Department of Home of the State and Witness Protection Cell.
  2. I certify that the information provided by me in this application is true and correct to the best of my knowledge and belief.
  3. I understand that in case, information given by me in this application is found to be false, Competent Authority under the scheme reserves the right to recover the expenses incurred on me from out of the Witness Protection Fund.


Date ..............................
Place.............................. (Full Name with signature)

Written By: Abdul Samim Akhtar, OSPS-I, (Public Prosecutor, Sundargarh, Odisha)
E.Mail: [email protected]

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