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Rights And Protection Of A Witness Under The Law

British jurist Jeremy Bentham has said that witnesses are the eyes and ears of justice. In cases involving influential people, witnesses turn hostile because of threat to life and property. In Zahira Shiekh and another v. State of Gujarat 2004 (4) SCC 158 SC while defining Fair Trial the court has said that if the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. Thus it is essential to protect the witness from any threat and coercion

Rights of a witness:
  1. A witness can be called to appear for investigation only within the limits of his own or any adjoining station. In Krishan Bans Bhadur v. State of Himachal Pradesh, 1975 Cri LJ 620 (H.P.) it was held that a police officer conducting an investigation has the power to summon a witness under Section 160 of the Cr.P.C only if such witness is within the limits of his own police station or within the limits of an adjoining police station.
  2. A witness if he is a male under the age of fifteen years or a woman of any age shall not be asked to attend at any place except where such male person or woman resides.
  3. Statement of a witness recorded under section 160 CrPC need not be signed.
  4. A person cannot be compelled to give statement that incriminates him.
  5. The witness shall also be provided payment, as per Rules, by the police officer, if called during instigation or any the court of summoned during a trial or any proceeding.

Protection of a witness
If any person who is a witness gets any threat to withdraw the case against the accused or to give false evidence he can file a complaint with the police or with the court.

Section 195A of the Indian Penal Code states that whoever threatens another with any injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if an innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.

Since it is a cognzable offence hence the police is duty-bound to register and FIR immediately. The court may also order for registration of an FIR ona complaint filed by the witness .

Witness Protection Scheme, 2018
This scheme was launched Central Government for the protection of witness who gets threat by any person to give false evidence. This was upheld by Supreme Court in Mahender Chawla vs Union Of India Writ Petition ( Criminal) No. 156 of 2016) . Its salient features are:
  1. An application for seeking protection order under this scheme can be filed in the prescribed form before the District Court where the offence is committed,
  2. As and when an application is received a Threat Analysis Report be called from the ACP/DSP in charge of the concerned Police Sub-Division.
  3. Depending upon the urgency in the matter the Court can pass orders for interim protection of the witness or his family members during the pendency of the application
  4. The Threat Analysis Report shall be prepared expeditiously and filed within five working days of 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.
  6. All the hearings on Witness Protection Application shall be held in-camera by the court while maintaining full confidentiality.
  7. During the course of investigation or trial of any offence, an application for seeking identity protection can be filed in the prescribed form before the Court
  8. In appropriate cases, where there is a request from the witness for change of identity or for relocation and based on the Threat Analysis Report, a decision can be taken for conferring a new identity to the witness or for relocation of the witness by the Court.
  9. In appropriate cases, where there is a request from the witness and based on the Threat Analysis Report, a decision can be taken for relocation of the witness by the Competent Authority.

Vulnerable witness Scheme:
  1. Section 327 (1) Cr.PC states that the inquiry into and trial of rape shall be conducted in camera ie within closed doors so that the identity of a rape victim or witness is kept secret.
  2. The court may allow any particular person to have access to, or be or remain in, the room or building.
    Provided further that in-camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.
  3. Any matter in relation to any such proceedings or trial should not be printed or published , except with the previous permission of the Court.
  4. Supreme Court in Sakshi v. Union of India and Ors (2004) 5 SCC 518 after due consideration issued following directions:
    1. The provisions of sub-section (2) of shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or trial of offences under Sections 354 IPC (outraging modesty of a woman) and 377 IPC ( unnatural Sex).
    2. In holding trial of child sex abuse or rape:
      1. a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body of the accused.
      2. the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to
      3. the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
Thus our legal system has come a long way to protect a witness and ensure a fair trial. This would certainly encourage the public to come forward as a witness and contribute to delivering justice.

Written By: Prem Chandra Khanduri, BSc ( Hons) L.LB, MBA, MA( Psychology) , Diploma in Human Rights, LLM Student Presently working in Delhi Police as Inspector. Worked in NCB, Narcotic and Crime Branch of Delhi Police and has vast experience of investigation of a variety of cases.
Ph no: 9911441848 

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