August 12,2019:
The author, Dhruv Gupta, is a 2nd Year, BA.LLB (H) student of University School of Law and Legal Studies, GGSIPU. He is currently interning with LatestLaws.com.
Q1. What is the Witness Protection Scheme, 2018 as introduced by the Central Government?
A1. Pursuant to the judgement of the Hon’ble Supreme Court in the case of Prem Chand vs Govt. of NCT of Delhi (SLP Cri. No. 674/2017), NALSA and BPR&D prepared the draft of the scheme for the Ministry of Home Affairs. The same was put in front of the Supreme Court and approved by the same on 5th December, 2018.
The main aim of the scheme is to ensure that the witness, in a criminal case, can come forward without any fear or intimidation, thus helping in the proper investigation, trial and prosecution of the case. The scheme assures the witness, protection from fear or intimidation that criminal groups may inflict on them and that the State will support them at every possible step.
Q2. Why was is necessary to implement the Scheme?
A2. The necessity of the Scheme evolved after considering the current situation of criminal justice administration. The Supreme Court, in a variety of its judgements, had stressed upon the importance of witnesses in criminal trial, assisting the State by providing their evidence. But nevertheless, owing to fear and intimidation, it was often seen that either the witness did not come forward at all or would turn hostile at a later stage in trial. This was especially true of cases which involved influential people. All this was attributed to the fact that such witness ae often under fear of life or property.
Thus, the Scheme was a means to overcome this problem, and thus help maintain the rule of law and ensure a fair trial. This scheme became further important, with the wide range of organised crimes taking place in the country. The appearance of a witness in such cases is even more essential for the successful administration of justice.
Q3. Under the Scheme, what all actions can be undertaken to protect witnesses?
A3. Although the scheme does not mention any exhaustive list of actions that can be taken to provide protection to a witness, Clause 7 of the Scheme does provide a brief list of possible actions that can be undertaken. These actions include-
- Ensuring that the witness and accused do not come face-to-face
- Monitoring of mail or telephone calls
- Installation of security devices in the home of the witness like CCTV, alarms etc.
- Concealment of witness identity
- Escort to and from court by police and State-funded conveyance
- Any other form of protection necessary
In serious and complex cases, it may maintaining anonymity of the witness and relocating him/her to a new location under a new name etc.
It has further been stated that the actions for witness protection will vary based on the facts and circumstances of the case.
Q4. Are there any categorization regarding the witnesses covered under the Scheme?
A4. The scheme provides for 3 different categories of witnesses. This categorization is based on the level of threat that these witnesses may face. The categories are-
CATEGORY ‘A’- This includes those witnesses who have a threat to their own life or that of their family members. This means that their normal way of life is affected during a significant period, which may either be during the investigation/trial or even therefater
CATEGORY ‘B’- This includes those witnesses who have a threat to safety, reputation or property of their own or their family members. This covers situations arising during the investigation or trial
CATEGORY ‘C’- This includes those witnesses who have a moderate threat, extending only to harassment or intimidation of their own or their family members. This covers situations during the investigation stage
(As can be understood from the above mentioned points, the threat decreases as we move down the categories, and also lesser part of the whole procedure is covered)
Q5. What is the procedure for attaining witness protection under the said scheme?
A5. The steps that take place for attaining such protection are-
- Any witness can seek protection under the scheme by filing an application before the Competent Authority (which in this case is the Secretary, District Legal Services Authority). The form for such application has been specified and the same has to be filed along with the supporting documents
- Once such an application is received by the Competent Authority, it shall pass an order calling for the Threat Analysis Report from Commissioner of Police (in Commissionerates)/ SSP (in District Police), investigation the case with which the witness is connected
- The Report has to be prepared expeditiously and has to reach the Competent Authority, within 5 working days, of the receipt of the order. Such report has to contain the threat level and suggest measures needed for protection as mentioned under clause 7 of the scheme
- The Competent Authority is further empowered to pass interim protection orders owing to the imminent threat to the witness
- While processing the application, the Competent Authority shall also interact with the witness and his family members, either in person or via Video Conferencing
- All such hearing shall be held ‘in-camera’
- Such an application shall be disposed off within 5 working days of the receipt of the Threat Analysis Report
- Once the protection orders are passed, it shall be implemented by the Witness Protection Cell (of State/UT/CPO), the Head of the Police (of State/UT) or the Department of Home (of State/UT) as the case may be
- The Witness Protection Cell shall provide monthly follow-up report to the Competent Authority
- If the Competent Authority feels that the protection order needs to be revised or an application for the same is moved, it may call for a new Threat Analysis Report from the above mentioned authorities
