The Author, Akshat Aggarwal is a 2nd year, BA.LLB student of Geeta Institute of Law, Panipat, Haryana.
INTRODUCTION
Criminal Justice System protects certain fundamental rights and liberties of the people guaranteed under the Constitution by enforcing law and punishing the offender. In compatibility of this goal, the functionaries of criminal justice framework pursue the principal "Ensure the Good and Punish the Wicked." Succinctly, the criminal equity organization endeavors to diminish criminal conduct. The criminal justice system deals with the process of defining crime, prevention and detection of crime, process of determination of guilt and quantum of punishment and the rehabilitation of citizens punished for crimes, so that they may once again become useful members of the society.
Every Criminal Justice System of world is based on a set principle of Criminal Law and follows either Adversarial System or Inquisitorial System. The judicial framework followed in India for dispensation of criminal justice is the adversarial system of common law adopted from the British Judicial System. Adversarial System clearly focuses on the role of witness in criminal cases. Witness is the foundation on which the structure of justice and equity rests. He is therefore, inexorable and plays a significant role on which the fate of the case depends. He is the foundation of the trial, regardless of whether it is civil or criminal[1]. No indictment case can be developed without the proof of witnesses. Witness is vital guide in the criminal equity framework and for smooth running of criminal equity framework it is necessitated that witnesses come forward and oust their testimony and statements in free and reasonable situation.
IMPORTANCE OF WITNESSES
The term “witness” refers to an individual who is familiar with the certainties and conditions, or is in control of any data or has learning, important with the end goal of examination, inquiry or trial of any crime including serious offense, and who is or might be required to give data or create an impression or produce any record during investigation, inquiry or trial of such case. The expression "witness" additionally incorporates a casualty of such gross offense. The expression "witness" varies from "whistle blower" as in, an informant is an individual who unveils any charge of debasement or wilful abuse of intensity or wilful abuse of attentiveness against any local official or public servant. The high Court of Delhi in the case of Ms. Neelam Katara v. Union of India[2] defined witness in the following words: “Witness means a person whose statement has been recorded by the Investigating Officer under section 161 of the Cr.P.C., 1973pertaining to a crime punishable with death or life imprisonment”.
In the words of Jeremy Bentham, ‘Witnesses are eyes and ears of justice.’ An honest and truthful witness can render yeoman help to police during the trial of the crime and to the court during the trial of the case by giving honest record of what he thinks about the occurrence of the criminal incident. In search truth, he plays that scared role of sun which takes out the obscurity of numbness and enlightens the substance of equity, circled by fiends of mankind and empathy. Therefore, if the witnesses themselves are incapacitated from acting as eyes and ear of justice; the trial will get putrefied and paralyzed. So, in any jurisdiction witness requires a special treatment. One can aptly quote Justice Gita Mittal and Justice J.R. Mirdha of the High Court of Delhi in the case of Mrs. Neelam Katara v. Union of India & Others[3] that
‘The edifice of administration of justice is based upon witnesses coming forward and deposing without fear or favour, without intimidation or allurements in Court of law. If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of administration of justice not only gets weakened, but it may even get obliterated.’
The Hon’ble Supreme Court of India also held in State of Gujarat v. Anirudh Singh,[4] “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.”
The witnesses plays an essential role especially in offenses relating security of state, sedate dealing, serious offenses like murder, rape, theft, dacoity wherein the punishment may stretch out to capital punishment.
Present Scenario of Witness in India
The condition of witnesses in the Indian Legal System can be coined as’ highly pathetic’. Witness dithers as he faces wrath, pressure and threat to his life and existence from accused and because of which they end up turning hostile and giving testimony and statements in favour of the accused person. The position and status of a witness in India can be comprehended from the way that an individual on getting summon from the court, to act as witness begins trembling not on the grounds that he fears examination or cross examination in court but since of the dread that he probably won't be analyzed at all for a few days and on all such days he would be nailed to the precincts of the courts anticipating his opportunity of being examined. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted.
The phenomenon of witness turning hostile has now turned into a reason for grave worry for judiciary in India. There are many incidences where the witnesses have given their testimony which is deliberately ambiguous and hence would be of no help in determining the guilt of the accused. The Supreme Court reiterated that “legislative measures to emphasise prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day.’’[5]
One peculiar feature of most of high profile cases viz. Jessica Laal Murder Case and B.M.W. Hit and Run Case, etc. are that crucial witnesses have turned hostile not only due to threats, coercion, lures, monetary considerations but also fear of abduction and life. It hardly needs to be emphasized that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. People believe that Law is like a spider web, if some powerless thing falls into them, it is caught but the bigger one can break through and get away. A person typically turns into a witness since he has no alternative other than ending up so. For the most part people don't volunteer rather they are constrained to turn into a witness due to the situational causes and in such condition, it is anything but difficult to end up antagonistic so as to dispose of specific perils and bothers. In such situations how the main aim of criminal justice system, i.e., to capture and punish the offender be achieved?
The Supreme Court of India also expressed deep concern about the plight of witness in Swaran Singh v. State of Punjab[6]in the following words:
…A witness in a criminal trial may come from a far off place to find the case adjourned. He has to come to the Court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. Witness is not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He has no place to sit and no place even to have a glass of water.
The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma.[7]
It is highly appreciating that Hon'ble Supreme Court and High Courts have taken the issue of 'witness security' all around genuinely. There are few judgements of Courts visualizing the requirement for protection of victims and witnesses for the most part on account of serious offenses. In Zahira Habibullah Sheikh v. State of Gujarat[8] Supreme Court expressed that the witnesses were pressurized by the accused to go back on their earlier statements and the trial was totally vitiated.
The Supreme Court through Justice J.M. Panchal, in Vikas Kumar Roorkewal v State Of Uttrakhand[9], has clearly examined the role of witnesses in the criminal justice system. The court while giving his observation stated that the Witnesses play an integral role in the dispensation of justice and protection of witnesses through legislative measures can go a long way in conducting a fair trial.
Law Commission of India has paid attention to this issue seriously and attempted to give suggestions on this issue in its different reports. It was in the 14th Law Commission Report where the witness protection was considered for the first time in limited sense. The reference was made to lacking courses of action for witnesses in the courts, the sizes of travelling recompenses and daily allowance paid to witness for going to the court in response to summon and orders.
In its 154th Report, while discerning the plight of witnesses appearing on behalf of the State, Law Commission observed that the witnesses confronts not only bothers as well as hazard to their lives on account of offenders and Criminals. In this way, it made proposals to relieve different bothers and dilemmas. The Law Commission in its 178th Report again took up the issue of averting witnesses from turning hostile. The Report has likewise managed the issue of precautionary measure police should take at the stage of investigation to prevent fabrication by witnesses when they are examined later at the trial. After these reports the commission on reforms of Criminal Justice System under the chairmanship of Dr. Justice V.S. Malimath submitted its rather voluminous report containing as many as 158 recommendations. Some of these recommendations were made even in the 14th Report of the Law Commission about five decades ago, and yet there is little to show by way of any improvement in the quality of facilities available to a witness.
Committee on Reforms of Criminal Justice System[10] while emphasizing importance of witness says:
"By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this reason that the witness either takes an oath in the name of God or solemnly affirms to speak the truth, the whole of the truth and nothing but truth. He/She performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross examination and cannot refuse to answer questions on the ground the answer will incriminate him.”
Generally speaking, witness security would suggest assurance to a witness from physical damage, yet it is fascinating to take note of that, in the Indian context, it has had to some degree confined importance. Before the 198thLaw Commission Report it has been comprehended to mean protection of witness from distress and burden and accordingly security has had reference just to the provision of facilities. The immediate importance of the subject of witness protection in our country motivated the Law Commission to take up the subject of ‘Witness Anonymity’ and ‘Witness Protection’ suo-motto. In its 198th Report Law Commission discussed these issues very widely.
Protection of witness is a pre-requisite for an efficient judicial system in a country which in turn is required for sustenance and proper functioning of state governed by rule of law. Prevailing feeling of fear in the country seriously impairs the right of the people of the country to live in a free society governed by rule of law. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure.[11]
Witness Protection Scheme, 2018
In a society, administered by a Rule of Law, it is imperative to ensure that investigation, prosecution and trial of criminal offences isn't preferential in light of dangers or terrorizing to witnesses. The need to protect witnesses has been emphasised by the Hon’ble Supreme Court of India in “Zahira Habibulla H. sheikh and Another v. State of Gujarat” 2004 (4) SCC 158 SC. While defining Fair Trial, the Hon’ble Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”.
In complex cases, where cooperation by a witness is critical to successful prosecution of a powerful criminal group, extraordinary measures are required to ensure the witness’s safety viz. anonymity, relocation of the witness under a new identity in a new, undisclosed place of residence.[12]
At present there is no law/scheme holistically at the National level for protection of witnesses. Keeping in view the Hon’ble Supreme Court has approved India's First Witness Protection Scheme drafted by the union government. The Apex Court in the case of Mahendra Chawla & Ors. Vs. Union of India & ors. [13]approved the Witness Protection Scheme, 2018 and has asked asked the Centre, states and Union Territories to enforce it in letter and spirit. It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject. The bench comprising of Justice A.K. Sikri and Justice S. Abdul Nazeer identified the rights of the witness to affirm inside the ambit of Article 21 of the Constitution and said “The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution.”
The aim and objective of the scheme are to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal accusation[14]. It plans to advance law requirement by encouraging the assurance of people who are indulge directly or indirectly in giving help to criminal law enforcement agencies and generally administration of Justice. The Scheme categorizes the witnesses in three classes dependent on the degree of peril to them and sets down point by point method for the security of the individual classifications.
The programme distinguishes three categories of witnesses as per threat perception:
Category A: Those cases where threat extends to the life of witness or family members during the investigation, trial or even thereafter.
Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.
Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.
State Witness Protection Fund has been proposed under the Scheme. The wellsprings of the State Witness Protection Fund are: Budgetary assignment made in the Annual Budget by the State Government; Receipt of measure of fines forced (under Section 357 of the CrPC) requested to be kept by the courts/councils in the Witness Protection Fund; Donations/commitments from International/National/Philanthropist/Charitable Institutions/Organizations and people allowed by Central/State Governments and Funds contributed under Corporate Social Responsibility.[15]
CONCLUSION
Whittaker Chambers said that “A witness is a man whose life and faith are so completely one that when the challenges come to step out and testify for his faith, he does so, disregarding all the risks, accepting all consequences.” The role of witnesses in India throughout different time allotments has recaptured its significance and certainty in the criminal trials. In the current scenario, however the respect and dignity is lost in the process of the trials. Hence the Indian Legal system needs to reinstate that respect and dignity to the witnesses to ensure fair trials and victims being brought to justice in true sense.[16]
In recent year’s extremism, terrorism and organized crimes have grown and are becoming stronger and more diverse. In the investigation becoming and prosecution of such crimes, it is essential that witnesses, have trust in criminal justice system. Witness protection program and witness protection laws are just the need of great importance. Truth be told, it is the nonappearance of these laws that has helped in further reinforcing the criminals and offenders.
Witnesses need to have the confidence to come forward to assist law enforcement and prosecuting agencies .They should be guaranteed that they will get protection and security from intimidation and the harm that criminal groups might seek to inflict upon them in order to discourage them from co-operating with the law enforcement agencies and deposing before the court of law. Hence, it is high time that a scheme is put in place for addressing the issues of witness protection uniformly in the country.
The scheme is the first attempt at the national-level to holistically provide for the protection of the witnesses, which will go a long way in eliminating secondary victimization. This scheme attempts at ensuring that witnesses receive appropriate and adequate protection. It also strengthens the criminal justice system in the country and will consequently enhance national security scenario.[17] Hence, the proper implementation should be made to ensure the principles of Natural Justice and Rule of Law as conceived by our constitution, is maintained in its actual soul.
References:
[1] Sabaha ,Judicial Process in India (July 20, 2019 7:40pm) http://www.legalservicesindia.com/article/464/Judicial-Process-in-India.html.
[2]ILR (2003) II Del 377.
[3] ILR (2003) II Del 377.
[4] (1997)6 SCC 514.
[5] Zahira Habibullah Sheikh v. State of Gujarat, 2004 (4) SCC 158.
[6]AIR 2000 SC 2017.
[7] Sakshi and Ors. vs. Union of India and Ors. AIR 2004 SC 3566.
[8]2006 (3) SCALE 104.
[9] (2011) 2 SCC 178.
[10] Headed by Justice Mallimath, Volume I, p. 151.
[11] Shashank Pandey, Mahendra Chawla and Ors. Vs. Union of India and Ors: Ensuring Rule of Law by protecting witnesses, 5 INTERNATIONAL JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED ISSUES 115 (2019).
[12] Sampath Meena, Witness Protection Scheme,2018: The New Paradigms (July 21, 2019 11:00 AM)
http://bprd.nic.in/WriteReadData/CMS/Witness%20Protection%20Scheme-2018.pdf.
[13] Writ Petition (Crl.) No. 156 of 2016.
[14] https://www.insightsonindia.com/2018/12/06/witness-protection-scheme/
[15] Sampath Meena, Witness Protection Scheme,2018: The New Paradigms (July 21, 2019 11:00 AM)
http://bprd.nic.in/WriteReadData/CMS/Witness%20Protection%20Scheme-2018.pdf.
[16] https://shodhganga.inflibnet.ac.in/bitstream/10603/145311/4/chapter%20ii.pdf.
[17]Sampath Meena, Witness Protection Scheme,2018: The New Paradigms (July 21, 2019 11:00 AM)
http://bprd.nic.in/WriteReadData/CMS/Witness%20Protection%20Scheme-2018.pdf.
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