ABSTRACT

Criminal Justice System protects certain basic rights and liberties of the
people guaranteed under the Constitution by enforcing law and punishing the
offender. Every Criminal Justice System of world works on a set principle of
Criminal Law and follows either Adversarial System or Inquisitorial System. The
system followed in India for dispensation of criminal justice is the adversarial system
of common law inherited from the British Colonial Rulers. Adversarial System
clearly focuses on the role of witness in criminal cases. Witness is the foundation on
which the building of justice and equity rests. He is therefore, inevitable and plays an
important role on which the fate of the case depends. He is the backbone of the trial,
whether it is civil or criminal. No prosecution case can be built up without the
evidence of witnesses. Witness is indispensable aid in the criminal justice system and
for smooth running of criminal justice system it is required that witnesses come
forward and depose their testimony in free and fair atmosphere. According to
Bentham, ‘Witnesses are eyes and ears of justice.’ 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 & Others1 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 condition of witnesses in India is highly pathetic. Witness dithers as he
faces wrath, pressure and intimidation to his life and existence from accused. The
Supreme Court of India also expressed deep concern about the plight of witness in
Swaran Singh v. State of Punjab2 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.’
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. A person normally becomes a witness because he has no option
other than becoming so. Generally people do not volunteer rather they are compelled
to become a witness due to the situational causes and in such environment, it is easy
to become hostile in order to get rid of certain dangers and inconveniences. In such
1
ILR (2003) II Del 377.
2
AIR 2000 SC 2017.
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situations how the main aim of criminal justice system, i.e., to capture and punish the
offender be achieved? Moreover, we are still lagging behind the developed countries
in adapting scientific evidence and other scientific techniques to be used in criminal
justice system. Lack of e-courts and use of video conferencing in courts compels
witness to take unnecessary pain in travelling on his own expenditure to give
evidence which several times become cause of witnesses turning hostile thus resulting
in acquittal of offenders of heinous crimes.
The notion of witness protection as generally understood today arose from the
notorious Valacchi case of 1962 in the United States. From that case, there developed
the Organized Crime Control Act, 1970 and later the Comprehensive Crime Control
Act, 1984, authorizing the witness security programme. The Act provides for
relocation and other protection of a witness or a potential witness in an official
proceeding concerning an organised criminal activity or other serious offence.
Protection is also provided to the immediate family, or a person closely associated
with such witness or potential witness, if the family or person is endangered on
account of the participation of the witness in the judicial proceeding. A similar
programme is in operation in Canada under the Witness Protection Act, 1996,
likewise, Australia under the Australian Witness Protection Act, 1994 and United
Kingdom, the Serious Organized Crime and Police Act, 2005 provides protection to
witnesses.
In addition, Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power ensures for taking measures to minimize inconvenience to
victims, protect their privacy, when necessary, and ensure their safety, as well as that
of their families and witnesses on their behalf, from intimidation and retaliation.
Similarly, Rome Statute of the International Criminal Court, International Criminal
Tribunal for Former Yugoslavia and Rwanda and International Human Rights
Instruments also ensure protection to the witness.
Coming to witness protection in India, witness protection laws are scattered,
segmented and has spread through the Constitution of India, 1950, the Indian Penal
Code, 1860, the Criminal Procedure Code, 1973, the Evidence Act, 1872, the
Contempt of Court Act, 1971, the Juvenile Justice (Care and Protection of Children)
Act, 2000, the Terrorist and Disruptive Activities (Prevention) Act, 1985 and 1987,
the Maharashtra Control of Organised Crime Act, 1999, the Prevention of Terrorism
Act 2002, the National Investigation Agency Act, 2008 and the Whistle Blower
Protection Act, 2011. Apart from these laws there are drafts Bills namely the
Prevention of Communal and Targeted Violence (Access to Justice and Reparations)
Bill, 2011and the Witness (Identity Protection) Bill, 2006.
The Indian Evidence Act, 1872 lays down a comprehensive legal framework
for recording the testimony of witnesses in criminal cases. Under Sec. 33 of the
Evidence Act, in certain exceptional cases, where cross examination is not possible,
previous deposition of the witness can be considered relevant in subsequent
proceedings. Moreover, Sections 151 and 152 of the Evidence Act protects the
witnesses from being asked indecent, scandalous, offensive questions, and questions
which intend to annoy or insult them.

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Criminal Procedure Code under Section 327 provides for trial in the open
court and Section 327 (2) provides for in camera trials for offences coming under
Section 376 and under Section 376 A to 376 D of the IPC. Section 273 of Cr.P.C
requires that the evidence to be taken in the presence of the accused. Section 299
indicates that in certain exceptional circumstances an accused may be denied of his
right to cross-examine a prosecution witness in open court. Further, under Section
173 (6), the police officer can form an opinion that any part of the statement recorded
under Section161 of a person, the prosecution proposes to examine as its witness
need not be disclosed to the accused if it is not essential in the interests of justice or is
inexpedient in the public interest.
The Indian Penal Code, 1860, is silent on witness protection issue but slightly
Sections 228A and 195A give protection to witnesses in form of not publishing the
identity of victim of rape and prescribing punishment for threatening or inducing the
person for giving false evidence. Similarly, Sec. 21 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 prohibits publication of the name, address and
other particulars which may lead to the identification of the juvenile.
The Indian Constitution does not contain any express provision that criminal
trials must be open public trials nor does it contain anything like the First
Amendment of the US Constitution which contains a confrontation clause. However,
these crucial aspects relating to due process in criminal procedure have been derived
by our Courts by way of interpretation of Article 21 of the Constitution. In Maneka
Gandhi v. Union of India3 the Supreme Court held that the Constitutional mandate in
Article 21 requires a procedure which is ‘fair, just and reasonable’. It has since been
held in a number of cases that the procedure must be fair. In the cases of Police
Commissioner Delhi v. Registrar, Delhi High Court4 and Vineet Narain v. Union of
India5it has been held that the trial must be a public trial. The apex court in Zahira
Habibulla H. Sheikh v. State of Gujarat,6 commonly known as Best Bakery Case, said
that a trial which is primarily aimed at ascertaining truth, has to be fair to all
concerned. Not only the accused be fairly dealt with, but also the victims or their
family members and relatives. Denial of a fair trial is as much injustice to the accused
as is to victim and society. It is highly encouraging that Hon’ble Supreme Court and
High Courts have taken the issue of ‘witness protection’ very seriously. There are
several judgments of Courts visualizing the need for protection of victims and
witnesses generally in the case of serious offences. In Zahira Habibullah Sheikh v.
State of Gujarat7 Supreme Court expressed that the witnesses were pressurised by the
accused to go back on their earlier statements and the trial was totally vitiated.
For the first time, witness protection was considered in the 14 th Report of the
Law Commission in limited sense. The reference was made to inadequate
arrangements for witnesses in the courtrooms, the scales of travelling allowances and
daily allowance paid to witnesses for attending the court in response to summons. In
3
1978(1) SCC 240.
4
AIR 1997 SC 95.
5
AIR 1998 SC 889.
6
2004(4)SCC 158.
7
Ibid.

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its 154th Report, while noting the plight of witnesses appearing on behalf of the State,
Law Commission observed that the witnesses faced not only inconveniences but also
risk to their lives at the hands of criminals. The Law Commission in its 178 th Report
again took up the issue of preventing witnesses from turning hostile. The Report has
also dealt with the issue of precautions the 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. Before the 198th law Commission
report it has been understood to mean protection of witnesses from discomfort and
inconvenience and therefore protection has had reference only 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.
This research work submitted that while drafting the law, the Parliament
should also pay attention towards these points. First, is to ensure that evidence of
witnesses that has already been collected at the stage of investigation is not allowed to
be destroyed by witnesses resiling from their statements while deposing on oath
before a court. This phenomenon of witnesses turning ‘hostile’ on account of the
failure to `protect’ their evidence is one aspect of the problem. This in turn would
entail special procedures to be introduced into the criminal law after knowing all
details about witnesses, to balance the need for anonymity of witnesses on the one
hand and rights of the accused for an open public trial with a right to cross-
examination of the witnesses, on the other hand. The other aspect is the physical and
mental vulnerability of the witness and to the taking care of his or her welfare in
various respects which calls for physical protection of the witness at all stages of the
criminal justice process till the conclusion of the case.
It also finds that, the Indian Evidence Act lacks any substantive provision for
the protection of the witness. Therefore, scandalous and irrelevant questions which
have no connection with the case and the judges sit as mere spectators and don't take
steps to stop the defence counsel from asking irrelevant questions and this is also the
reason why many people desist from becoming witness in criminal proceeding and
which has also lead to witness turning hostile and there by acquittal of the accused.
Slightly the proviso to the section 132 engrafts a protection to the witness that any
answer which he is “compelled to give” shall not subject him to any arrest or
prosecution or be proved against him in any criminal proceeding other than
prosecution for giving false evidence.
Additionally, video-conferencing is an advancement of science and
technology which permits seeing, hearing and talking with someone who is not
physically present with the same facility and ease as if they were physically present.
The legal requirement for the presence of the witness does not mean actual physical
presence. The court allowed the examination of a witness through video conferencing
and concluded that there is no reason why the examination of a witness by video

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conferencing should not be an essential part of electronic evidence. Thus one can say
that the Information Technology Act, 2000, empowers the court to take electronic
evidence which is admissible in Section 65A and 65 B. Thus, it can be a good tool for
giving protections to witnesses. As observed by the Calcutta High Court that, If the
Courts do not permit technology development in the Court proceedings it would be
lagging behind compared to other sectors. Technology is definitely a tool. But
safeguards should be following while evidence is recorded.
To sum up, one can say that the rule of law is a foundational feature of the
Constitution and the right to obtain judicial redress is a feature of basic structure of
the Constitution. It is through the court that the rule of law reveals its meaningful
content. Protection of the Administration of Justice is therefore, as imperative as its
existence for the other civilised functioning of any free and egalitarian social order.
At this juncture there comes the need for protecting the witnesses. It is high time to
protect the witness so that the ultimate truth can be presented before the court.
Importance, Object and Hypothesis of the Study
In view of the above, it is necessary to take into account the law on different
aspects of witness protection as prevailing in India, and wherever appropriate to
compare them from witness protection laws of some of the developed countries. Such
a study will not only increase our understanding of the witness protection law but also
be helpful in identifying the gaps, ambiguities and loopholes in our existing Criminal
justice system relating to witness protection and suggesting measures for
strengthening the Criminal justice system by providing better measures for witnesses
protection. The present study is a humble attempt in this direction. It aims at
presenting a coherent picture of laws on witness protection in India and other
countries in order to discuss and examine the adequacy of Indian Law on this aspect.
The study is based on the hypothesis that while the effective witness protection law is
a sine qua non for smooth working of Criminal Justice System, the existing legal
regime on this aspect is far from satisfactory.
Research Methodology
The present work is a doctrinal study, materials for which have been collected
from both primary and secondary sources. Analytical, evaluating, descriptive and
perspective methods have been used in this study to draw the necessary inferences
and conclusions. It is based on statutory laws, judicial decisions of the Supreme Court
and the High Courts. Reliance has also been placed on Law Commission Reports and
Malimath Committee Report. Reference has also been made to foreign statutory laws
and judicial decisions throughout the study. Articles, books, journals and materials on
websites have also been consulted in the preparation of the study.
Organization and Structure of the Study
The study has been divided into eight chapters.
Chapter I comprises the introduction, importance, objective, hypothesis and
structure of the study.

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Chapter II deals with an overview of the criminal justice system in India. This
chapter includes the concept of criminal justice system, its various components and
functioning. An attempt has also been made in this chapter to trace the development
of criminal justice system in India during Ancient Hindu, Muslim Pre and Post
Independence India.
Chapter III emphasizes on the concept of witness and witness protection. This
chapter also comprises the role, importance of witness in a criminal justice system
and different kinds of witnesses. This chapter also traces the position of witness in
India during Ancient Hindu, Muslim Pre and Post independence India.
Chapter IV seeks to identify the cause of problem of hostile witness in India
along with its effects and remedies. An attempt has been made in this chapter to
discuss the concept of hostile witness in the light of Criminal Procedure Code,
Evidence Act and Indian Penal Code. A critical study has also been presented in this
chapter on offence of perjury. Efforts have also been made to supply relevant decided
cases wherever necessary. The main objective of this chapter is to examine the factors
responsible for the witnesses turning hostile and to analyse the evidentiary value of
their statement.
Chapter V gives a detail insight into the witness protection laws in India in the
light of Constitution of India, Code of Criminal Procedure, 1973, Indian Penal Code,
1860, The Indian Evidence Act, 1872. In addition to this, provisions given in the
special statutes in India like TADA 1985 and TADA 1987, POTA 2002, The
Unlawful Activities (Prevention) Amendment Act, 2004, Juvenile Justice (Care and
Protection of Children) Act, 2000 and Contempt of Court Act, 1971, etc. have also
been discussed. Attempt has also been made to discuss drafts Bills namely the
Prevention of Communal and Targeted Violence (Access to Justice and Reparations)
Bill 2011 and the Witness (Identity Protection) Bill 2006.
Chapter VI examines the Human Rights instruments relating to witness
protection. It also gives details insight into witness protection laws existing in
different countries namely USA, Australia, Canada, South Africa, UK, etc, so as to
examine the broad frame work of the present study. The chapter further deals with the
provisions for witness protection under Rome Statute of the International Criminal
Court and International Criminal Tribunals.
Chapter VII critically evaluates the various guidelines given by Indian and
Foreign Courts from time to time on the issues of witnesses and their protection.
Chapter VIII concludes the study with the appropriate suggestions.

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