WITNESS PROTECTION IN INDIAN CRIMINAL JUSTICE

SYSTEM – A CRITICAL ANALYSIS

DISSERTATION
Submitted In Partial Fulfilment Of The Requirement For The Award Of
The Master’s Degree In Law (LL.M.)

SUPERVISED BY: SUBMITTED BY:

MS, ANA SISODIA AREEF MOHAMMED
ASSISTANT PROFESSOR LL.M 4TH SEM
FACULTY OF LAW

SARDAR PATEL SUBHARTI INSTITUTE OF LAW

SWAMI VIVEKANAND SUBHARTI UNIVERSITY
MEERUT, UTTAR PARDESH
2023
WITNESS PROTECTION IN INDIAN CRIMINAL JUSTICE SYSTEM- A CRITICAL
ANALYSIS

ABSTRACT

Justice is a damsel's idol fashioned from the clay of witness testimony along with methodical
and creative excellence shown by the brushes of solicitors and judges blending the paints of
various types of evidence. One of the most crucial institutions in a constitutional democracy
for defending both individual rights and governmental interests is the criminal justice
system.The upkeep of the rule of law and the encouragement of a sense of security among the
populace are the primary goals of the criminal justice system. This is accomplished by
punishing the guilty and restoring public confidence in the criminal justice system as a result.
The criminal justice system in our nation has been the subject of several studies and reports
from professional bodies, according to the Law Commission of India. The Indian Law
Commission has published a number of reports on issues pertaining to the substantive and
procedural elements of the criminal justice system. One of the issues that have been brought
up is the one involving the intimidation or seduction of victims or witnesses by the
prosecution, which always results in the failure of the trial.

In R.K. Anand v. Registrar, Delhi High Court, the Hon. Supreme Court5 addressed the issue
of witness intimidation interfering with criminal procedures by using the following words:6
"...every now and then one would come across reports of investigations gone awry or of the
trial being hijacked by some powerful and influential accused, either by purchasing or
intimidating witnesses or by creating insurmountable obstacles for the trial court and not
allowing the trial to proceed…The lack of external interference protection would cause the
trial to be invalidated.

Witness Meaning and Competence

Many people or individuals serve the justice and court system in many capacities, such as

(a) as a party to the case

(b) as a witness

(c) as a juror

(d) as advocates or solicitors, and they all operate as instruments in the cause of justice.
Existing Law

According to the definition of a witness, it is "a person who gives evidence in a case, an
impartial third party who has sworn to tell the whole truth and nothing but the truth." He is
the one who personally observes or is aware of something. B1ack's Law Dictionary defines a
witness as "one who sees, knows, or vouches for something, or one who gives testimony,
under oath or affirmation in person, or by oral or written deposition or affidavit." As a result,
a witness is a person who provides first-hand or expert testimony during a trial that is useful
to the case at hand. In a lawsuit, he might also represent the plaintiff or the defendant. A
witness is someone who observes an occurrence, watches a document, such a will or a
contract, being signed, and attests that it was done in his presence by signing it as a witness.
Therefore, a witness may be an expert witness, the complainant or victim themselves, an
eyewitness, a hearsay witness, or an attesting witness depending on the circumstances.

No statute specifically defines the term "witness." However, there are provisions regarding a
witness's competency in the Indian Evidence Act of 1872. "Everyone is competent to testify,
unless the court finds that he cannot understand the questions posed to him or respond
rationally," the rule reads. Age, severe old age, physical or mental illness, or any other similar
condition could be to blame for this.41 As a result, nobody is singled out as being incapable.
Whether a witness is able to understand the questions asked of him and give intelligent
answers is entirely up to the court's decision. His being too young, too old, or having a
medical or mental ailment are all potential disqualification criteria. Unless his craziness
impairs his capacity to grasp or respond to questions, even a madman is not automatically
judged incompetent.

The Delhi High Court established rules for witness protection in the case of Ms. Neelam
Katara and described a witness as "a person whose statement has been recorded by the
Investigating Officer under Section 161 of the Code of Criminal Procedure in relation to a
crime punishable by death or life imprisonment." Particular attention is given to witnesses in
criminal cases under this definition.

The definition of "Witness" in the Witness (Identity) Protection Bill, 2006, which was
included in the Law Commission of India's 198th Report, is "any person who is acquainted
with the fact and circumstances, or is in possession of any information or has knowledge,
necessary for the purpose of investigation, inquiry, or trial of any crime involving a serious
offence, and who is or may be required to give information, make a statement, or produce any
dummy document." According to the argument, this term only applies to witnesses who give
their testimony in criminal trials involving serious offences.

Classification of witnesses

There are different categories of witnesses. The following parts go over how the witnesses are
generally categorised:

 Child witness
 Common witness
 Expert witness
 Questioning witness
 Panch witness.

Witness Protection Programme

A protected witness is someone who has access to intimidation protection. This phrase is
commonly used to describe a witness who has been granted protection as part of an official
witness protection system. The majority of protection systems describe a protected witness as
someone whose life or property is jeopardised because of their relationship with a witness.

Hostile Witness

An adversarial witness with a purpose or incentive to omit information or deliver

demonstrably false testimony is referred to as a . If a witness' testimony is accurate but does
not support the prosecution's case, he cannot be deemed hostile.

Witness safety and the Witness Protection Programme

According to Rosalind Sipos, "providing victim and witness protection is fundamental to the
credibility of any justice system and the fight against impunity." In circumstances when
victims and witnesses suffer re-victimization or becoming victims in their own right as a
result of fulfilling their obligation to produce evidence, asking them to come forward without
providing protection may be irresponsible."

Witness protection is a mechanism that protects witnesses, such as those who testify in
criminal cases, against intimidation before to their testimony or criminal retaliation after the
trial. Examples of witnesses who testify in criminal cases include those who testify in court.
The majority of the time, a witness requires security only up until the conclusion of a trial.
On the other hand, the government may provide certain witnesses with a new identity and
ongoing security throughout their lives. In instances involving organised crime, where law
enforcement has reason to suspect that witnesses may be intimidated by defendants' peers, it
is customarily required that witnesses be provided with protection.

The Serious Organised Crime and Police Act of 2005 in the United Kingdom states that
"witness protection is generally directed to those persons who have provided crucial evidence
and against whom there is substantial threat." In most circumstances, a witness protection
plan is an initiative undertaken by the state to safeguard individuals who are testifying as
prosecution witnesses in high-stakes criminal trials, notably against the risk of physical
assault or evidence falsification.

The United Nations Office on Drugs and Crime (UNODC) provides the following definition
for witness protection programmes: "formally established covert program(s) subject to strict
admission criteria that provides for the relocation and change of identity of witnesses whose
lives are threatened by a criminal group because of their cooperation with law enforcement
authorities." Witnesses whose lives are threatened by a criminal group because of their
cooperation with law enforcement authorities are eligible for witness protection. In its one
hundred ninety-eighth report, the Law Commission of India stated that "witness protection
programmes refer to witness protection outside of court."

The Need for an All-Inclusive Witness Protection Law in India

For some time now, India has been acutely aware of the lack of a witness protection plan. In
the case, National Human Rights Commission v. State of Gujarat and Others, the
Supreme Court made the following observation: "It is a well-known fact that witnesses are
the most important aspect of a criminal trial, and their testimony is what establishes the guilt
of the accused." It is common knowledge that witnesses are the most significant component
of a criminal trial." Witnesses and victims must be protected in order for justice to be served.
The actual perpetrators of horrible crimes committed during communal strife can only be
brought to justice through the evidence and complaints of witnesses and victims. According
to a judgement made by the United States Supreme Court, "protection of witnesses is
necessary for the successful prosecution of criminal cases because criminals have frequent
access to the police and influential people." A criminal trial's principal goal is to discover the
truth.

The primary goal of the criminal justice system is to ensure that people who commit crimes
receive sufficient punishment. To attain this purpose of prosecuting the accused, the state
must collect evidence from witnesses that is both trustworthy and legitimate in nature.
Witnesses have the right to be protected from intimidation because of the critical role they
play in the administration of criminal justice.

Research Objectives

The proposed research has been carried out with the following objectives: -

1. To outline the relevant legal provisions pertaining to witness protection.

2. To carry out a comparative study of various Criminal Justice systems related to Witness
Protection.

3. To analyses the Judicial Approach in light of Witness Protection in India.

4. To analyse the inputs of various stakeholders in light of Witness Protection in India with
the help of empirical study.

5. To examine the issues and problems associated to hostility and protection of witnesses.

6. To suggest various mechanisms to uplift the position of witnesses in India and for better
functioning of the Indian Criminal Justice System.

Hypothesis of the study:-

1.Current laws are insufficient for providing protection to witnesses.

2. Absence of Witness Protection laws results in weakening of Criminal Justice System of

India.

Research Methodology

The present research is doctrinal and analytical in approach. For the completion of the study,
help is taken from primary as well as secondary sources. For primary sources, the researcher
has referred to the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, the
Indian Evidence Act, 1872 and special acts like the Terrorist and Disruptive Activities
(Prevention) Act, 1987, the Terrorist-Affected Areas (Special Courts) Act, 1984, the U.P.
Gangsters and Anti-Social Activities (Prevention) Act, 1986, the Prevention of Terrorism Act,
2002, the Unlawful Activities (Prevention) Act, 2005, the National Investigation Agency Act,
2008 and the Juvenile Justice (Care and Protection of Children) Act, 2000. The researcher has
also visited the official websites of the Ministry of Home Affairs, the Law Commission of
India and United Nations to access updated information and recent developments relevant for
the present research.

For the secondary sources, the researcher has consulted books as well as articles available in
leading journals, newspapers, magazines and on the internet. The researcher has also
analytically studied the relevant case law relating to the theme of the present dissertation.

The Indian Constitution's Provision for Witness Protection.

The State has a fundamental responsibility to ensure that a witness is free from all threats,
fears, improper pressures, insults, and dangers to his life in order to provide social justice.
Therefore, "a long list of fundamental rights are dealt with in Part III of the Indian
Constitution." The State is required to uphold, safeguard, and respect certain unalienable,
fundamental rights of Man. A man's rights and liberties are essential for the growth of a
society.

Equal Access to Opportunities

Article 14 of the Constitution of India declares that all citizens are created equal and are
entitled to the same level of legal protection. "The state shall not deny to any person the
rights that are granted by the law." It consists of a first and a second section. The first part of
this document is structured on Common Law, and its primary focus is on ensuring equal
treatment before the law. It is an unfavourable trait that indicates that everyone is treated the
same way under the law. This once more indicates that the state is not permitted to treat any
individual.

Freedom from the Obligation to voluntarily Identify Oneself

The principle that no one may be forced to reveal evidence or information that could be used
against them is of the utmost importance. It comes in the form of protection from being
forced to incriminate oneself, compelled to incriminate oneself, and other forms of
coercion.148 This regulation derives its foundation from both the legal systems of the United
States and England. "In the United States of America, the protection against compelled self-
incrimination is available not only to the accused, but also to the witness." In addition, the
law of England includes provisions for witness protection, which prohibit witnesses from
responding to questions that could result in a fine, a prosecution, or the confiscation of their
property. Both the witnesses and the people who are being accused have the right to give their
own reactions and remarks.
The Right to Life and the Protection of Individual Liberties

The right to life and the right to personal liberty are both spelt forth in Article 21 of the Indian
Constitution.

Protection against Compulsion of Self Incrimination:

It is a basic rule that no person shall be forced to depose the evidence and information which
is incriminating to him. It is embodied under the provision of protection against compulsion,
force, and self-incrimination.

“In America, the protection against the compulsion of self-incrimination is not only available
to the accused but also available to the witness.” English law also provides rules for witness
protection and witness is protected from giving answers to the questions which may impose
penalty, charge, and forfeit. Witnesses as well as accused persons are free to give answers and
statements with their free will.

Right to Life and Personal Liberty:

The right to life and personal liberty is embodied under Article 21 of the Indian Constitution.
No one shall be denied to his life and liberty which is given by law. “A person is protected by
Article 21 of the Indian Constitution regarding the right to life and personal liberty from the
arbitrary action of the executive as well as legislative.” But there are two explanations of
Article 21 of the Indian Constitution, first is, the law must be present, and the second is a
procedure given by the law must be fair, just, and reasonable.

Procedural Law Witness Protection

Aside from the Indian Constitution, there are numerous provisions that are directly or
indirectly relevant to witnesses, such as procedural and substantive provisions for witness
protection. The provisions in this chapter are separated into two sections. These are as
follows:

1) The provisions are enshrined in the Criminal Procedure Code of 1973.

2) The provisions are enshrined in the Indian Evidence Act of 1872.

We will discuss a detailed study for witness protection in this research work, such as
evidence, the role of a witness in the criminal system, competency of a witness, examination,
a procedure for examination, questions whether asking or not, give protection, material
witness or evidence, false evidence, refused to give evidence, information or answer, issue
commissions for the witness, and so on.

Provisions for Witness Protection under IPC, 1860:

Mainly, the substantive law includes IPC, 1860. There are no provisions expressly embodied
under the substantive law regarding the protection of witnesses. But if any man who induces
and threatens any witness for deposing false information, statement, and evidence before the
competent authority, then such man shall be punished. The substantive law gives punishment
as well as a fine for giving false evidence and threatening to any man for deposing false
evidence.

Different Statutes regarding Witness Protection:

Apart from Constitutional, procedural, and substantive law, there are some statutes, which are
relating to witness. An application made by a witness or PP on behalf of him to the court for
hiding the identity of the witness and proceeding should be held in camera. After
consideration of the application, the court thinks fit, takes proper steps and directions for the
protection of the witness, if any person violates such directions, then he shall be punished
with imprisonment or fine.

The Juvenile Justice (Care and Protection of Children) Act, 2000

It is a one-of-a-kind and one-of-a-kind Statute that is associated with juvenile delinquency.

Article 15(3), 39(e), 39(f), 45, and 47 of the Indian Constitution outline the requirements that
must be met in order for the state to have the authority and the responsibility to meet the
needs of children and to defend their rights through the enactment of legislation. Our
constitution assigns these requirements and protections to the state. The person who wrote the
Constitution, as well as the Legislative, Executive, and Judicial branches, are paying more
attention to the protection of children who have been accused of or victims of crimes.

International perspective on witness protection

The chapter before this one looked at the judicial and legislative responses to the concern of
witness protection. The legislation pertaining to witness protection in the United States of
America, United Kingdom, Ireland, Australia, Canada, France, as well as the framework for
witness protection developed by the United Nations Office on Drug and Crime, have all been
examined by the researcher in the current chapter. It will be useful to evaluate the witness
protection laws of various nations in order to compare and contrast these laws. Finding out
the characteristics that these laws have in common will also be useful.

Other Countries' Witness Protection Laws

The ability of victims to come forward and disclose crimes against them, as well as the
availability of witnesses to supply information and give truthful, objective testimony, are
essential for the successful operation of a state's judicial system. Society as a whole is thus
denied justice in situations when witnesses and victims feel threatened, diminishing their
willingness and capacity to come forward. In addition to undermining the court system and
denying justice in this particular case, witnesses may also personally suffer as a result of the
inquiry and legal proceedings. To encourage the reporting of crimes, increase the possibility
that a witness would testify, and protect vulnerable and intimidated witnesses, several
countries have implemented victim and witness programmes in various forms.

The study mentioned above shows that there aren't many differences between the types of
protection provided to witnesses in different nations. The majority of nations have
acknowledged the need of such programmes in obtaining trustworthy testimonies,
particularly in cases involving heinous crimes. The chapter emphasises that witness
protection systems typically have a legal foundation. The plan in Ireland, however, is not
based on any particular laws. It is said that for India to address the issue of witness
intimidation successfully, there has to be a separate law on witness protection. The Indian
legislators should assess and analyse these laws and implement the procedures that are most
appropriate for the country's criminal justice system.

Legal developments and judicial response towards Witness Protection.

The Law Commission of India discussed a number of witness-related concerns in the

preceding chapter. In its findings, it has argued in favour of witness comfort, security, and
protection regulations. This chapter looks at how the judicial and legislative systems have
responded to calls for witnesses and the need to safeguard them. It is divided into two
sections.

A legal Response
The criminal justice system in India protects witnesses. It enables a law enforcement officer
looking into a crime to request the presence of anybody associated with the investigation. A
woman or a man under the age of 15 may, however, remain at home. The witness may be
questioned verbally or in writing by the officer. Ironically, a witness must honestly respond to
all questions, but the same law does not shield him from harassment or intimidation.

Judicial Response

According to the structure of our constitution, the judges are the third branch of government
after the legislative, executive branch, and judiciary. As a result, the judges' role in the
administration of justice is crucial. It is said that the issues witnesses encounter in the Indian
criminal justice system are many. Furthermore, it is clear that there is a significant legislative
gap in the area of witness protection. Without any particular statute, the judiciary's function
assumes even more importance. However, the Indian judicial system has taken the lead in
addressing a number of concerns pertaining to the comfort and safety of witnesses. The
current chapter addresses a number of significant rulings in which the need and applicability
of witness protection have been covered in depth, along with a number of recommendations
and instructions provided for the protection of witnesses. In addition to witness protection,
the courts have issued directives for case transfers, revocation of the accused's bail, video
conferencing, keeping the name of the witnesses a secret, and other measures to ensure that
witnesses may testify without being intimidated or fearful.

Union of India v. Mrs. Neelam Katara

The case's facts include that the dead Nitish Katara, son of Neelam Katara, was slain after
attending his friend's wedding. One of the defendants was the son of a parliamentarian who
was still serving. The mother of the deceased was concerned that a witness would be
persuaded by the accused and so she petitioned the Delhi High Court for guidelines regarding
the protection of witnesses. The trial court found the defendants guilty and gave them a life
sentence. The Delhi High Court affirmed the lower court's judgement.

The Supreme Court has often said that Parliament should consider passing legislation on
"Witness Identity Protection" and "Witness Protection" as soon as possible. In Neelam
Katara's case, the Delhi High Court established certain "Guidelines for Witness Protection"
that would be in effect until the passage of relevant legislation. The debate over witness
protection got little consideration from legislators. Legislators are urged to show greater
consideration for the issues that witnesses face. It is essential that the legislation take witness
requirements into account.

Challenges associated with witnesses, their protection and hostility

According to Kautilya, one of the most important obligations of the state was the
administration of justice. However, since the veracity of the witnesses' oral evidence was so
critical in establishing whether justice would be served, it became difficult to administer,
which had a number of bad consequences. Due to the vital importance of justice and the role
and need of true evidence in deciding it, legislators have put stress on the witness stating the
truth when presenting testimony. According to the Law Commission of India, a considerable
number of criminal cases are acquitted; this isn't always due to the police being unable to
offer adequate evidence to the courts. Witnesses who are asked to appear in court often
provide a different version of their words to the police, diminishing the weight of their
evidence.

Hostile, Adverse or Unfavourable Witness: Concept and Meaning

In Sanjeev Nanda v. PS Lodhi Colony "Witness becoming hostile is a key problem

encountered by criminal courts in India," the Supreme Court of India said on March . There
are numerous reasons why witnesses may become hostile, but we have recently noticed a
pattern of witnesses becoming hostile, either due to financial considerations or other enticing
offers, which undermine the entire criminal justice system and give people the impression
that the mighty and powerful can always escape the reach of the law, eroding people's faith in
the system. The concept of a hostile witness was first created in common law in order to give
a sufficient defence against the strategy of dishonest witnesses who actively harm the cause
of the party calling such a witness by hostile evidence. It was essential to declare such a
witness hostile in order to initiate the precaution.

English law

The expressions hostile, unfriendly, and favourable witnesses are not recognised under the
Indian Evidence Act of 1872 since they are used in English law. By defining "hostile witness"
and "unfavourable witness," common law has altered the rule that prohibits a party calling the
witness from cross-examining him. As a consequence, if the witness is judged hostile, the
party calling him has the opportunity to cross-examine him.
The exact meaning of the word "adverse" has been contested in numerous English contexts.
Some courts considered a witness hostile if his testimony was negative to the party calling
him, whilst others considered hostile to entail showing animosity. Earle J. said in Dear v.
Knight that a witness was deemed hostile just because he claimed the contrary of what he was
requested to demonstrate. An unfavourable witness, according to Wilde JO, is one who does
not deliver the testimony that the party calling him intended. A hostile witness is one whose
demeanour during the evidence suggests that he is uninterested in telling the truth to the
court. "By adverse witness, it is meant not one whose testimony turns out to be unfavourable,
but one who shows a mind 'hostile' to the other party calling him," Greenough v. Eccles Dubit
Cockburn CJ) held. The above discussion shows that there is no consensus on what defines a
hostile or adverse witness under English law.

Indian Law

The term "hostile witness" is not defined in Indian law, however the Indian Evidence Act of
1872 deals with hostile witnesses without doing so. "The court may, in its discretion," it says,
"allow the person calling the witness to ask him any questions that might be asked during the
opposing party's cross-examination." According to the law, the opposing party often conducts
a witness's cross-examination. An caveat to this general rule is that if the court determines
that a witness is hostile, the party calling him may cross-examine him.

Reason for Witnesses Turning Hostile

According to the 2012 National Crime Record Bureau Report, the conviction rate in India has
plummeted at an alarming pace. It is said that one of the primary reasons for this is that
witnesses became hostile, resulting in the accused's acquittal. Witnesses may become hostile
for a variety of reasons, including intimidation, subornation, revenge, or an anticipation of
advantages. These are the most common reasons of witness testimony variation. The witness
may be frustrated by the pain of recurrent and extensive court trips, which may lead to a
careless attitude towards the truth. Witnesses lose their moral conviction in the face of a
horrible picture of real situations in the event of faction feuds, competition between
prospective and strong persons, and when there may be fear of life and safety. The delay in
starting the trial is a significant element in diminishing the interest of witnesses in testifying
before the courts. It is argued that witnesses who provide false testimony should be severely
penalised, but it is also critical to identify and address the root causes of their hatred.

There is no Witness Protection Programme

The lack of a Witness Protection Programme is the primary cause of witnesses becoming
hostile. In the Indian legal system, there is no explicit provision for the protection and safety
of witnesses. One of the primary reasons for witnesses to withdraw prior testimonies during a
trial is the danger to their lives. Only the threat of severe legal repercussions may serve as a
deterrent. 649 However, as of now, there is no adequate provision for witness protection in
Indian criminal law. India has long recognised the necessity for robust witness protection
laws. The rising number of important witnesses becoming hostile in numerous high-profile
trials in the nation has raised the question of whether the government needs a witness
protection plan, which has long concerned the criminal court system. Legal safeguards must
be put in place to allow witnesses to speak freely. Fear is a powerful barrier for witnesses
who do not perceive a stake in properly testifying.651 Before delivering evidence in court,
witnesses are often intimidated, wounded, and even killed. These sorts of incidents have
shaken the public's trust in the criminal justice system, pushing offenders to commit more and
more crimes.

Case Disposition Delay and Frequent Adjournments

Delays in case disposition and numerous adjournments also lead to a rise in hostile witness
cases. Most trials are proceeding slowly, and witnesses have become hostile.656 According to
a clinical psychologist who has dealt with witnesses in court, the majority of them are
motivated by the need for justice. While allures certainly play a role, as the trials go, the
justice-first-and safety-next mindset is replaced by the safety-first-and-justice-next on.

The police investigations and judicial processes take an excruciatingly long time to conclude,
which is a major reason why key witnesses lose important interest in the cases. According to
experts, criminal proceedings in India often take ten to fifteen years to complete. Witnesses,
caught up in the exhausting process, sometimes fail to recognise a stake in stating the truth
for themselves. Furthermore, it has a negative impact on their memory. When witnesses are
called to testify many years after the incident, it is simple to identify discrepancies between
their initial statements to the police and statements made in court.

Failure to pay allowances on time

In Swaran Singh v. State of Punjab, the Supreme Court made the following observation:
"Appropriate food money for a witness is a far cry. He chooses not to accept the diet money
at all as the harassing process begins once again in this area. The Law Commission of India
reviewed the insufficient witness allowances in its Fourteenth Report and suggested that a
reasonable sum be provided to the witnesses. Provisions for giving witnesses costs are
included in the 1973 Code of Criminal Procedure.689 According to this provision, any
criminal court may mandate the reimbursement of the witnesses' reasonable costs. However,
the definition of "reasonable expenses" is omitted. A court has discretionary authority. The
magistrate has the power to choose whether or not to reimburse complainants and witnesses
for travel costs, but this discretion should not be used arbitrarily and instead should be based
on solid judicial principles.

Inadequate Courtroom Facilities

In its One Hundred and Fifty Fourth Report, the Law Commission stated that695: "Under the
current system, a poor witness is caught between the devil and the deep sea; if he fails to
appear in court, he shall be subject to punishment, and if he does, he must endure an
agonising experience that causes great inconvenience and loss."

Use of Financial Influence Against Witnesses

A lot of the time, witnesses are 'paid' with money in order to appease them. Most often, in
such circumstances, the victims or witnesses are low-income people in desperate need of
money. The process is easy. The parties involved in a case may approach the key witnesses
directly or via the attorneys handling the case, and they may give them money in exchange
for not helping with the investigation or instruct them to testify in accordance with
predetermined positions. However, if the trial has already begun, he will be instructed to
retract his prior remarks or to refute them. It is said that when witnesses cannot be paid, they
are intimidated or under pressure to become hostile by the accused.

Police harassment

The police often behave in an extremely arrogant, domineering, and un considerate way
while conducting investigations, since witnesses are also subjected to harassment at this
point. The perception of India's judicial system as biassed towards the weak, the poor, and the
helpless is growing. The wealthy and powerful are individuals who take advantage of the
legal system by either purchasing justice in their favour or by stalling the whole police
investigation and court case process. Here, it would be acceptable to talk about a few
instances of excessive police force.

Reduced Conviction Rates

The affluent and powerful often get away with crimes in India because they can do it with
impunity. The average man's trust in the courts will be severely undermined by the high
percentage of acquittals in criminal prosecutions. This is a risky tendency since it gives rise to
impulses for people to impose their own laws. Due to the lack of available evidence and
uncooperative witnesses, the Indian criminal justice system is now experiencing a low
conviction rate issue. The National Crime Records Bureau's 2012 Report states that the
conviction rate, or the proportion of cases that were found guilty to all cases that were tried,
was 38.5% in 2012, down from 41.1% in 2011. According to the research, the conviction rate
was 62.7% in 1972 and had rapidly dropped to 38.5% by 2012.

Loss of Trust in the Judiciary

As was previously said, false acquittals of guilty parties and witness intimidation and
harassment might erode public confidence in the justice system. It fosters the idea that
powerful individuals can buy justice. As a result, the average person avoids testifying in
court.

Present Law

According to the Indian Penal Code, providing false evidence is considered a criminal crime.
If a person who is legally compelled to say the truth by an oath or by an explicit provision of
the law does not tell the truth, and he knows or believes that the statement he made is false,
then that person is considered to have given false evidence. This section of the law states that.
A person who knowingly presents false evidence puts himself at risk of facing serious legal
consequences. In accordance with the provisions of the law, a person who knowingly presents
false evidence at any point during the course of a legal procedure is subject to a sentence of
incarceration of up to seven years and may also be subject to a monetary penalty. In the event
that a person presents a false declaration to an investigative officer, he is susceptible to legal
repercussions according to the Indian Penal Code. In order to be convicted of providing false
evidence under Section 193 of the, a person must first be found guilty of violating According
to the Indian Penal Code, 1860, it has to be shown that he was 'legally obligated' by an oath
or by an explicit provision of law to tell the truth; or being found by law to make a
declaration concerning any subject, makes any statement that is false. Alternatively, it needs
to be proven that he made any statement that was untrue. As a result, this is the necessary
prerequisite for the legal requirement that a person must make a statement that is honest.
The fact that there has been an increase in the number of cases in which important witnesses
have recanted their testimonies as a result of outside involvement leads one to the conclusion
that the position of witnesses in the Indian criminal justice system is one that is precarious.
There are several accounts of similar events published in the local newspapers.

CONCLUSION

An effort was made to emphasise the important concerns relating to witness protection in the
earlier parts of this research. A statute for the safety, security, and welfare of witnesses
testifying in serious criminal cases is urgently needed, according to a study of the preceding
chapters. This is required to guarantee that witnesses may participate in the judicial process
without being concerned about intimidation or harassment. In other words, a strong criminal
justice system requires a strong witness protection statute. A legislation like this would assist
to prevent witnesses from becoming hostile as a result of outside interferences in the criminal
processes. The law will prevent the accused from coercing, pressuring, threatening, or
harassing the witnesses, even if they are powerful and prominent. When testifying against
such an accuser, witnesses will feel safer and more comfortable.

It will aid in preventing unjustified acquittal of charged individuals owing to witness absence.
As a result, the conviction rate will rise and the criminal justice system's reputation will be
enhanced. It is common knowledge that the most reliable kind of evidence for establishing or
refuting an accused person's guilt is a witness. He aids the court in reaching a reasonable and
equitable verdict. But he has to go through a lot of pain in order to fulfil his obligation to
testify in court. He spends his time, money, and convenience travelling to court, yet typically,
the court staff and attorneys do not treat him with the respect and decency that he is entitled
to. His convenience and comfort are not properly catered for. He doesn't have access to
anything, not even a suitable seat or water. Due to multiple adjournments, he is required to
repeatedly appear before the court. His examination and cross-examination may take place
across numerous days due to the attorneys' time-wasting tactics. Even inadequate
compensation for the loss of his time and wages is not given to him.
The current research has shown that there are several issues that witnesses confront in the
current criminal justice system, yet legislators have paid them very little consideration. In the
end, the administration of justice suffers rather than a witness. It should be highlighted that
both academicians and law makers have largely disregarded the issue of witness intimidation.
Fearing, threatening, or coercing a witness in order to prevent him from appearing in court or
giving a deposition is known as witness intimidation. If he has already been removed,
pressure to withdraw his statement is applied by intimidation. According to the research,
witness intimidation might be either explicit or implicit. A witness may therefore be
intimidated in person or over the phone. Threats against the witness or his family members
are possible. Threats may be made against someone's life, their property, or both. In addition
to direct or indirect threats, witness intimidation may also include physical harm to the
witness or real property damage. Such intimidation has a negative impact on a witness' desire
to testify honestly and may cause undue interference with the witness' testimony.

Earlier, the Indian Penal Code, 1860 did not include a provision against witness intimidation.
But as of the Criminal Law (Amendment) Act of 2006, section 195A of the Indian Penal
Code, 1860, now defines witness intimidation as a crime. Accordingly, a person who
threatens another with harm to their person, reputation, property, or that of anyone in whom
they have an interest with the intent to persuade that person to give a false statement is
subject to punishment with either type of imprisonment that may last up to seven years, a
fine, or a combination of the two. As a result, the law stipulates severe penalties for the crime
of witness intimidation. If an innocent person is found guilty and given a death sentence or a
term of more than seven years in prison as a result of such false evidence, the penalty is even
more severe. In this situation, the individual who threatened or intimidated the other person
would get the same penalty as the innocent person.

SUGGESTIONS

The researcher has put up the following proposals in addition to those made by the legislation
Commission of India, which might be useful in reducing the issue of witness intimidation and
harassment and developing an institutional framework for the legislation on witness
protection: 1. The legislature need to pass a thorough witness protection statute to ensure the
wellbeing and safety of witnesses in serious crime prosecutions. The advantage of such a
legislation should be extended to circumstances when the accused is a person with financial,
physical, or political clout in addition to those involving severe felonies. The government
should launch a witness protection plan as soon as feasible to safeguard the welfare and
safety of witnesses in criminal cases involving serious acts, it is recommended that the
government enact such a legislation.

2. The legislation governing witness protection should outline the body in charge of
maintaining and overseeing the Witness Protection Programme, the requirements for witness
admission, the process to be followed for relocating and identifying witnesses, and the
confidentiality of the programme's operation.

3. It is also recommended that an independent and autonomous Commission, whose head

should be a retired Supreme Court judge, be given responsibility for maintaining such a
witness protection plan. Former Supreme Court and High Court justices might be among the
additional members. Courts, experienced solicitors, the police commissioner, etc.

4. The gravity of the situation may be one of the requirements for offering witness protection.
the nature of the alleged threat to the witness' security, available alternatives for protecting
witnesses, the witness' suitability for inclusion in the programme, as well as the cost of
maintaining the witness in the protection programme. of the offence to which the witness'
statement relates.

5. It is recommended that a witness protection unit be formed and supervised by the person in
charge of the Witness Protection Programme. The protection team will be in charge of the
programme members' identity changes, witness transfer to a new location, and physical
security. It is proposed that there should be tight requirements for the appointment of witness
protection unit workers in order to preserve the secrecy and integrity of the project.

6. To avoid the abuse of the protection programme, it is advised that frequent programme
monitoring be carried out. To keep the initiative accountable and transparent, an audit should
be conducted on a regular basis.

7. One of the proposals made by the Law Commission in its One Hundred and Ninety Eighth
Report is that a witness should be given protection throughout an investigation, an inquiry,
and a trial. Furthermore, it is implied that protection could be provided even after the trial is
over if the danger continues.

8. The witness must submit an application to the appropriate court for protection during the
trial stage. The court will determine whether or not a witness needs protection based on the
standards outlined in the law.
9. Witness identity protection should be covered by comprehensive witness protection
legislation. If the court determines that there is a substantial risk to a witness's life or
property, it may give anonymity to the witness and order that the witness' name and address
not be made public in the court's orders, rulings, or records. It may also specify that the
papers revealing the witness's real name and address be kept in a secure custody under a
sealed cover. It is argued that revealing a protected witness' identity without the court's
permission should be made illegal. As stated before, identity protection for witnesses
testifying against feared terrorists was guaranteed by specific Acts dealing with terrorist
crimes. These unique measures, however, could be helpful in other serious or high-profile
situations when witnesses are being intimidated, threatened, or put in severe danger for their
lives. It is said that identity protection for witnesses is necessary in cases involving seasoned
criminals and prominent figures in order to protect them from intimidation and improper
influence and to guarantee a fair trial.

10. A witness may be under immediate risk to his life or property in instances involving
serious crimes or in high-profile cases. Identity protection may not be a sufficient solution in
many circumstances. Additionally, in situations when the accused already knows the identity
of the witness, identity protection for that witness is useless. In such circumstances, a
witness's physical safety is crucial, and if necessary, that safety should also extend to the
witness' family. The following actions may be taken to protect a witness's physical safety:
'temporary change of residence, provision of police security, protected transportation while
the witness is taken for recording of evidence, changing the witness's telephone number,
assigning him an unlisted telephone number, installation of security devices in the witness's
home (such as security doors, alarms or fencing), provision of electronic warning devices and
mobile telephones with 201 emergency numbers, etc.' The protective measures used should
be commensurate to the harm that the witness perceives and should only last as long as the
threat does.