TOPIC- Comparative Analysis of Witness Protection Laws in India and Other

Jurisdiction

Introduction

Protection of a witness is similar to the protection of endangered species since it protects the
witness and all those participating in the judicial system, such as all parties, defendants, and
any other clients in the criminal trial, generally provided by the police. 1 Although a witness
can only get government protection while their trial is still on, some witnesses are handed
new identities and are allowed to live the remainder of their lives under official protection. 2

The protected witness is any witness that has some type of protection from intimidation or
retaliation granted to them. In reality, however, the phrase ‘witness protection' is rarely
applied to those who enjoy the benefits of a witness protection program. On the one hand,
there are two major areas of concern about witness protection. The foremost step is to make
sure that the evidence of witnesses which were gathered during the investigation stage is not
destroyed by witnesses when they take the stand and swear under oath in a court of law.
Other aspects of the problem include witnesses being 'hostile' after witnessing evidence that
was supposedly ‘protect’ but in fact was lost. With that in mind, there will have to be special
procedures implemented within the CJS for balancing the requisite of witness anonymity
while also protecting the accused person's rights, which includes the right to open trials with
the ability to cross-examine witnesses after having learned all of their details. Additionally,
the emotional and physical fragility of the testing and the care of its well-being are diversified
by the need for physical protection, including via the implementation of WPP and the CJS,
until the end of the cases.3 Whereas the necessity of physically protecting witnesses against
the risk of becoming hostile has not received sufficient attention in various statutes but
physical protection of witnesses is an issue that requires immediate attention. A
comprehensive legislative plan to solve this issue is urgently needed. Furthermore, anonymity
shielding be made available in all criminal cases including serious offences that are not just
confined to terrorist acts. The following things would be implemented in the process of
instituting such a law:

(a) The mechanisms used to give anonymity to witnesses

(b) Other ways to protect a witness' anonymity, such as establishing witness protection
programs, are provided as well.

These methods can include giving the witness some money to maintain their anonymity,
transferring the witness to a different location, or even offering a job elsewhere.

The protection of witnesses and laws for witnesses is the necessity of the hour. To be more
accurate, it is not that these laws do not exist; it is that these laws need to be served to be
reinforced against offenders & criminals. When it comes to Law in India, however, these
1
Available at: http://en.wikipedia.org/wiki/Main_Page/witness, (Visited on 29 October,2023)
2
Ibid
3
Law Commission of India, 198th Report on Witness Identity Protection and Witness Protection Programme
(August 2006).
programs and legislation are far from reality, and witnesses are not given due respect as it can
be seen in US.

According to the United States, Federal Witness Protection Program of the America WITSEC
program conducted and operated through US Department of Law & Justice and USMS
respectively for protecting threatened witnesses at all stages of the case.4

Many developed nations like the UK, Canada, the USA, and Australia have very advanced
laws and they are giving full protection to witnesses in every stage of crime during an
investigation, during an inquiry, and also during the trial. However, this approach to witness
protection does not exist in India. In India people generally understood that witness
protection means protection from inconvenience and discomfort and thus, protection has had
references only to the facilities' provision.5 We never talk about witness protection in form of
witness anonymity, relocation of witnesses and physical protection, etc.

Review of Literature

The main aim of the review of literature is to briefly elaborate on the recent study on witness
protection with the help of reports of various Law Commissions or Committees, books,
research papers, judicial decisions, research articles, etc.

The 14th Report6 discussed that there are no proper facilities for the witnesses when they
come for giving evidence, information, and document to the court such as lacking waiting
rooms, traveling allowance, many adjournments, daily Bhatta, etc. The Commission
recommended that there should be proper facilities for the witnesses in every court and they
should not be treated as animals.

The first time, the problem relating to the threatening of a witness was raised in the 42nd
Report.7 It was highlighted that most of the witnesses and the public become unwilling and
reluctant for supporting the competent authority, due to, they face many problems during the
trial, before trial and after trial of a case, i. e., harassment, inconvenience, adjournments, they
face mentally and physically problems also. The Commission purposed three sections 8 for
achieving the goal of justice by providing a penalty to the wrongdoer, who acts illegal in our
society. The Commission suggested as “We recommend that the allowances payable to the
witnesses for their attendance in courts should be fixed on a realistic basis and that payment
should be effected through a simple procedure which would avoid delay and inconvenience.
The treatments afforded to them right from the stage of investigation up to the stage of

4
Available at:- http://en.wikipedia.org/wiki/United._States_Federal_Witness_Protection_Program Visited on 29
October,2023).
5
Justice Madan B. Lokur, “Access to Justice: Witness protection and Judicial Administration”, Available at
http://www.delhihighcourt.nic.in (visited on 30 October 2020)
6
“The Law Commission of India, Fourteenth Report on ‘Reform of Judicial Administration (1958).”
7
“The Law Commission of India, Forty Second Report on ‘Indian Penal Code, (1971).”
8
Chapter Eleven of the “Forty Second Report on ‘Indian Penal Code, (1971),” at p. 206-207.
conclusion of the trial should be in a fitting manner giving them due respect an removing all
causes which contribute to any anguish on their part.”9

The 4th Report10 of NPC was covering many terms like functions of police, relations with
society or public, accountability, its organization, misusing and evolution of itsfunctions or
performance, power of the police, the behavior of police with a witness, etc. The Commission
suggested that the allowances, which are payable to the witnesss for attending the Court,
should be fixed, realistic, and payable by simple procedure without delay.

In 154th Report,11 it was highlighted that most witnesses or public become unwilling or
reluctant for supporting and cooperating with the court or other competent authority due to
they face many problems during the trial, before trial and after trial of a case as, harassment,
inconvenience, adjournments, etc. They face mental and physical problems also. The
Commission suggested that the court and the police have duties that witnesses should not
become reluctant.

Further, in the 172nd Report,12 it is suggested that there should be provision for protecting
the rape victim. It is also suggested that Court should take steps for protecting the child
victim in, following ways: (i) Court should take evidence through video recording from the
child victim in the appearance of her parents or relative, family members etc. or (ii) the cross-
examination should be held only with the help of written questions submitted by the opposite
party or his council or (iii) Court should give sufficient breaks to the child victim, while the
recording of evidence of the victim.

Through 178th Report,13 the Commission suggested that there should be some amendments
in section 164 A of the Cr.P.C.,1973 was suggested by Commission as, “The insertion of
subsection (1A) in section 164 of the Cr.P.C.,1973 so that the statements of material
witnesses are recorded in the presence of Magistrates.Introducing certain checks, so that
witnesses do not turn hostile, such as taking the signature of a witness on his police statement
and sending it to an appropriate Magistrate and senior police officer.

” “For less serious offences, the second alternative (with some modifications) was found
viable.” It is useful recommendation but did not talk about the secrecy of witnesses.

9
Available at lawcommissionofindia.nic.in at p. 33 (visited on 02 November ,2023).
10
“The 4th Report of the National Police Commission, 1980”
11
“The Law Commission of India, One Hundred and Fifty Fourth Report on ‘the Code of Criminal Procedure,
1973 (Act No. 2 of 1974)’ under the Chairmanship of Mr. Justice K. J. Ready 1995- 1997”
12
“The Law Commission of India, One Hundred and Seventy Second Report on ‘Review of Rape Laws,
(2000).”
13
“The Law Commission of India, One Hundred and Seventy Eight Report on ‘Recommendations for
Amending Various Enactments, both Civil and Criminal (2001)”
In Report14 of the Justice Malimath Committee, 2003 submitted 158 recommendations. It is
realized that witnesses face many problems during the trial, pre-trial, and post-trial like
danger and harm to their lives, their family, or their close relatives. So, it is suggested that the
proceeding of a case should be held in camera for protecting the witness. Nevertheless, the
Committee failed for explaining the requirement of the physical protection of the witnesses
and its relevancy because it is needed at present.

In 198th Report,15 the Commission explained the responses regarding the questionnaire,
through inviting16 the advocates, public prosecutor, judges, judicial officers and received
opinions from such advocates, police officers, judges, State governments, organizations,
DGP, jurists, public prosecutors, subordinate judiciary, etc., and gave its suggestions on the
“Witness Identity Protection and Witness.

Protection Programs (WPP and WIP).” It also offered a draft Bill 17 on WPP and WIP. It
also focused on the rights of the victims, accused and witnesses and there should be a
restriction on the right of the accused, where the witness is in danger of his life, his family,
and his relative. But the present report has not related to all the problems or issues of
witnesses.

Further, in Witness Protection Scheme, 2018, the Commission has mainly focused on
protection identity, relocation of witnesses, witness protection fund, confidentiality, and
preservation of record, etc. The Commission observed that there is a need to make proper
laws for the welfare and protecting the witness from threat, harm, and injury caused by the
criminals.

Ratanlal & Dhirajlal, in their book, 18 “The Criminal Procedure Code” painstakingly
presents a comprehensively understanding of the procedure relating to attendance of
witnesses, the examination of a witness by police officers, summons, warrants, medical
examination of the rape victim, police report, camera proceeding, adjournments, the
procedure relating to trials, inquiry, and investigation, the testimony of witnesses, etc. Law
must be made if required by society. The authors beautifully narrated the judgments and all-
important provisions for the subject matter along with bullet points described in every
chapter.

Ashok K. Jain, in his book,19 beautifully expresses the relevancy of facts, documents,
evidence, witness, the examination of witnesses, investigation, procedure before trial Court,
Session Court and Judicial Magistrate, rules relating to bail, evidence in trial and inquiry
14
“The Report of the Committee on ‘Reforms of Criminal Justice System,’ Government of India, Ministry of
Home Affairs, 2003”
15
“The Law Commission of India, ‘One Hundred and Ninety Eight Report (2006)’ on ‘Witness Identity
Protection and Witness Protection Programs”
16
“The Law Commission of India held two seminar seminars, one is held in New Delhi on 9th October, 2004
and other is held at Hyderabad on 22nd January, 2005, where a number of judges of the High Courts, lawyers,
police officers, Public Prosecutor, judicial officers (Magistrate and Session Judges) participated” at p.
3.Available at https://www.latestlaws.com (visited on 6 November,2023).
17
The Witness (Identity) Protection Bill, 2006
18
Ratanlal & Dhirajlal, the Criminal Procedure Code, Lexis Nexis Publication, Student ed., 1st ed., 2015
19
Ashok K. Jain, Ascent’s Law Guide for Judicial Service Examinations, Ascent Publications, 2nd ed., 2014
stage, etc. This book nicely expresses the classification of witnesses also. He discusses a
detailed study on all the essential aspects of criminal law with amended provisions of the
criminal law. The important judgments and guidelines issued by the Courts have been
elaborated in all chapters. The author nicely explains the provisions of IPC, 1860,
Cr.P.C.,1973, and the law of evidence. This book is very helpful for completing the research
work.

Narender Kumar, in his book,20 looks into the rights of the accused person, victim, and
witness. He has viewed that a person may be become accused, victim, and witnesses in a case
but most the people in India are unaware of their rights. He stressed that everyone must be
knowledgeable at least the basic provisions and procedure of the law. He lovely expresses the
procedure of FIR, rules for cognizance taken by the court, rules related to bail or cancellation
of bail, etc. This book is very useful for understanding the principles of a fair trial as well as
the provisions relating to the accused, witness, and victim.

Batuk Lal, in his book,21 discussed the various aspects of the law related to documentary or
oral evidence, classification of witnesses, the procedure of examination of witnesses, rights of
witnesses, kinds of evidence, powers of judges regarding witnesses, etc. Chapter ninth (Of
Witnesses) and tenth (Examination of the Witnesses) have been related with magnificent
clarity in very simple language. The contribution of the author is unaccountable regarding the
successfully ending of the research study.

Girish Abhyankar, in his book,22 elaborates on the need for witness protection. He realized
that condition of the witness is very miserable. The author sweetly expresses the meaning of
witness protection, the historical evolution of the concept of witness, constitutional,
procedural, and substantive laws regarding witness protection, the role of society, and police
in witness protection. For securing the interest of witness, many Law Commission and
Committee are set up by the Government but all these Commissions and Committees have
failed for making adequate laws for witness protection. His book is very useful on the point
of witness and his protection. He described the detailed study regarding the witness and his
safety, welfare, and protection. The author stresses that a Commission must be set up again
for solving all the problems relating to the witnesses because there are no specific laws
regarding witness protection. He emphasized that is there must be a law for the protection of
the interest of witnesses.

Avatar Singh, in his book,23 expresses various aspects of the law relating to testimonies of
witnesses. He emphasized on the judicial decisions because judiciary can spread the meaning
of evidence and relevancy of witnesses by its decisions. The author gives more attention on
the testimony of witnesses. He suggested that evidence may be acceptable which are made

20
Narender Kumar, Law for Common Man Series Key to Criminal Court, Practice & Procedure, Universal Law
Publishing, 3rd ed., 2015
21
Batuk Lal, the Law of Evidence, Central Law Agency, 19th ed., 2012
22
Girish Abhyankar and. Asawari Abhyankar, Witness Protection in Criminal Trials in India, Thomson Reuters,
1st ed., 2018
23
Avatar Singh, Principles of the Law of Evidence, Central Law Publications, 23th ed., 2018”
through CCTV footage, video conferencing, CDRs made from mobiles, video clipping, etc.
He lovely expresses the importance of witnesses during their testimony

Research Questions

Following research questions are arises in the mind of researcher:-

(1) What is the meaning of witness and protection?

(2) What is the significance of the witness under the Indian criminal justice system?

(3) What are the problems faced by witnesses during the investigation, trial, and proceeding
stage?

(4) What should be the criteria for protecting the witness?

(5) What are the present legal provisions for witness protection under the Indian criminal
justice system? Are such provisions for the witness protection adequate?

(6) Whether the witness protection programs established in other countries are useful for
India for making rules regarding witness protection?

(7) What are the observations or recommendations of various Law Commissions and
Committee relating to witness protection?

(8) What is the contribution of our judiciary regarding witness protection?

(9) What are the suggestions for implementation of legislation for witness protection?

Objectives of the Study

There are the following objectives of the present research study:-

(1) To understand the concept of witness and protection.

(2) To know the historical development of the law relating to witness at the national level.

(3) To understand the classification of witnesses and at what stages on which protection
requires.

(4) To know the significance and need of witness under the Indian criminal justice system.

(5) To know the international perspective on the protection of witnesses.

(6) To study the Constitutional and Statutory laws in India regarding witness protection.

(7) To examine the judicial concerns regarding witness protection.

(8) To study the Witness Protection Scheme, 2018.

Hypotheses

(1) The main assumption of this research study is that there is no specific or adequate law
regarding witness protection under the Indian criminal justice system. So, adequate or
specific legislation is required.

(2) The laws regarding the witness protection of other countries would help in framing the
laws in our country.

(3) Many witnesses are unwilling or uninterested to come before the court for giving
evidence and statements relating to the crime due to threat, harm, injury, intimidation, danger
to their lives, their family members’ lives, etc., caused by the criminals.

Research Methodology

The present research study is based on the doctrinal method. Some approaches are used in a
doctrinal method for better understanding the research study as, historical, evolution,
legislative, and collective.

Sources (Primary and Secondary)

The present research work includes the doctrinal research method. The primary and
secondary sources are also useful for the successful ending or completion of research work.
The statutory laws, official websites, Reports of Law Commissions of India, foreign
statutory laws, judicial decisions, etc., have been referred to as the primary source.

In Secondary sources, the researcher has taken help from books, journals, articles, magazines,
the internet, and newspapers.

List of statues and cases

STATUES

1 The Indian Constitution

3.Criminal Procedure Code, 1973

4. the Indian Evidence Act, 1872

5. IPC, 1860

6. The Bengal Suppression of Terrorist Outrages Act, 1932

7.The Terrorist and Disruptive Activities (Prevention) Act, 1985

9. The Contempt of Court Act, 1971

10. The Maharashtra Control of Organized CrimeAct, 1999

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

12. The Prevention of Terrorism Act, 2002

13.The Unlawful Activities (Prevention) Amendment Act, 2004

14. The National Investigation Agency Act, 2008

15. The Whistle Blowers Protection Act, 2014

CASES

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A. R Saravenan v. State, 2003 Cri LJ 1140 (Mad)

A.B.S.K. Sangh (Rly.) v. Union of India, AIR 1981 SC 298.

A.K. Gopalan v. State of Madras, AIR 1905 SC 27

Abdul Rahim Alias Indori v. State of NCT of Delhi, 190 (2012) DLT 155

Abdul Rajjak v. State, (1969) 72 Bom L. R

Abhay Singh v. State of UP, 2009 Cri LJ 2189

Acharaparambath Pradeep v. State of Kerala, 2007 (57) AC 141 (SC)

Amar Singh Tayagi v. Inderpal Gautam, 1995 Cri LJ 1639 (All)

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Arivazhagan v. State, AIR 2000 SC 1198

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Ashiq Miyan And Ors v. The State of Madhya Pradesh, AIR 1969 SC 4
Ashok Kumar Choudhary v. State of Bihar, 2008 (61) ACC 972 (SC)

Ashok v. State, 2019 SCC Online Del 7059

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Balwant Singh and Anr v. The State, 29 (1986) DLT 354

viii

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ix

Dever Park Builders Pvt. Ltd. v. Smt. Madhuri Jalan and Others, AIR 2002 Cal 281

Dhan Raj and Other v. State of Maharashtra, AIR 2002 SC 3302

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Dr. Vinod Narain v. State of U.P. And Org., 1996 Cri LJ 1309

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Khijuruddin v. Emperor, AIR 1926 Pat.533

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xi

Lanka Lakshmanna v. Lanka Vardhhanamma, ILR 452 Mad 103

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Ram Govinda Upadhyay v. Sudarshan Singh, AIR 2002 SC 2931

Ram Kewal Tiwari v. State of U.P., 2002 Cri LJ 1860 (All)

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Ram Singh v. State Of MP, AIR 2009 SC 282

Ramdev v. State of Rajasthan, 2003Cri LJ 1680 (Raj)

Rameshwar Singh s/o Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54

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Ranjit Singh v. Popat Rambhaji Sonavane, AIR 1983 SC 291

Ravinder Pal Singh v. Ajit Singh and Another, 2012 Cri LJ 1848

Ravulappali Kundanah v. State of AP, AIR 1975 SC 216

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