In our justice system, the whole process of delivering justice depends on some factors that are crucial to the case but at the same time are so independent in themselves that it becomes very easy for any party or miscreant to manipulate those factors and to twist the results in their favour. An example of such a situation can be seen in a statement of a crucial witness of a case.
When the
witness is allowed to depose before the court without any fear or intimidation
and they know that regardless of what they speak before the court or the
police, they will be protected by the law, the case will have that witness as
one of its strongest pillars for delivering justice for all. But if the witness
feels threatened for their security or safety of their family and friends, then
they might not be the witnesses the court wants to rely upon as their
statements may come in doubt of being manipulated in some or the other way and
their testimony cannot be trusted without being corroborated by other facts and
circumstances of the case.
This in
itself will be counterintuitive of the process of rule of law. Hence for a long
time now, there was a strong need that was being felt by all to have some
mechanism in place to have this very basic requirement of protecting a witness
in a crime form any undue influence or intimidation or threats so that the
witness can depose before the court, true facts and circumstances of the
offence and can also assist the law enforcement agencies and the police in
their inquiry, investigations and trial.
Till now,
there were states that were following orders from the courts to implement some
measures that can be related to a Witness protection Scheme. There were also
states that did not have any such mechanism to protect such witnesses and had
no incentive to build any such mechanism. In Delhi it was the Delhi Legal
Services Authority (DLSA) that was providing with a setup and measures to
protect the witnesses in a court.
Now with
the introduction of The Bhartiya Nagarik Suraksha Sanhita (BNSS) Section 398,
the Sanhita has finally made it absolutely necessary for all states to have in
place a scheme for protection of witnesses. This shall ensure that the
witnesses are free to speak the actual facts of the case before the court or
any other law enforcement agency and ensure that justice shall prevail at the
end of trial.
We shall
now briefly look into the Witness protection Scheme’s history and then shall
delve into what all Section 398 BNSS has for us. Let’s probe:
Brief history of Witness protection Scheme:
As we all
know, prior to BNSS there was no provision in law that actually mandated all
states to have such a scheme in place to ensure justice in courts. But the
sentiment for such a scheme existed, the need for such a scheme was reiterated
by the courts over and over again in numerous landmark judgements of the
courts. In Ms Neelam Katara Vs Union of India & Ors. Crl. W. No.
247/2002, the Hon’ble Delhi high Court had actually laid down
guidelines to an entire Witness Protection Scheme in the judgement itself,
which was to remain in place till an actual law is made by the state on
it. In these guidelines, there was the
DLSA as the competent authority for the scheme to deice who needs police
protection and to what extent. It also talked abut the factors that need to be
considered by competent authority. These were nature of risk to witness, Nature
of criminal case, the importance of witness to the case and also the cost of
providing police protection. Above all, there were some obligations that were
setup on the police like making the witness know about their rights and about
these guidelines and to provide assistance/ security to any such witness who
has been approved by the competent authority.
Then in
2015, these were replaced by a proper set of rules and regulations based upon
the guidelines prescribed in Neelam Katara case (supra), and Delhi was
highlighted as the first state to have implemented such Witness protection
Scheme in their judicial process.
This was
soon replaced by another updated set of rules and regulations in the form of
Witness Protection Scheme 2018 after the Hon’ble Supreme Court of India in 2018
approved it in the case of Mahender Chawala & Ors Vs Union of India
& Ors AIR 2018 SC (SUPP) 2561. This
scheme has all the elements needed to ensure proper functioning of the witness
protection mechanism and to ensure that the witness is free to his will wile
giving his testimony. This is still applicable in Delhi and after the
introduction of Section 398 BNSS, similar forms of Witness protection Scheme
are to be expected all around India in all states and UTs.
Key Features of the Witness Protection Scheme:
Eligibility:
Any witness whose statements have been recorded by the Investigating Officer under Section 161 of the Criminal Procedure Code (CrPC) pertaining to crimes punishable with death or life imprisonment are eligible for protection.
The
competent authority, which is the Member Secretary of the Delhi Legal Services
Authority, can assess the need for protection based on the risk faced by the
witness and put them in one of the three categories of threat perception
explained later in this blog article.
Admission
to Protection:
Upon
receiving a request from a witness, the competent authority Shall determines
the extent and duration of police protection required. The witness is to be
informed about the Witness Protection Guidelines during the statement recording
process and The Commissioner of Police is responsible for providing security to
witnesses under the competent authority’s direction.
Types of
Protection in Witness protection Scheme:
In Part II of Witness Protection Scheme of 2018, there are three categories in which witness need to be assessed by the competent authority depending on the risk involved and threat perception for a witness.
In “Category A”, where treat
extends to the life of a witness or his family members, during investigation or
trial or thereafter are considered.
In
“Category B”, cases where the treat extends to safety, reputation or property
of the witness or his family members during the trial or investigation or
thereafter is relevant.
In
“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 trial or investigation or thereafter are taken into consideration.
Based on
these categories the police are obligated to provide the witness with the level
of protection needed for their safety and true testimony in front of the court
or any other law enforcement agency.
Some of
the main highlights of the Witness protection Scheme are mentioned below:
Avoiding
Face-to-Face Interaction: Ensuring that witnesses and accused parties
do not come face-to-face during investigations or trials. This is to ensure
that the witness does not feel threatened to depose in front of any element or
accused that may make him feel threatened or subdue his deposition any way
which is harming the process of justice.
Monitoring
Communications: the law enforcement agencies and the police has been ordered to
monitor mail and telephone calls to prevent any interference or intimidation of
the witness from deposing the truth before the courts or law enforcement agency.
Physical
Protection: This could involve providing a police escort for witnesses
attending court proceedings and other critical situations as deemed necessary
by the police or the competent authority on base of the category of protection
one needs.
Safe
Houses: Temporary residence in safe houses may be offered to protect witnesses’
security in extreme cases.
Technology-Based
Measures: Modern communication tools like videoconferencing can be used
for recording witness testimony to ensure convenance of the witness in deposing
their statement and to ensure safety of the witness.
Identity
Protection/ Identity Concealment: The Witness Protection Scheme
includes measures to keep the witness’s identity as confidential. This might
involve using pseudonyms, restricting access to personal information relating
to the witness from all records concerned to the case, and ensuring that court
records do not reveal their real names.
Psychological
Support: Testifying can be emotionally draining and poses mental
challenges to the witness who may or may not know how to deal with such a situation.
The Witness Protection Scheme provides counselling and support services to help
witnesses cope with stress and trauma in and outside the courts to ensure
healthy state of mind during deposition.
Legal
Assistance: Witnesses are often unaware of their rights and the legal
process. The WPS ensures they receive legal guidance and representation.
Financial
Assistance: Some witnesses may face financial difficulties due to their
involvement in legal proceedings. The scheme provides financial aid to
alleviate such burdens.
State
Government Responsibility: Each state government is now made responsible
for formulating and implementing its own witness protection scheme in their
state. The scheme should be comprehensive, practical, and tailored to the
specific needs of that state.
Conclusion
In
summary, Section 398 BNSS underscores the importance of safeguarding witnesses’
security. By providing security and anonymity to the witness, we empower
witnesses to come forward and contribute to the pursuit of justice. The Witness
Protection Scheme aims to safeguard the witnesses who plays a pivotal role in
criminal investigations and trials. The Witness Protection Scheme in Delhi is a
commendable effort to ensure that witnesses can testify without fear, thereby
strengthening the criminal justice system.
Often, we see that a witnesses in a crucial trail would face intimidation, threats, or even violence due to their cooperation with law enforcement agencies. The witness protection scheme shall pose a permanent resolution to this problem.
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Sources
https://dslsa.org/legal-aid-wing/witness-protection-section/
Delhi
Witness Protection Scheme, 2015 (latestlaws.com)
Delhi Witness Protection Scheme 2018
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Related Blogs:
Old Meets New: A Comprehensive Guide to Investigation Procedures Under Section 176 BNSS
Summoning Evidence: Decoding BNSS Section 94
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Disclaimer:
This Article/essay provides general information and does not constitute legal
advice. Consult a qualified legal professional for specific cases.
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