REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 156 OF 2016

MAHENDER CHAWLA & ORS. .....PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The instant writ petition filed by the petitioners under Article

32 of the Constitution of India raises important issues touching

upon the efficacy of the criminal justice system in this country.  In

an adversarial system, which is prevalent by India, the court is

supposed to decide the cases on the basis of evidence produced

before it.  This evidence can be in the form of documents. It can

be oral evidence as well,  i.e.,  the deposition of witnesses. The

witnesses, thus, play a vital role in facilitating the court to arrive at

correct  findings on disputed questions of  facts  and to  find out

where the truth lies.  They are, therefore, backbone in decision

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making process.  Whenever, in a dispute, the two sides come out

with conflicting version, the witnesses become important tool to

arrive at right conclusions, thereby advancing justice in a matter.

This  principle  applies  with  more  vigor  and  strength  in  criminal

cases inasmuch as most of such cases are decided on the basis

of testimonies of the witnesses, particularly, eye-witnesses, who

may have seen actual occurrence/crime.  It is for this reason that

Bentham stated  more than  150 years  ago that  “witnesses  are

eyes and ears of justice”.

2) Thus, witnesses are important players in the judicial system, who

help  the  judges  in  arriving  at  correct  factual  findings.   The

instrument of evidence is the medium through which facts, either

disputed or required to be proved, are effectively conveyed to the

courts.   This evidence in the form of  documentary and oral  is

given  by  the  witnesses.   A  witness  may  be  a  partisan  or

interested witness, i.e., a witness who is in a near relation with

the victim of crime or is concerned with conviction of the accused

person.  Even his testimony is relevant, though, stricter scrutiny is

required while adjudging the credence of such a victim.  However,

apart from these witnesses or the witnesses who may themselves

be  the  victims,  other  witnesses  may  not  have  any  personal

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interest  in  the outcome of  a case.   They still  help the judicial

system.  In the words of  Whittaker Chambers, a witness is  “a

man whose life and faith are so completely one that when the

challenge comes to step out and testify for his faith, he does so,

disregarding all risks, accepting all consequences1.”

3) The importance of the witness, particularly in a criminal trial  is

highlighted in a book in the following manner:

"In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the  face  of  justice,  encircled  by  devils  of  humanity  and compassion.

xxx xxx xxx

The value of witnesses can’t be denied, keeping in view the  dependency  of  the  criminal  proceedings  on  the testimonies and cooperation of witnesses in all the stages of the proceedings, especially in those cases where the prosecution  has  to  establish  the  guilt  with  absolute certainty  via  oral  cross-examination  of  witnesses  in hearings open to the world at large.  In such cases, the testimony of a witness, even if not as an eye witness, may prove to  be  crucial  in  determining  the  circumstances  in which the crime might have been committed...”2

Notwithstanding the same, the conditions of  witnesses in

Indian  Legal  System can  be  termed  as  ‘pathetic’.   There  are

many  threats  faced  by  the  witnesses  at  various  stages  of  an

investigation and then during the trial of a case.  Apart from facing

1 Whittaker Chambers, WITNESS QUOTES (January 7, 2014, 10.30 am),  http://www.brainyquote.com/quotes/keywords/witness.

2 Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar Writ Petition (Crl.) No. 156 of 2016 Page 3 of 41

life threatening intimidation to himself and to his relatives, he may

have to face the trauma of attending the court regularly.  Because

of  the lack of  Witness Protection Programme in India and the

treatment  that  is  meted  out  to  them,  there  is  a  tendency  of

reluctance in coming forward and making statement during the

investigation and/or  testify  in  courts.   These witnesses neither

have any legal  remedy nor  do they get  suitably  treated.   The

present  legal  system  takes  witnesses  completely  for  granted.

They are  summoned to  court  regardless  of  their  financial  and

personal conditions.  Many times they are made to appear long

after  the  incident  of  the  alleged  crime,  which  significantly

hampers their  ability  to  recall  necessary  details  at  the time of

actual crime.  They are not even suitably remunerated for the loss

of time and the expenditure towards conveyance etc.  

4) In  Swaran  Singh  vs. State  of  Punjab3,  this  Court  speaking

through Wadhwa, J. expressed view on conditions of witnesses

by stating that:

"The  witnesses  are  harassed  a  lot.   They  come  from distant places and see the case is adjourned.  They have to  attend  the  court  many  times  on  their  own.   It  has become routine that case is adjourned till  the witness is tired and will stop coming to court.  In this process lawyers also  play  an  important  role.   Sometimes  witness  is threatened,  maimed,  or  even  bribed.   There  is  no

3 (2000) 5 SCC 68 at 678. Writ Petition (Crl.) No. 156 of 2016 Page 4 of 41

protection to the witnesses.  By adjourning the case the court also becomes a party to such miscarriage of justice. The witness is not given respect by the court.  They are pulled out of the court room by the peon.  After waiting for the whole day he sees the matter being adjourned.  There is no proper place for him to sit and drink a glass of water. When he appears,  he is  subjected  to  prolong stretched examinations and cross examinations.  For these reasons persons avoid  becoming a witness  and because of  this administration of justice are hampered.  The witnesses are not  paid  money  within  time.   The High  Courts  must  be vigilant in these matters and should avoid harassment in these matters by subordinate staff.  The witnesses should be paid  immediately  irrespective  of  the fact  whether  he examines or the matter is adjourned.  The time has come now  that  all  courts  should  be  linked  with  each  other through computer.  The Bar Council  of  India has to play important  role  in  this  process to  put  the criminal  justice system on  track.   Though  the  trial  judge  is  aware  that witness is telling lie still  he is not ready to file complaint against such witness because he is required to sign the same.   There  is  need  to  amend  section  340(3)(b)  of Cr.P.C.”

5) It hardly needs to be emphasised that one of the main reasons

for  witnesses  to  turn  hostile  is  that  they  are  not  accorded

appropriate  protection  by  the  State.  It  is  a  harsh  reality,

particularly, in those cases where the accused persons/criminals

are tried for heinous offences, or where the accused persons are

influential  persons  or  in  a  dominating  position  that  they  make

attempts to terrorize or intimidate the witnesses because of which

these  witnesses  either  avoid  coming  to  courts  or  refrain  from

deposing truthfully.  This unfortunate situation prevails because of

the  reason  that  the  State  has  not  undertaken  any  protective

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measure  to  ensure  the  safety  of  these  witnesses,  commonly

known as ‘witness protection’.

6) Over the last many years criminal justice system in this country

has been witness to traumatic experience where witnesses turn

hostile.  This has been happening very frequently.  There may be

many causes for this sordid phenomena.

7) In  Ramesh and Others vs.  State of Haryana4,  this Court had

indicated some of the reasons which make witnesses turn hostile,

as can be discerned from the following discussion.

"40. In some of the judgments in past few years, this Court has  commented  upon  such  peculiar  behaviour  of witnesses turning hostile and we would like to quote from few  such  judgments.  In Krishna  Mochi v. State  of Bihar [Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : 2002  SCC  (Cri)  1220]  ,  this  Court  observed  as  under: (SCC p. 104, para 31)

“31. It is a matter of common experience that in recent  times  there  has  been  a  sharp  decline  of ethical  values  in  public  life  even  in  developed countries  much  less  developing  one,  like  ours, where  the  ratio  of  decline  is  higher.  Even  in ordinary  cases,  witnesses  are  not  inclined  to depose  or  their  evidence  is  not  found  to  be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to  powers,  which  may be  political,  economic  or other powers including muscle power.”

4 (2017) 1 SCC 529 Writ Petition (Crl.) No. 156 of 2016 Page 6 of 41

"41. Likewise,  in Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira Habibullah Sheikh (5) v. State of  Gujarat, (2006)  3  SCC 374 :  (2006)  2  SCC (Cri)  8]  ,  this  Court highlighted  the  problem with  the  following  observations: (SCC pp. 396-98, paras 40-41)

“40. “Witnesses” as Bentham said: “are the eyes and ears of  justice”.  Hence, the importance and primacy  of  the  quality  of  trial  process.  If  the witness  himself  is  incapacitated  from  acting  as eyes and ears of  justice,  the trial  gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account  of  numerous  experiences  faced  by  the court on account of frequent turning of witnesses as  hostile,  either  due to  threats,  coercion,  lures and  monetary  considerations  at  the  instance  of those  in  power,  their  henchmen  and  hirelings, political  clouts  and  patronage  and  innumerable other  corrupt  practices  ingeniously  adopted  to smother and stifle truth and realities coming out to surface.… Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of  the  State  represented  by  their  prosecuting agencies do not suffer.… There comes the need for protecting  the  witness.  Time  has  come  when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth presented before  the  court  and justice  triumphs and that the trial is not reduced to a mockery. …

41.  The  State  has  a  definite  role  to  play  in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political  patronage  and  could  wield  muscle  and money  power,  to  avert  trial  getting  tainted  and derailed  and  truth  becoming  a  casualty.  As  a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional  obligation  and duty  to  protect  the life  and  liberty  of  its  citizens.  That  is  the fundamental  requirement  for  observance  of  the rule of  law. There cannot  be any deviation from

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this  requirement  because  of  any  extraneous factors like caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental  requirements  and  this  needs  no retaliation  (sic  repetition).  We  can  only  say  this with  regard  to  the  criticism levelled  against  the State of Gujarat. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act,  1987 (in  short  “the  TADA Act”)  have taken note  of  the  reluctance  shown  by  witnesses  to depose against people with muscle power, money power  or  political  power  which  has  become the order of the day. If ultimately truth is to be arrived at,  the  eyes  and  ears  of  justice  have  to  be protected so that the interests of justice do not get incapacitated  in  the  sense  of  making  the proceedings before the courts mere mock trials as are usually seen in movies.”

"42. Likewise,  in Sakshi v. Union of  India [Sakshi v. Union of India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] , the menace of witnesses turning hostile was again described in the following words: (SCC pp. 544-45, para 32)

“32.  The  mere  sight  of  the  accused  may  induce  an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of  the  incident  which  may  result  in  miscarriage  of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the  accused.  Often  the  questions  put  in  cross- examination  are  purposely  designed  to  embarrass  or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts  committed by  the  accused.  It  will,  therefore,  be better  if  the  questions  to  be  put  by  the  accused  in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing. There  can  hardly  be  any  objection  to  the  other suggestion  given  by  the  petitioner  that  whenever  a child  or  victim of  rape is  required to  give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of Section 327 CrPC should also apply in inquiry or trial of offences under Sections 354 and 377 IPC.”

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43. In State v. Sanjeev  Nanda [State v. Sanjeev  Nanda, (2012) 8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3 SCC (Civ) 899] , the Court felt  constrained in reiterating the growing disturbing trend: (SCC pp. 486-87, paras 99- 101) “99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile,  but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile,  either due to monetary consideration  or  by  other  tempting  offers  which undermine  the  entire  criminal  justice  system  and people  carry  the  impression  that  the  mighty  and powerful can always get away from the clutches of law, thereby eroding people's faith in the system.

100.  This  Court  in State  of  U.P. v. Ramesh  Prasad Misra [State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 : 1996 SCC (Cri) 1278] held that it is equally settled law that the evidence of a hostile witness could not  be  totally  rejected,  if  spoken  in  favour  of  the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is  consistent  with  the  case  of  the  prosecution  or defence may be accepted. In K. Anbazhaganv. Supt. of Police [K. Anbazhagan v. Supt. of Police, (2004) 3 SCC 767 :  2004 SCC (Cri)  882] ,  this  Court held that if  a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole, with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court [Sanjeev Nanda v. State, 2009 SCC OnLine Del  2039 :  (2009)  160 DLT 775]  and they found the accused guilty.

101.  We  cannot,  however,  close  our  eyes  to  the disturbing  fact  in  the  instant  case  where  even  the injured witness, who was present on the spot, turned hostile.  This  Court  in Manu  Sharma v. State  (NCT  of Delhi) [Manu Sharma v. State (NCT of Delhi),  (2010) 6 SCC  1  :  (2010)  2  SCC  (Cri)  1385]  and  in Zahira Habibullah  Sheikh  (5) v. State  of  Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] had highlighted the glaring defects  in  the  system  like  non-recording  of  the statements correctly by the police and the retraction of the  statements  by  the  prosecution  witness  due  to

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intimidation,  inducement  and  other  methods  of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator  and  every  effort  should  be  made  to  bring home  the  truth.  Criminal  judicial  system  cannot  be overturned by those gullible witnesses who act under pressure, inducement or intimidation.  Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked.”

44. On the analysis of various cases, the following reasons can be discerned which make witnesses retracting their statements before the court and turning hostile: (i) Threat/Intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of stock witnesses. (v) Protracted trials. (vi)  Hassles  faced by the witnesses during investigation and trial. (vii)  Non-existence  of  any  clear-cut  legislation  to  check hostility of witness.

45. Threat  and  intimidation  has  been  one  of  the  major causes  for  the  hostility  of  witnesses.  Bentham  said: “witnesses are the eyes and ears  of  justice”.  When the witnesses are not able to depose correctly in the court of law,  it  results  in  low rate  of  conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot  of  discussion on witness protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah case [Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] as well.

46. Justifying  the  measures  to  be  taken  for  witness protection to enable the witnesses to depose truthfully and without  fear,  Justice  Malimath  Committee  Report  on Reforms of Criminal Justice System, 2003 has remarked as under:

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“11.3.  Another major problem is  about  safety of witnesses  and  their  family  members  who  face danger  at  different  stages.  They  are  often threatened  and  the  seriousness  of  the  threat depends  upon  the  type  of  the  case  and  the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or  is  guaranteed  anonymity  of  some  form  of physical  disguise.  …  Time  has  come  for  a comprehensive law being enacted for protection of the witness and members of his family.”

47. Almost to similar effect are the observations of the Law Commission of India in its 198th Report [  Report  on  “witness  identity  protection  and witness protection programmes”.] , as can be seen from the following discussion therein:

“The  reason  is  not  far  to  seek.  In  the  case  of victims of  terrorism and sexual  offences  against women  and  juveniles,  we  are  dealing  with  a section  of  society  consisting  of  very  vulnerable people, be they victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under  the  Indian  Penal  Code,  1860  and  other special  enactments,  some  of  which  we  have referred  to  above,  there  are  bound  to  be absolutely  similar  situations  for  victims  and witnesses.  While  in  the  case of  certain  offences under  special  statutes  such  fear  or  danger  to victims and witnesses may be more common and pronounced, in the case of victims and witnesses involved or concerned with some serious offences, fear may be no less important.  Obviously, if  the trial  in the case of  special  offences is  to be fair both  to  the  accused  as  well  as  to  the victims/witnesses,  then there is  no reason as to why it  should not  be equally  fair  in  the case of other  general  offences  of  serious  nature  falling under the Indian Penal Code, 1860. It is the fear or danger  or  rather  the  likelihood  thereof  that  is common  to  both  cases.  That  is  why  several

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general  statutes  in  other  countries  provide  for victim and witness protection.”

8) All this has created problems of low convictions in India.  This has

serious  repercussions  on  the  criminal  justice  system  itself.

Criminal  justice  is  closely  associated  with  human  rights.

Whereas, on the one hand, it is to be ensured that no innocent

person is convicted and thereby deprived of his liberty,  it  is  of

equal importance to ensure, on the other hand, that victims of

crime  get  justice  by  punishing  the  offender.   In  this  whole

process, protection of witnesses assumes significance to enable

them to depose fearlessly and truthfully.  That would also ensure

fair trial as well, which is another concomitant of the rule of law.

 9) Since this case relates to the issue of protection of witnesses, we

are eschewing any further discussion on other miseries faced by

the  witnesses,  though we emphasise  the  need for  addressing

other problems as well, at appropriate level, if the criminal justice

system in this country is to succeed.  Adverting to the importance

of  witness  protection,  we  may  mention  that  it  has  been

highlighted and emphasised by the courts in India, including this

Court, time and again.  Issues of identity protection of identity of

witnesses and witness protection programme have been raised in

Writ Petition (Crl.) No. 156 of 2016 Page 12 of 41

number of judgments like  NHRC vs. State of Gujarat5, People’s

Union for Civil Liberties (PUCL) vs. Union of India6,  Zahira

vs. State of Gujarat7, Sakshi vs. Union of India8 and  Zahira

Habibulla Sheikh vs. Gujarat9.

10) In  People’s Union for Civil Liberties,  wherein constitutionality

some of the provisions of the Prevention of Terrorism Act (POTA),

2002, were challenged, the Court carefully analyzed Section 30

of  the  Act,  which  had  mentioned  about  the  protection  of

witnesses.  This provision provides for the proceedings to be held

in camera in order to keep the identity of witness confidential. The

Court  felt  the  reality  that  very  often  witnesses  do  not  come

forward to testify before court in serious crimes. Witnesses are

not ready to give evidence mainly because their lives might be in

danger.  In the court’s view, Section 30 of the Act maintains a

balance between the rights of a witness, the rights of an accused

and the interest of the public.  However, secrecy of the witness is

an exception and not a rule under this section.

11) The protection  of  a  child  witness,  who may also  be  a  victim,

5 2003 (9) SCALE 329 6 2003 (10( SCALE 967 7 (2004) 4 SCC 158 8 (2004) 5 SCC 518 9 2006 (3) SCALE 967

Writ Petition (Crl.) No. 156 of 2016 Page 13 of 41

becomes all the more important.  In Sakshi vs. Union of India10,

the Court stressed that there is a dire need to come up with a

legislation for the protection of witnesses.  The Court also had

issued certain guidelines on the procedure of taking of evidence

from a child witness.  The Court also pointed out the need for

special  protection  to  a  victim  of  sexual  abuse  at  the  time  of

recording her statement in court.  The petitioner in that case had

given certain suggestions for effectively dealing with the special

provisions for testimony in child sexual abuse cases, which were

as follows:

a) The judges shall allow the use of a videotaped interview of the

testimony of the child in the presence of a child-support person.

b) A  child  could  be  permitted  to  testify  through  closed  circuit

television or from behind a screen to acquire an honest and frank

account of the acts complained of without any fear.

c) Only the judge should be allowed to cross-examine a minor on

the basis of the questions given by the defence in writing after the

examination of the minor.

d) During  the  testimony of  the  child,  sufficient  interval  should  be

provided as and when she requires it. 10 (2004) 5 SCC 518 Writ Petition (Crl.) No. 156 of 2016 Page 14 of 41

12) In some other judgments, this  Court gave some more guidelines,

in the following manner:

a) Sections 354 and 377 of the Indian Penal Code should be tried

and inquired on the same principles mentioned under sub-

section (2) of Section 327 Cr.P.C.

b) While holding the trial of rape or child sex abuse, some sort of

arrangements like a screen or something like it may be used so

as  to  make  sure  that  victim  or  witnesses  (who  are  equally

vulnerable and need protection like the victim) do not confront the

accused;  

c) Questions raised during the cross-examination by the counsel of

the accused that are directly related to and be reminiscent to the

victim or the witnesses of the incident should be written down and

given  to  the  presiding  officer  of  the  court  in  advance.   The

presiding officer must put forth those questions to the victim or

witness  in  simple  and  clear  language  and  as  far  as  possible

without making her uncomfortable;

13) It  hardly  needs to be emphasised that  failure to hear  material

witness  is  denial  of  fair  trial.   The  practice,  however,  to  give

protection to the witnesses is based on ad hocism, i.e., on case Writ Petition (Crl.) No. 156 of 2016 Page 15 of 41

to case basis.  The Courts have also, in the process, adopted

different means to ensure witness protection, which can be stated

in brief detail:    

(a) Publication  of  evidence  of  the  witness  only  during  the

course  of  trial  and  not  after  [Naresh  Shridhar  Mirajkar  and

Others vs. State of Maharashtra and Another; [1966 (3) SCR

744]

(b) Re-trial allowed due to apprehension and threat to the life of

witness  [Sunil  Kumar Pal vs.  Phota Sheikh and Other;  AIR

1984 SC 1591]

(c) Necessity of anonymity for victims in cases of rape [Delhi

Domestic Working Women’s Forum vs. Union of India; (1995)

1 SCC 14)]

(d) Discouraging  the  practice  of  obtaining  adjournments  in

cases when witness is present and accused is absent. [State of

U.P. vs. Shambhu Nath Singh; (2001) 4 SCC 667]

(e) Making  threatening  of  witnesses  as  a  ground  for

cancellation  of  bail  [Ram  Govind  Upadhyay  v.  Sudarshan

Singh; II (2002) SLT 587]

(f) Cross-examination by video conferencing — This is one

of the innovative methods devised, which is specifically helpful to

the victims of sexual crimes, particularly, child witnesses who are

Writ Petition (Crl.) No. 156 of 2016 Page 16 of 41

victims of crime as well.

14) In  the  instant  case  itself  the  petitioners  have  approached this

Court  with  the  allegations  that  in  the  trials  that  are  going  on

against Asaram,  who is charged with the offence of committing

rapes in numerous cases,  the witnesses have been frightened

with serious consequences in case they depose against Asaram.

It  is alleged that  as many as 10 witnesses have already been

attacked and three witnesses have been killed.   

15) There  are  four  petitioners  in  this  petition.   These  petitioners

include a witness, father of a murdered witness, father of the child

rape victim and a journalist who escaped a murder attempt by

goons of godman Asaram and his son Naryana Sai and still faces

death threats by a jailed sharpshooter of Asaram and Narayan

Sai.   It  is  stated  that  Petitioner  No.  1  Mahender  Chawla

miraculously survived a murder attempt on his life for daring to

testify  against  so  called  godman,  Asaram  Bapu  and  his  son

Narayan Sai in horrifying cases of rape of a child and two sisters.

Petitioner  no.  1  also  witnessed  Narayan  Sai  doing  Tantrik

Practice  on  a  dead  body  of  a  child  in  an  Asaram in  Madhya

Pradesh, in which till date there has not been any investigation

due to the influence of Asaram.  Petitioner no. 2 Naresh Gupta is

Writ Petition (Crl.) No. 156 of 2016 Page 17 of 41

the father of a murdered witness, named, Akhil Gupta.  Akhil was

killed for daring to be a witness against Asaram.  Petitioner no. 3

Karamvir  Singh  is  the  father  of  a  child,  who  was  raped  by

Asaram.   Petitioner  no.  3’s  son  Somvir  was  threatened  by  2

attackers  despite  having  State  police  security.   The  attackers

were apprehended and released on bail.  Shockingly the same

attacker,  named  Narayan  Pandey,  later  killed  a  rape-case

prosecution witness Kripal Singh.  The child rape victim’s family

has been attacked, threatened and lives in constant fear.  It  is

also  alleged  that  despite  being  threatened,  the  Uttar  Pradesh

Police shockingly withdrew half of their security.  Petitioner no. 4,

Narendra Yadav is a journalist who survived a murder attempt on

his life because he dared to write articles to the dislike of Asaram

Bapu and Narayan Sai.  He now lives in constant fear of being

killed  as  the  Uttar  Pradesh  Police  has  given  him  a  solitary

security guard for just eight hours a day, leaving him to fend for

himself through the remaining 16 hours. It is also averred that the

sharp shooter  of  Asaram,  Narayan Pandey,  who is  in   jail  for

murdering a witness Kripal Singh, writes threatening letters to him

from inside the jail.

16) The petitioners have prayed for a court monitored SIT or a CBI

Writ Petition (Crl.) No. 156 of 2016 Page 18 of 41

probe.  It is stated by the petitioners that the prevailing feeling of

fear amongst witnesses in the country seriously impairs the right

of the people of this country to live in a free society governed by

rule of law.  The right to testify in courts in a free and fair manner

without  any  pressure  and  threat  whatsoever  is  under  serious

attack today.  If one is unable to testify in courts due to threats or

other pressures,  then it  is  a clear violation of  Article 21 of the

Constitution.  The right to life guaranteed to the people of this

country also includes in its fold the right to live in a society, which

is free from crime and fear and right  of  witnesses to testify in

courts without fear or pressure.

17) The  petitioners  had  initially  impleaded  Union  of  India  as

Respondent  No.  1  and  States  of  Haryana,  Uttar  Pradesh,

Rajasthan, Gujarat and Madhya Pradesh as Respondent Nos. 2

to 6.  

18) Appreciating the importance and seriousness of the matter, this

Court issued show cause notices in the petition on November 18,

2016.  After the service of the notice when the matter came up for

hearing on March 24, 2017, this Court also  directed the States of

Uttar Pradesh and Haryana to ensure full and proper protection to

the petitioners by providing adequate security.

Writ Petition (Crl.) No. 156 of 2016 Page 19 of 41

19) When the matter was again listed on August 28, 2017, Mr.  K.K.

Venugopal, learned Attorney  General appeared on behalf of the

Union of India, along with Ms. Pinky Anand, Additional Solicitor

General.  It was pointed out that since this Court was primarily

dealing  with  the  issue  pertaining  to  witness  protection

programme, it  would be appropriate that  other States are also

impleaded inasmuch as the issue had PAN India significant and

witness  protection  programme  should  be  available  in  all  the

States.   The petitioners  were,  accordingly,  directed to  implead

other States as well and they be served with the notice of this

petition.   This  is  how  the  coverage  of  the  petition  has  been

extended to the entire country, encompassing all the States and

Union Territories.  

20) The  petition  was  amended  and  all  the  States  and  Union

Territories have been served and are represented through their

respective counsel.  When the matter was thereafter taken up for

hearing on November 17, 2017 all the respondents were called

upon to file their responses indicating as to what steps could be

taken to have the witness protection programme in place.  

21) Mr.  Venugopal,  learned  Attorney  General  for  India  was  also

Writ Petition (Crl.) No. 156 of 2016 Page 20 of 41

requested to give suggestions in the form of a draft scheme.  It is

heartening to note that Union of India did not take this petition as

adversarial  and  understood  the  necessity  of  having  such  a

scheme in the larger public interest.  With this sensitivity in mind,

Ministry of Home Affairs have prepared a draft witness protection

scheme, 2018 and placed the same on record of this case.  This

was  noted  in  the  orders  dated  April  13,  2018  and  the  State

Governments as well as Union Territories, who had already been

supplied with the copy of the draft scheme by the Ministry itself,

were asked to furnish their  comments by May 31, 2018 to the

Ministry of Home Affairs.  The Union Government was impressed

upon  to  finalise  the  scheme  after  receiving  the

comments/suggestions  from  the  various  Governments.   Order

dated  April  13,  2018,  incorporating  the  aforesaid  aspects,  is

reproduced below:

"We are informed that  the Ministry  of  Home Affairs  has prepared a draft Witness Protection Scheme 2018. A copy of the said draft scheme is handed over to us in the court today. Vide letter dated 22nd March, 2018, a copy of the said scheme is also provided to all the State Governments and the Union Territories Administration requesting them to furnish  their  comments  by  9th  April,  2018.  Thereafter, again  by  reminder  dated  11th  April,  2018  all  the  State Governments and Union Territories were asked to furnish their comments by 31st May, 2018. We expect all the State Governments as well as the Union Territories  to  furnish  their  comments  by  the  aforesaid stipulated date of 31st May, 2018 to the Ministry of Home Affairs. After receiving the comments/suggestions the draft

Writ Petition (Crl.) No. 156 of 2016 Page 21 of 41

Witness Protection Scheme 2018 shall be finalized by the Government, Ministry of Home Affairs before the next date.

List the matter in the second week of August, 2018.

Learned  amicus  curiae  is  also  at  liberty  to  furnish  his suggestions.”

22) When  the  matter  was  taken  up  on  November  19,  2018,  the

learned Attorney  General  informed  that  after  taking  the  inputs

from various States and Union Territories,  Central  Government

had finalized the scheme and filed it in this Court on November

06, 2018 supported by its affidavit.  He was also candid in his

submission that this Court can pass appropriate orders directing

all  the  States  to  adopt  that  scheme  and  provide  a  witness

protection  in  accordance  therewith  till  the  time  appropriate

legislation in this behalf is passed.

23) We may place on record that as per the affidavit of the Central

Government, the Witness Protection Scheme, 2018 is based on

the  inputs  received  from 18  States/Union  Territories,  5  States

Legal  Services  Authorities  and  open  sources  including  civil

society, three High Courts as well as from Police personnel.  It is

also stated that  the scheme has been finalised in consultation

with National Legal Services Authority (NALSA). It is mentioned

that the aim and objective of the scheme is to ensure that the

Writ Petition (Crl.) No. 156 of 2016 Page 22 of 41

investigation,  prosecution  and  trial  of  criminal  offences  is  not

prejudiced  because  witnesses  are  intimidated  or  frightened  to

give  evidence  without  protection  from violent  or  other  criminal

recrimination.  It aims to promote law enforcement by facilitating

the protection of persons who are involved directly or indirectly in

providing assistance to criminal law enforcement agencies and

overall administration of justice.  

24) The affidavit further emphasises that the witnesses need to be

given the confidence to come forward to assist law enforcement

and  judicial  authorities  with  full  assurance  of  safety  and  the

present Scheme is aimed to identify the series of measures that

may  be  adopted  to  safeguard  witnesses  and  their  family

members  from  intimidate  and  threats  against  their  lives,

reputation and property.

25) At this stage, we reproduce Witness Protection Scheme, 2018 as

filed, in its entirety:

"Witness Protection Scheme, 2018

PREFACE Aims & Objective:

The  ability  of  a  witness  to  give  testimony  in  a  judicial setting  or  to  cooperate  with  law  enforcement  and investigations  without  fear  of  intimidation  or  reprisal  is

Writ Petition (Crl.) No. 156 of 2016 Page 23 of 41

essential  in maintaining the rule of law. The objective of this  Scheme  is  to  ensure  that  the  investigation, prosecution and trial of criminal offences is not prejudiced because witnesses  are  intimidated  or  frightened to  give evidence without protection from violent or other criminal recrimination.  It  aims  to  promote  law  enforcement  by facilitating  the  protection  of  persons  who  are  involved directly or indirectly in providing assistance to criminal law enforcement  agencies  and  overall  administration  of Justice.  Witnesses  need  to  be  given  the  confidence  to come  forward  to  assist  law  enforcement  and  Judicial Authorities  with  full  assurance  of  safety.  It  is  aimed  to identify  series  of  measures  that  may  be  adopted  to safeguard  witnesses  and  their  family  members  from intimidation and threats against their lives, reputation and property.

Need and justification for the scheme:

Jeremy Bentham has said that “Witnesses are the eyes and ears of justice.” In cases involving influential people, witnesses  turn  hostile  because  of  threat  to  life  and property. Witnesses find that there is no legal obligation by the state for extending any security.

Hon’ble Supreme Court of India also held in State of Gujrat v. Anirudh Singh (1997) 6 SCC 514 that: “It is the salutary duty  of  every  witness  who  has  the  knowledge  of  the commission  of  the  crime,  to  assist  the  State  in  giving evidence.”  Malimath  Committee  on  Reforms of  Criminal Justice  System,  2003  said  in  its  report  that  “By  giving evidence  relating  to  the  commission  of  an  offence,  he performs a sacred duty of assisting the court to discover the truth”. Zahira Habibulla H. Shiekh and Another v. State of Gujarat 2004 (4) SCC 158 SC while defining Fair Trial said “If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial’’.

First ever reference to Witness Protection in India came in 14th Report  of  the  Law  Commission  of  India  in  1958. Further reference on the subject  are found in 154th and 178th report of the Law Commission in India.  198th Report of the Law Commission of India titled as “Witness Identity Protection and Witness Protection Programmes, 2006” is dedicated to the subject.

Hon’ble  Supreme Court  observed in  Zahira  case supra, Writ Petition (Crl.) No. 156 of 2016 Page 24 of 41

“country can afford to expose its morally correct citizens to the  peril  of  being  harassed  by  anti-social  elements  like rapists  and  murderers”.   The  4th National  Police Commission  Report,  1980  noted  ‘prosecution  witnesses are turning hostile  because of  pressure of  accused and there  is  need  of  regulation  to  check  manipulation  of witnesses.”

Legislature  has  introduced  Section  195A  IPC  in  2006 making  Criminal  Intimidation  of  Witnesses  a  criminal offence  punishable  with  seven  years  of  imprisonment. Likewise,  in  statues  namely  Juvenile  Justice  (Acre  and Protection  of  Children)  Act,  2015,  Whistle  Blowers Protection Act,  2011, Protection of  Children from Sexual Castes and Tribes (Prevention of Atrocities) Act, 1989 also provides  for  safeguarding  witnesses  again  the  threats. However  no  formal  structured  programme  has  been introduced as on date for addressing the issue of witness protection in a holistic manner.   In  recent  year’s  extremism,  terrorism  and  organized crimes have grown and are becoming stronger and more diverse.  In the investigation becoming and prosecution of such crimes, it  is  essential  that witnesses,  have trust  in criminal  justice  system.  Witnesses  need  to  have  the confidence to come forward to assist law enforcement and prosecuting agencies. They need to be assured that they will  receive support  and protection from intimidation and the harm that  criminal  groups might seek to inflict  upon them in order to discourage them from co-operating with the  law enforcement  agencies  and deposing  before  the court of law.  Hence, it is high time that a scheme is put in place  for  addressing  the  issues  of  witness  protection uniformly in the country.

Scope of the Scheme:

Witness Protection may be as simple as providing a police escort to the witness up to the Courtroom or using modern communication technology (such as audio video means) for recording of testimony. In other more complex cases, involving  organised  criminal  group,  extraordinary measures are required to ensure the witness’s safety viz. anonymity, offering temporary residence in a safe house, giving a new identity, and relocation of the witness at an undisclosed place. However, Witness protection needs of a witness may have to be viewed on case to case basis

Writ Petition (Crl.) No. 156 of 2016 Page 25 of 41

depending upon their vulnerability and threat perception.

1. SHORT TITLE AND COMMENCEMENT:

(a)  The  Scheme  shall  be  called  “Witness  Protection Scheme, 2018” (b) It shall come into force from the date of Notification.

Part I

2. DEFINITIONS:

(a) "Code" means the Code of Criminal Procedure, 1973 (2 of 1974);

(b)  “Concealment  of  Identity  of  Witness” means  and includes any condition prohibiting publication or revealing, in any manner, directly or indirectly, of the name, address and other particulars which may lead to the identification of the witness during investigation, trial and post-trial stage;

(c) “Competent Authority” means a Standing Committee in each District  chaired by  District and Sessions Judge with  Head  of  the  Police  in  the  District  as  Member  and Head  of  the  Prosecution  in  the  District  as  its  Member Secretary.

(d)  “Family Member” includes parents/guardian, spouse, live-in  partner,  siblings,  children,grandchildren  of  the witness;

(e)  "Form" means “Witness Protection Application Form” appended to this Scheme;

(f)  “In  Camera  Proceedings” means  proceedings wherein the Competent Authority/Court allows only those persons who are necessary to be present while hearing and  deciding  the  witness  protection  application  or deposing in the court;

(g)  “Live Link” means and include a live  video link  or other  such  arrangement  whereby  a  witness,  while  not being physically present in the courtroom for deposing in the matter or interacting with the Competent Authority;

(h)  “Witness  Protection  Measures” means  measures spelt  out in Clause 7, Part-III,  Part-IV and Part V of the

Writ Petition (Crl.) No. 156 of 2016 Page 26 of 41

Scheme.

(i) "Offence" means those offences which are punishable with death or life imprisonment or an imprisonment up to seven  years  and  above  and  also  offences  punishable punishable under Section 354, 354A, 354B, 354C, 354D and 509 of IPC.

(j)  "Threat  Analysis  Report" means  a  detailed  report prepared and submitted by the Head of the Police in the District  Investigating  the  case  with  regard  to  the seriousness and credibility of the threat perception to the witness  or  his  family  members.  It  shall  contain  specific details about the nature of threats by the witness or his family  to  their  life,  reputation  or  property  apart  from analyzing  the  extent,  the  or  persons  making  the  threat, have the intent,  motive and resources to  implement  the theats.

It  shall  also categorize  the threat  perception apart  from suggesting the specific witness protection measures which deserves to be taken in the matter;

(k)  “Witness” means any person, who posses information or document about any offence;

(l)  “Witness Protection Application” means an application moved  by  the  witness  in  the  prescribed  form  before  a Competent Authority for seeking Witness Protection Order. It  can be moved by the witness, his family member, his duly  engaged  counsel  or  IO/SHO/SDPO/Prison  SP concerned and the same shall preferably be got forwarded through the Prosecutor concerned;

(m)  “Witness Protection Fund” means the fund created for bearing the expenses incurred during the implementation of  Witness  Protection  Order  passed  by  the  Competent Authority under this scheme;

(n) “Witness Protection Order” means an order passed by the  Competent  Authority  detailing the witness  protection measures to be taken

(o)   “Witness Protection Cell” means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order.

Writ Petition (Crl.) No. 156 of 2016 Page 27 of 41

Part II

3.  CATEGORIES  OF  WITNESS  AS  PER  THREAT PERCEPTION:

Category ‘A’ : Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.  

Category  ‘B’  :  Where  the  threat  extends  to  safety, reputation  or  property  of  the  witness  or  his  family members, during the investigation/trial or thereafter.

Category ‘C’ : Where the threat is moderate and extends to harassment or intimidation of the witness or his family member's,  reputation  or  property,  during  the investigation/trial or thereafter.

4. STATE WITNESS PROTECTION FUND:

(a) There shall be a Fund, namely, the Witness Protection Fund  from  which  the  expenses  incurred  during  the implementation of Witness Protection Order passed by the Competent Authority and other related expenditure, shall be met.

(b)  The  Witness  Protection  Fund  shall  comprise  the following:-  

i.  Budgetary allocation made in the Annual  Budget by the State Government; ii.  Receipt  of  amount  of  costs  imposed/ordered to  be deposited  by  the  courts/tribunals  in  the  Witness Protection Fund; iii.  Donations/contributions from Charitable  Institutions/ Organizations and individuals permitted by Central/State Governments. iv.  Funds  contributed  under  Corporate  Social Responsibility.

(c)  The  said  Fund  shall  be  operated  by  the Department/Ministry  of  Home  under  State/UT Government.

5. FILING  OF  APPLICATION  BEFORE  COMPETENT AUTHORITY:

Writ Petition (Crl.) No. 156 of 2016 Page 28 of 41

The  application  for  seeking  protection  order  under  this scheme  can  be  filed  in  the  prescribed  form  before  the Competent Authority of the concerned District where the offence is committed, through its Member Secretary along with supporting documents, if any.

6.  PROCEDURE  FOR  PROCESSING  THE APPLICATION:

(a) As and when an application is received by the Member Secretary  of  the  Competent  Authority,  in  the  prescribed form,  it  shall  forthwith  pass  an  order  for  calling  for  the Threat Analysis Report from the ACP/DSP in charge of the concerned Police Sub-Division.

(b)  Depending upon the urgency in the matter  owing to imminent threat, the Competent Authority can pass orders for interim protection of the witness or his family members during the pendency of the application.

(c)  The  Threat  Analysis  Report  shall  be  prepared expeditiously  while  maintaining  full  confidentiality  and  it shall  reach  the  Competent  Authority  within  five  working days of receipt of the order.

(d)  The Threat Analysis Report shall categorize the threat perception  and  also  include  suggestive  protection measures for providing adequate protection to the witness or his family.

(e) While processing the application for witness protection, the Competent  Authority  shall  also interact  preferably  in person and if not possible through electronic means with the witness and/or his family members/employers or any other  person deemed fit  so  as  to  ascertain  the witness protection needs of the witness.

(f) All the hearings on Witness Protection Application shall be  held in-camera by  the  Competent  Authority  while maintaining full confidentiality.  

(g) An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police authorities.

(h)  The  Witness  Protection  Order  passed  by  the Competent Authority shall be implemented by the Witness

Writ Petition (Crl.) No. 156 of 2016 Page 29 of 41

Protection Cell of the State/UT or the Trial Court, as the case may be.  Overall responsibility of implementation of all  witness  protection  orders  passed  by  the  Competent Authority  shall  lie  on  the  Head  of  the  Police  in  the State/UT.  

However  the  Witness  Protection  Order  passed  by  the Competent  Authority  for  change  of  identity  and/or relocation  shall  be  implemented  by  the  Department  of Home of the concerned State/UT.

(i)  Upon  passing  of  a  Witness  Protection  Order,  the Witness Protection Cell shall file a monthly follow-up report before the Competent Authority.

(j) In case, the Competent Authority finds that there is a need  to  revise  the  Witness  Protection  Order  or  an application is moved in this regard, and upon completion of trial,  a fresh Threat Analysis Report shall  be called from the  ACP/DSP  in  charge  of  the  concerned  Police  Sub- Division.

7. TYPES OF PROTECTION MEASURES:

The  witness  protection  measures  ordered  shall  be proportionate  to  the  threat  and  shall  be  for  a  specific duration not exceeding three months at a time. They may include:

(a) Ensuring that witness and accused do not come face to face during investigation or trial;

(b) Monitoring of mail and telephone calls;

(c)  Arrangement  with the telephone company to change the witness’s telephone number or assign him or her an unlisted telephone number;

(d) Installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc;

(e) Concealment of identity of the witness by referring to him/her with the changed name or alphabet;

(f) Emergency contact persons for the witness;

Writ Petition (Crl.) No. 156 of 2016 Page 30 of 41

(g)  Close  protection,  regular  patrolling  around  the witness’s house;

(h) Temporary change of residence to a relative’s house or a nearby town;

(i)  Escort  to  and  from  the  court  and  provision  of Government vehicle or a State funded conveyance for the date of hearing;

(j) Holding of in-camera trials;

(k)  Allowing  a  support  person  to  remain  present  during recording of statement and deposition;

(l)  Usage of  specially  designed vulnerable witness court rooms  which  have  special  arrangements  like  live  video links,  one way mirrors and screens apart  from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he/she is not identifiable;

(m)  Ensuring  expeditious  recording  of  deposition  during trial on day to day basis without adjournments;

(n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of  re-location,  sustenance  or  starting  a  new vocation/profession, if desired;

(o)  Any  other  form  of  protection  measures  considered necessary.

8. MONITORING AND REVIEW:

Once  the  protection  order  is  passed,  the  Competent Authority would monitor its implementation and can review the  same  in  terms  of  follow-up  reports  received  in  the matter. However, the Competent Authority shall review the Witness Protection Order on a quarterly basis based on the  monthly  follow-up  report  submitted  by  the  Witness Protection Cell.

Writ Petition (Crl.) No. 156 of 2016 Page 31 of 41

Part III

9. PROTECTION OF IDENTITY :-

During the course of investigation or trial of any offence, an application for seeking identity protection can be filed in the  prescribed  form  before  the  Competent  Authority through its Member Secretary.

Upon receipt of the application, the Member Secretary of the Competent Authority shall call for the Threat Analysis Report.  The  Competent  Authority  shall  examine  the witness or his family members or any other person it deem fit  to  ascertain  whether  there  is  necessity  to  pass  an identity protection order.

During the course of hearing of the application, the identity of the witness shall not be revealed to any other person, which  is  likely  to  lead  to  the  witness  identification.  The Competent  Authority  can  thereafter,  dispose  of  the application as per material available on record.

Once,  an  order  for  protection  of  identity  of  witness  is passed  by  the  Competent  Authority,  it  shall  be  the responsibility  of  Witness  Protection  Cell  to  ensure  that identity  of  such  witness/his  or  her  family  members including  name/parentage/occupation/address/digital footprints are fully protected.

As long as identity of any witness is protected under an order of the Competent Authority, the Witness Protection Cell shall provide details of persons who can be contacted by the witness in case of emergency.

Part IV

10. CHANGE OF IDENTITY:-

In appropriate cases, where there is a request from the witness for  change of  identity  and based on the Threat Analysis Report, a decision can be taken for conferring a new identity to the witness by the Competent Authority.

Conferring  new  identities  includes  new name/profession/parentage  and  providing  supporting documents acceptable by the Government Agencies. The

Writ Petition (Crl.) No. 156 of 2016 Page 32 of 41

new identities should not deprive the witness from existing educational/ professional/property rights.

Part V

11. RELOCATION OF WITNESS:

In appropriate cases, where there is a request from the witness for relocation and based on the Threat Analysis Report,  a  decision  can  be  taken  for  relocation  of  the witness by the Competent Authority.

The Competent Authority may pass an order for witness relocation to a safer place within the State/UT or territory of the Indian Union keeping in view the safety, welfare and wellbeing of the witness. The expenses shall be borne by the Witness Protection Fund.

Part VI

12. WITNESSES TO BE APPRISED OF THE SCHEME:

Every state shall give wide publicity to this Scheme.  The IO  and  the  Court  shall  inform  witnesses  about  the existence of "Witness Protection Scheme" and its salient features.

13.  CONFIDENTIALITY  AND  PRESERVATION  OF RECORDS:

All  stakeholders  including  the  Police,  the  Prosecution Department,  Court  Staff,  Lawyers  from both sides shall maintain full confidentiality and shall ensure that under no circumstance,  any  record,  document  or  information  in relation to  the  proceedings  under  this  scheme shall  be shared with  any person in  any manner except  with the Trial  Court/Appellate  Court  and  that  too,  on  a  written order.

All  the  records  pertaining  to  proceedings  under  this scheme shall be preserved till such time the related trial or appeal thereof is pending before a Court of Law. After one year of disposal of the last Court proceedings, the hard copy of the records can be weeded out by the Competent Authority after preserving the scanned soft copies of the same.

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14. RECOVERY OF EXPENSES:

In  case  the  witness  has  lodged  a  false  complaint,  the Home   Department  of  the  concerned  Government  can initiate  proceedings  for  recovery  of  the  expenditure incurred from the Witness Protection Fund.

15. REVIEW:

In case the witness or the police authorities are aggrieved by  the  decisions  of  the  Competent  Authority,  a  review application may be filed within 15 days of passing of the orders by the Competent Authority.  

Witness Protection Scheme, 2018 Witness Protection Application

under Witness Protection Scheme, 2018

Before,                                           (To be filed in duplicate) The Competent Authority, District................................................................

Application for:

1. Witness Protection  2. Witness Identity Protection 3. New Identity 4. Witness Relocation

1. Particulars  of  the  Witness  (Fill  in Capital): 1)   Name 2)   Age 3)   Gender (Male/Female/Other) 4)   Father's/Mother’s Name 5)   Residential Address 6)   Name and other details of family       members of the witness who are        receiving or perceiving threats 7) Contact details (Mobile/e-mail)

--------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- ---------------------------

2. Particulars of Criminal matter: 1) FIR No. 2) Under Section 3) Police Station

--------------------------- --------------------------- --------------------------- ---------------------------

Writ Petition (Crl.) No. 156 of 2016 Page 34 of 41

4) District 5)  D.D.  No.  (in  case  FIR  not  yet registered)  6)   Cr.Case No.  (in  case of  private complaint)

--------------------------- --------------------------- ---------------------------

3. Particulars  of  the  Accused  (if available/known): 1) Name 2) Address 3) Phone No. 4) Email id

--------------------------- --------------------------- --------------------------- ---------------------------

4. Name  &  other  particulars  of  the person  giving/suspected  of  giving threats

--------------------------- --------------------------- --------------------------- ---------------------------

5. Nature  of  threat  perception.  Please give brief details of threat received in the matter  with  specific  date,  place, mode and words used

--------------------------- --------------------------- --------------------------- ---------------------------

6. Type of witness protection measures prayed by/for the witness

--------------------------- --------------------------- --------------------------- ---------------------------

7. Details  of  Interim  /  urgent  Witness Protection needs, if required

--------------------------- --------------------------- --------------------------- ---------------------------

•  Applicant/witness  can  use  extra  sheets  for  giving additional information.

_____________________ (Full Name with signature)

Date: ..............................

Place:...........................…

UNDERTAKING

1. I  undertake  that  I  shall  fully  cooperate  with  the competent authority and the Department of Home of the State and Witness Protection Cell. 2. I certify that the information provided by me in this application is true and correct to my best knowledge and belief.

Writ Petition (Crl.) No. 156 of 2016 Page 35 of 41

3. I understand that in case, information given by me in this application is found to be false, competent authority under  the  scheme  reserves  the  right  to  recover  the expenses  incurred  on  me  from  out  of  the  Witness Protection Fund.

_____________________ (Full Name with signature)

Date: ..............................

Place:...........................…”

26) As is clear from its reading, the essential features of the Witness

Protection Scheme, 2018 include identifying categories of threat

perceptions,  preparation  of  a  “Threat  Analysis  Report”  by  the

Head of the Police, types of protection measures like ensuring

that the witness and accused do not come face to face during

investigation  etc.  protection  of  identity,  change  of  identity,

relocation of witness, witnesses to be apprised of the scheme,

confidentiality and preservation of records, recovery of expenses

etc.

27) Since it is beneficial and benevolent scheme which is aimed at

strengthening the criminal  justice system in this country,  which

shall in turn ensure not only access to justice but also advance

the cause the justice itself,  all  the States and Union Territories

also accepted that suitable directions can be passed by the court

to enforce the said Scheme as a mandate of  the court  till  the

Writ Petition (Crl.) No. 156 of 2016 Page 36 of 41

enactment of a statute by the Legislatures.

28) It  is  clear  from  the  aforesaid  events  that  the  Scheme  is  the

outcome of the efforts put in by the Central Government with due

assistance not only from the State Governments as well as Union

Territories  but  other  stakeholders  including  Police  personnel,

NALSA and State Legal  Services Authorities,  High Courts and

even  civil  society.   There  is  no  reason  not  to  accede  to  the

aforesaid submission of the learned Attorney General and other

respondents.

29) As pointed out above, in  Sakshi’s case, the Court had insisted

about the need to come up with a legislation for the protection of

witnesses.   It  had  even  requested  the  Law  Commission  to

examine certain aspects, which resulted to 172nd review  of rape

laws by  the  Law Commission.  However,  the  Court  specifically

rejected  the  suggestion  of  the  Law  Commission  regarding

examination of vulnerable witnesses in the absence of accused.

Having regard to the provisions of Section 273 of the Code of

Criminal Procedure, which is based on the tenets of principle of

natural  justice,  that  the  witness  must  be  examined  in  the

presence of the accused, such a principle cannot be sacrificed in

trials  and  in  inquiries  regarding  sexual  offences.  In  such  a

Writ Petition (Crl.) No. 156 of 2016 Page 37 of 41

scenario  examination  of  these  witnesses  through  video

conferencing provides the solution which balances the interest of

the accused as well as vulnerable witnesses.

30) Part II(7)(L) of the Witness Protection Scheme, 2018 provides for

usage  of  specially  designed  court  room  having  special

arrangements like live links, one way mirrors, and screens apart

from  separate  passages  for  witnesses  and  accused  with  the

option  to  modify  the  image of  the  face  of  the  witness  and  to

modify the audio feed of the witness’s voice, so that he/she is not

identified.  

31) In consonance with the same, the  Delhi  Judiciary has already

established four Vulnerable Witness Deposition Complexes in the

National  Capital  Territory,  the  latest  one  being  at  the  Dwarka

District  Court,  which  was  established  in  February,  2017.  This

complex provides  facilities like separate witness room, separate

accused room, play area for the child witnesses, pantry, separate

toilet  and  an  exclusive  &  comfortable  waiting  area  and  is

equipped with  all  facilities  of  audio-visual  exchange for  a  free

interface  between  the  presiding  Judge,  the  witness  and  the

accused without witness facing the accused. The complex has a

separate entry for vulnerable witnesses, so that they do not come

Writ Petition (Crl.) No. 156 of 2016 Page 38 of 41

in  direct  contact  with accused at  any point  of  time.  There are

provisions for support persons, pre-trial court visit and facilities for

pick and drop of the witnesses from their residence. In this way,

all  possible  efforts  have  been  made  for  providing  comfortable

environment to vulnerable witnesses at this complex in order to

enable them to give their best evidence in criminal proceedings.

32) One of  the main reasons behind establishing these Vulnerable

Witness Deposition Complexes was that  a large percentage of

acquittals in criminal cases is due to witnesses turning hostile and

giving false testimonies, mostly due to lack of protection for them

and their families, especially in case of women and children.

33) In fact, the Supreme Court too, in The State of Maharashtra v.

Bandu  @  Daulat (Order  dt.  24.20.2017  in  Crl.  Appeal  No.

1820/2017) has directed as follows:

"10. … there should be special centres for examination of vulnerable  witnesses in criminal  cases in  the interest  of conducive  environment  in  Court  so  as  to  encourage  a vulnerable victim to make a statement. Such centres ought to be set up with all necessary safeguards. Our attention has been drawn to  guidelines issued by the Delhi  High Court  for  recording  evidence  of  vulnerable  witnesses  in criminal matters and also the fact that four special centres have been set up at Delhi for the purpose.

*****

12.  The directions of Delhi High Court and setting up of special centres for vulnerable witnesses as noted above

Writ Petition (Crl.) No. 156 of 2016 Page 39 of 41

are  consistent  with  the  decision  of  this  Court  and supplement  the same. We are of  the view that  all  High Courts can adopt such guidelines if the same have not yet been adopted with such modifications as may be deemed necessary.  Setting  up  of  one  center  for  vulnerable witnesses may be perhaps required almost in every district in the country. All  the High Courts may take appropriate steps in this direction in due course in phases. At least two such centres in the jurisdiction of each High Court may be set up within three months from today. Thereafter,  more such centres may be set up as per decision of the High Courts.”

34) One thing which emerges from the aforesaid discussion is that

there is a paramount need to have witness protection regime, in a

statutory form, which all the stakeholders and all the players in

the criminal justice system concede.  At the same time no such

legislation has been brought about.  These are the considerations

which  had  influenced  this  Court  to  have  a  holistic  regime  of

witness  protection  which  should  be  considered  as  law  under

Article 141 of the Constitution till a suitable law is framed.

35) We, accordingly, direct that :

(i) This Court has given its imprimatur to the Scheme prepared

by  respondent  No.1 which is  approved hereby.   It  comes into

effect forthwith.

(ii) The Union of India as well as States and Union Territories

shall enforce the Witness Protection Scheme, 2018 in letter and

Writ Petition (Crl.) No. 156 of 2016 Page 40 of 41

spirit.

(iii) It shall be the ‘law’ under Article 141/142 of the Constitution,

till  the  enactment  of  suitable  Parliamentary  and/or  State

Legislations on the subject.  

(iv) In  line  with  the  aforesaid  provisions  contained  in  the

Scheme,  in  all  the  district  courts  in  India,  vulnerable  witness

deposition complexes shall  be set up by the States and Union

Territories.  This should be achieved within a period of one year,

i.e., by the end of the year 2019.  The Central Government should

also  support  this  endeavour  of  the  States/Union  Territories  by

helping them financially and otherwise.  

36) Writ petition stands disposed of in the aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (S. ABDUL NAZEER)

NEW DELHI; DECEMBER 05, 2018.

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