Witness is an important constituent of the administration of justice. By giving evidence linking to the charge of the offence the witness performs a sacred duty of assisting the court to discover the truth. This is the reason why before giving evidence he/she either takes an oath in the name of God or makes a solemn affirmation that he/she will speak the truth, the whole truth and nothing but the truth. The witness has no risk in the decision of the criminal court as he is neither the accused nor the victim. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. The witness should therefore be treated with great respect and consideration as a guest of honour. Unfortunately, all these are seen not to be happening in the courts.
There are two broad aspects to the need for witness protection. The first is to ensure that evidence of witnesses that has already been collected at the stage of investigation is not allowed to be destroyed by witnesses resiling from their statements while deposing on oath before a court. This phenomenon of witnesses turning `hostile’ on account of the failure to `protect’ their evidence is one aspect of the problem. This in turn would involve special procedures to be introduced into the criminal law to balance the need for anonymity of witnesses on the one hand and the rights of the accused, on the other, for an open public trial with a right to cross examination of the witnesses, after knowing all details about witnesses. The other aspect is the physical and mental vulnerability of the witness and to the taking care of his or her welfare in various respects which call for physical protection of the witness at all stages of the criminal justice process till the conclusion of the case. This can be done by the introduction of witness protection programmes.
While the first aspect of protecting the evidence of witnesses from the danger of their turning ‘hostile’ has received limited attention at the hands of Parliament in some special statutes dealing with terrorism, there is an urgent need to have a comprehensive legislative scheme dealing with the second aspect of physical protection of the witness as well. Further, both aspects of anonymity and witness protection will have to be ensured in all criminal cases involving grave crimes not limited to terrorist crimes.
The implementation of such a law would involve drawing up:
(a) Procedures for granting anonymity to witnesses and also
(b) Introducing Witness Protection Programmes in which personal protection is granted to the witness; sometimes by shifting the witness to a different place or even a different country; or by providing some money for maintenance or even by providing employment elsewhere.
Unfortunately, all these are seen not to be happening in the courts and the countries. When the witness goes to the court for giving evidence there is hardly any officer of the court who will be there to receive him, provide a seat and tell him where the court he is to give evidence is located or to give him such other assistance as he may need. In most of the courts there is no designated place with proper arrangements for seating and resting while waiting for his turn to be examined as a witness in the court. Toilet facility, drinking water and other amenities like food and refreshment even are not provided. The witness bears all this to get nothing in return at all.
The witness is not adequately compensated for the amount of money he spends for his traveling and staying in the town where the court is located. Rate of allowance fixed long back are quite unrealistic and not adequate to meet the minimum needs of the witness. Steps should therefore be taken to review the scales of traveling and other allowances taking into account the prevailing cost in the area where the court is located. What is worse is that even the allowances fixed are not paid to the witness immediately on the apparent ground that funds are not available. There are also complaints of corrupt officials of the administration who draw the allowances and do not pay them to the witnesses. This is an unpardonable crime against the witnesses. Therefore effective steps have to be taken to ensure that payment of the allowances to the witness is neither denied nor delayed. Fool proof arrangements should be made to see that the allowances are paid immediately away.
On top of all this, the witnesses and their families also face problems regarding safety. Yet, the witnesses help the court to give better justice without any fear of their life and property. The court in return should also show its gratification in an appropriate manner.
Chapter1. PROBLEMS FACED BY A WITNESS
The witness is one of the most important sources of information in discovering the truth about the case, but the pains and troubles he/she has to undergo to help the court is a lot as well.
A major problem is about the safety of the 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 agreeable 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. Some times holding of in-camera proceedings may be sufficient to protect the interest of the witness. I however the circumstances indicate that the life of any particular witness is in danger, the court must take such measures as are necessary to keep the identity of the witness secret and make arrangements to ensure protection to the witness without affecting the right of the accused to cross examine him. The threat from the accused side may be before he gives his statement before the police officer or evidence in the court or after the conclusion of the trial. There is a growing tendency of subjecting the witness and his family members to serious threats to life, abduction or raping or damaging the witnesses’ property or harming his image and interest in other ways. The witness has no protection whatsoever. Many countries in the world have enacted laws for witnesses’ protection. There is no such law in India.
The witness also suffers in the court in various other ways. When he comes to the court to give evidence he is often told that the case has been adjourned and is asked to come back on another city. When a case is adjourned, the witnesses in attendance are quite often not paid the allowances. The witnesses should not be punished by denying him his rightful expenses for no fault of his own. Steps should therefore be taken to ensure that the witnesses are paid allowances on the same day if the case is adjourned. Quite often more than one witness is summoned to prove the same point. The prosecutor may pay attention to reduce duplication of evidence resulting in unnecessary waste of time of courts and expenses.
The next portion is about the way the witness is treated during trial. The witness is entitled to be treated with courtesy when he arrives for giving evidence. Similarly, due courtesy should be shown to him when he enters the court for giving evidence. The present practice is to make the witness stand and give his evidence from the place designated for that purpose. Comfort, convenience and dignity of the witness should be the concern of the judge. A chair should be provided for the witness and requested to take his seat for giving evidence. The lawyer for the defence in order to demonstrate that the witness is not truthful or a reliable person would ask all sorts of questions to him. When the questions are likely to annoy, insult or threaten the witness, the judge does not object and often sits as a mute spectator. It is high time the judges are sensitized about the responsibility to regulate cross examination so as to ensure that the witness is not ill treated affecting his dignity and honour. Therefore the High Courts should take measure through training and supervision to sensitize the judges of their responsibility to protect the rights of the witnesses.
So far as witness is concerned, it is his primary duty to give true evidence of what he knows. Unfortunately this is not happening and the problem of perjury is growing.
Chapter2. PROPOSED MECHANISM FOR WITNESS PROTECTION PROGRAMME
Public trial and cross-examination of witnesses in open court: Indian laws
Section 327 of Cr.PC provides for trial in the open court and 327 (2) provides for in-camera trials for offences involving rape under Section 376 of IPC and under Section 376 A to 376 D of the IPC. Section 273 requires the evidence to be taken in the presence of the accused. Section 299 indicates that in certain exceptional circumstances an accused may be denied his right to cross-examine a prosecution witness in open court. Further, under Section 173 (6) the police officer can form an opinion that any part of the statement recorded under Section 161 of a person the prosecution proposes to examine as its witness need not be disclosed to the accused if it is not essential in the interests of justice or is inexpedient in the public interest. Section 228A IPC prescribes punishment if the identity of the victim of rape is published. Likewise, Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000 prohibits publication of the name, address and other particulars which may lead to the identification of the juvenile. Under Section 33 of the Evidence Act, in certain exceptional cases, where cross examination is not possible, previous deposition of the witness can be considered that relevant in subsequent proceedings. The Evidence Act requires to be looked into afresh to provide for protection to a witness.
Protection of identity of witnesses: Special Statutes in India
In the pre-constitutional era, Section 31 of the Bengal Suppression of Terrorist Outrages Act, 1932 empowered the special Magistrate to exclude persons or public from the precincts of the court. Section 13 of TADA, 1985 and Section 16 TADA 1987 provided for protection of the identity and address of a witness secret. Section 30 POTA 2002 is on the same lines as Section 16 TADA, 1987. Apart from these provisions in special statutes, there is a need for a general law dealing with witness anonymity in all criminal cases where there is danger to the life of the witness or of his relatives or to his property.
Protection of identity of witnesses v. Rights of accused –
Principles of law developed by the Supreme Court and the High Courts
In the pre-Maneka Gandhi phase the Supreme Court, in Gurbachan Singh v. State of Bombay  , upheld a provision of the Bombay Police Act, 1951 that denied permission to a detenue to cross-examine the witnesses who had deposed against him. It was held that the law was only to deal with exceptional cases where witnesses, for fear of violence to their person or property, were unwilling to depose publicly against bad character. At this stage, the issue was not examined whether the procedure was ‘fair’. The decisions in G.X. Francis v. Banke Bihari Singh  and Maneka Sanjay Gandhi v. Rani Jethmalani  stressed the need for a congenial atmosphere for the conduct of a fair trial and this included the protection of witnesses. In Kartar Singh v. State of Punjab  the Supreme Court upheld the validity of ss.16 (2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) which gave the discretion to the Designated Court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the court and to withhold the names and addresses of witnesses in its orders. The court held that the right of the accused to cross-examine the prosecution witnesses was not absolute but was subject to exceptions. The same reasoning was applied to uphold the validity of Section 30 of the Prevention of Terrorism Act, 2002 (POTA) in People’s Union of Civil Liberties v. Union of India  . In Delhi Domestic Working Women’s Forum v. Union of India  the Supreme Court emphasised the maintenance of the anonymity of the victims of rape who would be the key witnesses in trials involving the offence of rape. The importance of holding rape trials in camera as mandated by Section 327 (2) and (3) Cr.PC was reiterated in State of Punjab v. Gurmit Singh  . In Sakshi v. Union of India  the Supreme Court referred to the 172nd Report of the Law Commission and laid down that certain procedural safeguards had to be followed to protect the victim of child sexual abuse during the conduct of the trial. In the Best Bakery Case  , in the context of the collapse of the trial on account of witnesses turning hostile as a result of intimidation, the Supreme Court reiterated that “legislative measures to emphasize prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day.” Although, the guidelines for witness protection laid down by the Delhi High Court in Neelam Katara v. Union of India (judgment dated 14.10.2003) require to be commended, they do not deal with the manner in which the identity of the witness can be kept confidential either before or during the trial. The judgment of the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa  , which provides for protection of the witness from the media, does not deal with all the aspects of the problem. These judgments highlight the need for a comprehensive legislation on witness protection.
Chapter3. WITNESS PROTECTION PROGRAMMES IN OTHER COUNTRIES: A COMPARATIVE STUDY
In the United Kingdom, the judgment of the House of Lords in Scott v. Scott  required that the exception to the general rule that administration of justice should take place in open court should be based “upon the operation of some other overriding principle which … does not leave its limits to the individual discretion of the Judge.” In the Leveller Magazine case (1979) it was held by the House of Lords that apart from statutory exceptions it was open to the court “in the exercise of its inherent powers to control the conduct of proceedings” so long as the court “reasonably believes it to be necessary in order to save the ends of justice.” This was subsequently recognized by the enactment of Section 11 of the (UK) Contempt of Court Act, 1981. Under Section 24 of the Youth Justice and Criminal Evidence Act, 1999 evidence may be given through a live telecast link where the witness is outside UK or is a child. Sections 16 to 33 of the same Act require the court to consider special measures of various kinds for the protection of vulnerable and intimidated witnesses. In R vs. DJX, SCY, GCZ  , the Court of Appeal allowed child witnesses to be screened from the accused. In R vs. Tailor (Gary)  , various guidelines were issued. The Lord Diplock Commission, appointed to consider various issues concerning the violent confrontations in Ireland, suggested that witnesses could be screened from the accused. In R v. Murphy (1989) it was held that identity of the witness should be kept secret not only from the accused but also from the defence lawyer. In R v. Lord Saville of Newdigate  the Court of Appeal overturned the decision of the Lord Saville Tribunal appointed to enquire into the incident of shooting of 26 people during a demonstration at Londonderry, refusing to grant anonymity to military witnesses. The Court of Appeal held that the approach of the Tribunal was not fair to the soldiers as the risk to them and their families was “a serious possibility.” In the second round (Lord Saville v. Widgery Soldiers  , the Court of Appeal overturned the decision of the Lord Saville Tribunal to shift the enquiry from London to Londonderry in Northern Ireland holding that the elements at Londonderry in Ireland “pose a threat to the enquiry and those who are or will be taking part in it, and in particular, a solider witnesses.” The venue, according to the Court of Appeal, should be London only. Further, since there would be live video linkage to Londonderry “the public confidence will not be eroded by holding a part of the enquiry in London.” The same approach was adopted in regard to the recording of the evidence of police witnesses. Following the ruling of the European Court on Human Rights in Chahel v. UK, the Special Judgment on Appeals Commission Act, 1997 and the Northern Ireland Act, 1998 have been enacted which provide for courts to sit in camera where it was necessary on national security grounds and for appointing special counsel to represent individuals in those proceedings.
In Australia, the Supreme Court of Victoria (Australia) in Jarvie (1995) approved of non-disclosure of the names and addresses of informers and undercover police officers as well as other witnesses whose personal safety would be endangered by the disclosure of their identity. This has been followed in a series of other cases as well. Australia also has 8 different statutes (in each of the States) dealing with witness protection but not with the anonymity or screening aspects. Section 2A (1) (b) of the Australian Evidence Act, 1989 deals with special witnesses – suffering from trauma or likely to be intimidated.
In New Zealand, under Section 13A of the (New Zealand) Evidence Act, 1908 (introduced 1986), protection is available to undercover officers in cases involving drug offences and offences tried on indictment attracting a maximum penalty of at least 7 years imprisonment. A certificate has to be given by the Commissioner of Police to the court that the police officer requiring protection has not been convicted of any offence. In 1997, Section 13G was introduced making protection applicable to all witnesses if their lives were likely to be endangered. In R v. L  , this provision came to be tested on the anvil of Section 25(f) of the New Zealand Bill of Rights which provides for the right to cross-examination to an accused. The court upheld the provision on the ground that the right of cross examination was not absolute. Under Section 13C (4) the Judge, might make an anonymity order where he is satisfied that the safety of a witness is likely to be endangered if his identity was disclosed. Sub-section (5) of Section 13C provides for the factors to be accounted for by the court and sub-section (6), the conditions to be fulfilled. The power of the court to exclude the public or to direct screening of the witnesses or to give evidence by close circuit television is provided under Section 13G. The 1997 legislation is comprehensive and has been held by the courts to be ‘fair’ vis-à-vis the New Zealand Bill of Rights in R vs. Atkins  .
In Canada, the courts have granted more importance to the exception of ‘innocence at stake’ rather than the needs of administration of justice. In other words, anonymity of witnesses is treated as a privilege granted under the common law unless there is a material to show that it will jeopardize the proof of innocence of the accused. The important cases in this regard are R v. Durette  ; R v. Khela  ; CBC v. New Brunswick  ; R v. Leipert  and R v. Mentuck  .
In South Africa, the approach is on a case by case basis in order to balance the conflict of interests with a view to ensuring proper administration of justice. Section 153 of the (South Africa) Criminal Procedure Code permits criminal proceedings to be held in camera to protect privacy to the witness. Section 154 gives discretion to the court to refuse publication of the name of the accused. The South African courts have permitted the witness to give evidence behind close doors or to give witness anonymity. The courts prefer to prohibit the press from reporting on identity rather than exclude them from the court room. The important cases are S v. Leepile  and S v. Pastoors  .
The courts in the US have held that the constitutional protection in favour of the right to confrontation by way of cross examination, as provided in the 6th Amendment to the Constitution, is not absolute and could be restricted for the purpose of protecting witness identity by using video link or by shielding the witness from the accused though not from the lawyers to the defence or the court or the jury. The important cases are Alford v. US
(1931); Pointer v. Texas (1965) and Smith v. Illinois (1968). In Maryland v. Craig (1990), the court upheld the procedure under the Maryland Courtsand Judicial Procedure Code which provided for protection of child witnesses by way of one-way closed-circuit procedure and held that it did not violate the right to confrontation guaranteed by the 6th Amendment. The European Court of human rights has in Kostovski (1990), Doorson (1996), Vissier (2002) and Fitt (2002) recognized the need to protect anonymity of witnesses while, on account of Article 6 of the European Convention, more importance appears to have been given to the rights of the accused. If national courts had determined that anonymity was necessary or not necessary in public interest, the European court could not interfere. The judgments of the International Criminal Tribunal for former Yugoslavia (ICTY) in the ‘Tadic’ and ‘Delaic’ cases in the context of protection of witnesses, anonymity, re-traumatisitation and general and special measures for their protection have been discussed in detail. Likewise, the decisions of the International Criminal Tribunal for Rwanda (ICTR) (1994) with reference to the relevant statute which provide for protection of victims and witnesses have also been discussed in great detail in the Consultation Paper.
Chapter4. PROBLEM OF PERJURY
One of the main reasons for the large percentage of acquittals is criminal cases is of witnesses’ turning hostile and giving false testimony in criminal cases. Several reasons are attributed to this difficulty such as inordinate delay in the trial of cases, threats or inducement from the accused, etc. As in criminal cases the prosecution relies mainly on oral evidence the problem assumes critical importance.
Witnesses give evidence in the Criminal Courts after they are administered oath or affirmation under the Oaths Act, 1969. Section 8 of the Oaths Act provides that the witness is legally bound to state the truth on the subject. The sanction behind the oath is supposed to be the fear of God, the supernatural dispenser of justice. In practice however it is seen that the witness makes false statements without any regard for the sanctity of the oath or affirmation that has been administered to them. One gets an impression that administration of oath or affirmation virtually gives license to the witness to make false statements before the Court with impunity.
There is no doubt there is statutory sanction against the witnesses making false statements in the court. Perjury is made a Penal offence under Sections 193 to 195 of the Indian Penal Code for which adequate punishment is prescribed.
Section 195 (1) (b) of the Code provides that no court shall take cognizance inter-alia of the offence of perjury under Sections 193 to 195 except on the complaint in writing of that court or of the court to which that court is subordinate. Section 340 prescribes the procedure to be followed for making a complaint contemplated by Section 195. It requires the court to hold a preliminary enquiry to record a finding that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Section 195 (1) (b). Thereafter it has to make a complaint in writing and send it to the Magistrate I Class having jurisdiction. The order under Section 340 is appealable under Section 341 of the Code. Section 343 prescribes the procedure to be followed in dealing with the case
Section 344 however prescribes an alternative summary procedure. It provides that if the Court of Session or Magistrate of first class if at any time of delivery of judgement in the case expresses an opinion that the witness appearing in such proceeding had knowingly or willingly given false evidence or fabricated false evidence for use in the proceeding, the Court may if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily, take cognizance after giving reasonable opportunity of showing cause, try such offender summarily and sentence him to imprisonment or to a fine or both. Thus it is seen that the courts response to the serious problem of perjury is rather one of utter indifference.
Unfortunately, these provisions are rarely resorted to and perjury has become a routine in courts where truth and justice must prevail.
Perjury can contribute to the wrong person being convicted while the true criminal and a perjurer walk on the streets in freedom. Offering false testimony in a criminal trial is a serious offence that undermines the integrity of the Criminal Justice System. For justice to be done truth must prevail. Witness must be made to take his oath or solemn affirmation seriously. The sentence prescribed for perjury is quite lenient. In the State of New York the sentence for perjury was recently enhanced to 15 years. As the menace of perjury is shaking the very foundation of the criminal justice system it is necessary to curb this menace and the sentence prescribed should be enhanced.
Witness is one of the most important constituent of justice. He is one of the most important sources of information in discovering the truth about the case, but the pains and troubles he has to undergo to help the court is a lot as well. By giving evidence the witness helps the courts to give correct judgement and justice. The witnesses have the danger of their lives as well as that of their families. They have the danger of their properties as well. They have to undergo lots of discomfort when they come to give evidence. Even after doing all this they do not get anything in return. Therefore it can be clearly seen that the courts are negligent in the way that they treat the witnesses.
Witness protection should take place and already various steps have been taken towards it. Many countries like, Canada, New Zealand, Australia, etc. have a well developed mechanism for witness protection. These mechanisms may encourage even more witnesses to come forward to give their evidence for the greater good. Witnesses therefore should be shown the respect and gratitude which they are actually worth of. The problem of perjury also prevails and it depends upon the witness himself to stop it. Otherwise it can contribute to the wrong person being convicted while the true criminal and a perjurer walk on the streets in freedom.
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