Report No. 198
Serious offences: Need for protection of victims and identity of witnesses
Such a need for protection of identity of victims and identity of witnesses in the case of serious offences has been felt in several countries and the protection has been extended to inquiries and trials of serious offences under the ordinary penal codes. Witnesses turning hostile on account of threats having increased in the cases of such crimes, protection appears to have become necessary.
(i) Consultation Paper
In para 3.7 of the Consultation Paper, it was stated by us as follows:
"In recent times, the cases where witnesses are turning hostile at trial due to threats, is no longer confined to cases of terrorism. Even in other types of offences falling under the Indian Penal Code or other statutes, this phenomenon has reached alarming proportions. There is, therefore, need, as in other countries, to generally empower the Court in such case.- where muscle power, political power, money power or other methods employed against witnesses and victim.- for the purposes of protecting witnesses so that witnesses could give evidence without any fear of reprisals and witnesses do not turn hostile on account of threats of witnesses. That indeed is the purpose of this Consultation Paper."
(ii) Several judgments of Courts have applied protection principle to witnesses in serious offences who suffer from fear or threats:
There are several judgments of Courts visualizing the need for protection of victims and witnesses generally in the case of serious offences which do not belong to the above special categories referred to in the earlier chapters.
The Supreme Court of India stated, as long back as 1952 in Gurbachan Singh v. State of Bombay (AIR 1952 SC 221), while ordering externment of the accused and directing him to be shifted to a different place (viz.) Amritsar (later modified for being shifted to Kalyan), observed that such an order was permissible under section 27 of the Bombay Police Act, 1902.
In respect of offences in Chapters XII, XVI or XVII of the Indian Penal Code, 1860, or abetment of such offences, where 'witnesses are not willing to come forward to give evidence in public on account of apprehension for 'safety of their person or property', it was permissible to pass such orders under that Act. The Court said: "Such orders could be passed in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens". This was a general case and not a case relating to terrorists or sexual offences.
In Talab Haji Hussain v. Madhukar Purushottam Mondka: AIR 1958 SC 374, the Supreme Court observed that 'witnesses should be able to give evidence without inducement or threat either from the prosecutor or the defence'. If 'any conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent power of the High Court to secure ends of justice' to prevent suborning or intimidation of witnesses or obstruction of a fair trial'. The Court based the principle on the 'inherent powers' of the High Court. This too was a general case not concerned with terrorism or sexual offences.
Even though Kartar Singh v. State of Punjab 1994 (3) SCC 569 related to trial of terrorists (TADA), there are general observations of the Supreme Court in regard to 'fear of harassment' of witnesses which needs to be prevented.
In Swaran Singh v. State of Punjab: AIR 2000 SC 2017, the Supreme Court described the plight of witnesses who were not only threatened but are maimed, or are done away with or even bribed. This was again a general case.
Likewise, though PUCL v. Union of India 2003 (10) SCALE 967 was dealing with the terrorist (POTA), there are general observations as to the protection of victims and witnesses so that they can give evidence without fear.
The concept of a fair trial was explained in NHRC v. State of Gujarat: 2003 (9) SCALE 329 to mean that the trial must be fair not only to the accused but also to the victims. Protection of victims and witnesses becomes necessary in several cases. (The above case was a case of a serious offence under the Indian Penal Code).
The Delhi High Court in Ms Neelam Katara v. Union of India (Crl. WP 247 of 2002) (dated 14.10.2003) issued guidelines for witness protection in a case relating to alleged murder. In the guidelines framed, the word 'accused' was defined as follows:
"Accused means a person charged with or suspected with the commission of crime punishable with death or life imprisonment"
We have referred to the detailed guidelines laid down by the Delhi High Court to the above case in para 5.14 of the Consultation Paper and do not propose to repeat them.
It is clear that the Delhi High Court felt that if the offences were such that they attracted a maximum punishment of death or life sentence, witness protection may become necessary.
A recent case relating to serious offences under the Indian Penal Code, 1860 where the Supreme Court emphasised the need for protection of witnesses is the one in Zahira's case 2004 (4) SCALE 373.
(iii) Provisions in other jurisdictions which generally deal with witness protection:
(a) To start with, Art. 14(1) of the ICCPR and Art. 6(1) of the European Convention permit restrictions in case there is 'prejudice' to administration of justice. Impliedly, they permit witness protection as an exception. In our view, the scope for the said protection applies both to special offences as well as general ones provided there is proof of 'prejudice' to the administration of justice.
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 general statutes in other countries provide for victim and witness protection.
(b) The best example of general protection is the New Zealand Evidence Act, 1908 as amended by the Evidence (Witness Anonymity) Amendment Act, 1997. The protection that section 13B to 13J visualize, is applicable to all indictable offences and is, therefore, not offence specific but is witness specific (see section 13B and section 13C). section 13C(4) of the above Act states that the Judge may, make an anonymity order, if he is satisfied that:
"(a) the safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to the property, if the witness's identity is disclosed; and
(i) there is no reason to believe that the witness has a motive to be untruthful having regard (where applicable) to the witness's previous convictions or the witness's relationship with the accused or any associates of the accused; or
(ii) the witness's credibility can be tested properly without the disclosure of the witness's identity; and
(c) the making of the order would not deprive the accused of a fair trial"
(c) On the same lines, the Portuguese Act No.93 of 1999 speaks of 'witness protection' and section 16 thereof requires that identity of witnesses may not be disclosed if the witnesses or their relatives or other persons in close contact with them 'face serious danger of attempt to their lives, physical integrity, freedom or property of considerable high value' where the offences attract a sentence of imprisonment of 8 years or more, or under ss. 169, 299, 300, 301 of the Criminal Code and section 28 of the Cabinet Order No.15/93 dated 22nd January. The section requires that the witness' credibility is beyond reasonable doubt and has probative value.
(d) The provisions of section 2A(1)(b) of the Australian Evidence Act, 1989 deals with 'special witnesses' who are described as persons suffering from trauma or are likely to be intimidated or to be disadvantaged as witnesses. Special arrangements can be made by the court in their favour including exclusion of public or the accused from the Court. Video-taped evidence can also be allowed.
(e) We shall refer to a few cases decided in other countries dealing with victim protection and witness identity protection generally.
In England, such a general principle of administration of justice was laid down in Marks v. Beysus: (1890) 25 QBD 494.
In Cain v. Glass: (NUL) (1985) NSWLQ 230 McHugh JA said that the principle of anonymity was applicable not only to police informers but that the said principle applied even to persons other than registered informers.
The Supreme Court of Victoria (Australia), in Jarvie & Another v. The Magistrate's Court of Victoria at Brunswick: 1995 (1) VR 84 held that the Magistrate had the 'jurisdiction' to pass anonymity order in favour of all witnesses and that the power was not confined to undercover police officers. It applied
"to other witnesses whose personal safety may be endangered by the disclosure of their identity"
The Court laid down four propositions of which proposition (2) reads as follows:
"(2) the same policies which justify the protection of informers as an aspect of public immunity also justify the protection of undercover police officers. However, the claim to anonymity can also extend to other witnesses whose personal safety is endangered by disclosure of their identity."