Report No. 198

Summary and conclusion:

Thus, while it is the common law rule that the accused has a right to know the names and addresses of prosecution witnesses so that he may inquire whether the witnesses were competent to give evidence in regard to the offence and so that he may exercise his right of cross-examination, the said right is not absolute. It has to be balanced against the rights of the victim and other prosecution witnesses so that they can depose without any fear or danger to their lives or property or to the lives or property of their close relatives.

In such cases, the victim can be permitted to depose with an intervening screen or through video-link so that he need not face the accused; and the prosecution witnesses may depose by an arrangement under which the accused will not be able to see them and their identity will not be disclosed to the accused or his lawyer. In either case, the Judge will be enabled to see the victim or the prosecution witness while they are deposing.

We may reiterate that today it is accepted that the need for protection of victims and witnesses is not necessarily confined to cases of terrorism, or sexual offences against women or children in respect of whom special statutes exist so that they may give evidence without fear and the prosecution witnesses may also depose without fear. The principle has been extended generally to cases of serious offences where the Court is satisfied that there is evidence about the likelihood of danger to the lives or property of the victim or to their relatives or to the lives or property of the witnesses or of their relatives.

No doubt, it is also accepted that this procedure must be resorted only in exceptional circumstances and provided further the Court is satisfied that the victim or witness's evidence is credible. It must be further assured that the Judge while deciding about the guilt of the accused must not be weighed against the accused merely because an anonymity order is passed or a victim is given protection.

The Judge must be satisfied, as held in Accused (CA 60/97) (1997) 15 CRNZ 148 (at 156) (NZ) (CA) that

(1) a substantial risk of serious harm to a witness exists;

(2) the risk should not be undertaken; and

(3) there is no reasonably practicable alternative means of avoiding the risk or lessening it to an acceptable level.

Factors (2) and (3) require "assessment bearing in mind any possible detrimental effect which may result to an accused by the particular order envisaged". The right to a fair trial to the accused must be treated as relevant when the Judge exercises his jurisdiction to pass such orders in a criminal case. It is also necessary to bear in mind that the fears or dangers to the victims or witnesses or to their relatives or property must be proved in the individual facts of each case.

We have stated that victim and witness protection must be available to all cases where offences are 'serious'. What is the meaning of the words 'serious offences'. We propose to describe them as offences triable by Court of Sessions. The criterion obviously is the nature of the offence and the procedure for the trial.

The Code of Criminal Procedure provides for four types of procedures. They are

(a) Trial before a Court of Session (Ch XVIII);

(b) Trial of warrant cases by a Magistrate (Ch XIX);

(c) Trial of summon cases by a Magistrate (Ch XX);

(d) Summary trials (Ch XXI).

Schedule 1 of the Code classifies cases according to the Court by which they are triable. The Court of Session is the highest Court on the criminal side. Obviously, cases relating to offences which are serious are classified as triable by Courts of Sessions.

There may also be Courts equivalent in rank as Sessions Courts and also Special Courts dealing with serious offences.

Therefore, in our view, all criminal cases relating to offences under the Indian Penal Code, 1860 or under special laws, if they are exclusively triable by a Courts of Session, or by Courts equivalent in rank to Courts of Session or by Special Courts trying serious offences, then they must be treated as 'serious' cases for purposes of victim and witness protection.