AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 198

India:

Closed circuit television procedure at the trial in the Sessions Court:

We have already referred to the in camera examination of the witness before the Magistrate at the stage of investigation for purpose of deciding anonymity during investigation. Here the accused is not heard. We have also referred to the preliminary inquiry procedure before the Magistrate during inquiry or before the Sessions Judge before the commencement of recording of evidence at the regular trial. In these preliminary inquiries, the accused is separately heard. Therefore, there is no need to go in for a two-way television or video link procedure.

Such a need, as stated below, arises only at the stage of recording evidence at the regular trial before the Sessions Judge.

At the trial, if a witness or victim has not sought for anonymity earlier or had sought and the request was rejected, there is no need for a closed circuit television or video link procedure. But where the witness or victim had applied at the stage of inquiry before the Magistrate or before the stage of recording evidence at trial before the Sessions Court and where those Courts have granted anonymity, there is need for closed circuit television procedure to be followed at the trial. The following situations may arise:

(i) There may be a case in which a victim's identity is known to the accused and vice-versa,

(ii) There may also be cases where the victim is not known to the accused such as where an accused fires with his pistol at random. In such cases, a victim may need anonymity,

(iii) There are cases where the witness's identity is not known to the accused and the witness may need identity protection.

It is obvious that a common procedure can be evolved for (ii) and (iii) where victims as well as witnesses are not known to the accused and a separate procedure can be prescribed for (i) where victim is known to the accused.

(i) Victim known to the accused:

So far as cases under (i) are concerned, where a victim is known to the accused, there is no need to prevent the accused from seeing the victim. But the witness has to be permitted to give evidence without facing the accused if he claims trauma. Here, the only need is to prevent trauma for the victim-witness which he or she will suffer if there is face to face confrontation with accused and there is no need for victim identity protection. As we shall discuss presently, even here two-way television or video link is necessary but is limited to victim deposing without seeing the accused physically or on the video screen, so as to prevent trauma.

(ii) Victim and witness not known to the accused:

(a) So far as (ii) victims whose identity is not known to the accused are concerned and so far as (iii) other witnesses whose identity is not known to the accused, prosecution may seek and that the Court may grant identity protection after conducting a preliminary hearing. Here the victim or witness cannot be allowed to be seen by the accused. A two-way television or video link is necessary for achieving that object.

(b) In the Draft Bill, we propose to define 'witness' as including a victim also, so that the same procedure for securing a 'identity' protection order may be applicable (a) both at the stage of investigation and (b) also at subsequent stages i.e. inquiry and trial.

(c) It is obvious that a victim who is not known to the accuse.- such as where the accused has indiscriminately fired at several persons, and who fears danger to his life or property or to those of his close relatives is in the same position of a witness not known to the accused who has similar apprehensions.

(d) It is equally obvious that where the prosecution or a victim feels that his or her identity is known to the accused, the prosecution or the victim will not apply for identity protection and such victims may apply only for an order that they may not be required to depose in the immediate physical presence of the accused or they may not even like to see the accused on the video screen while deposing.

We propose two separate sections in the Draft Bill to deal with (1) victims and witnesses not known to the accused, who have obtained a protection order before trial and (2) victims known to the accused who found no need to obtain any such protection order before trial.



Witness Identity Protection and Witness Protection Programmes Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys