Report No. 198
Procedure: (Trial stage):
(i) Victim-witnesses who have not sought identity protection as they are known to the accused (protection from trauma):
Where the victim-witness is known to the accused, though the victim had not sought identity protection earlier, he may, as already stated, not like, during trial, to suffer from any trauma by deposing to the details of the crime while physically facing the accused. The mechanism by which this can be achieved is not difficult to prescribe.
We can have an arrangement where the victim-witness does not, while deposing, see the accused but the accused is able to see the victimwitness. This is, however, subject to one exception. The victim must face the accused at least once for the purpose of identifying the accused as the person who is guilty of the crime and for that purpose also, the arrangement can provide a mechanism.
The Supreme Court has, no doubt, made an observation in Sakshi case that a screen may be erected to preclude the victim seeing the accused. But, in our view, psychologically, a victim is not free if the accused is in the same room and they are merely separated by a screen.
In our view, if the victim is in a different room, he or she will be more free to depose without any trauma. We, therefore, propose a two-way television or video link coupled with a two-way audio system connecting two rooms.
We can have a two-way closed-circuit television with a video screen in each of two different rooms. The victim-witness will be present in a room and in that room, the prosecutor, the defence lawyer and the technical personnel who operate the close-circuit television will also be present. The Judge and the accused, the technical personnel, the courtmaster and stenographer, will be in the Courtroom.
There will be a video screen in the Courtroom so that the Judge and the accused can watch the victim-witness, the prosecutor and the defence lawyer examining the victim-witness. In the other room where the victim and the two lawyers are present, there can be another screen which will be used only at the initial stage when the victim has to identify the accused. After that is done, that video camera in the room where the accused is stationed, will not be focussed on the accused.
While the victim deposes thereafter in chief or cross-examination, he will not be seeing the accused in the screen in his room any longer. The defence lawyer sees the victim directly in his room and can examine his or her demeanour. The Judge and the accused can see the victim on the screen in their room and watch his or her demeanour. The courtmaster and the stenographer can also be in the room where the Judge is sitting.
There will be a two-way audio mechanism by which the persons in each room can talk to the others in another room.
(ii) & (iii) Victim and witnesses who have sought identity protection:
Where the victim-witness or other witnesses seek identity protection at the trial, it is necessary to protect their identity at the stage of investigation, inquiry and before tria.- as per the procedure already candi___.- provided danger to the life or property of such victim or witness or of their relatives is proved. (We have already stated that there may be victim.- such as those injured in an indiscriminate firing by an accuse.- who may not be known to the accused.) Question is as to the mechanism by which this can be achieved in cases where identity protection has been granted to witnesses, including victims who have to finally depose at the trial.
Where victim/witness has been granted identity protection earlier and he is giving evidence at the trial, it is essential that the accused as well as the counsel for accused must be precluded from identifying the victim/witness concerned. But, here too.- in the case of both the victimwitness or the witness.- who are, in both cases, not known to the accuse.-, they may have to first identify the accused as the person guilty of the crime.
Therefore, there must be a two-way closed circuit television with screens in the room where such victim-witnesses are present and give evidence. Both the accused and defence lawyer must be in a separate room, in as much as both of them should not see the victim-witness or witness concerned, who will be in another room. If such victim-witness or witnesses seeking protection is in another room and the public prosecutor also is in that room, there can be allegations of the victim/witness for prosecution being prompted invisibly by the prosecutor. Therefore, it is advisable that the Judge also must be in that room wherefrom the victim-witness or witness deposes.
Thus, the arrangement must be that the victim/witness who seeks protection of identity, the public prosecutor and the Judge, his courtmaster and stenographer and the technical personnel will be in the Courtroom while the accused and the defence lawyer will be in another room. There will be a video-screen in each room. The camera in the room of the victim/witness, Prosecutor and Judge will not be focussed on the victim/witness whose identity is to be kept confidential. It will be focussed on the Judge and the prosecutor who are in the Courtroom. The Judge and the prosecutor over whom the camera is focussed will be seen on the screen which is kept in the room of the accused and the defence lawyer.
There will have to be a two-way audio system also connecting both rooms.
We are providing these procedures in Schedule 1 and Schedule 2 of the proposed Bill. The courtmaster, the stenographer and the technical personnel must take an oath that they will not disclose the identity of the witness-victim (who has earlier obtained protection order) who is giving evidence at the trial. Breach of the oath can be visited by proceedings for contempt of court, in accordance with law.