Report No. 198
Chapter V Protection of identity of witnesses v. Rights of accuse.- 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 AIR 1952 SC 221, 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 AIR 1958 SC 209 and Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167 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 (1994) 3 SCC 569 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 (2003) 10 SCALE 967.
In Delhi Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14 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 s.327 (2) and (3) Cr.PC was reiterated in State of Punjab v. Gurmit Singh (1996) 2 SCC 384. In Sakshi v. Union of India (2004) 6 SCALE 15 the Supreme Court referred to the 172 nd 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 (2004) 4 SCC 158, 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 emphasise 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 AIR 1988 P&H 95, 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.