Report No. 198
(A) Witness Anonymity
(1) Should witness anonymity be maintained in all the three stages of investigation, inquiry, trial and even at stage of appeal in a criminal case?
(2) Do you think witness anonymity should be confined to criminal cases or should anonymity be provided in civil cases as well? Should it be extended to defence witnesses also, as done under some statutes in other countries?
(3) Can the provisions of sub-section (3) of section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 or section 30 of the Prevention of Terrorism Act, 2002, which permit the Court to pass an order:
(a) avoiding the mentioning of the names and addresses of the witnesses in its orders or judgments or in any records of the cases accessible to public,
(b) issuing directions for securing that the identity and addresses of the witnesses are not disclosed, or
(c) direct that, in public interest, the proceedings pending before the Court be not published in any manner, be made applicable to cases involving other grave offences where the Court is satisfied that there is material which prima facie shows danger to the life of the witness or to his relations or to their property?
(4) Do you agree that the existing safeguards for protection of victims of sexual offences and child abuse such as in camera proceedings and ban on publishing of any material relating to such proceeding under section 327 of the Code of Criminal Procedure, 1973 are not sufficient and do you suggest any other methods for their protection?
(5) Would it be sufficient if the Commissioner of Police or Superintendent of Police seeks anonymity for the witness by certifying the danger to the life or property of the witness or his relations or should it be for the Judge to decide, on the basis of evidence placed before him, that the life or property of the witness or relations is in danger?
(6) Should there be a preliminary inquiry by the Judge on the question whether the case of the witness is a fit one where anonymity should be granted or not? In such a preliminary inquiry, should the identity and address of the witness be kept secret? Should the accused or his lawyer be heard at that stage on the question of danger to life or property of the witness or relatives or, should it be an ex parte inquiry in camera? Will it serve any useful purpose in giving opportunity to the accused/defence lawyer, particularly where the identity and address cannot be revealed in such preliminary inquiry?
(7) Should the witness satisfy the Judge, in the said preliminary inquiry, that his life or that of his relations or their property is in serious danger or is it sufficient for him to show that there is 'likelihood' of such danger? Is his mere ipse dixit on the question of danger sufficient to deny the accused the right for an open trial in the physical presence of the witness?
(8) Should the complainant or the prosecution be required to file an application before the trial Judge for non-disclosure of identity and address of the witness prior to the stage when copies/the documents are supplied to the accused under sections 207, 208 of the Code of Criminal Procedure, 1973?
(9) Should the Court, if it accepts the request for anonymity, direct that the identity and address of the witness be not reflected in the documents to be given to the accused and should it direct that the original documents containing the identity and address be kept in its safe custody and further direct that the Court proceedings should not reflect the identity and address of the witness?
(10) At the trial, if the Judge is satisfied about the danger to the witness, should the recording of statement of the witness be made in such a manner that the witness and the accused do not see each other and the Judge, the prosecutor and the defence counsel alone see him (using two cameras)? Should the witness who is shown on the video-screen be visible only to the Judge, prosecutor and the defence counsel? Should the taking of photographs in Court by others be banned?
(11) In the above context, should the witness depose from a different room or different place, and should there be another judicial officer in that room to ensure that the witness is free while giving his evidence?
(12) Should the public and media be allowed at such trials subject to a prohibition against publication? What should be the quantum of punishment for breach of this condition?
(13) Should the Court appoint an amicus curiae in every such case, where witness protection is to be or is likely to be granted, to assist the Court independently both at the preliminary hearing referred to above and at the trial?
(14) Should the method of distorting the facial image and voice of the witness be followed while recording evidence through video-link, in such cases?
(15) Should the identity and address of the witness be kept confidential throughout the inquiry and trial (or after trial too) and in all the Court proceedings upto the stage of judgment or should they be disclosed just at the commencement of the examination of the witness? If it is to be just at the commencement of evidence then, in case the evidence is not completed in one hearing, is there not the chance of the witness being threatened by the date of the next or subsequent hearing?
(16) Instead of examining the witness through the video-link procedure, will it be sufficient if a list of questions is handed over to the Court with a request to the Court to put those questions to the witness? Will it preclude fair and effective cross-examination, if the accused or his counsel is thus confined to a set list of questions and without the normal advantage of putting questions arising out of the answers of the witness to particular questions?
(17) Merely because the Court has refused to grant anonymity at preliminary hearing referred to above, is the witness to be precluded subsequently from seeking anonymity or protection at the trial, even if there are fresh circumstances warranting an order in his favour?
(18) Can the defence be allowed to contend that the prosecution witness who is given anonymity is a stock witness?
(19) Should the tele-link and display on video be conducted only by a technical officer of the judicial branch and not by a police officer or other public servant and not by outsourcing to a private contractor?
(20) Should these technical staff be located at one place in each State and move to the concerned Court whenever there is a request, as it is not possible to provide such facilities for each Court or group of Courts in the districts?
(21) Should the order as to witness anonymity, for the purpose of preliminary inquiry, be passed only by the Sessions Court and not by any other Court subordinate thereto?
(22) Against the order granting anonymity to a witness, should the law provide a right of appeal to the High Court fixing a time frame of one month from the date of service, for disposal of the appeal?
(23) Are there any other suggestions not covered by the above?