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Report No. 198

Witness Identity Protection and Witness Protection Programmes

Contents
Chapter I Introductory
The Consultation Paper
Responses to the Consultation Paper
Summary of Chapters of the Consultation Paper
Final Report
Witness Identity Protection
Witness Protection Programmes
Part I Witness Identity Protection
Chapter II Right to Fair Public Trial In Presence of The Accused Not Absolute
Iccpr
European Convention
United Kingdom
USA
Position in India
Chapter III Certain Aspects of Victim and Witness Identity Protection Under Special Statutes in India
Certain Special Statutes: Protection of Witness Identity
Summary
Chapter IV Questionnaire in Chapter VIII of Consultation Paper: Responses
Responses to the Consultation Paper
Q1 Should witness anonymity be maintained in all the three stages of investigation, inquiry, trial and even at stage of appeal in a criminal case?
Q2 Do you think witness anonymity should be confined to criminal cases or should anonymity be provided in civil case as well?
Q3 Can the provisions of sub-section (3) of section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987
Q4 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 section327 of the Code of Criminal Procedure, 1973 are not sufficient and do you suggest any other methods for their protection?
Q5 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 relation is in danger?
Q6 Should there be a preliminary inquiry by the Judge on the question whether the case of a witness is a fit one where anonymity should be granted or not?
Q7 Should the witness satisfy the Judge, in the said preliminary inquiry, that his life or that his relations or their property is in serious danger or is it sufficient for him to show that there is 'likelihood' of such danger?
Q8 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?
Q9 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?
Q10 Should the taking of photographs in Court by others be banned?
Q11 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?
Q12 Should the public and media be allowed at such trials subject to prohibition against publication?
Q13 Should the Court appoint an amicus curiae in every such case, where witness protection is to be or likely to be granted, to assist the Court independently both at the preliminary hearing referred to above and at the trial?
Q14 Should the method of distorting the facial image and voice of the witness be followed while recording evidence through video-link, in such cases?
Q15 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?
Q16 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?
Q17 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?
Q18 Can the defence be allowed to contend that the prosecution witness who is given anonymity is a stock witness?
Q19 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?
Q20 Should these technical staff be located at one place in each State and move to the concerned Court whenever there is request, as it is not possible to provide such facilities for each Court or group of Courts in the districts?
Q21 Should the order as to witness anonymity, for the purpose of preliminary inquiry, be passed only by Sessions Court and not by any other Court subordinate thereto?
Q22 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?
Q23 Any other suggestions not covered by the above?
Chapter V Need for extension of Victim Identity Protection generally to cases of serious offences triable by Court of Session
Need for extension of Victim Identity Protection generally to cases of serious offences triable by Court of Session
Serious offences: Need for protection of victims and identity of witnesses
Summary and conclusion
Chapter VI Inherent Power of The Criminal Court To Protect Victims and Witnesses & Position in India
(a) United Kingdom
(b) Australia
(c) New Zealand
(d) Canada
(e) South Africa
(f) USA
(g) European Courts of Human Rights
INDIA
Chapter VII Procedure For Deciding on Anonymity of Witnesses in Indi.- (I) During Investigation and At Inquiry; and (Ii) During Trial
(A) Procedure under earlier special statutes in India
(B) Procedure in other countries: (UK, Australia, New Zealand)
Chapter VIII Stage At Which Identity of Witness Has To Be Protecte.- Investigation, Pre-Trial or Trial and Post-Trial
Stage At Which Identity of Witness Has To Be Protecte
(A) Investigation
(B) Preliminary inquiry during Inquiry as provided in Ch. 14 to Ch. 16 before the Magistrate
(C) Preliminary Inquiry Before The Sessions Judge Before Commencement of Recording Statement of Witnesses in Sessions Court
(D) Procedure for recording statement of such witnesses at the Regular trial in Sessions Court and beyond
Chapter IX Two-Way Closed-Circuit Television for Examining The Victim and Witnesses During Trial In The Sessions Court
Two-Way Closed-Circuit Television for Examining The Victim and Witnesses During Trial In The Sessions Court
India
Procedure: (Trial stage)
Chapter X Consideration of Responses to The Questionnaire and Recommendations on The Question of Witness Anonymity
1. Should witness anonymity be maintained in all three stages of investigation, inquiry, trial and even at the stage of appeal in a criminal case?
2. Question is whether anonymity must be confined to criminal cases or should also be extended to civil cases as well?
3. The question is whether the anonymity provisions which were till recently confined to TADA and POTA (terrorist cases) and now to trials under the Unlawful Activities Act, 1967
4. The question is whether the existing safeguards for protection of victims of sexual offences and child abus
5. Question is whether it would be sufficient if the Commissioner of Police or Superintendent of Police seeks anonymity on behalf of the witness by certifying danger to the life and property of the witness or his relatives 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 relatives is in danger
6. Should there be a preliminary inquiry by the Judge/Magistrate?
7. In the application for granting anonymity before the Magistrate or Court of Session
8 to 10. The question is whether the complainant or the prosecution should file an application before the Magistrate seeking non-disclosure of identity of the witness, before the stage of section 207, 208 of the Code of Criminal Procedure, 1973
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 Prohibition against publication?
13. Should the Court appoint and amicus curiae in every such case, where witness protection is to be or 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 destoring the facial image and voice of the witness be followed while recognise 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 judgement or should they be disclosed just at the commencement of evidence then, in case the evidence is not complete in one hearing, is there not the chance of the witness being threatened by the date of next or subsequent hearing?
16. Instead examination 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?
17. Merely because the Court has refused to grant anonymity at preliminary heating 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 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 request, as it is not possible to provide such facilities for each Courts in the districts?
21. Should the orders as to witness anonymity, for the purpose of preliminary inquiry, be passed only by session 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 Vourt fixing a time frame of one month from the date of service, for disposal appeal?
Part II Witness Protection Programmes
Chapter XI The Consultation Paper and Responses
The Consultation Paper and Responses
Chapter XII Analysis of Responses to Questionnaire Witness Protection Programme
Q1. Do you support the view that a Witness Protection Programme should be established to protect the safety, welfare and the interests of the witnesses?
Q2. Apart from the change of identity, should other measures for the protection of witnesses be also provided
Q3. Who among the following should be made in-charge of the implementation of the entire Witness Protection Programme
Q4. Should apart from prosecution witness, a defence witness be also eligible to be admitted into the Witness Protection Programm, if danger to his life or property exists due to his being a witness?
Q5. Should the Superintendent of Police/ Commissioner of Police be empowered to certify whether a particular person or victim or witness is in danger and entitled to be admitted to the Witness Protection Programme?
Q6. Whether protection under the Programme should also be extended to the family members, close relatives and friends of the threatened witness?
Q7. Should necessary funds be provided by both the Central and State Governments for implementation of the Witness Protection Programme?
Q8. What are the means of enforcing such rights and obligations?
Q9. When the identity of a person is changed, and he later becomes a party as plaintiff or defendant or a witness in any other civil proceedings, then should such proceeding be allowed to be suspended temporarily and be subject to order of the Court regarding institution, trial or judgment in such proceedings?
Q10. When the identity of a person is changed, and he is an accused or a witness in any other criminal proceeding under his former identity, should the person in-charge of Protection Programme be authorized to disclose his identity to the prosecutor, judge or magistrate and or to defence lawyer in such cases?
Q11. Should a person be held liable to punishment if he discloses the identity of any protected person without the authorization of the Court that granted the protection?
Q12. Do you support the view that where a witness who is admitted to the Programme fails or refuses to testify without any just cause, he should be prosecuted for contempt of court and the protection order be cancelled?
Q13 and 14. Should the decision either admitting or refusing to admit a person to the Witness Protection Programme, be made appealable?
Chapter XIII Questionnair.- Discussion of Response.- Recommendations
Q1. The question is whether Witness Protection Programmes should be established to protect witnesses outside Court
Q2. Apart from the change of identity, should other measures for the protection of witnesses be also provided
Q3. Who among the following should be made in-charge of the implementation of the entire Witness Protection Programme
Q4. Should apart from prosecution witness, a defence witness be also eligible to be admitted into the Witness Protection Programm, if danger to his life or property exists due to his being a witness?
Q5. Should the Superintendent of Police/ Commissioner of Police be empowered to certify whether a particular person or victim or witness is in danger and entitled to be admitted to the Witness Protection Programme?
Q6. Whether protection under the Programme should also be extended to the family members, close relatives and friends of the threatened witness?
Q7. Should necessary funds be provided by both the Central and State Governments for implementation of the Witness Protection Programme?
Q8. The question is whether a witness must enter into an MOU with the programme-in-charge, setting out the right, obligations and restrictions of both parties and if so, what is the means of enforcing those rights and obligations?
Q9. When the identity of a person is changed, and he later becomes a party as plaintiff or defendant or a witness in any other civil proceedings, then should such proceeding be allowed to be suspended temporarily and be subject to order of the Court regarding institution, trial or judgment in such proceedings?
Q10. When the identity of a person is changed, and he is an accused or a witness in any other criminal proceeding under his former identity, should the person in-charge of Protection Programme be authorized to disclose his identity to the prosecutor, judge or magistrate and or to defence lawyer in such cases?
Q11. Should a person be held liable to punishment if he discloses the identity of any protected person without the authorization of the Court that granted the protection?
Q12. Do you support the view that where a witness who is admitted to the Programme fails or refuses to testify without any just cause, he should be prosecuted for contempt of court and the protection order be cancelled?
Q13. Should the decision either admitting or refusing to admit a person to the Witness Protection Programme, be made appealable?
Annexure I The Witness (Identity) Protection Bill, 2006
Chapter I Preliminary
1. Short title and commencement
2. Definitions
3. Application of the Act and overriding effect
Chapter II Witnesses Identity Protection Order
Part I Identity Protection During Investigation
4. Application for seeking Identity protection order
5. Ex parte preliminary inquiry by the Magistrate
6. Order by the Magistrate
7. Prohibition of mentioning identity of witness
Part II Identity Protection after Completion of Investigation
8. Application for Identity Protection
9. Preliminary Inquiry by Magistrate or Judge
10. Preliminary Inquiry by Magistrate or Judge
11. Prohibition of mentioning identity of witnes
Chapter III Protection of Witnesses and Victims at The Trial
12. Recording of statements of threatened witnesses at the trial by close-circuit television
13. Recording of statements of victim at the trial of serious offences where protection order has not been sought or has been refused
14. Oath of secrecy to be administered to certain persons referred to in Schedules I and II
15. Applicability of the Act
Chapter IV Miscellaneous
16,17. Offences
Annexure II Consultation Paper on Witness Identity Protection and Witness Protection Programmes Consultation Paper on Witness Protection
Introduction
Public trial and cross-examination of witnesses in open court: Indian laws
Protection of identity of witnesses: Special Statutes in India
Earlier reports of the Law Commission of India
Protection of identity of witnesses v. Rights of accuse.- Principles of law developed by the Supreme Court and the High Courts
Witness anonymity and balancing of rights of accuse.- a comparative study of case law and other countries
Witness Protection Programmes: A comparative study of programmes in various countries
Part I
Chapter I Introduction
Protection of Witnesses in Criminal Case
Need for a law on various aspects of witness protection
Chapter II Public Trial and Cross Examination of Witnesses in Open Court: Existing Indian Laws
Public trial and cross examination of witnesses: existing Indian laws
Code of Criminal Procedure, 1973: Existing Law
Code of Criminal Procedure, 1973: Protection of witnesses
Evidence Act, 1872
Section 146 (3) of Evidence Act, 1872 introduced in 2002
Chapter III Protection of Identity of Witnesses; Special Statutes in India
Protection of identity of witness: Special statutes
The West Bengal Act of 1932: exclusion of persons or public from Court
TADA 1985 and TADA 1987: Protection of identity
POTA 2002
Chapter IV Earlier Reports of the Law Commission of India
Earlier Reports of the Law Commission of India
Fourth Report of the National Police Commission (1980)
154 th Report of the Law Commission (1996)
172 nd Report of the Law Commission (2000)
The Criminal Law (Amendment) Bill, 2003
Part II Witness Identity Protection v. Rights of Accused
Chapter V Protection of Identity of Witnesses v. Rights of Accuse.- Principles of Law Developed by The Supreme Court and The High Courts
Introduction
Gurbachan Singh's case (section 27 of the Greater Bombay Police Act, 1902) (1952)
Talab Haji Hussain Case: (cancellation of bail): (1958)
Harpreet Kaur's Case (Preventive detention) (1992)
Francis v. Banka Bihau Singh (1958)
In G.X. Francis v. Banke Bihari Singh, A.I.R. 1958 SC 209
Maneka Sanjay Gandhi's case (1979)
Kartar Singh's case: (section 16 of TADA)(1994)
Delhi Domestic Women's Forum case (SC)(1995)
Swaran Singh's case
Shambhu Nath Singh's case
NHRC v. State of Gujarat
'Ms. Neelam Katara case (Delhi High Court)
Bimal Kaur Khalsa's case (P&H High Court, Full Bench)
PUCL case: Witness protection under section30 of the POTA (2003)
Sakshi case (2004)
Zahira's case, 2004 (4) SCALE 373: Protection of witnesses
Other illustrative cases
Need to evolve proposals for a statute for witness protection
Chapter VI Witness Anonymity and Balancing of Rights of Accuse.- A Comparative Study of Case Law in other Countries
A Comparative Study of Case Law in other Countries
Open justice and exceptions
The Murphy Case (1989)
In Jarvie, the Court further held that
Richardson J speaking for the majority, stated as follows
The NZ Court of Appeal continued
Further, in Atkins, the New Zealand Court of Appeal continued
(A) Right to cross-examination absolute: initial cases
(B) Several circuit Courts preferred to rely on the observations of White J in his concurring judgment, to hold that witness identity could be protected
(C) We may now refer to two cases decided by the Supreme Court where once again the absolute right to confrontation was reiterated
(D) Right to confrontatio.- not absolute
(E) Some more recent US judgments
Section 16-3-1550 (E) (SC)(Ann)(Supplement 1999) provides that
European Court of Human Rights
Portugal
The Yugoslav Tribunal
The Trial Chamber referred to the following provisions
Sub Rules 89(A) and (B) provide as follows
The Trial Chamber then stated as follows
The Trial Chamber further stated
On facts, it held
(1) And continued
(2) Partial Anonymity
(3) Retraumatisation
Special measures
General Measures
Article 21: Protection of Victims and Witnesses
Part III
Chapter VII Witness Protection Programme.- A Comparative Study of Programmes in Various Countries
Witness Protection Programme
Australia
South Africa
Hong Kong
Canada
Portugal
Philippines
U.S.A
France
Czechoslovakia
Republic of Korea
Japan
Netherlands
Germany and Italy
Part IV
Chapter VIII Questionnaire
Questionnaire
(A) Witness Anonymity
(B) Witness Protection Programme


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