NEED FOR WITNESS PROTECTION AND ITS LAW IN INDIA: LEGISLATIVE AND JUDICIAL TRENDS

“The parties shall themselves produce who are witnesses and who are not for removed either by time (or) place. Witnesses who are for away (or) who will not stir an out shall be made to present themselves by the order of the judge”- Arthasastra

Witness plays a very crucial role in outcome of verdict in Criminal Cases. It has been given restricted meaning witness protection would imply efforts to protect the witness from physical harm, in Indian Context. But it’s understood in real sense, from discomfort and inconvenience, through lack of facilities witness suffered should be protected.[1] Generally speaking, implementation of protection of witness from such law and programmers reach of far cry and silent. Today, the witness harassed a lot. The accused may be richer (or) influential person, due to this the witness being pressured and threatened. In India ironically, there is no compressive legislation and statutory for the witness protection law to ensure safety among the witness who are insecure & hostile.[2]

DEFINITION

 The word ‘witnesse’ according to legal system may differ. In primary sense of word, “a witness is person who acquires sense of knowledge and information about the event “. According to Bible, Mosaic Law stated necessity of witness is absolute in all cases which came before the justice, especially in most of the criminal cases. Not only in criminal cases, have attested two witnesses it was necessary to make good an accusation against person. “Witness may be classified into three categories”. (a) Justice collaborators. (b) Victim-witness.  (c) Other type of victims. Justice collaborators is concept by law, a witness who is a defendant also, cannot escape from legal charges, consideration can be taken by judge lesson the sentence provides information can evidence to the investigators.[3] Victim – witness defines as a person who suffered from physical, emotional, psychological (or) pecuniary harm as a result n commission of crime. Other type of witness includes innocent bystanders, expert witness and so on.

CONSTITUTIONAL VALIDITY: WITNESS PROTECTION.

Based on following principle, “Nemo tenetur prodere or nemo tenetur scripdum accusare”. The accused should not fear (or) threaten the witness to furnish evidence in favor of him. The special fundamental right in Part III of Indian Constitution Article 20(3) states that “No person accused of any offence shall be compelled to be a witness against him”. [4] The term “any person” does not relate only include other person and witness, but also accused the contention’s explained in sec.91 (1) Cr. Pc. [5]In case of state of Gujarat v Shyamlal Mohanlal chakshi, In some cases, the accused may be from well-off background threaten can fear the witness to express about the event not against him, there is a violation of fundamental rights article 19 states “All citizens shall have the right to freedom of speech and expression”.[6]

KINDS OF WITNESS UNDER EVIDENCE ACT:

 The witness is basically divided into many types; Eye Witness-a witness who testing the fast seen, Expert Witness -to furnish the judge with certain criteria for testing the facts proved by the evidence of the close, Defense Witness-on the request defending party a witness summoned.[7] Prosecution Witness- a witness who appears on behalf of prosecution side in the commencement of proceedings (i.e) criminal, Hostile Witness-has been described as a witness who give his evidence show that he is untruthful in words states predicted in core Coles Vs Coles

IMPORTANCE OF WITNESS AND THEIR PROTECTION:

Witnesses are the wilder stone for the successful of, justice in Crimes and there in a violation of human rights. Alas Bentham said: “Witness is the eyes and ears of Justice”. [8]A witness performs in the court to discount the truth. Sacrifice his time to travel all the way to the court in evidence. In the case of Ashram Bapu, the question arises. [9] Is a witness law overdue long in India? The importance of witness and reason for the protection crucialized that criminal system is afflicted by poor conviction yet the directions of the Apex court, in case of NHRC Vs State of Gujarat[10] no action has been taken either by the state and central government to enact a law for witness protection, it’s one of the major problem in delivery of justice in criminal cases reason for improper administration by both the legislature and executive, given direction in case of Madan lal and others vs. state of Rajasthan.

LEGISLATIVE TRENDS:

Effect to implement witness protection in India. (Commissions & Committees on witness protection)

  • 14th Report Law commission (1958) a review – Respect to witness incontinence, discomfort in different attitude towards injustice (Inadequate arrangements).
  • Fourth Report of the National Police Commission (1980) (Handicaps of witness):- The witnesses who are handicap suffer inconvenience; the police commission should be taken an effective steps and review.[11]
  • 154th report of the Law Commission (1996) Lack of facilities and wrath accused: – It was rated that review. The plight of witnesses appears on behalf of state them not only face inconvenience and lack facilities but also threat from accused.[12]
  • 172nd Report of the Law Commission (2000) (screen Technique) – ‘Review of Rape Laws’ took the subject in case ‘Sakshi vs. Union of India’.
  • 178th Report of the Law Commission (2001) (preventing witnesses turning hostile)- The report deal with hostile witnesses precautions the police should take at the time of investigation to prevent witnesses prevarication examined later at the trial.[13]
  • The Criminal Amendment Bill, 2003 (preventing witnesses toning hostile).
  • Reforms of Criminal Justice system- report of the Justice Malinath Committee.
  • 198th Report of the Law Commission (2006) the report in which new policy should be formulated for the wider protection of witnesses family members.[14]
  • THE WITNESS PROTECTION BILL, 2015- Objectives to provide protection compulsory to all persons forthcoming to provide information as witness within trusting of India in a court of law.[15]
  • Delhi witness protection scheme, 2015- The objectives of a witness without a fear (or) intimidation of gives testimony in a judicial in maintaining rule of law. 

JUDICIAL TRENDS

Under the concept ‘Judicial trends’ an analyses made relating to the cases involving witness protection on a judiciary played different means and protection of witnesses.

WITNESS IDENTITY PROTECTION AND WITNESS PROTECTION PROGRAMMEE

In the case of NHRC vs. State of Gujarat[16] concerning the case important aspects be noted (1) Fair trial (2) Modalities to ensure the witnesses depose freely the context need to protect the witness from interferences by persons connected to the protection of victims.

In the case of Zahira Habibullab sheikh and Sakshi vs. union of India, the SC dealt with ‘witness protection’ and the need for fair trial.[17]

In the case of Rabun Vs Union of India, they dealt with very with the executive to frames ‘witness protection Laws and provide Protection to witnesses.

Rishipal vs. State of U.P, delivered by Hon’ble Yahindra Singh, witness protection programmed is an important aspect of criminal justice system.

In case of Ashram Bapu Case, dose the India fail to protect the witness? Noted the idea of witness protection does not take one of the police may also much consider. The crime syndicates the witness Protection. [18]

ALTERNATIVE MEASURES

To bridge a gap between a number of schemes provided distinct from witnesses protection programmed more difficult at risk and intimate witnesses, are referrers as ‘alternative measure’ (witness protection programmers)[19]

Target hardening: – Security from the police to protect the witness and family members use of discreet premises brief and interview the witness.

 Procedural witness protection: – Measures to avoid certain categories (a) avoid face – to -face confrontation with defendants (b) difficult to trace and identity witness through crime (c) psychological stress and public limit the exposure of witness.

 Self-protection:- witness support to tool on their own protection and security.[20]

EXAMINATION OF WITNESS AND VICTIMS IN CAMERA

In some of abhorrent offences, the witness may be child, minor and girl need for special protection Sec 352 Cr.Pc judge may direct to leave from court, take other protection that in reasonable interest for the witness protection given by the separate law. The Child Law, 1993 and the Anti- Trafficking in personal Laws, 2005.[21]

Drawbacks

The utmost demerits absence of man power, no initiative steps taken by the government, the witnesses. But, the laws like Prevention of Terrorism  Act, 2005 and then Terrorist and Disruptive Activities act 1980 no procedure in law available to tackle situation. Still challenges aforesaid, for the implementation of witnesses determination of witnesses protection to conduct fair trial in the determination of witnesses against the threat of accused. Sometimes, the police play an ineffective role in those circumstances.

 CONCLUSION

The Holy bible says: ‘Thou shalt do no murder, thou shalt not commit adultery, thou salt not steal and present Circumstance thou salt not fear false witness ‘. Today, under Lack of Proper evidence, many of the accused were acquitted.  Concerned with the justice initiative steps taken by the authorities. But Ironically in India, there is a need for comprehensive law on protection of witnesses. According to Bentham, ‘witnesses are eyes, and ears of justice’. Many programmers should be conducted towards the witness and their family member for the protection. Based on the evidence pronounced by the witnesses it imposes a positive strategy on the judge to discover truth and then render justice.

[1] http://thelawdictionary.org/witness-n/ ( Last visited 15/11/2016)

[2] Why Does India Need Witness Protection available at http://blog.ipleaders.in/why-does-india-need-witness-protection/ ( Last visited 24/11/2016)

[3] PREVENTION OF TERROISM ACT, 2002

[4]  http://thelawdictionary.org/witness-n/ ( Last visited 15/11/2016)

[5]  THE CRIMINAL PROCEDURE CODE, 1963

[6]  THE CONSTITTUTION LAW OF INDIA, 1950

[7] A plea for witness protection laws available at http://blog.ipleaders.in/why-does-india-need-witness-protection/ (Last visited 22/11/2016)

[8] http://timesofindia.indiatimes.com/india/Deaths-continue-but-witness-protection-law-still-a-far-cry/articleshow/48077837.cms ( Last visited 26/11/2016)

[9]  Why Does India Need Witness Protection available at http://blog.ipleaders.in/why-does-india-need-witness-protection/ (Last visited 24/11/2016)

[10] NHRC vs State of Gujarat [(2008) 16SCC497].

[11] TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987

[12] Ibid.,

[13] WITNESS PROTECTION: Legislative & Judicial Trends – Shodhganga available at shodhganga.inflibnet.ac.in/bitstream/10603/8788/13/13_chapter%204.pdf ( Last visited 26/11/2016)

[14] Importance of a witness available at http://www.lawteacher.net/free-law-essays/administrative-law/importance-of-a-witness-law-essays.php ( Last visited 26/11/2016)

[15] www.parliament.gh/assets/file/Witness%20Protection%20Bill,%202015.pdf ( Last visited 25/11/2016)

[16] Ibid.,

[17] http://www.slideshare.net/Langrial/witness-protection-in-punjab ( Last visited 26/11/2016)

[18] India desperately needs a witness protection law. Just look at the Asaram Bapu case available at india-desperately-needs-a-witness-protection-law-just-look-at-the-asaram-bapu-case ( Last visited 24/11/2016)

[19]http://www.asianage.com/india/all-india/241116/supreme-court-calls-for-witness-protection-scheme.html ( Last visited 20/11/2016)

[20] http://www.powershow.com/view/14a5d0-MTliN/OFFICE_FOR_WITNESS_PROTECTION_powerpoint_ppt_presentation ( Last visited 26/11/2016)

[21] Ensuring witness safety central to rule of law available at http://www.thehindu.com/opinion/op-ed/ensuring-witness-safety-central-to-rule-of-law/article4508080.ece ( Last visited 20/11/2016)

-By Sindhuja K. & Tharani S., 3rd Year, BBA LLB (Hons.), Saveetha School of Law.

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