Mahender Chawla & Ors. vs Union of India & Ors.

HELD : 1.1 In an adversarial system, which is prevalent in India, the court is supposed to decide the cases on the basis of evidence produced before it. This evidence can be in the form of documents. It can be oral evidence as well, i.e., the deposition of witnesses. The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They are, therefore, backbone in decision making process. Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter. This principle applies with more vigor and strength in criminal cases inasmuch as most of such cases are decided on the basis of testimonies of the witnesses, particularly, eye-witnesses, who may have seen actual occurrence/crime. [Para 1][634-E-H]

1.2 Thus, witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The instrument of evidence is the medium through which facts, either disputed or required to be proved, are effectively conveyed to the courts. This evidence in the form of documentary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with conviction of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system. [Para 2][635-A-C]

Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar – referred to.

1.3 Notwithstanding the same, the conditions of witnesses in Indian Legal System can be termed as ‘pathetic’. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Apart from facing life threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly. Because of the lack of Witness Protection Programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation and/or testify in courts. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime. They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc. [Para 3][635-G; 636-A-C]

Swaran Singh v. State of Punjab (2000) 5 SCC 68 – relied on.

1.4 One of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’. [Para 5][637-B-D]

1.5 Over the last many years criminal justice system in this country has been witness to traumatic experience where witnesses turn hostile. This has been happening very frequently. There may be many causes for this sordid phenomena. [Para 6][637-D]

Ramesh and Others v. State of Haryana (2017) 1 SCC 529: [2016] 8 SCR 936 – relied on.

1.6 All this has created problem of low convictions in India. This has serious repercussions on the criminal justice system itself. Criminal justice is closely associated with human rights. Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law. [Para 8][643-C-D]

1.7 Failure to hear material witness is denial of fair trial. The practice, however, to give protection to the witnesses is based on ad hocism, i.e., on case to case basis. The Courts have adopted different means to ensure witness protection, viz. (a) Publication of evidence of the witness only during the course of trial and not after. (b) Re-trial allowed due to apprehension and threat to the life of witness. (c) Necessity of anonymity for victims in cases of rape. (d) Discouraging the practice of obtaining adjournments in cases when witness is present and accused is absent.

(e) Making threatening of witnesses as a ground for cancellation of bail. (f) Cross-examination by video conferencing. [Para 13][645-C-G]

Naresh Shridhar Mirajkar and Others v. State of Maharashtra and Another [1966] 3 SCR 744 ; Sunil Kumar Pal v. Phota Sheikh and Other AIR 1984 SC 1591 ; Delhi Domestic Working Women’s Forum v. Union of India (1995) 1 SCC 14 : [1994] 4 Suppl. SCR

528 ; State of U.P. v. Shambhu Nath Singh (2001) 4 SCC 667 : [2001] 2 SCR 854 ; Ram Govind Upadhyay v. Sudarshan Singh II (2002) SLT 587 – referred to.

1.8 The right to testify in courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in courts due to threats or other pressures, then it is a clear violation of Article 21 of the Constitution. The right to life guaranteed to the people of this country also includes in its fold the right to live in a society, which is free from crime and fear and right of witnesses to testify in courts without fear or pressure. [Para 16][647-A-B] NHRC v. State of Gujarat 2003 (9) SCALE 329 ; People’s Union for Civil Liberties (PUCL) v. Union of India 2003 (10) SCALE 967 ; Zahira v. State of Gujarat (2004) 4 SCC 158 : [2004] 3 SCR 1050 ; Sakshi v. Union of India (2004) 5 SCC 518 : [2004] 2 Suppl. SCR 723 ; Zahira Habibulla Sheikh v. Gujarat 2006

(3) SCALE 967 – referred to.

1.9 The Witness Protection Scheme, 2018 is the outcome of the efforts put in by the Central Government with due assistance not only from the State Governments as well as Union Territories but other stakeholders including Police personnel, NALSA and State Legal Services Authorities, High Courts and even civil society. [Para 28][662-B]

1.10 The essential features of the Witness Protection Scheme, 2018 include identifying categories of threat perceptions, preparation of a “Threat Analysis Report” by the Head of the Police, types of protection measures like ensuring that the witness and accused do not come face to face during investigation etc. protection of identity, change of identity, relocation of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records, recovery of expenses etc. [Para 26][661-F-G]

1.11 Since it is beneficial and benevolent scheme which is aimed at strengthening the criminal justice system in this country, which shall in turn ensure not only access to justice but also advance the cause the justice itself, all the States and Union Territories also accepted that suitable directions can be passed by the court to enforce the said Scheme as a mandate of the court till the enactment of a statute by the Legislatures. [Para 27][661-G-H]

1.12 In *Sakshi’s case, the Court had insisted about the need to come up with a legislation for the protection of witnesses. It had even requested the Law Commission to examine certain aspects, which resulted to 172nd review of rape laws by the Law Commission. However, the Court specifically rejected the suggestion of the Law Commission regarding examination of vulnerable witnesses in the absence of accused. Having regard to the provisions of Section 273 of the Code of Criminal Procedure, which is based on the tenets of principle of natural justice, that the witness must be examined in the presence of the accused, such a principle cannot be sacrificed in trials and in inquiries regarding sexual offences. In such a scenario examination of these witnesses through video conferencing provides the solution which balances the interest of the accused as well as vulnerable witnesses. [Para 29][662-C-E]

*Sakshi v. Union of India (2004) 5 SCC 518 : [ 2004]

2 Suppl. SCR 723 – referred to.

1.13 Part II(7)(L) of the Witness Protection Scheme, 2018 provides for usage of specially designed court room having special arrangements like live links, one way mirrors, and screens apart from separate passages for witnesses and accused with the option to modify the image of the face of the witness and to modify the audio feed of the witness’s voice, so that he/she is not identified. [Para 30][662-F]

1.14 There is a paramount need to have witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system concede. At the same time no such legislation has been brought about. These are the considerations which had influenced this Court to have a holistic regime of witness protection which should be considered as law under Article 141 of the Constitution till a suitable law is framed. [Para 34][664-A-B]

1.15 The Scheme prepared by respondent No.1 is approved. It comes into effect forthwith. The Union of India as well as States and Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit. It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject. In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, vulnerable witness deposition complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year, i.e., by the end of the year 2019. The Central Government should also support this endeavour of the States/Union Territories by helping them financially and otherwise. [Para 35][664-C-F] The State of Maharashtra v. Bandu @ Daulat 2018 (11) SCC 163 – referred to.

2. This Court by order dated March 24, 2017 had directed the States of Uttar Pradesh and Haryana to ensure full and proper protection to the petitioners by providing adequate security. [Para 18][647-D]