REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 156 OF 2016

MAHENDER CHAWLA & ORS. .....PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The instant writ petition filed by the petitioners under Article

32 of the Constitution of India raises important issues touching

upon the efficacy of the criminal justice system in this country. In

an adversarial system, which is prevalent by 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

Writ Petition (Crl.) No. 156 of 2016 Page 1 of 41

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. It is for this reason that

Bentham stated more than 150 years ago that “witnesses are

eyes and ears of justice”.

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

Writ Petition (Crl.) No. 156 of 2016 Page 2 of 41

interest in the outcome of a case. They still help the judicial

system. In the words of Whittaker Chambers, a witness is “a

man whose life and faith are so completely one that when the

challenge comes to step out and testify for his faith, he does so,

disregarding all risks, accepting all consequences

1

.”

3)The importance of the witness, particularly in a criminal trial is

highlighted in a book in the following manner:

"In search of truth, he plays that sacred role of the sun,

which eliminates the darkness of ignorance and illuminates

the face of justice, encircled by devils of humanity and

compassion.

xxx xxx xxx

The value of witnesses can’t be denied, keeping in view

the dependency of the criminal proceedings on the

testimonies and cooperation of witnesses in all the stages

of the proceedings, especially in those cases where the

prosecution has to establish the guilt with absolute

certainty via oral cross-examination of witnesses in

hearings open to the world at large. In such cases, the

testimony of a witness, even if not as an eye witness, may

prove to be crucial in determining the circumstances in

which the crime might have been committed...”

2

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

1Whittaker Chambers, WITNESS QUOTES (January 7, 2014, 10.30 am),

http://www.brainyquote.com/quotes/keywords/witness.

2Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar

Writ Petition (Crl.) No. 156 of 2016 Page 3 of 41

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.

4)In Swaran Singh vs. State of Punjab

3

, this Court speaking

through Wadhwa, J. expressed view on conditions of witnesses

by stating that:

"The witnesses are harassed a lot. They come from

distant places and see the case is adjourned. They have

to attend the court many times on their own. It has

become routine that case is adjourned till the witness is

tired and will stop coming to court. In this process lawyers

also play an important role. Sometimes witness is

threatened, maimed, or even bribed. There is no

3(2000) 5 SCC 68 at 678.

Writ Petition (Crl.) No. 156 of 2016 Page 4 of 41

protection to the witnesses. By adjourning the case the

court also becomes a party to such miscarriage of justice.

The witness is not given respect by the court. They are

pulled out of the court room by the peon. After waiting for

the whole day he sees the matter being adjourned. There

is no proper place for him to sit and drink a glass of water.

When he appears, he is subjected to prolong stretched

examinations and cross examinations. For these reasons

persons avoid becoming a witness and because of this

administration of justice are hampered. The witnesses are

not paid money within time. The High Courts must be

vigilant in these matters and should avoid harassment in

these matters by subordinate staff. The witnesses should

be paid immediately irrespective of the fact whether he

examines or the matter is adjourned. The time has come

now that all courts should be linked with each other

through computer. The Bar Council of India has to play

important role in this process to put the criminal justice

system on track. Though the trial judge is aware that

witness is telling lie still he is not ready to file complaint

against such witness because he is required to sign the

same. There is need to amend section 340(3)(b) of

Cr.P.C.”

5)It hardly needs to be emphasised that 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

Writ Petition (Crl.) No. 156 of 2016 Page 5 of 41

measure to ensure the safety of these witnesses, commonly

known as ‘witness protection’.

6)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.

7)In Ramesh and Others vs. State of Haryana

4

, this Court had

indicated some of the reasons which make witnesses turn hostile,

as can be discerned from the following discussion.

"40. In some of the judgments in past few years, this Court

has commented upon such peculiar behaviour of

witnesses turning hostile and we would like to quote from

few such judgments. In Krishna Mochi v. State of

Bihar [Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 :

2002 SCC (Cri) 1220] , this Court observed as under:

(SCC p. 104, para 31)

“31. It is a matter of common experience that in

recent times there has been a sharp decline of

ethical values in public life even in developed

countries much less developing one, like ours,

where the ratio of decline is higher. Even in

ordinary cases, witnesses are not inclined to

depose or their evidence is not found to be

credible by courts for manifold reasons. One of the

reasons may be that they do not have courage to

depose against an accused because of threats to

their life, more so when the offenders are habitual

criminals or high-ups in the Government or close

to powers, which may be political, economic or

other powers including muscle power.”

4(2017) 1 SCC 529

Writ Petition (Crl.) No. 156 of 2016 Page 6 of 41

"41. Likewise, in Zahira Habibullah Sheikh (5) v. State of

Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat,

(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , this Court

highlighted the problem with the following observations:

(SCC pp. 396-98, paras 40-41)

“40. “Witnesses” as Bentham said: “are the eyes

and ears of justice”. Hence, the importance and

primacy of the quality of trial process. If the

witness himself is incapacitated from acting as

eyes and ears of justice, the trial gets putrefied

and paralysed, and it no longer can constitute a

fair trial. The incapacitation may be due to several

factors, like the witness being not in a position for

reasons beyond control to speak the truth in the

court or due to negligence or ignorance or some

corrupt collusion. Time has become ripe to act on

account of numerous experiences faced by the

court on account of frequent turning of witnesses

as hostile, either due to threats, coercion, lures

and monetary considerations at the instance of

those in power, their henchmen and hirelings,

political clouts and patronage and innumerable

other corrupt practices ingeniously adopted to

smother and stifle truth and realities coming out

to surface.… Broader public and societal interests

require that the victims of the crime who are not

ordinarily parties to prosecution and the interests

of the State represented by their prosecuting

agencies do not suffer.… There comes the need for

protecting the witness. Time has come when

serious and undiluted thoughts are to be bestowed

for protecting witnesses so that the ultimate truth

presented before the court and justice triumphs

and that the trial is not reduced to a mockery. …

41. The State has a definite role to play in

protecting the witnesses, to start with at least in

sensitive cases involving those in power, who have

political patronage and could wield muscle and

money power, to avert trial getting tainted and

derailed and truth becoming a casualty. As a

protector of its citizens it has to ensure that during

a trial in court the witness could safely depose the

truth without any fear of being haunted by those

against whom he had deposed. Every State has a

constitutional obligation and duty to protect the

life and liberty of its citizens. That is the

fundamental requirement for observance of the

rule of law. There cannot be any deviation from

Writ Petition (Crl.) No. 156 of 2016 Page 7 of 41

this requirement because of any extraneous

factors like caste, creed, religion, political belief or

ideology. Every State is supposed to know these

fundamental requirements and this needs no

retaliation (sic repetition). We can only say this

with regard to the criticism levelled against the

State of Gujarat. Some legislative enactments like

the Terrorist and Disruptive Activities (Prevention)

Act, 1987 (in short “the TADA Act”) have taken

note of the reluctance shown by witnesses to

depose against people with muscle power, money

power or political power which has become the

order of the day. If ultimately truth is to be arrived

at, the eyes and ears of justice have to be

protected so that the interests of justice do not get

incapacitated in the sense of making the

proceedings before the courts mere mock trials as

are usually seen in movies.”

"42. Likewise, in Sakshi v. Union of India [Sakshi v. Union

of India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] , the

menace of witnesses turning hostile was again described

in the following words: (SCC pp. 544-45, para 32)

“32. The mere sight of the accused may induce an

element of extreme fear in the mind of the victim or the

witnesses or can put them in a state of shock. In such a

situation he or she may not be able to give full details

of the incident which may result in miscarriage of

justice. Therefore, a screen or some such arrangement

can be made where the victim or witnesses do not have

to undergo the trauma of seeing the body or the face of

the accused. Often the questions put in cross-

examination are purposely designed to embarrass or

confuse the victims of rape and child abuse. The object

is that out of the feeling of shame or embarrassment,

the victim may not speak out or give details of certain

acts committed by the accused. It will, therefore, be

better if the questions to be put by the accused in

cross-examination are given in writing to the presiding

officer of the court, who may put the same to the victim

or witnesses in a language which is not embarrassing.

There can hardly be any objection to the other

suggestion given by the petitioner that whenever a

child or victim of rape is required to give testimony,

sufficient breaks should be given as and when required.

The provisions of sub-section (2) of Section 327 CrPC

should also apply in inquiry or trial of offences under

Sections 354 and 377 IPC.”

Writ Petition (Crl.) No. 156 of 2016 Page 8 of 41

43. In State v. Sanjeev Nanda [State v. Sanjeev Nanda,

(2012) 8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3

SCC (Civ) 899] , the Court felt constrained in reiterating

the growing disturbing trend: (SCC pp. 486-87, paras 99-

101)

“99. Witness turning hostile is a major disturbing factor

faced by the criminal courts in India. Reasons are many

for the witnesses turning hostile, but of late, we see,

especially in high profile cases, there is a regularity in

the witnesses turning hostile, either due to monetary

consideration or by other tempting offers which

undermine the entire criminal justice system and

people carry the impression that the mighty and

powerful can always get away from the clutches of law,

thereby eroding people's faith in the system.

100. This Court in State of U.P. v. Ramesh Prasad

Misra [State of U.P. v. Ramesh Prasad Misra, (1996) 10

SCC 360 : 1996 SCC (Cri) 1278] held that it is equally

settled law that the evidence of a hostile witness could

not be totally rejected, if spoken in favour of the

prosecution or the accused, but it can be subjected to

closest scrutiny and that portion of the evidence which

is consistent with the case of the prosecution or

defence may be accepted. In K. Anbazhaganv. Supt. of

Police [K. Anbazhagan v. Supt. of Police, (2004) 3 SCC

767 : 2004 SCC (Cri) 882] , this Court held that if a

court finds that in the process the credit of the witness

has not been completely shaken, he may after reading

and considering the evidence of the witness as a whole,

with due caution, accept, in the light of the evidence on

the record that part of his testimony which it finds to be

creditworthy and act upon it. This is exactly what was

done in the instant case by both the trial court and the

High Court [Sanjeev Nanda v. State, 2009 SCC OnLine

Del 2039 : (2009) 160 DLT 775] and they found the

accused guilty.

101. We cannot, however, close our eyes to the

disturbing fact in the instant case where even the

injured witness, who was present on the spot, turned

hostile. This Court in Manu Sharma v. State (NCT of

Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6

SCC 1 : (2010) 2 SCC (Cri) 1385] and in Zahira

Habibullah Sheikh (5) v. State of Gujarat [Zahira

Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC

374 : (2006) 2 SCC (Cri) 8] had highlighted the glaring

defects in the system like non-recording of the

statements correctly by the police and the retraction of

the statements by the prosecution witness due to

Writ Petition (Crl.) No. 156 of 2016 Page 9 of 41

intimidation, inducement and other methods of

manipulation. Courts, however, cannot shut their eyes

to the reality. If a witness becomes hostile to subvert

the judicial process, the court shall not stand as a mute

spectator and every effort should be made to bring

home the truth. Criminal judicial system cannot be

overturned by those gullible witnesses who act under

pressure, inducement or intimidation. Further, Section

193 IPC imposes punishment for giving false evidence

but is seldom invoked.”

44. On the analysis of various cases, the following reasons

can be discerned which make witnesses retracting their

statements before the court and turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi) Hassles faced by the witnesses during investigation

and trial.

(vii) Non-existence of any clear-cut legislation to check

hostility of witness.

45. Threat and intimidation has been one of the major

causes for the hostility of witnesses. Bentham said:

“witnesses are the eyes and ears of justice”. When the

witnesses are not able to depose correctly in the court of

law, it results in low rate of conviction and many times

even hardened criminals escape the conviction. It shakes

public confidence in the criminal justice delivery system. It

is for this reason there has been a lot of discussion on

witness protection and from various quarters demand is

made for the State to play a definite role in coming out with

witness protection programme, at least in sensitive cases

involving those in power, who have political patronage and

could wield muscle and money power, to avert trial getting

tainted and derailed and truth becoming a casualty. A stern

and emphatic message to this effect was given in Zahira

Habibullah case [Zahira Habibullah Sheikh (5) v. State of

Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] as well.

46. Justifying the measures to be taken for witness

protection to enable the witnesses to depose truthfully and

without fear, Justice Malimath Committee Report on

Reforms of Criminal Justice System, 2003 has remarked

as under:

Writ Petition (Crl.) No. 156 of 2016 Page 10 of 41

“11.3. Another major problem is about safety of

witnesses and their family members who face

danger at different stages. They are often

threatened and the seriousness of the threat

depends upon the type of the case and the

background of the accused and his family. Many

times crucial witnesses are threatened or injured

prior to their testifying in the court. If the witness

is still not amenable he may even be murdered. In

such situations the witness will not come forward

to give evidence unless he is assured of protection

or is guaranteed anonymity of some form of

physical disguise. … Time has come for a

comprehensive law being enacted for protection of

the witness and members of his family.”

47. Almost to similar effect are the observations of

the Law Commission of India in its 198th Report

[ Report on “witness identity protection and

witness protection programmes”.] , as can be seen

from the following discussion therein:

“The reason is not far to seek. In the case of

victims of terrorism and sexual offences against

women and juveniles, we are dealing with a

section of society consisting of very vulnerable

people, be they victims or witnesses. The victims

and witnesses are under fear of or danger to their

lives or lives of their relations or to their property.

It is obvious that in the case of serious offences

under the Indian Penal Code, 1860 and other

special enactments, some of which we have

referred to above, there are bound to be

absolutely similar situations for victims and

witnesses. While in the case of certain offences

under special statutes such fear or danger to

victims and witnesses may be more common and

pronounced, in the case of victims and witnesses

involved or concerned with some serious offences,

fear may be no less important. Obviously, if the

trial in the case of special offences is to be fair

both to the accused as well as to the

victims/witnesses, then there is no reason as to

why it should not be equally fair in the case of

other general offences of serious nature falling

under the Indian Penal Code, 1860. It is the fear or

danger or rather the likelihood thereof that is

common to both cases. That is why several

Writ Petition (Crl.) No. 156 of 2016 Page 11 of 41

general statutes in other countries provide for

victim and witness protection.”

8)All this has created problems 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.

9)Since this case relates to the issue of protection of witnesses, we

are eschewing any further discussion on other miseries faced by

the witnesses, though we emphasise the need for addressing

other problems as well, at appropriate level, if the criminal justice

system in this country is to succeed. Adverting to the importance

of witness protection, we may mention that it has been

highlighted and emphasised by the courts in India, including this

Court, time and again. Issues of protection of identity of

witnesses and witness protection programme have been raised in

Writ Petition (Crl.) No. 156 of 2016 Page 12 of 41

number of judgments like NHRC vs. State of Gujarat

5

, People’s

Union for Civil Liberties (PUCL) vs. Union of India

6

, Zahira

vs. State of Gujarat

7

, Sakshi vs. Union of India

8

and Zahira

Habibulla Sheikh vs. Gujarat

9

.

10)In People’s Union for Civil Liberties, wherein constitutionality

some of the provisions of the Prevention of Terrorism Act (POTA),

2002, were challenged, the Court carefully analyzed Section 30

of the Act, which had mentioned about the protection of

witnesses. This provision provides for the proceedings to be held

in camera in order to keep the identity of witness confidential. The

Court felt the reality that very often witnesses do not come

forward to testify before court in serious crimes. Witnesses are

not ready to give evidence mainly because their lives might be in

danger. In the court’s view, Section 30 of the Act maintains a

balance between the rights of a witness, the rights of an accused

and the interest of the public. However, secrecy of the witness is

an exception and not a rule under this section.

11)The protection of a child witness, who may also be a victim,

52003 (9) SCALE 329

62003 (10( SCALE 967

7(2004) 4 SCC 158

8(2004) 5 SCC 518

92006 (3) SCALE 967

Writ Petition (Crl.) No. 156 of 2016 Page 13 of 41

becomes all the more important. In Sakshi vs. Union of India

10

,

the Court stressed that there is a dire need to come up with a

legislation for the protection of witnesses. The Court also had

issued certain guidelines on the procedure of taking of evidence

from a child witness. The Court also pointed out the need for

special protection to a victim of sexual abuse at the time of

recording her statement in court. The petitioner in that case had

given certain suggestions for effectively dealing with the special

provisions for testimony in child sexual abuse cases, which were

as follows:

a)The judges shall allow the use of a videotaped interview of the

testimony of the child in the presence of a child-support person.

b)A child could be permitted to testify through closed circuit

television or from behind a screen to acquire an honest and frank

account of the acts complained of without any fear.

c)Only the judge should be allowed to cross-examine a minor on

the basis of the questions given by the defence in writing after the

examination of the minor.

d)During the testimony of the child, sufficient interval should be

provided as and when she requires it.

10(2004) 5 SCC 518

Writ Petition (Crl.) No. 156 of 2016 Page 14 of 41

12)In some other judgments, this Court gave some more guidelines,

in the following manner:

a)Sections 354 and 377 of the Indian Penal Code should be tried

and inquired on the same principles mentioned under sub-

section (2) of Section 327 Cr.P.C.

b)While holding the trial of rape or child sex abuse, some sort of

arrangements like a screen or something like it may be used so

as to make sure that victim or witnesses (who are equally

vulnerable and need protection like the victim) do not confront the

accused;

c)Questions raised during the cross-examination by the counsel of

the accused that are directly related to and be reminiscent to the

victim or the witnesses of the incident should be written down and

given to the presiding officer of the court in advance. The

presiding officer must put forth those questions to the victim or

witness in simple and clear language and as far as possible

without making her uncomfortable;

13)It hardly needs to be emphasised that 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

Writ Petition (Crl.) No. 156 of 2016 Page 15 of 41

to case basis. The Courts have also, in the process, adopted

different means to ensure witness protection, which can be stated

in brief detail:

(a) Publication of evidence of the witness only during the

course of trial and not after [Naresh Shridhar Mirajkar and

Others vs. State of Maharashtra and Another; [1966 (3) SCR

744]

(b)Re-trial allowed due to apprehension and threat to the life of

witness [Sunil Kumar Pal vs. Phota Sheikh and Other; AIR

1984 SC 1591]

(c)Necessity of anonymity for victims in cases of rape [Delhi

Domestic Working Women’s Forum vs. Union of India; (1995)

1 SCC 14)]

(d) Discouraging the practice of obtaining adjournments in

cases when witness is present and accused is absent. [State of

U.P. vs. Shambhu Nath Singh; (2001) 4 SCC 667]

(e)Making threatening of witnesses as a ground for

cancellation of bail [Ram Govind Upadhyay v. Sudarshan

Singh; II (2002) SLT 587]

(f)Cross-examination by video conferencing — This is one

of the innovative methods devised, which is specifically helpful to

the victims of sexual crimes, particularly, child witnesses who are

Writ Petition (Crl.) No. 156 of 2016 Page 16 of 41

victims of crime as well.

14)In the instant case itself the petitioners have approached this

Court with the allegations that in the trials that are going on

against Asaram, who is charged with the offence of committing

rapes in numerous cases, the witnesses have been threatened

with serious consequences in case they depose against Asaram.

It is alleged that as many as 10 witnesses have already been

attacked and three witnesses have been killed.

15)There are four petitioners in this petition. These petitioners

include a witness, father of a murdered witness, father of the child

rape victim and a journalist who escaped a murder attempt by

goons of godman Asaram and his son Naryana Sai and still faces

death threats by a jailed sharpshooter of Asaram and Narayan

Sai. It is stated that Petitioner No. 1 Mahender Chawla

miraculously survived a murder attempt on his life for daring to

testify against so called godman, Asaram Bapu and his son

Narayan Sai in horrifying cases of rape of a child and two sisters.

Petitioner no. 1 also witnessed Narayan Sai doing Tantrik

Practice on a dead body of a child in an Asaram in Madhya

Pradesh, in which till date there has not been any investigation

due to the influence of Asaram. Petitioner no. 2 Naresh Gupta is

Writ Petition (Crl.) No. 156 of 2016 Page 17 of 41

the father of a murdered witness, named, Akhil Gupta. Akhil was

killed for daring to be a witness against Asaram. Petitioner no. 3

Karamvir Singh is the father of a child, who was raped by

Asaram. Petitioner no. 3’s son Somvir was threatened by 2

attackers despite having State police security. The attackers

were apprehended and released on bail. Shockingly the same

attacker, named Narayan Pandey, later killed a rape-case

prosecution witness Kripal Singh. The child rape victim’s family

has been attacked, threatened and lives in constant fear. It is

also alleged that despite being threatened, the Uttar Pradesh

Police shockingly withdrew half of their security. Petitioner no. 4,

Narendra Yadav is a journalist who survived a murder attempt on

his life because he dared to write articles to the dislike of Asaram

Bapu and Narayan Sai. He now lives in constant fear of being

killed as the Uttar Pradesh Police has given him a solitary

security guard for just eight hours a day, leaving him to fend for

himself through the remaining 16 hours. It is also averred that the

sharp shooter of Asaram, Narayan Pandey, who is in jail for

murdering a witness Kripal Singh, writes threatening letters to him

from inside the jail.

16)The petitioners have prayed for a court monitored SIT or a CBI

Writ Petition (Crl.) No. 156 of 2016 Page 18 of 41

probe. It is stated by the petitioners that the prevailing feeling of

fear amongst witnesses in the country seriously impairs the right

of the people of this country to live in a free society governed by

rule of law. 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.

17)The petitioners had initially impleaded Union of India as

Respondent No. 1 and States of Haryana, Uttar Pradesh,

Rajasthan, Gujarat and Madhya Pradesh as Respondent Nos. 2

to 6.

18)Appreciating the importance and seriousness of the matter, this

Court issued show cause notices in the petition on November 18,

2016. After the service of the notice when the matter came up for

hearing on March 24, 2017, this Court also directed the States of

Uttar Pradesh and Haryana to ensure full and proper protection to

the petitioners by providing adequate security.

Writ Petition (Crl.) No. 156 of 2016 Page 19 of 41

19)When the matter was again listed on August 28, 2017, Mr. K.K.

Venugopal, learned Attorney General appeared on behalf of the

Union of India, along with Ms. Pinky Anand, Additional Solicitor

General. It was pointed out that since this Court was primarily

dealing with the issue pertaining to witness protection

programme, it would be appropriate that other States are also

impleaded inasmuch as the issue had PAN India significant and

witness protection programme should be available in all the

States. The petitioners were, accordingly, directed to implead

other States as well and they be served with the notice of this

petition. This is how the coverage of the petition has been

extended to the entire country, encompassing all the States and

Union Territories.

20)The petition was amended and all the States and Union

Territories have been served and are represented through their

respective counsel. When the matter was thereafter taken up for

hearing on November 17, 2017 all the respondents were called

upon to file their responses indicating as to what steps could be

taken to have the witness protection programme in place.

21)Mr. Venugopal, learned Attorney General for India was also

Writ Petition (Crl.) No. 156 of 2016 Page 20 of 41

requested to give suggestions in the form of a draft scheme. It is

heartening to note that Union of India did not take this petition as

adversarial and understood the necessity of having such a

scheme in the larger public interest. With this sensitivity in mind,

Ministry of Home Affairs have prepared a draft witness protection

scheme, 2018 and placed the same on record of this case. This

was noted in the orders dated April 13, 2018 and the State

Governments as well as Union Territories, who had already been

supplied with the copy of the draft scheme by the Ministry itself,

were asked to furnish their comments by May 31, 2018 to the

Ministry of Home Affairs. The Union Government was impressed

upon to finalise the scheme after receiving the

comments/suggestions from the various Governments. Order

dated April 13, 2018, incorporating the aforesaid aspects, is

reproduced below:

"We are informed that the Ministry of Home Affairs has

prepared a draft Witness Protection Scheme 2018. A copy

of the said draft scheme is handed over to us in the court

today. Vide letter dated 22nd March, 2018, a copy of the

said scheme is also provided to all the State Governments

and the Union Territories Administration requesting them to

furnish their comments by 9th April, 2018. Thereafter,

again by reminder dated 11th April, 2018 all the State

Governments and Union Territories were asked to furnish

their comments by 31st May, 2018.

We expect all the State Governments as well as the Union

Territories to furnish their comments by the aforesaid

stipulated date of 31st May, 2018 to the Ministry of Home

Affairs. After receiving the comments/suggestions the draft

Writ Petition (Crl.) No. 156 of 2016 Page 21 of 41

Witness Protection Scheme 2018 shall be finalized by the

Government, Ministry of Home Affairs before the next date.

List the matter in the second week of August, 2018.

Learned amicus curiae is also at liberty to furnish his

suggestions.”

22)When the matter was taken up on November 19, 2018, the

learned Attorney General informed that after taking the inputs

from various States and Union Territories, Central Government

had finalized the scheme and filed it in this Court on November

06, 2018 supported by its affidavit. He was also candid in his

submission that this Court can pass appropriate orders directing

all the States to adopt that scheme and provide a witness

protection in accordance therewith till the time appropriate

legislation in this behalf is passed.

23)We may place on record that as per the affidavit of the Central

Government, the Witness Protection Scheme, 2018 is based on

the inputs received from 18 States/Union Territories, 5 States

Legal Services Authorities and open sources including civil

society, three High Courts as well as from Police personnel. It is

also stated that the scheme has been finalised in consultation

with National Legal Services Authority (NALSA). It is mentioned

that the aim and objective of the scheme is to ensure that the

Writ Petition (Crl.) No. 156 of 2016 Page 22 of 41

investigation, prosecution and trial of criminal offences is not

prejudiced because witnesses are intimidated or frightened to

give evidence without protection from violent or other criminal

recrimination. It aims to promote law enforcement agencies by

facilitating the protection of persons who are involved directly or

indirectly in providing assistance to criminal law enforcement

agencies and overall administration of justice.

24)The affidavit further emphasises that the witnesses need to be

given the confidence to come forward to assist law enforcement

agencies and judicial authorities with full assurance of safety and

the present Scheme is aimed to identify the series of measures

that may be adopted to safeguard witnesses and their family

members from intimidate and threats against their lives,

reputation and property.

25)At this stage, we reproduce Witness Protection Scheme, 2018 as

filed, in its entirety:

"Witness Protection Scheme, 2018

PREFACE

Aims & Objective:

The ability of a witness to give testimony in a judicial

setting or to cooperate with law enforcement and

investigating officers without fear of intimidation or reprisal

Writ Petition (Crl.) No. 156 of 2016 Page 23 of 41

is essential in maintaining the rule of law. The objective of

this Scheme is to ensure that the investigation,

prosecution and trial of criminal offences is not prejudiced

because witnesses are intimidated or frightened to give

evidence without protection from violent or other criminal

recrimination. It aims to promote law enforcement by

facilitating the protection of persons who are involved

directly or indirectly in providing assistance to criminal law

enforcement agencies and overall administration of

Justice. Witnesses need to be given the confidence to

come forward to assist law enforcement and Judicial

Authorities with full assurance of safety. It is aimed to

identify series of measures that may be adopted to

safeguard witnesses and their family members from

intimidation and threats against their lives, reputation and

property.

Need and justification for the scheme:

Jeremy Bentham has said that “Witnesses are the eyes

and ears of justice.” In cases involving heinous crimes,

witnesses turn hostile because of threat to life and

property. Witnesses feel that there is no statutory legal

obligation on the part of the state for extending any

security.

Hon’ble Supreme Court of India also held in State of Gujrat

v. Anirudh Singh (1997) 6 SCC 514 that: “It is the salutary

duty of every witness who has the knowledge of the

commission of the crime, to assist the State in giving

evidence.” Malimath Committee on Reforms of Criminal

Justice System, 2003 said in its report that “By giving

evidence relating to the commission of an offence, he

performs a sacred duty of assisting the court to discover

the truth”. Zahira Habibulla H. Shiekh and Another v. State

of Gujarat 2004 (4) SCC 158 SC while defining Fair Trial

Hon’ble Supreme Court of India observed “If the witnesses

get threatened or are forced to give false evidence that

also would not result in a fair trial’’.

First ever reference to Witness Protection in India came in

14

th

Report of the Law Commission of India in 1958.

Further reference on the subject are found in 154

th

and

178

th

report of the Law Commission of India. 198

th

Report

of the Law Commission of India titled as “Witness Identity

Protection and Witness Protection Programmes, 2006” is

dedicated to the subject.

Writ Petition (Crl.) No. 156 of 2016 Page 24 of 41

Hon’ble Supreme Court observed in Zahira case supra,

“No country can afford to expose its morally correct

citizens to the peril of being harassed by anti-social

elements like rapists and murderers”. The 4

th

National

Police Commission Report, 1980 noted ‘prosecution

witnesses are turning hostile because of pressure of

accused and there is need of regulation to check

manipulation of witnesses.”

Legislature has introduced Section 195A IPC in 2006

making Criminal Intimidation of Witnesses a criminal

offence punishable with seven years of imprisonment.

Likewise, in statues namely Juvenile Justice (Care and

Protection of Children) Act, 2015, Whistle Blowers

Protection Act, 2011, Protection of Children from Sexual

Offences Act (POCSO Act) 2012 and National

Investigation Agency Act 2008 and Scheduled Castes and

Tribes (Prevention of Atrocities) Act, 1989 also provides for

safeguarding witnesses against the threats. However no

formal structured programme has been introduced as on

date for addressing the issue of witness protection in a

holistic manner.

In recent year’s extremism, terrorism and organized

crimes have grown and are becoming stronger and more

diverse. In the investigation and prosecution of such

crimes, it is essential that witnesses, have trust in the

criminal justice system. Witnesses need to have the

confidence to come forward to assist law enforcement and

prosecuting agencies. They need to be assured that they

will receive support and protection from intimidation and

the harm that criminal groups might seek to inflict upon

them in order to discourage them from co-operating with

the law enforcement agencies and deposing before the

court of law. Hence, it is high time that a scheme is put in

place for addressing the issues of witness protection

uniformly in the country.

Scope of the Scheme:

Witness Protection may be as simple as providing a police

escort to the witness up to the Courtroom or using modern

communication technology (such as audio video means)

for recording of testimony. In other more complex cases,

involving organised criminal group, extraordinary

measures are required to ensure the witness’s safety viz.

Writ Petition (Crl.) No. 156 of 2016 Page 25 of 41

anonymity, offering temporary residence in a safe house,

giving a new identity, and relocation of the witness at an

undisclosed place. However, Witness protection needs of

a witness may have to be viewed on case to case basis

depending upon their vulnerability and threat perception.

1. SHORT TITLE AND COMMENCEMENT:

(a) The Scheme shall be called “Witness Protection

Scheme, 2018”

(b) It shall come into force from the date of Notification.

Part I

2. DEFINITIONS:

(a) "Code" means the Code of Criminal Procedure, 1973

(2 of 1974);

(b) “Concealment of Identity of Witness” means and

includes any condition prohibiting publication or revealing,

in any manner, directly or indirectly, of the name, address

and other particulars which may lead to the identification of

the witness during investigation, trial and post-trial stage;

(c) “Competent Authority” means a Standing Committee

in each District chaired by District and Sessions Judge

with Head of the Police in the District as Member and

Head of the Prosecution in the District as its Member

Secretary.

(d) “Family Member” includes parents/guardian, spouse,

live-in partner, siblings, children,grandchildren of the

witness;

(e) "Form" means “Witness Protection Application Form”

appended to this Scheme;

(f) “In Camera Proceedings” means proceedings

wherein the Competent Authority/Court allows only those

persons who are necessarily to be present while hearing

and deciding the witness protection application or

deposing in the court;

(g) “Live Link” means and include a live video link or

other such arrangement whereby a witness, while not

being physically present in the courtroom for deposing in

Writ Petition (Crl.) No. 156 of 2016 Page 26 of 41

the matter or interacting with the Competent Authority;

(h) “Witness Protection Measures” means measures

spelt out in Clause 7, Part-III, Part-IV and Part V of the

Scheme.

(i) "Offence" means those offences which are punishable

with death or life imprisonment or an imprisonment up to

seven years and above and also offences punishable

punishable under Section 354, 354A, 354B, 354C, 354D

and 509 of IPC.

(j) "Threat Analysis Report" means a detailed report

prepared and submitted by the Head of the Police in the

District Investigating the case with regard to the

seriousness and credibility of the threat perception to the

witness or his family members. It shall contain specific

details about the nature of threats faced by the witness or

his family to their life, reputation or property apart from

analyzing the extent, the or persons making the threat,

have the intent, motive and resources to implement the

theats.

It shall also categorize the threat perception apart from

suggesting the specific witness protection measures which

deserves to be taken in the matter;

(k) “Witness” means any person, who posses information

or document about any offence;

(l) “Witness Protection Application” means an application

moved by the witness in the prescribed form before a

Competent Authority through its Member Secretary for

seeking Witness Protection Order. It can be moved by the

witness, his family member, his duly engaged counsel or

IO/SHO/SDPO/Jail Superintendent concerned;

(m) “Witness Protection Fund” means the fund created for

bearing the expenses incurred during the implementation

of Witness Protection Order passed by the Competent

Authority under this scheme;

(n) “Witness Protection Order” means an order passed by

the Competent Authority detailing the witness protection

measures to be taken

Writ Petition (Crl.) No. 156 of 2016 Page 27 of 41

(o) “Witness Protection Cell” means a dedicated Cell of

State/UT Police or Central Police Agencies assigned the

duty to implement the witness protection order.

Part II

3. CATEGORIES OF WITNESS AS PER THREAT

PERCEPTION:

Category ‘A’ : Where the threat extends to life of witness or

his family members, during investigation/trial or thereafter.

Category ‘B’ : Where the threat extends to safety,

reputation or property of the witness or his family

members, during the investigation/trial or thereafter.

Category ‘C’ : Where the threat is moderate and extends

to harassment or intimidation of the witness or his family

member's, reputation or property, during the

investigation/trial or thereafter.

4. STATE WITNESS PROTECTION FUND:

(a) There shall be a Fund, namely, the Witness Protection

Fund from which the expenses incurred during the

implementation of Witness Protection Order passed by the

Competent Authority and other related expenditure, shall

be met.

(b) The Witness Protection Fund shall comprise the

following:-

i. Budgetary allocation made in the Annual Budget by

the State Government;

ii. Receipt of amount of costs imposed/ordered to be

deposited by the courts/tribunals in the Witness

Protection Fund;

iii. Donations/contributions from Charitable Institutions/

Organizations and individuals permitted by the

Government.

iv. Funds contributed under Corporate Social

Responsibility.

(c) The said Fund shall be operated by the

Department/Ministry of Home under State/UT

Government.

Writ Petition (Crl.) No. 156 of 2016 Page 28 of 41

5. FILING OF APPLICATION BEFORE COMPETENT

AUTHORITY:

The application for seeking protection order under this

scheme can be filed in the prescribed form before the

Competent Authority of the concerned District where the

offence is committed, through its Member Secretary along

with supporting documents, if any.

6. PROCEDURE FOR PROCESSING THE

APPLICATION:

(a) As and when an application is received by the Member

Secretary of the Competent Authority, in the prescribed

form, he shall forthwith pass an order for calling for the

Threat Analysis Report from the ACP/DSP in charge of the

concerned Police Sub-Division.

(b) Depending upon the urgency in the matter owing to

imminent threat, the Competent Authority can pass orders

for interim protection of the witness or his family members

during the pendency of the application.

Provided that nothing shall preclude police from providing

immediate protection in case of grave and imminent threat

to life of applicant and his family members.

(c) The Threat Analysis Report shall be prepared

expeditiously while maintaining full confidentiality and it

shall reach the Competent Authority within five working

days of receipt of the order.

(d) The Threat Analysis Report shall categorize the threat

perception and also include suggestive protection

measures for providing adequate protection to the witness

or his family.

(e) While processing the application for witness protection,

the Competent Authority shall also interact preferably in

person and if not possible through electronic means with

the witness and/or his family members/employers or any

other person deemed fit so as to ascertain the witness

protection needs of the witness.

(f) All the hearings on Witness Protection Application shall

be held in-camera by the Competent Authority while

maintaining full confidentiality.

Writ Petition (Crl.) No. 156 of 2016 Page 29 of 41

(g) An application shall be disposed of within five working

days of receipt of Threat Analysis Report from the Police

authorities.

(h) The Witness Protection Order passed by the

Competent Authority shall be implemented by the Witness

Protection Cell of the State/UT or the Trial Court, as the

case may be. Overall responsibility of implementation of

all witness protection orders passed by the Competent

Authority shall lie on the Head of the Police in the

State/UT.

However the Witness Protection Order passed by the

Competent Authority for change of identity and/or

relocation shall be implemented by the Department of

Home of the concerned State/UT.

(i) Upon passing of a Witness Protection Order, the

Witness Protection Cell shall file a monthly follow-up report

before the Competent Authority.

(j) In case, the Competent Authority finds that there is a

need to revise the Witness Protection Order or an

application is moved in this regard, and upon completion of

trial, a fresh Threat Analysis Report shall be called from

the ACP/DSP in charge of the concerned Police Sub-

Division.

7. TYPES OF PROTECTION MEASURES:

The witness protection measures ordered shall be

proportionate to the threat and shall be for a specific

duration not exceeding three months at a time. These may

include:

(a) Ensuring that witness and accused do not come face to

face during investigation or trial;

(b) Monitoring of mail and telephone calls;

(c) Arrangement with the telephone company to change

the witness’s telephone number or assign him or her an

unlisted telephone number;

(d) Installation of security devices in the witness’s home

such as security doors, CCTV, alarms, fencing etc;

Writ Petition (Crl.) No. 156 of 2016 Page 30 of 41

(e) Concealment of identity of the witness by referring to

him/her with the changed name or alphabet;

(f) Emergency contact persons for the witness;

(g) Close protection, regular patrolling around the

witness’s house;

(h) Temporary change of residence to a relative’s house or

a nearby town;

(i) Escort to and from the court and provision of

Government vehicle or a State funded conveyance for the

date of hearing;

(j) Holding of in-camera trials;

(k) Allowing a support person to remain present during

recording of statement and deposition;

(l) Usage of specially designed vulnerable witness court

rooms which have special arrangements like live video

links, one way mirrors and screens apart from separate

passages for witnesses and accused, with option to modify

the image of face of the witness and to modify the audio

feed of the witness’ voice, so that he/she is not identifiable;

(m) Ensuring expeditious recording of deposition during

trial on day to day basis without adjournments;

(n) Awarding time to time periodical financial aids/grants to

the witness from Witness Protection Fund for the purpose

of re-location, sustenance or starting a new

vocation/profession, as may be considered necessary.

(o) Any other form of protection measures considered

necessary.

8. MONITORING AND REVIEW:

Once the protection order is passed, the Competent

Authority would monitor its implementation and can review

the same in terms of follow-up reports received in the

matter. However, the Competent Authority shall review the

Witness Protection Order on a quarterly basis based on

the monthly follow-up report submitted by the Witness

Protection Cell.

Writ Petition (Crl.) No. 156 of 2016 Page 31 of 41

Part III

9. PROTECTION OF IDENTITY :-

During the course of investigation or trial of any offence,

an application for seeking identity protection can be filed in

the prescribed form before the Competent Authority

through its Member Secretary.

Upon receipt of the application, the Member Secretary of

the Competent Authority shall call for the Threat Analysis

Report. The Competent Authority shall examine the

witness or his family members or any other person it deem

fit to ascertain whether there is necessity to pass an

identity protection order.

During the course of hearing of the application, the identity

of the witness shall not be revealed to any other person,

which is likely to lead to the witness identification. The

Competent Authority can thereafter, dispose of the

application as per material available on record.

Once, an order for protection of identity of witness is

passed by the Competent Authority, it shall be the

responsibility of Witness Protection Cell to ensure that

identity of such witness/his or her family members

including name/parentage/occupation/address/digital

footprints are fully protected.

As long as identity of any witness is protected under an

order of the Competent Authority, the Witness Protection

Cell shall provide details of persons who can be contacted

by the witness in case of emergency.

Part IV

10. CHANGE OF IDENTITY:-

In appropriate cases, where there is a request from the

witness for change of identity and based on the Threat

Analysis Report, a decision can be taken for conferring a

new identity to the witness by the Competent Authority.

Conferring new identities includes new

name/profession/parentage and providing supporting

documents acceptable by the Government Agencies. The

Writ Petition (Crl.) No. 156 of 2016 Page 32 of 41

new identities should not deprive the witness from existing

educational/ professional/property rights.

Part V

11. RELOCATION OF WITNESS:

In appropriate cases, where there is a request from the

witness for relocation and based on the Threat Analysis

Report, a decision can be taken for relocation of the

witness by the Competent Authority.

The Competent Authority may pass an order for witness

relocation to a safer place within the State/UT or territory

of the Indian Union keeping in view the safety, welfare and

wellbeing of the witness. The expenses shall be borne by

the Witness Protection Fund.

Part VI

12. WITNESSES TO BE APPRISED OF THE SCHEME :

Every state shall give wide publicity to this Scheme. The

IO and the Court shall inform witnesses about the

existence of "Witness Protection Scheme" and its salient

features.

13. CONFIDENTIALITY AND PRESERVATION OF

RECORDS:

All stakeholders including the Police, the Prosecution

Department, Court Staff, Lawyers from both sides shall

maintain full confidentiality and shall ensure that under no

circumstance, any record, document or information in

relation to the proceedings under this scheme shall be

shared with any person in any manner except with the

Trial Court/Appellate Court and that too, on a written

order.

All the records pertaining to proceedings under this

scheme shall be preserved till such time the related trial or

appeal thereof is pending before a Court of Law. After one

year of disposal of the last Court proceedings, the hard

copy of the records can be weeded out by the Competent

Authority after preserving the scanned soft copies of the

same.

Writ Petition (Crl.) No. 156 of 2016 Page 33 of 41

14. RECOVERY OF EXPENSES:

In case the witness has lodged a false complaint, the

Home Department of the concerned Government can

initiate proceedings for recovery of the expenditure

incurred from the Witness Protection Fund.

15. REVIEW:

In case the witness or the police authorities are aggrieved

by the decisions of the Competent Authority, a review

application may be filed within 15 days of passing of the

orders by the Competent Authority.

Witness Protection Scheme, 2018

Witness Protection Application

under

Witness Protection Scheme, 2018

Before, (To be filed in duplicate)

The Competent Authority,

District................................................................

Application for:

1. Witness Protection

2. Witness Identity Protection

3. New Identity

4. Witness Relocation

1. Particulars of the Witness (Fill in

Capital):

1) Name

2) Age

3) Gender (Male/Female/Other)

4) Father's/Mother’s Name

5) Residential Address

6) Name and other details of family

members of the witness who are

receiving or perceiving threats

7) Contact details (Mobile/e-mail)

---------------------------

---------------------------

---------------------------

---------------------------

---------------------------

---------------------------

---------------------------

---------------------------

---------------------------

---------------------------

2. Particulars of Criminal matter:

1) FIR No.

---------------------------

---------------------------

Writ Petition (Crl.) No. 156 of 2016 Page 34 of 41

2) Under Section

3) Police Station

4) District

5) D.D. No. (in case FIR not yet

registered)

6) Cr.Case No. (in case of private

complaint)

---------------------------

---------------------------

---------------------------

---------------------------

---------------------------

3. Particulars of the Accused (if

available/known):

1) Name

2) Address

3) Phone No.

4) Email id

---------------------------

---------------------------

---------------------------

---------------------------

4. Name & other particulars of the

person giving/suspected of giving

threats

---------------------------

---------------------------

---------------------------

---------------------------

5. Nature of threat perception. Please

give brief details of threat received in

the matter with specific date, place,

mode and words used

---------------------------

---------------------------

---------------------------

---------------------------

6. Type of witness protection measures

prayed by/for the witness

---------------------------

---------------------------

---------------------------

---------------------------

7. Details of Interim / urgent Witness

Protection needs, if required

---------------------------

---------------------------

---------------------------

---------------------------

• Applicant/witness can use extra sheets for giving

additional information.

_____________________

(Full Name with signature)

Date: ..............................

Place:...........................…

UNDERTAKING

1.I undertake that I shall fully cooperate with the

competent authority and the Department of Home of the

State and Witness Protection Cell.

Writ Petition (Crl.) No. 156 of 2016 Page 35 of 41

2.I certify that the information provided by me in this

application is true and correct to my best knowledge and

belief.

3.I understand that in case, information given by me

in this application is found to be false, competent authority

under the scheme reserves the right to recover the

expenses incurred on me from out of the Witness

Protection Fund.

_____________________

(Full Name with signature)

Date: ..............................

Place:...........................…”

26)As is clear from its reading, 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.

27)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

Writ Petition (Crl.) No. 156 of 2016 Page 36 of 41

to enforce the said Scheme as a mandate of the court till the

enactment of a statute by the Legislatures.

28)It is clear from the aforesaid events that the Scheme 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. There is no reason not to accede to the

aforesaid submission of the learned Attorney General and other

respondents.

29)As pointed out above, 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

Writ Petition (Crl.) No. 156 of 2016 Page 37 of 41

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.

30)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.

31)In consonance with the same, the Delhi Judiciary has already

established four Vulnerable Witness Deposition Complexes in the

National Capital Territory, the latest one being at the Dwarka

District Court, which was established in February, 2017. This

complex provides facilities like separate witness room, separate

accused room, play area for the child witnesses, pantry, separate

toilet and an exclusive & comfortable waiting area and is

equipped with all facilities of audio-visual exchange for a free

interface between the presiding Judge, the witness and the

accused without witness facing the accused. The complex has a

Writ Petition (Crl.) No. 156 of 2016 Page 38 of 41

separate entry for vulnerable witnesses, so that they do not come

in direct contact with accused at any point of time. There are

provisions for support persons, pre-trial court visit and facilities for

pick and drop of the witnesses from their residence. In this way,

all possible efforts have been made for providing comfortable

environment to vulnerable witnesses at this complex in order to

enable them to give their best evidence in criminal proceedings.

32)One of the main reasons behind establishing these Vulnerable

Witness Deposition Complexes was that a large percentage of

acquittals in criminal cases is due to witnesses turning hostile and

giving false testimonies, mostly due to lack of protection for them

and their families, especially in case of women and children.

33)In fact, the Supreme Court too, in The State of Maharashtra v.

Bandu @ Daulat (Order dt. 24.20.2017 in Crl. Appeal No.

1820/2017) has directed as follows:

"10. … there should be special centres for examination of

vulnerable witnesses in criminal cases in the interest of

conducive environment in Court so as to encourage a

vulnerable victim to make a statement. Such centres ought

to be set up with all necessary safeguards. Our attention

has been drawn to guidelines issued by the Delhi High

Court for recording evidence of vulnerable witnesses in

criminal matters and also the fact that four special centres

have been set up at Delhi for the purpose.

*****

Writ Petition (Crl.) No. 156 of 2016 Page 39 of 41

12. The directions of Delhi High Court and setting up of

special centres for vulnerable witnesses as noted above

are consistent with the decision of this Court and

supplement the same. We are of the view that all High

Courts can adopt such guidelines if the same have not yet

been adopted with such modifications as may be deemed

necessary. Setting up of one center for vulnerable

witnesses may be perhaps required almost in every district

in the country. All the High Courts may take appropriate

steps in this direction in due course in phases. At least two

such centres in the jurisdiction of each High Court may be

set up within three months from today. Thereafter, more

such centres may be set up as per decision of the High

Courts.”

34)One thing which emerges from the aforesaid discussion is that

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.

35)We, accordingly, direct that :

(i)This Court has given its imprimatur to the Scheme prepared

by respondent No.1 which is approved hereby. It comes into

effect forthwith.

(ii)The Union of India as well as States and Union Territories

Writ Petition (Crl.) No. 156 of 2016 Page 40 of 41

shall enforce the Witness Protection Scheme, 2018 in letter and

spirit.

(iii)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.

(iv)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.

36)Writ petition stands disposed of in the aforesaid terms.

.............................................J.

(A.K. SIKRI)

.............................................J.

(S. ABDUL NAZEER)

NEW DELHI;

DECEMBER 05, 2018.

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