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Free and fair trial is sine qua non of Article 21 of the Constitution.

It is trite law that


justice should not only be done but it should be seen to have been done. If the criminal
trial is not free and fair and not free from bias, judicial fairness and the criminal justice
system would be at stake shaking the confidence of the public in the system and woe
would be the rule of law.1
The rate of commission of crime in India continues to soar incessantly whilst the
conviction rate remains abysmally low.
The sorry state of affairs with respect to the police investigation, and the subsequent
court procedures which takes an agonizingly long time to meet any logical end, are
adding to the dismal state of the criminal justice system of India.
A walk into the recent past, such as in the infamous BMW Hit and Run case, the Best
Bakery case, and the Jessica Lal murder case, poignantly illustrates an increasing and
lamentable tendency among witnesses to turn hostile.
Right to Fair Public Trial in presence of the accused is not absolute. In most countries
governed by democratic constitutions and rule of law, the position today is that the
right to an open public trial in the immediate presence of the accused is fundamental
but is not treated as absolute.
This tendency of witnesses turning hostile is leaving the system as a whole in a bizarre
condition.
However, it would be naive to blame the police for all the menace within the system.
Considering the volume of cases pending in the courts all over the country, it would
clearly be foolhardy to expect the police, who are supposed to be the traditional
guardians of witnesses, to shield crucial witnesses at all possible times.

1 Justice H.K. Sema in K. Anbazhagan v. Supdt. of Police, (2004) 3 SCC 767


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The reasons for hostility of the witnesses include, inter alia, the frequent adjournment
of cases, absence of physical protection, absurdly minimal allowance and lack of
adequate facilities in courts. The disinterest exhibited by crucial witnesses and the
excruciatingly long time taken by the courts in deciding the cases are, in effect and for
the worse, choking and clogging up the entire justice delivery system.
However, no concrete statutory implementation of the same has materialized despite
the Law Commission of India submitting a comprehensive report on the subject in
2006 advocating for implementation of witness protection schemes. It is not that the
Courts themselves are not concerned with the protection of witnesses.
The Supreme Court for instance in the Best Bakery case, while comprehensively
dealing with issues surrounding witness protection, observed that the State has a
definite role to play in protecting the witnesses so as to avert the trial getting derailed
and the truth becoming a mere casualty, to start with at least in sensitive cases
involving those in power, those who have political patronage and those who could
wield muscle and money power. As a protector of its citizens, the State has to ensure
that during a trial, the witness safely deposes without any fear of being haunted by
those against whom he wishes to depose. The witness protection guidelines framed
by the Delhi High Court in the Nitish Katara case could well prove to be the starting
point to achieve the cherished goal of protection of witnesses.
As my topic is about critical analysis of law commission of India regarding right to
public trial and witness protection programme in India.
So, the Law commission of India in its 198 th report (2006) highly recommended
witness protection programmes in India. Report says There are two broad aspects to
the need for witness protection. The first is to ensure that evidence of witnesses that
has already been collected at the stage of investigation is not allowed to be destroyed
by witnesses resiling from their statements while deposing on oath before a court. This
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phenomenon of witnesses turning `hostile on account of the failure to `protect their


evidence is one aspect of the problem. This in turn would entail special procedures to
be introduced into the criminal law after knowing all details about witnesses, to
balance the need for anonymity of witnesses on the one hand and rights of the accused
for an open public trial with a right to cross-examination of the witnesses, on the other
hand. The other aspect is the physical and mental vulnerability of the witness and to
the taking care of his or her welfare in various respects which calls for physical
protection of the witness at all stages of the criminal justice process till the conclusion
of the case.

The observations of the Law Commission on Witness Identity Protection and Witness
Protection Programme is worth mentioning here:
I. Witness Identity Protection:
The accused in our country have a right to an open public trial in a criminal court and
also a right to examination of witnesses in open court in their presence. But, these
rights of the accused are not absolute and may be restricted to a reasonable extent in
the interests of fair administration of justice and for ensuring that victims and witnesses
depose without any fear. The right of the accused for an open trial in his or her
presence, being not absolute, and the law has to balance that right of the accused as
against the need for fair administration of justice in which the victims and witness
depose without fear or danger to their lives or property or those of their close relatives.
There are three categories of witnesses:
(i) victim-witnesses who are known to the accused;
(ii) victims-witnesses not known to the accused (e.g. as in a case of
indiscriminate firing by the accused) and
(iii) witnesses whose identity is not known to the accused.
Category (i) requires protection from trauma and categories (ii) and (iii) require
protection against disclosure of identity. In category (i) above, as the victim is known
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to the accused, there is no need to protect the identity of the victim but still the victim
may desire that his or her examination in the Court may be allowed to be given
separately and not in the immediate presence of the accused because if he or she were
to depose in the physical presence of the accused, there can be tremendous trauma and
it may be difficult for the witness to depose without fear or trepidation. But, in
categories (ii) and (iii), victims and witnesses who are not known to the accused have a
more serious problem if there is likelihood of danger to their lives or property or to the
lives and properties of their close relatives, in case their identity kept secret at all
stages of a criminal case, namely, investigation, inquiry and trial.
At the stage of investigation:
We are of the opinion that witness protection is necessary even at the stage of
investigation. This can be provided by the prosecutor moving the Magistrate to a
conduct a preliminary inquiry or voir dire, in his chambers, i.e. in camera. The
Magistrate will have to consider the material relied upon by the prosecutor for
substantiating the danger to the witness or his property or those of his relatives, and, if
necessary, the Magistrate can examine the witness. The suspect is not entitled to be
heard at this stage during investigation. If the Magistrate comes to the conclusion that
there is likelihood of danger, he can grant identity will, however, be disclosed to the
Magistrate and none else. Further, the real identity will not be reflected in the court
records but the witness will be described by a pseudonym or a letter from the alphabet.
During inquiry and before recording evidence at the trial:
In the inquiry before the Magistrate or Court of Session (before the trial starts), the
prosecutor or the witness has to make a fresh application and this is necessary even if
some of the witnesses have been allowed anonymity and given a new identity during
investigation. The Magistrate or judge has to pass a fresh preliminary order granting
anonymity. The reason is that, unlike at the stage of investigation, in the case of
identity protection during inquiry/or before trial, such protection can be granted only
after giving a reasonable opportunity to the accused. We have evolved a procedure in
which inquiry before the Magistrate or before the Sessions Judge before recording of
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evidence at the trial, the Magistrate or Judge will consider the material produced by the
prosecutor or the witness as to the danger to his life or property or that of his relatives,
and will, if necessary, hear the witness. All this has to be in camera and the accused/his
lawyer will not be present. However, the Magistrate or Judge will have to hear the
accused or his lawyer separately and disclose to them the material relating to the
alleged danger to the witness, but not any facts which may enable the accused or his
lawyer to discover the real identity of the witness. This, we have pointed, satisfies the
requirement of law where rights of the accused and the rights of the witness get
balanced. If, during inquiry, the Magistrate or Judge grants identity protection by a
preliminary order, it will ensure not only for the period during inquiry, trial, but at the
later stages of appeal or revision and even after the case has been finally concluded.
The record of the proceedings shall not, however, contain the real identity of the
witness or any facts from which identity can be discovered.
Recording evidence during the trial in the Sessions Court: two-way closed
circuit television:
The next stage is the final stage of trial in the Sessions Court. The witness, if he had
already been granted anonymity by the Magistrate or Judge, as stated above, he need
not apply again for anonymity. In respect of the evidence during the trial a two-way
closed-circuit television or video link and two-way audio link is proposed and these
will be installed connecting two rooms.
Fortunately, after the decision of the Supreme Court in State of Maharashtra v.
Dr. Praful B Desai2and Sakshi v. Union of India3 such evidence by video-link is
admissible.
II. Witness Protection Programmes:

22003 (4) SCC 601


32004 (6) SCALE 15
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Witness Protection Programmes refer witness protection outside the Court. At the
instance of the public prosecutor, the witness can be given a new identity by a
Magistrate after conducting an ex parte inquiry in his chambers. In case of likelihood
of danger of his life, he is given a different identity and may, if need be, even relocated
in a different place along with his dependents till be trial of the case against the
accused is completed. The expenses for maintenance of all the persons must be met by
the State Legal Aid Authority through the District Legal Aid Authority. The witness has
to sign an MOU which will list out the obligations of the State as well as the witness.
Being admitted to the programme, the witness has an obligation to depose and the State
has an obligation to protect him physically outside Court. Breach of MOU by the
witness will result in his being taken out of the programme.

Witness Protection Programmes are necessary in our country and may be limited to
cases of serious offences and must apply to victims and prosecution witnesses alike.
They can be confined, in our view, to cases triable by Sessions Courts or Courts of
equal rank and Special Courts where, witness protection outside the Court is felt
necessary. Such a determination must be made in the Court of a Magistrate on an
application by the investigation agency or the public prosecutor. It is obvious that
Witness Protection Programmes require finances and unless the Central/State
Governments come forward to meet the expenditure, the programmes cannot be
introduced.
In the Witness Protection Programme, the control ultimately must be with Judicial
officers. The Police may decide which witness requires to be placed under the Witness
Protection Programme but it must be for the Magistrate to decide whether a witness
has to be admitted to the programme. The expenditure incurred for the grant of
different identity, relocation, maintenance, transport, accommodation etc. must be met
by the Union and the State Governments jointly, because we are dealing with serious
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crimes listed in the Indian Penal Code, 1860 which is a Central statute though the
offence is committed within the territories of a State.
The Chief Justice of the State High Court must be the Patron-in-chief of the Witness
Protection Programme and he may administer the fund through the State Legal Aid
Authority, which is constituted for each High Court and which is headed by a High
Court Judge. Whenever a Magistrate, upon an application by the District
Superintendent of Police or Commissioner of Police or the Public Prosecutor, passes an
order admitting a witness to the Witness Protection Programme, the order should be
communicated to the State Legal Aid Authority and the latter should issue appropriate
directions to the District Legal Services Authority, for release of funds for the purpose
of implementing the order. Out of the amount allocated to the State Legal Aid
Authority, a certain amount must, therefore, be set apart for funding the witness
Protection Programmes.
For this purpose, if necessary, an amendment may be carried into the Legal Services
Authorities Act, 1987 to say that the Chief Justice of the High Court shall be the
Patron-in-chief of the Programme that the State Legal Aid Authority and the District
Legal Aid Authority shall exercise the powers and perform duties assigned to them
under the Witness Protection Programmes, including the administration of funds
allocated for that purpose by the said Governments.
The benefit of the programme could be extended to defence witnesses also because the
basis of extending the programme to defence witnesses is that their life and property is
in danger. But, as the question of funding the programme may have some constraints,
for the present, the programme may be confined to prosecution witnesses and victims
in the matter of crimes triable by a Court of Session.
It may not be sufficient to grant protection only to the witness. There may be threats to
the spouse, children or parents, brother or sisters of the witness. Depending upon who
is living close to the witness and who is likely to be threatened, an assessment of the
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extent of threat to each such family members, must, no doubt, be made and if there is
danger, the protection will have to extended. It is common experience that a spouse or
children of a witness are generally threatened with abduction.
Further, if it is decided to relocate a witness or victim at a different place and he or she
happens to be the breadwinner, the immediate family members of the witness may be
deprived of all means of livelihood if the witness alone is relocated and in such cases,
interests of justice certainly require that the immediate family members be also
relocated.
Central and State Governments have assumed joint responsibility for the
administration of justice. The Central Government cannot, in our view, throw the
entire burden on the State Governments on the ground that law and order is a State
subject.
PUBLIC TRIAL AND CROSS-EXAMINATION OF WITNESSES IN
OPEN COURT: INDIAN LAWS
Sec.327 Cr.PC provides for trial in the open court and 327 (2) provides for in-camera
trials for offences involving rape under s.376 IPC and under s.376 A to 376 D of the
IPC. Sec. 273 requires the evidence to be taken in the presence of the accused. Sec.
299 indicates that in certain exceptional circumstances an accused may be denied his
right to cross-examine a prosecution witness in open court. Further, under Sec.173 (6)
the police officer can form an opinion that any part of the statement recorded under
Sec.161 of a person the prosecution proposes to examine as its witness need not be
disclosed to the accused if it is not essential in the interests of justice or is inexpedient
in the public interest.
Sec. 228A IPC prescribes punishment if the identity of the victim of rape is published.
Likewise, Sec. 21 of the Juvenile Justice (Care and Protection of Children) Act, 2000
prohibits publication of the name, address and other particulars which may lead to the
identification of the juvenile. Under Sec. 33 of the Evidence Act, in certain exceptional
cases, where cross examination is not possible, previous deposition of the witness can
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be considered that relevant in subsequent proceedings. The Evidence Act requires to be


looked into afresh to provide for protection to a witness.

CRITICAL APPRAISAL
The law commission of India while recommending witness protection programme for
India had given examples of so many countries like U.S.A., U.K, Australia, South
Africa and many more. All these countries have witness protection programmes
in which India is lacking. But in above mention countries law are there in rule books
but to implement these laws is a new challenge. I have mention some of these
challenges. So, when countries like U.S.A and U.K are facing problems while
implementing these programmes we can imagine what would be the condition of India
which is 2nd most populated country in the world and according to estimates in very
short span of time going to be number 1.
Thus, it is much obvious that large number population would commit large number of
crimes. It is found that since 1973 to 2007 murder rates have been doubled4, and not
only murder there are so many other offences which are increasing day by day. Do you
think that India would be able to protect such a large number of witnesses?
There are some problems which India will face while implementing Witness Protection
Programmes:
1) Lack of Budget: Due to this scheme there is going to be heavy burden on
government to provide security to these witnesses
2) Purpose of witness protection programme is to provide security to witnesses,
but there would always going to some mechanism who are going to disclose

4 http://ncrb.nic.in/StatPublications/MAPS-2014/cii-2014%20maps/CII-2014ViolentCrime.pdf visited on 7th march 2016.


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the identity of witness for any kind of consideration and at last ultimately
witness is going to be in danger zone.
3) There may be cases involving high state dignitaries, police officials etc. Can
a witness be protected from these people who are holding powerful offices?
4) Lack of Resources : There is going to be scarcity of resources while
implementing these kind of Programmes. Under these programmes witness is
entitled to house, employment, medical, educational facilities etc. so, it is
going to overburden the Government.
IN U.S.A PRACTICAL SITUATION IS :
The federal witness protection program, immortalized in crime movies, has granted
new identities to more than 17,000 people. But as that number grows, the Marshals
Service that provides protection is cutting the staff assigned to the program.
That is one of several problems that could have a potential adverse impact on witness
security, Justice Department Inspector General Glenn A. Fine said in a report Monday.
In the past eight years, federal personnel responsible for protecting witnesses has
dropped by nearly 25 percent, Fine said. At the same time, the number of witnesses and
their family members has climbed by 12 percent.
If the staffing level does not keep pace with the workload, the quality of services
provided to program participants could decline unacceptably, Fine said.5
IN U.K PRACTICAL SITUATION IS :
We receive quite a significant number of telephone calls from protected persons
seeking legal advice, they tell pitiful tales of lives absolutely destroyed.
Fiona Murphy, Solicitor

5 http://www.nbcnews.com/id/7184047/ns/us_news/t/witness-protection-programfaces-challenges/#.VtxmMPl961s visited on 7th March 2016.


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