Witness Protection
By Maxwell Pereira
mfjpkamath@gmail.com

An effective criminal justice administration system (CJAS) with its three pillars – police, prosecution, and judiciary is considered the bedrock of a democratic society. Jail administration in recent years has been made the fourth pillar by enlarging its scope from mere punitive to a correctional services wing. I have been advocating since long the importance of the individual in society as a fifth pillar in the CJAS – represented by that crucial witness whose deposition is needed to ensure justice and convict the criminal.

A criminal case is built upon the edifice of evidence admissible in law. For which, witnesses are required – to prove direct or circumstantial evidence. But the present judicial system has taken the witness for granted – summoning regardless whether or not they have money, or considering convenience to leave family, children, business etc; at the Court to face adjournments, for prosecutors to helplessly end up giving them another date. Eventually when their turn comes, for lawyers to examine and cross-examine as if they themselves were the culprits.

Witnesses are harassed by treating them like criminals, by heaping on them inconveniences, summoning repeatedly, made to wait with no facilities and waste time. Then subjected to tricks and game plans of the accused or defence lawyers – accused feigning illness, lawyer not turning up, seeking adjournment on flimsy grounds – just to harass and/or gain time to win the witness over. The Supreme Court in Swaran Singh v. State of Punjab observed that courts unwittingly become party to miscarriage of justice by repeatedly adjourning a case without valid cause.

Guilt is proved mostly on the basis of evidence of witnesses. But perjury – telling lies in court – (to suit individual need or circumstance) is an accepted norm. More so in a criminal case where evidence tampering and witness-inducement through money-power, influence, allurement or blackmail, cajoling, bullying, intimidation or threat, coercion or even abduction is the order of the day. Even where judges know the witness is telling lies, he prefers to ignore and not file a complaint for perjury as required under Section 340(3) of Criminal Procedure Code.

In the absence of any provision in the CrPC or codified executive instructions for witness protection, prosecution has failed time and again when witnesses have turned hostile. In the sensational BMW and Jessica Lal cases it happened, and in the Best Bakery case where the Human Rights Commission also intervened. The resiling eyewitnesses never stated the reasons why they changed their original stand.

The 154th and 178th reports of the Law Commission have dealt with witnesses turning hostile. Justice Malimath Committee of April 2003 touched upon a WP Program, but beyond making bald recommendations made no effort to go into how the concept can be adapted to the legal topography of India. Supreme Court in the 1998 Vineet Narain case directed steps to form an impartial agency of persons of unimpeachable integrity to perform functions akin to those of UK’s Director of Prosecutions –who monitors the WPP there. In October 2003 the Delhi High Court issued guidelines to the police for providing protection to witnesses in cases punishable by life imprisonment or death sentence.

The police IO has to make witnesses aware of WP guidelines while recording statements u/s 161 CrPC, with instructions to approach the ‘competent authority’ in the event of threat. Member Secretary/ Delhi Legal Services Authority as the ‘competent authority’ to decide whether a witness requires protection or not – after considering: nature of risk from the accused or his associates, nature of investigation or criminal case, the importance of the witness and value of information/ evidence given/ or agreed to be given, and the cost of providing protection. Once permission is granted, the Commissioner of Police is duty bound to give protection as directed by competent authority.

In my opinion the current hype over witness protection is mere hogwash, as “what is protection” is not defined! Is merely providing a security person to accompany enough? What about logistics and practical problems? Also, WP program works on the premise that all officials involved in the secret exercise of changing somebody's identity are absolutely trustworthy. The level of professionalism demanded by this program, I feel, is beyond the capability of any agency entrusted with the task – given our susceptibility as a people to extraneous influences.

What is needed is to provide the witness a conducive environment to perform his sacred duty as a citizen to depose against a wrong. Which includes facility and convenience, not forgetting dignity, and most importantly speed. Sessions trials should be conducted in a ‘session’ and not allowed to drag on for decades to accommodate defence lawyers. Laws should be strengthened to bridge existing loopholes in the evidence act: Why is a statement made to a police officer not admissible when it’s permissible in the UK? And the peculiar position of section 161 CrPC? Was it the intention of the framers of procedural laws while wanting 161 statements to be unsigned to allow police manipulation/ padding?

There is need to implement speedily the recommendations of the National Police Commission and those made by the Malimath Committee – be it to release the police from political and bureaucratic yoke, or more use of section 164 CrPC for recording statements, or to make more stringent perjury laws.

There is need for more use of computers for recording proceedings at lower courts and monitoring by High Court, and for expeditious disposal. The Bar Councils must play their part and put the CJAS back on track by evolving a code of conduct and norms for the legal fraternity against delays. There is also urgent need for evolving practical and effective rules, guidelines, procedures and directions for protecting witnesses.

If this is ensured 90% of hostility can be neutralised right away, also negating the possibility or opportunity for the accused to win over witnesses through enticement, allurement, blackmail, inducement, extortion, threat or intimidation.

April 03, 2006: 950 words: Copy Right © Maxwell Pereira: 3725 Sec-23, Gurgaon-122002. You can interact with the author at http:// www.maxwellperira.com and maxpk@vsnl.com

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