By Maxwell Pereira
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.
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.
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.
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
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.
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.
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.
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?
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.
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.
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.
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 email@example.com
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