Allahabad HC Directs UP Govt, Its Authorities & Committees To Implement Witness Protection Scheme

It is really good to learn that in a most significant development, the Allahabad High Court has just recently on November 12, 2021 in a learned, latest, laudable and landmark judgment titled Mithlesh Narayan Tiwari vs State of U.P. and Another in Writ – C No. – 18204 of 2021 directed quite forthrightly the Uttar Pradesh State Government and all its concerned authorities/committees to implement the Witness Protection Scheme, 2018 forthwith. No doubt, the same must be done at the earliest! It must be apprised here that this direction came from the Bench of Justice Surya Prakash Kesarwani and Justice Vikas Budhwar of Allahabad High Court that was hearing the plea of a petitioner, Mithlesh Narayan Tiwari, who is a witness in a 2018 murder case, and his application for protection was rejected twice by the District Level Committee.

To start with, the ball is set rolling in this brief, brilliant, bold and balanced judgment authored by Justice Surya Prakash Kesarwani and Justice Vikas Budhwar by first and foremost putting forth in para 3 that, “Briefly stated facts of the present case are that according to the petitioner he is a witness in Case Crime No.0057 of 2018, dated 10.06.2018, under Sections 147, 148, 149, 504, 302 IPC P.S. Holagarh, District – Prayagraj. Earlier by Order dated 21.08.2020, intimated the petitioner that there is no need for protection. Consequently, the petitioner filed the Writ C No.27614 of 2020 which was allowed and a direction was issued to the District Level Committee/Superintendent of Police, Prayagraj, to pass an order afresh in accordance with law in the light of the directions of Hon’ble Supreme Court in the case of Mahender Chawla and Others Vs. Union of India and Others (2019) 14 SCC 615. Again the respondents passed almost identical order on 17.06.2021 refusing to grant protection to the petitioner. Consequently, the petitioner has filed the present writ petition.”

Needless to say, the Bench then observes in para 7 that, “We have carefully considered the submissions of learned counsels for the parties.”

Most significantly, the Bench then postulates in para 8 that, “We find that Hon’ble Supreme Court in the case of Mahender Chawla (Supra) approved the Witness Protection Scheme, 2018 which is reproduced below :

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 investigations without fear of intimidation or reprisal 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 influential people, witnesses turn hostile because of threat to life and property. Witnesses find that there is no legal obligation by the state for extending any security.

The Hon’ble Supreme Court of India also held in State of Gujarat v. Anirudh Singh MANU/SC/0749/1997 : (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. Sheikh and Anr. v. State of Gujarat MANU/SC/0322/2004 : 2004 (4) SCC 158 SC while defining Fair Trial said “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 14th Report of the Law Commission of India in 1958. Further reference on the subject are found in 154th and 178th report of the Law Commission in India. 198th Report of the Law Commission of India titled as “Witness Identity Protection and Witness Protection Programmes, 2006” is dedicated to the subject.

The Hon’ble Supreme Court observed in Zahira case supra, “country can afford to expose its morally correct citizens to the peril of being harassed by antisocial elements like rapists and murderers”. The 4th 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.’

The Legislature has introduced Section 195A Indian Penal Code 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 Castes and Tribes (Prevention of Atrocities) Act, 1989 also provides for safeguarding witnesses again 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 becoming and prosecution of such crimes, it is essential that witnesses, have trust in 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. 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 necessary 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 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 Under Section 354, 354A, 354B, 354C, 354D and 509 of Indian Penal Code.

(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 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 threats. 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 for seeking Witness Protection Order. It can be moved by the witness, his family member, his duly engaged counsel or IO/SHO/SDPO/Prison SP concerned and the same shall preferably be got forwarded through the Prosecutor 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;

(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:

1. Budgetary allocation made in the Annual Budget by the State Government;
2. Receipt of amount of costs imposed/ordered to be deposited by the courts/tribunals in the Witness Protection Fund;
3. Donations/contributions from Charitable Institutions/Organizations and individuals permitted by Central/State Governments.
4. Funds contributed under Corporate Social Responsibility.

(c) The said Fund shall be operated by the Department/Ministry of Home under State/UT Government.

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, it 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.

(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.

(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 police sub-division concerned.

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.

They 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;

(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, if desired;

(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.

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 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.

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.”

No less significant is what is then envisaged succinctly in para 9 that, “After reproducing the afore-quoted Witness Protection Scheme, 2018, Hon’ble Supreme Court in the case of Mahender Chawla (Supra) further observed/directed as under :

“27. 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.

28. 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 of justice itself, all the States and Union Territories also accepted that suitable directions can be passed by the Court to enforce the said scheme as a mandate of the Court till the enactment of a statute by the legislatures.

29. 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.

35. 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.

We, accordingly, direct that

36.1. This Court has given its imprimatur to the Scheme prepared by Respondent 1 which is approved hereby. It comes into effect forthwith.

36.2 The Union of India as well as the States and the Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit.

36.3 It shall be the “law” under Articles 141/142 if the Constitution, till the enactment of suitable parliamentary and/or State legislations on the subject.

36.4 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.””

As we see, the Bench then points out in para 10 that, “In paragraph 8 of his personal affidavit the Secretary (Home) has stated that Standing Committee consisting of District and Sessions Judge (Chairman), District Magistrate (Member Secretary) and Senior Superintendent of Police/Superintendent of Police (Member) has been constituted in each District of Uttar Pradesh. A Chart containing the description of Constitution of standing committee in each district has been filed as Annexure 5 to the personal affidavit.”

Quite significantly, the Bench then enunciates in para 11 that, “However, from perusal of the personal affidavit, it appears that merely letters have been issued by the State Government and its top officials to the District Level Officers and the Standing Committees have been constituted but the Witness Protection Scheme, 2018 is not being implemented in letter and spirit which fact is further evident from the facts of the present case itself that the petitioner (witness) to get protection under the aforesaid scheme has to approach this court twice and concerned authorities have passed the orders without any sense of responsibility. Despite the orders of this Court dated 10.06.2020 and 19.03.2021, passed in Writ C No.8925 of 2020 and Writ C No.27614 of 2020 respectively the State respondents repeatedly passed the same order. It is only after the present writ petition was filed and an order dated 05.10.2021 was passed, only then the State respondents have given protection to the petitioner by passing the order dated 30.10.2021. This instance itself is sufficient to discern the truth that various circulars or letters being issued by the State Government are merely an eye wash and in truth the Witness Protection Scheme, 2018 is not being properly implemented by the State respondents.”

Finally, the Bench then holds in para 12 that, “In view of the aforesaid, we dispose of this writ petition with the directions to the State Government and all its concerned authorities/committees to implement the Witness Protection Scheme, 2018 forthwith as well as the directions issued by the Hon’ble Supreme Court in the case of Mahender Chawla (Supra) forthwith.”

In conclusion, what Justice Surya Prakash Kesarwani and Justice Vikas Budhwar of Allahabad High Court have held so rightly, rationally and robustly in this leading case must be now implemented forthwith by the UP Government, its authorities and committees to whom it is directed. This is the crying need of the hour also as witnesses are the eyes and ears of justice and so that must be protected at all costs and under all circumstances. There cannot be any compromise on this in any manner on any ground whatsoever! It brooks no more delay anymore now! The earlier this is done, the better it shall be in the interest of the victim, in the interest of the witness and in the interest of the justice also!