First and foremost, let me begin by voicing my utmost anguish and seething anger over the ruthless manner in which the key witnesses are so easily killed by powerful persons who face serious criminal charges in one case or the other. This under no circumstances can be allowed to happen right under the very nose of the government. All possible steps must be taken to ensure safety and security of key witnesses in various high profile cases.
Why government does not ensure that proper security is provided to key witnesses especially in high profile cases in which powerful persons face criminal charges? Why hired killers are so easily able to kill key witnesses and yet escape uncaught? What message goes out when key witnesses are murdered in the most gruesome manner? Who will like to become key witness or even a normal witness in any case if killing of witnesses becomes the norm of the day as most unfortunately we see right now? Centre must ponder over it seriously and take proper remedial measures to ensure safety of witnesses under all circumstances.
The killing of key witnesses in Asaram Bapu’s alleged sexual assault case is now under the Supreme Court’s scrutiny. The Apex Court has asked one of his accomplices, who is out on bail to explain how within a year of release, three crucial witnesses were bumped off while four others sustained grievous injuries for testifying against the controversial preacher. This is really a matter of grave concern and cannot go unnoticed which alone explains why it came under the lens of Supreme Court.
On February 10, 2014, Shiva who is a co-accused along with Asaram Bapu was released on bail by the Rajasthan High Court. After a fortnight, a prime witness in the Surat rape case Rakesh Patel was stabbed. A month passed and another witness Dinesh Waghchandani was attacked with acid. Two months later, another crucial witness Amrut Prajapati was shot dead at his clinic. He gave evidence against the godman over suspicious death of children at Asaram’s ashram.
As threatened witnesses showed the requisite grit to testify in court against the godman, the attacks took a gory turn. In January 2015, a key witness in the Surat rape case – Akhil Gupta was shot dead in Uttar Pradesh. After a month, one Rahul Sachan who had testified in the Jodhpur rape case against Asaram Bapu was stabbed inside the court premises. He survived but is since missing.
It also must be mentioned here that a former personal assistant of the godman Mahendra Chawla who had parted ways following the allegations was shot at in Panipat. What is most alarming is that even police officials were not spared. Such was the terror unleashed by the godman’s aides that an investigating officer lodged an FIR naming Shiva for threatening to eliminate his family.
It must be pointed out here that the cop was incharge of the godman’s security in court and had refused to yield in any manner to the demands for allowing the accused to meet the godman. Presenting these facts to court, an aggrieved father of one of the victims allegedly raped by the godman in Jodhpur ashram, said that witnesses were living in fear while Shiva roamed without fear. After the family received constant threats, the bad news came on July 10, 2015 when the victim’s uncle Kirpal Singh, who testified against the controversial godman, was killed by unknown gunmen.
In his dying declaration, he blamed Asaram’s men to be behind the crime. Advocate Kamini Jaiswal who represented the victim’s father said that Shiva is the “closest and strongest” aide of the jailed godman. With the Rajasthan High Court turning down repeated pleas to grant bail to Asaram Bapu, Shiva is managing the empire and ensuring witnesses are threatened or eliminated, she said. The Vacation Bench of Apex Court comprising of Justices PC Ghose and Amitava Roy has issued notices to the Rajasthan Police and the accused in question who is out on bail to explain if the killing of witnesses should be a ground to cancel the bail.
It is high time and now very drastic changes must be made in our law to ensure protection of witnesses under all circumstances. Their location must be kept secret. They must be provided police protection. They must have weapon for self-defence. They must not be allowed to go anywhere without security and that too where necessary as their lives are very important for ensuring that the guilty offenders are behind bars which can happen only when key witnesses are able to say the truth in front of the court without being harmed or threatened in any manner.
Be it noted, the 198th report of the Law Commission dwelt on “Witness Identity Protection and Witness Protection Programme”. The Supreme Court of India had referred to the questions of ‘Witness Identity Protection’ and ‘Witness Protection Programmes’ in a number of judgments: NHRC v State of Gujarat: 2003 (9) SCALE 329, PUCL v Union of India: 2003 (10) SCALE 967, Zahira v State of Gujarat: 2004 (4) SCC 158, Sakshi v Union of India: 2004 (6) SCALE 15 and Zahira v Gujarat 2006 (3) SCALE 104. In Sakshi case the Apex Court emphasized the need for legislation on witness protection which I too fully support. In view of these observations, the Law Commission has taken up the subject suo motu.
In this landmark 198th Report it has confined the Witness Identity Protection procedures to cases triable by the Court of Session of Courts of equal rank. Witness Identity Protection may require during investigation, inquiry and trial while Witness Protection Programmes apply to the physical protection of the witness outside the Court. It is accepted today that Witness Identity Protection is necessary in the case of all serious offences wherein there is danger to witnesses and it is not confined to cases of terrorism or sexual offences.
Needless to say, the protection of witnesses is also prescribed in our penal laws. As for instance, Section 228A of the IPC prescribes punishment if the identity of the victim of rape is published. Also, Terrorists and Disruptive Activities Act, 1985 (TADA) (since repealed) introduces witness anonymity for the first time. In the year 1985, Parliament enacted the TADA to deal with terrorist activities and it rightly felt that unless sufficient protection is granted to victims and witnesses, it is not possible to curb the menace. Section 13 of TADA provides a procedure to protect witness identity. It read as follows:
“Section 13(1): Notwithstanding anything contained in the Code, all proceedings before a Designated Court shall be conducted in camera: Provided that where public prosecutor so applies, any proceedings or part thereof may be held in open court.
(2) A Designated Court may, on an application made by a witness in any proceeding before it or by the public prosecutor in relation to a witness or on its own motion, take such measure as it deems fit for keeping the identity and address of the witness secret.
(3) In particular and without prejudice to the generality of provisions of sub section (2), the measures which a Designated Court may take under that subsection may include – (a) the holding of the proceedings at a protected place; (b) the avoiding of the mention of the names and address of witnesses in its order or judgments or in any records of case accessible to public; (c) the issuing of any directions for security that the identity and address of the witnesses are not disclosed;
(4) Any person who contravenes any directions issued under subsection (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.” (emphasis supplied)
The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA 1987) continues witness anonymity subject to conditions: The 1985 Act was replaced by the 1987 Act with some changes. I will not extract the Section, namely Section 16, but shall refer only to the changes introduced. The provisions of Section 16 of this Act of 1987 were similar to those in Section 13 of the TADA, 1985 with a few changes. Under Section 16 of the new Act, it is not mandatory in all cases of trials in relation to terrorist activities to conduct the proceedings before the Designated Court in camera. The Court is given discretion to do so wherever the circumstances so desired. Again Section 16 (3) (d) empowered the Court to take measures in public interest so as to direct that information in regard to all or any of the proceedings pending before the Court shall not be published in any manner.
The validity of Section 16 was challenged but was upheld in Kartar Singh v State of Punjab: 1994 (3) SCC 569. The TADA, 1987 was repealed by POTA, 2002. Prevention of Terrorism Act, 2002: (POTA), 2002 continues witness anonymity with conditions: (since repealed w.e.f 21.9.2004). In the POTA, Section 30 deals with the subject of in camera proceedings and witness identity protection. There are some further changes made in this Act in respect of the powers of the Court. Section 30 reads as follows:
“Section 30: (1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the special Court so desires.
(2) A Special Court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.
(3) In particular, and without prejudice to the generality of the provisions of subsection (2), the measures which a Special Court may take under that subsection may include – (a) the holding of the proceedings at a place to be decided by the Special Court; (b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public; (c) the issuing of any directions for securing that the identity and address of the witnesses is not disclosed; (d) a decision that it is in public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner.
(4) Any person who contravenes any decision or direction issued under sub section (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.”
The changes brought into POTA, 2002 as contained in the sub section (1) and (2) are (i) that the Court has to record reasons for holding the proceedings in camera and also for coming to the conclusion that the ‘life of such witness is in danger’. (ii) an additional clause (d) was added in subsection (3) that publication of Court proceedings may be prohibited in ‘public interest’ too. The validity of the provisions of Section 30 has been upheld in PUCL v Union of India: 2003 (10) SCALE 967.
The Supreme Court of India stated, as long back as 1952 in Gurbachan Singh v State of Bombay (AIR 1952 SC 221), while ordering externment of the accused and directing him to be shifted to a different place (viz.) Amritsar (later modified for being shifted to Kalyan), observed that such an order was permissible under Section 27 of the Bombay Police Act, 1902. In respect of offences in Chapters XII, XVI or XVII of the Indian Penal Code, 1860, or abetment of such offences, where ‘witnesses are not willing to come forward to give evidence in public on account of apprehension for ‘safety of their person or property’, it was permissible to pass such orders under that Act. The Court said: “Such orders could be passed in the interest of the general public and to protect them against dangerous and bad characters whose presence in a particular locality may jeopardize the peace and safety of the citizens”.
In Swaran Singh v State of Punjab: AIR 2000 SC 2017, the Supreme Court described the plight of witnesses who were not only threatened but are maimed, or are done away with or even bribed. In PUCL v Union of India 2003 (10) SCALE 967 was dealing with the terrorist (POTA), there are general observations as to the protection of victims and witnesses so that they can give evidence without fear.
The Delhi High Court in Ms Neelam Katara v Union of India (Crl. WP 247 of 2002) (dated 14.10.2003) issued guidelines for witness protection in a case relating to alleged murder. In the guidelines framed, the word ‘accused’ was defined as follows: “Accused means a person charged with or suspected with the commission of crime punishable with death or life imprisonment”. It is quite palpable that the Delhi High Court felt that if the offences were such that they attracted a maximum punishment of death or life sentence, witness protection may become necessary. Very rightly so! In fact, I would further say that in all cases of heinous crimes where maximum punishment extends up to ten years, there must be mandatory witness protection so that the powerful offenders are not able to kill or threaten them in any manner!
Let me also quote here what the 198th Report of Law Commission spells out on provisions in other jurisdictions which generally deal with witness protection. It runs as follows : –
(a) To start with, Article 14(1) of the ICCPR and Article 6(1) of the European Convention permit restrictions in case there is ‘prejudice’ to administration of justice. Impliedly, they permit witness protection as an exception. In our view, the scope for the said protection applies both to special offences as well as general ones provided there is proof of ‘prejudice’ to the administration of justice. 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 general statutes in other countries provide for victim and witness protection.
(b) The best example of general protection is the New Zealand Evidence Act, 1908 as amended by the Evidence (Witness Anonymity) Amendment Act, 1997. The protection that Section 13B to 13J visualize, is applicable to all indictable offences and is, therefore, not offence specific but is witness specific (see Section 13B and Section 13C). Section 13C(4) of the above Act states that the Judge may, make an anonymity order, if he is satisfied that:
“(a) the safety of the witness or of any other person is likely to be endangered, or there is likely to be serious damage to the property, if the witness’s identity is disclosed; and
(b) either
(i) there is no reason to believe that the witness has a motive to be untruthful having regard (where applicable) to the witness’s previous convictions or the witness’s relationship with the accused or any associates of the accused; or
(ii) the witness’s credibility can be tested properly without the disclosure of the witness’s identity; and
(iii) the making of the order would not deprive the accused of a fair trial”.
(c) On the same lines, the Portuguese Act No. 93 of 1999 speaks of ‘witness protection’ and Section 16 thereof requires that identity of witnesses may not be disclosed if the witnesses or their relatives or other persons in close contact with them face serious danger of attempt to their lives, physical integrity, freedom or property of considerable high value where the offences attract a sentence of imprisonment of 8 years or more, or under ss. 169, 299, 300, 301 of the Criminal Code and Section 28 of the Cabinet Order No. 15/93 dated 22nd January. The section requires that the witness’ credibility is beyond reasonable doubt and has probative value.
(d) The provisions of Section 2A(1)(b) of the Australian Evidence Act, 1989 deals with ‘special witnesses’ who are described as persons suffering from trauma or are likely to be intimidated or to be disadvantaged as witnesses. Special arrangements can be made by the court in their favour including exclusion of public or the accused from the Court. Video-taped evidence can also be allowed.
(e) In South Africa, Section 153 of the Criminal Procedure Code permits in camera proceedings at the discretion of the Court and Section 154 permits prohibition of publication of certain information relating to criminal proceedings. In S v Leepile: 1986(4) SA 187 (W), the Court permitted witnesses to give evidence from behind closed doors. In S v Pastoors 1986 (4) SA 222 (W), the Court allowed witness identity to be kept confidential as there was a ‘real risk’. In the absence of a statute, obviously such orders were being granted under ‘inherent power’ of the Courts.
(f) In USA, the dissenting view of White J in Smith v Illinois: (1968) 390 US 129 that ‘it is appropriate to excuse a witness from answering questions about his or her identity, if the witness’s personal safety was endangered’, slowly became the law in latter cases starting with Maryland v Craig: (1990) 497 US 836, where evidence by way of close-circuit television was accepted as valid.
(g) The European Court of Human Rights too felt in the case of Kostovski (1989), Vissier (2002) and Fitt (2000) that if the national courts felt that anonymity was necessary, the European Court would not interfere.
(h) We shall refer to a few cases decided in other countries dealing with victim protection and witness identity protection generally. In England, such a general principle of administration of justice was laid down in Marks v Beysus: (1890) 25 QBD 494. In Cain v Glass: (NUL) (1985) NSWLQ 230 McHugh JA said that the principle of anonymity was applicable not only to police informers but that the said principle applied even to persons other than registered informers. The Supreme Court of Victoria (Australia), in Jarvie & Another v The Magistrate’s Court of Victoria at Brunswick: 1995 (1) VR 84 held that the Magistrate had the ‘jurisdiction’ to pass anonymity order in favour of all witnesses and that the power was not confined to undercover police officers. It applied “to other witnesses whose personal safety may be endangered by the disclosure of their identity”. The Court laid down four propositions of which proposition (2) reads as follows:
“(2) the same policies which justify the protection of informers as an aspect of public immunity also justify the protection of undercover police officers. However, the claim to anonymity can also extend to other witnesses whose personal safety is endangered by disclosure of their identity.”
Summary and Conclusion
Thus, while it is the common law rule that the accused has a right to know the names and addresses of prosecution witnesses so that he may inquire whether the witnesses were competent to give evidence in regard to the offence and so that he may exercise his right of cross-examination, the said right is not absolute. It has to be balanced against the rights of the victim and other prosecution witnesses so that they can depose without any fear or danger to their lives or property or to the lives or property of their close relatives. In such cases, the victim can be permitted to depose with an intervening screen or through video-link so that he need not face the accused; and the prosecution witnesses may depose by an arrangement under which the accused will not be able to see them and their identity will not be disclosed to the accused or his lawyer. In either case, the Judge will be enabled to see the victim or the prosecution witness while they are deposing. We may reiterate that today it is accepted that the need for protection of victims and witnesses is not necessarily confined to cases of terrorism, or sexual offences against women or children in respect of whom special statutes exist so that they may give evidence without fear and the prosecution witnesses may also depose without fear. The principle has been extended generally to cases of serious offences where the Court is satisfied that there is evidence about the likelihood of danger to the lives or property of the victim or to their relatives or to the lives or property of the witnesses or of their relatives. No doubt, it is also accepted that this procedure must be resorted only in exceptional circumstances and provided further the Court is satisfied that the victim or witness’s evidence is credible. It must be further assured that the Judge while deciding about the guilt of the accused must not be weighed against the accused merely because an anonymity order is passed or a victim is given protection.
Justice Anoop V Mohta of Bombay High Court is of view that anonymity of witness is required only up-to trial stage and there is no need of maintaining anonymity at the appellate stage. Lt Col SK Agarwal from Judge Advocate General branch had opined that anonymity should be maintained only during investigation, inquiry and at stage of committal proceedings, if any. But anonymity cannot be effectively maintained once the trial starts.
To put things in perspective, the DGP of Punjab had suggested that in cases where witnesses have been given anonymity or protection, it should be ensured that their statements are recorded on the date when they are summoned and no adjournment should be granted since repeated adjournments may at some stage lead to disclosure of the identity of the witness.
In order to conceal the identity of witness, he may be asked to depose from a different room or place where the accused is not present. To ensure this, another judicial officer may remain present in the room or place from where the witness is deposing. Such a provision exists in Portuguese legislation no. 93/99 of 14th July 1999.
All said and done, witnesses are the eyes and ears of justice. Their protection therefore is indispensable under all circumstances. There can be no compromise on this Their importance cannot be overemphasised. It is incumbent for the police and government to provide full protection to all witnesses who stand a risk of being liquidated on account of their testimony against them in court. There can be no denying this. The increased killing of key witnesses in high profile cases is most concerning and has to be checked at the earliest. If this is not done promptly, who will come forward to give evidence and become key witness in deposing against powerful offenders who will then escape without any doubt most easily and this can never be good for the benefit of our criminal justice system! I am sure Centre too now fully realizes the gravity of the situation and undertakes necessary steps to check the increased killing of key witnesses! It must!
Sanjeev Sirohi