Criminal Procedure Code, 1973: Witness Protection Program (Leading Case law: Mrs. Neelam Katara v. Union of India)

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Mrs.Neelam Katara filed the present petition pertaining to the tragic homicidal death of her son, Nitish. Respondent No.6, the son of a sitting Member of the Rajya Sabha came to be a suspect in the homicidal death of Nitish Katara. The petitioner sought various reliefs. From time-to-time various directions and orders were passed in the present petition resulting in the petition, as far as the petition was concerned as having become infructuous. However, one aspect of the matter of general public importance survives and counsel for the parties stated that in public interest certain directions pertaining to witness protection need to be issued.

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Ratio Decidendi:

The edifice of administration of justice is based upon witness coming forward and deposing without fear or favour, without intimidation or allurement in Courts of Law. If witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of administration of justice not only gets weakened, but in cases it may even get obliterated. The dockets in Courts today are overflowing to the brim and especially in criminal delivery system no shorthand essay is possible; the accused must get a fair, proper and just hearing in the adversarial system of Administration of Justice which we have adopted. Delay results. This leads to the possibility of the witness being harassed or intimidated at the hands of the accused or his accomplices.

The Law commission of India and in particular the 154th and 178th Reports which dealt with the menace of prosecution witnesses turning hostile.

The Hon'ble Supreme Court in the judgment Vishaka Vs. State of Rajasthan reported as 1997(6) SCC 241 observed that in the absence of domestic law occupying the field, an International Convention not inconsistent with the fundamental rights and the harmony with its spirit may be read into the municipal law.

 In the judgment reported as 2002(5) SCC 294 it was observed that if need be, Courts have the necessary power, by issuing directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.

Given the financial constraints which we have in this country, it may not be possible to have a Witness Protection Program on the extended scale at which it is being implemented in the United States of America, Canada, Australia or for that matter in the United Kingdom. But a beginning has to be made.

Till a suitable Legislation is brought on the Statute book, we direct that following guidelines shall operate for protection of the witnesses.

16. These guidelines shall be known as '"'Witness Protection Guidelines":

"Witness" means a person whose statement has been recorded by the Investigating Officer under Section 161 Cr.P.C. pertaining to a crime punishable with death or life imprisonment.

"Accused" means a person charged with or suspected with the commission of a crime punishable with death or life imprisonment.

"Competent Authority" means the Member Secretary, Delhi legal Services Authority.

ADMISSION TO PROTECTION:

The Competent Authority, on receipt of a request from a witness shall determine whether the witness requires police protection, to what extent and for what duration.

FACTORS TO BE CONSIDERED:

In determining whether or not a witness should be provided police protection, Competent Authority shall take into account the following factors:

i) The nature of the risk to the security of the witness which may emanate from the accused or his associates.

ii) The nature of the investigation or the criminal case.

iii) The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness.

iv) The cost of providing police protection to the witness.

OBLIGATION OF THE POLICE:

(1) While recording statement of the witness under Section 161 Cr.P.C., it will be the duty of the Investigating Officer to make the witness aware of the "Witness Protection Guidelines'" and also the fact that in case of any threat he can approach the Competent Authority. This the Investigating Officer will inform in writing duly acknowledged by the witness.

(2) It shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the Competent Authority directing police protection.

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