Witness protection: India
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Court rulings
Witness Protection Scheme/ 2018
December 6, 2018: The Indian Express
A Bench of Justices A K Sikri and S Abdul Nazeer asked the Centre, states and Union Territories to “enforce” the scheme “in letter and spirit” The court said, “it shall be the ‘law’ under Article 141/142 of the Constitution, until the enactment of suitable Parliamentary and/or State Legislations on the subject”.
Features:
• Identifying categories of threat perceptions,
• Preparation of a "Threat Analysis Report" by the head of the police,
• Preventive measures like ensuring that the witness and accused do not come face to face during probe,
• Protection of identity
• Change of identity
• Relocation of witness
• Witness to be apprised of the scheme
• Confidentiality and preservation of records
• Recovery of expenses, etc.
• The states and Uts are also asked to set up vulnerable witness deposition complexes, as required by the Scheme, by the end of 2019.
• These rooms will be equipped with facilities to prevent the accused and witness coming face to face.
• The expenses for the programme will be met from a Witness Protection Fund to be established by states and Union Territories.
The Programme identifies three categories of witnesses as per threat perception:
1. Category A: Those cases where threat extends to life of witness or family members during investigation, trial or even thereafter.
2. Category B: Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.
3. Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.
The ground realities
Delhi
2018: Witnesses safe, at least on paper
Crimes against witnesses, 2015-18
From: Raj Shekhar Jha & Somreet Bhattacharaya, Witnesses safe in Delhi, at least on paper, December 7, 2018: The Times of India
Protection Given Under 3 Categories Since 2013
Even as the Supreme Court on Wednesday directed state governments to provide round-the-clock police protection to witnesses facing threats, the capital had implemented the “Delhi witness protection scheme” in 2015 through an order issued by the lieutenant governor. This had been done in the wake of a 2013 Delhi high court judgment in State versus Manu Sharma that had seen serious threats being alleged against witnesses.
Under the 2015 scheme, there are three categories of witnesses, those in Category A facing an imminent threat to their life and those of their families. The second category required the protection of their reputation or property, while Category C witnesses and their families were at risk of harassment and intimidation.
The protection given to witnesses is deemed to be as basic as providing a police escort to the courtroom, offering temporary residence in a safe house or using modern technology such as video-conferencing for recording a testimony. But in more complex cases, where the cooperation of a witness was critical to the successful prosecution of a powerful criminal, extraordinary measures such as anonymity and resettlement under a new identity in an undisclosed location are to be considered.
Accordingly, Delhi government created a witness-protection fund to support such requirements. “While the allocations are made in the annual budget of the state government, the fund also includes the receipt of fines imposed on the accused, apart from donations from national and international charity organisations or philanthropists. The divisional magistrate operates the fund,” a state officer explained.
Among other protective measure, the 2015 notification advocates the use of specially designed “vulnerable witness courtrooms” equipped with live links, one-way mirrors and screens and separate passages for witnesses and accused. The officer added, “It also says witnesses should have the option to modify the image of their faces as well as the audio feed of their voices.”
Once the order for witness protection is passed, cops have to ensure its implementation. During the investigation or the trial, witnesses can file an application with the area DCP requesting identity protection, who will then ask the Special Cell for the threat analysis report. The witness or family members or any other person seen suitable in determining the threat perception are questioned before validation of the identity protection order.
Once an order for concealment of a witness’ identity is passed by the competent authority, it is the responsibility of Delhi government’s divisional commissioner or Delhi Police’s witness protection cell to ensure that the identity of such a witness is fully protected. The witness is provided with an emergency contact number usually of the area SHO for emergency use. The scheme permits police to monitor the witnesses’ email and telephone calls for security reasons, and the serving telecom can be asked to allot another number to them. Police can also help them procure unlisted numbers.
The guidelines enjoin upon the SHO, investigating officer and others concer ned, including lawyers from both parties, to maintain full confidentiality. The IO is also required to preserve the soft copy of the papers related to the proceeding for three years.
2017-18: Special Cell foils 6 attempts on life
Witness protection is a regular challenge of policing. In India, this is more acute as often witnesses in important cases are either influenced to turn hostile or bumped off. In the capital alone, there have been incidents in the past few years when witnesses were killed while being taken to court, even in the presence of police escort.
In December 2017, a man named Rajesh Chehel, who was lodged in Rohini jail for the murder of his rival, hatched a plot to eliminate the prime witness in the case. He hired assassins to execute the plot. Four months later, while the hired guns were on their way to kill their target, Special Cell personnel swooped down on them. The cell knew about the threat perception and was prepared to foil any bid on the witness’ life.
The cell, which is the nodal body for witness protection in Delhi, says the unit has been taking a slew of measures in that direction and bringing down crimes related to them. At present, the unit is busy securing over 100 highly vulnerable witnesses so that they don’t turn hostile or are harmed.
There is also a ‘witness protection cell’ in each police district that conducts monthly reviews of the threat perception of witnesses and submits a report to the area DCP.
“Any witness facing a threat applies for security after which the cell conducts an assessment. The level of security is provided as per that analysis. If the threat is imminent, a provisional security is provided immediately even before assessment is completed and an FIR filed,” a senior police officer said.
In the last two years, the Special Cell has foiled at least six bids on the lives of witnesses using their information network and technical surveillance. In July this year, a contract killer out on parole and trying to kill a witness in a murder case against another criminal was stopped in the nick of time.
Police said once a person agrees to depose as a witness, s/he has to fill up an application form mentioning name, address, and other details and also name family members whom they perceive to be vulnerable. They are then asked if they would like to stay anonymous or shift to another location. If needed, the people whom the witness perceives to be threats are also detained.
The area DCP or additional CP then authorises the processing of a threat analysis report. Interim protection may be offered. Within five days, a report is prepared by Special Cell.
There is a ‘witness protection cell’ in each police district that conducts monthly reviews of the threat perception of witnesses and submits a report to the area DCP
See also
Delhi Witness Protection Scheme
Witness protection: India
