Reformative Approach Towards Fair Trial - A Critical Analysis Of Protection Of Witnesses In India

Author: LawSphereX

Category: International Law

Published: 2026-08-23T20:52:04.896647+00:00

Updated: 2026-08-26T17:09:51.212+00:00

REFORMATIVE APPROACH TOWARDS FAIR TRIAL: A

CRITICAL ANALYSIS OF PROTECTION OF WITNESSES IN

INDIA

Shweta Jugran, School of Law, Forensic Justice and Policy Studies, National Forensic Sciences University, Gandhinagar, Gujarat

ABSTRACT

Witness plays a key role in the criminal justice delivery system. They are the eye and ear of the court when providing a conclusion to a trial. The Indian Judiciary has repeatedly highlighted the need for a fair trial for justice for both the accused and the victim. However, for the functioning of a fair trial, we have long forgotten a witness who becomes a key player in dispensing justice. A witness is a person present at the place of commission of the crime and whose testimony becomes crucial to complete the trial. Time and again, the witness has faced many difficulties during the investigation and the trial. They hold grudges against the accused, and their family members sometimes lose their lives during the whole process. These problems direct the state's attention to coming up with a full-fledged witness protection law.

In this article, the researcher will shed light on the need for witness protection law and what developments have been made in this direction until now. With that, the researcher will highlight the challenges ahead and analyse the Witness Protection Scheme 2018. The researcher will also provide some recommendations that can be made in this direction. Keywords: Witness, Fair Trial, Adjournments, Loopholes, Intimidation.

I.

Introduction The right to have a fair trial is considered as one of the integral aspects of the Right to Life. In Zahira Habibullah H Sheikh and Ors. v. State of Gujarat and Ors. , the Supreme Court has defined a fair trial as a trial before an impartial court, a fair prosecutor and in an atmosphere of judicial calm. In a fair trial, there is no bias or prejudices; if a witness gets threatened, it will not amount to a fair trial. We have ample provisions in our law to prevent the accused from injustice, but in order to prevent the miscarriage of justice, it is also important that the witness should be dealt with fairly. 1 In our criminal justice system, a witness plays an important part in aiding the court in dispensing justice, which amounts to a fair trial. As Jeremy Benthem famously stated that ‘the witnesses are eyes and ears of justice’, but our laws have seldom recognised them.

To complete the procedure of a fair trial, a witness has to go through several impediments that include inducement, threat, animosity from the accused and their family members, and prolonged adjournment including others. There is a need to protect the witnesses who are key players in a criminal justice delivery system to reach an unbiased judgement. 2 II.

The Witness: A Forgotten Fighter According to the Malimath Committee Report of 2003, a witness is a person who is “an important constituent of the administration of justice, and by giving evidence relating to the commission of the offence, he performs a sacred duty of assisting the court to discover the truth”. 3 The witness plays an important role in the judicial proceedings yet there is a lack of sufficient provisions dealing with their protection. This often leads to witnesses turning hostile, which can be seen by the high acquittal rates in India. In the Jessical Laal murder case, a total of 32 witnesses have turned hostile, along with the prime witness. In Harpreet Kaur v State of Maharashtra, the defendant was charged with illegally transporting illicit liquor and possessing arms while transporting.

The four witnesses were willing to testify against the defendant, but they feared that the person would avenge them. The Supreme Court had stated that due to the

1 Zahira Habibulla H. Sheikh and Ors. Vs. State of Gujarat and Ors., AIR 2004 SC 346.

2 Nair, V.V., The status of victim protection in India: comparative analysis with the international regime, 9 Int. J. Public Law and Policy 130, (2023).

3 Malimath V.S., The Committee on Reforms of the Criminal Justice System, The Ministry of Home Affairs, The Government of India, (2003).

fear of life, the witnesses had stayed away, and if anonymity had not been given, the crime would have gone unpunished, putting society at risk. 4 The testimony of a witness can change the course of the whole judgement, and it becomes imperative for the investigating authority to follow a careful approach while recording evidence, as ignoring a single witness, especially a prime witness, can break the chain of circumstances and can avert the discourse of judgement. As happened in the State of Gujarat Vs. Kishanbhai and Ors.

, where a child was brutally raped and murdered but due to the negligence of the police, the accused was given the benefit of the doubt since the police failed in establishing a chain of circumstances as neither the doctor who had examined the accused was produced as a prosecution witness, nor the report/certificate given by the medical officer disclosing the details of his observations/findings was placed on record. 5 Since the dilemma and importance of witnesses are long forgotten, it becomes imperative for the state to come up with a full-fledged law that tailors to the needs of the witnesses. The courts need to ensure that the witnesses are supported financially and they are not deprived of basic amenities. The state has to ensure that their security is not jeopardised further. III.

Need for the witness protection law Under section 33 of Bharatiya Nagrik Suraksha Sanhita 20236 and section 38 of CrPC 19737, a person who is aware of the commission of the offence is liable to give information without any reasonable excuse and the burden to prove such excuse lies upon him. We have ample provisions in our law that burden a person to be a witness but are lacking in providing security to the witness. Apart from security issues, a witness has to suffer prolonged adjournment. Lack of financial support to come to the court, many times witnesses are forced to give wrong testimony by police as well, and they suffer from a lack of facilities in the court vicinity. There are times when such witness lose their lives during investigation and trial.

8 In the case against self-proclaimed godmen Asaram where he and his son were convicted of raping 16-year-old girls, and they received life sentences. Three witnesses died as they were attacked, and one of the key witnesses received injuries as there was an open fire on him. After

4 Mrs. Harpreet Kaur, Harvinder Singh Bedi Vs. State Of Maharashtra & Anr., AIR 1992 SC 779.

5 State of Gujarat Vs. Kishanbhai and Ors., (2014) 5 SCC 108.

6 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 33, No. 174-C, Acts of Parliament, 2023, (India).

7 The Code of Criminal Procedure, 1973, §38, No. 2, Acts of Parliament, 1974, (India).

8 Malimath V.S., Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of India, (2003).

this case, when he filed a Public Interest Litigation (PIL), the court made the way to the Witness Protection Scheme, 2018. 9 There are several instances where the witness turns hostile due to factors like threats and inducement, among others. In the heinous Unnao Rape case in 2017, when an MLA was charged with raping a 17-year-old woman, her father died in police custody. 10 Later, she and her attorney were severely injured as the car carrying the woman, her family and her attorney were impacted by the truck travelling too quickly. Two of her family members were killed, and the physician who tested her father was also killed11. Several cases like this highlight the loophole in the legal system and point to the need for laws governing the protection of witnesses.

There is a need for witness protection for the proper functioning of the rule of law so that witnesses can come forward without any fear and assist in the functioning of the criminal justice delivery system. IV.

Witness Protection Scheme 2018 The work that had been done in this direction at the pan-India level is inadequate. For the first time, the 14th Law Commission of India Report 1958 talked about the protection of witnesses, and after around 50 years, the Ministry of Home Affairs, on being compelled by the Supreme Court, came up with a Witness Protection Scheme 2018 that is yet to be implemented. The court made this scheme a law in Mahendra Chawla vs Union of India. Where a writ petition was filed in the Supreme Court after the Asaram Bapu Case for the protection of the witnesses12. Witness Protection Scheme 2018(WPS) defines a witness as a “person who possesses information or document about any offences”13.

It has categorised the witnesses according to the threat perception, which includes three categories that are ‘A’, ‘B’ and ‘C’14: 9 Rashmi Rekha Baug, Witness Protection Scheme In India - Issues And Challenges, 11 IJCRT 445, (2023). 10 Devesh K. Pandey, Unnao cases: Sengar, 6 others get 10-year jail term in 2 Unnao cases, The Hindu (Mar 13, 2020, 11:35 IST), https://www. thehindu. com/news/national/other-states/unnao-rape-case-kuldeep-sengar-gets- 10-years-prison-for-victims-fathers-murder/article31057445. ece. 11 Custody death, accident and more: All about Unnao rape case, Hindustan Times(Jun 06, 2020, 08:35 AM IST), https://www. hindustantimes. com/india-news/custody-death-accident-and-more-all-about-unnao-rape-case/story- ZT4rV9UFYWhn3j1hb6M8qM. html.

12 Mahendra Chawla & Ors. vs. Union of India & Ors., 2019 (14) SCC 615.

13 Witness Protection Scheme 2018, §2(k).

14 Witness Protection Scheme 2018, §3.

i. Category A: the threat to the life of the witness and his family during trial/investigation. This category is of a more serious nature that includes immediate and higher protection. ii. Category B: The threat to the witness's safety, reputation or property and his family. This category is not as serious as the previous one. iii. Category C: it includes moderate threats like harassment or intimidation. Another important aspect is the financial aspect, where under section 4, the state is required to make a state witness protection fund15, but since it involves a lot of expenditure, there should be a contribution in funding between the centre and the state.

For the protection to be granted, there is a procedure that needs to be fulfilled, which starts from filing an application before the competent authority in a format which he shall pass to ACP/DSP for a Threat Analysis Report, which shall be prepared within 5 working days and shall also include suggestions from concerned authority and shall be given to competitive authority. 16 Such application shall be disposed of within 5 working days of receiving the Threat Analysis Report17. Concerning imminent threats, the provision is not binding upon the police to give protection, which needs to be addressed since it merely states that nothing shall bind the police to provide protection.

18 The provisions regarding protection include monitoring telephone calls, changing the telephone number of witnesses, concealment of identity, close protection, temporary change in residence, arrangement of a government vehicle for to and fro to court, in camera trials and vulnerable witness rooms, among others19. All the provisions are pretty much justifying the protection of witnesses. Still, for the time being, till it is implemented, there is a need to give interim protection to the existing witnesses who are under threat. This scheme must be implemented as soon as possible to ascertain further improvement, as only we can analyse its effects once implemented.

15 Witness Protection Scheme 2018, §4.

16 Nair, V.V., The status of victim protection in India: comparative analysis with international regime, 9 Int. J. Public Law and Policy 130, (2023).

17 Witness Protection Scheme 2018, §6(g).

18 Zubair Ahmed Khan, Need For Witness Protection In India: A Legal Analysis, 7(1) DLR 37, (2015).

19 Witness Protection Scheme 2018, §7.

One of the significant aspects of this scheme is the huge involvement of the police, as it is possible that the identity of the witness can be revealed in high-profile cases. There is a huge burden upon the police to ensure the witness is not intimidated and remains confident throughout the investigation and trial. Specialization training is needed for police personnel to manage the protection of witnesses.20 For the time being, we need to ensure that the witnesses are supported with financial grants and immediate action is needed in the matters of repeated adjournments. V.

Challenges Ahead The major problem is the protection of witnesses until the scheme gets implemented. There is a need to protect the witness's anonymity. Many loopholes will be addressed once the scheme is implemented. One of the major issues is that in the present-day CrPC, there is no provision regarding the protection of witnesses, which is persistent in the BNSS. Section 160 of CrPC21 and section

179 of BNSS, both require the attendance of witnesses and persons under the age of 15 and

above the age of 65 or women or physically or mentally disabled or suffering from acute illness; only those can attend at a place where they reside22. Section 195A of CrPC23 and section and section 216 of BNSS states that in case of threatening, the witness can file a complaint under IPC and BNS24. Section 195A of IPC 25Section 230 of The Bhartiya Nyaya Sanhita states that in case of threatening to witness to give false evidence, a person shall be punished for 7 years.26 Both CrPC and BNSS have neglected the protection to witness. In both laws, a witness is required to state truly everything asked regarding the facts and circumstances of the case and a person is compelled to be the witness. Still, both laws fail miserably in understanding the plight of the witnesses, which becomes one of the major loopholes in the system. VI.

Conclusion Since the plight of witnesses is neglected in both old and new laws, there is a need to take 20 Rashmi Rekha Baug, Witness Protection Scheme In India - Issues And Challenges, 11 IJCRT 445, (2023).

21 The Code of Criminal Procedure, 1973, §160, No. 2, Acts of Parliament, 1974, (India).

22 The Bhartiya Nagarik Suraksha Sanhita, 2023, § 179, No. 174-C, Acts of Parliament, 2023, (India).

23 The Code of Criminal Procedure, 1973, §195A, No. 2, Acts of Parliament, 1974, (India).

24 The Bhartiya Nagarik Suraksha Sanhita, 2023, § 216, No. 174-C, Acts of Parliament, 2023, (India).

25 The Indian Penal Code, 1860, §195A, No. 45, Acts of Parliament, 1860, (India).

26 The Bhartiya Nyaya Sanhita, 2013, §230, No.121, Acts of Parliament, 2023, (India).

immediate steps in this direction. Firstly, there is a need for witnesses to undergo in-camera trials in order to preserve their identity and location. Secondly, there is a need for a separate witness and accused room and a safe pathway for the witness to come to the court. Although the steps have already been taken in this regard, it is high time to apply it nationwide in every district and session court in order to preserve the rule of law27. Witness protection has always been a major issue left unaddressed; now it is time for the government and the judiciary to take steps in this direction. Before Mahendra Chawla, no steps had been taken in this direction. But now there is a need for the government to follow the scheme since the object of the law is to bring peace and harmony in the society and the same can be achieved only if a concrete step is taken in this direction.

28 27 Priyanka Dhar, Witness Protection And Justice Delivery System In India - A Critique, 4 Gjls, (2016).

28 Zubair Ahmed Khan, Need For Witness Protection In India: A Legal Analysis, 7(1) DLR 37, (2015).