# Mithlesh Narayan Tiwari v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 338
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-12
- **Case number:** Writ C No. 18204 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithlesh-narayan-tiwari-v-state-of-u-p-anr-46539
- **Pages:** 10

## Headnote

A. Civil Law - Witness Protection Scheme, 2018
- Protection of witnesses - Failure of State
Govt. in implementing the Scheme - Held,
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 - High Court directed the State
Government
to
implement
the
Witness
Protection Scheme, 2018 forthwith. (11 and
12)
Writ petition disposed of. (E-1)
Cases relied on :-

## Text

338 INDIAN LAW REPORTS ALLAHABAD SERIES

27. It appears that the State Government
did not take note of the said suggestion nor any
effort seems to have been made to bring the
Rules 1994 at par with the Election Rules
framed under the Representation of the People
Act to remove all possible anamolies.

28. The apathy on the part of the State
Government in making suitable amendment in
the 1994 rules has resulted in the flood of
avoidable litigation before this Court that too
during the peak of second wave of pandemic
Covid-19.

29. In our considered opinion, the
proformas for preparation of the election papers
and the certificate to be issued by the Returning
Officer have to be prescribed in the Rules' 1994
itself and certificate to a winning candidate can
only be issued after the final declaration of the
result after intimation is sent to the State
Election Commission as is to be made under
Rule 56 of the Rules, 1994 which is also clear
from the guiding instructions issued by the State
Election
Commission
for
the
Panchayat
Elections-2021.

30. For the above, we request the Advocate
General, High Court, Allahabad to bring this
judgment to the notice of the State Government
to advise to make suitable amendments in the
Rules 1994 in order to avoid future litigation and
to bring stability in the Panchayat election
process in future.

The
Additional
Chief
Secretary,
Panchayat Raj, Government of U.P., Lucknow is
directed to take up the issue so as to initiate the
necessary exercise at the earliest.

For the above discussion, in the facts
and circumstances of the case, we do not find
any merit in the challenge before us. The writ
petition is, accordingly, dismissed.

No order as to costs.
----------
(2021)11ILR A338
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ C No. 18204 of 2021

Mithlesh Narayan Tiwari ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Mishra

Counsel for the Respondents:
C.S.C.

A. Civil Law - Witness Protection Scheme, 2018
- Protection of witnesses - Failure of State
Govt. in implementing the Scheme - Held,
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 - High Court directed the State
Government
to
implement
the
Witness
Protection Scheme, 2018 forthwith. (11 and
12)
Writ petition disposed of. (E-1)
Cases relied on :-
1. Mahender Chawla & ors. Vs U.O.I. & ors.; (2019)
14 SCC 615

(Delivered by Hon'ble Surya Prakash Kesarwani, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard learned counsel for the petitioner
and the learned Chief Standing Counsel.

2. This writ petition has been filed praying
for the following relief :
11 All. Mithlesh Narayan Tiwari Vs. State of U.P. & Anr.
339

a) Issue a writ, order or direction in
the nature of certiorari to quash the order dated
16.06.2021 (letter dated 17.06.2021 passed by
respondent
no.2/District
Magistrate/District
Level Security Committee Prayagraj, District -
Prayagraj.

b) Issue a writ, order or direction in
the nature of mandamus commanding and
directing to the respondent no.2 to take
appropriate action and provide the security to
petitioner.

3. 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, iqfyl
mik/kh{kd ^izKku^ iz;kxjkt, 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.

4. Learned counsel for the petitioner states
that after this Court passed the order dated
05.10.2021,
the
respondents
are
giving
protection on dates fixed in the trial which shall
continue till the conclusion of the trial.

5. Learned Chief Standing Counsel
submits that protection has been provided to the
petitioner by order dated 13.10.2021. He further
submits that the State Government has taken a
decision to implement the Witness Protection
Scheme, 2018 and has taken several steps and it
is being fully implemented.

6. To support his submissions, the learned
Chief Standing Counsel has referred several
paragraphs of the personal affidavit of the
Secretary
(Home)
State
of
U.P.
dated
08.11.2021.

7. We have carefully considered the
submissions of learned counsels for the parties.

8. 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:
340 INDIAN LAW REPORTS ALLAHABAD SERIES

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 anti-social 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 cooperating 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
11 All. Mithlesh Narayan Tiwari Vs. State of U.P. & Anr.
341

(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:-
342 INDIAN LAW REPORTS ALLAHABAD SERIES

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:

i. Budgetary allocation made in the
Annual Budget by the State Government;

ii. Receipt of amount of costs
imposed/ordered to be deposited by the
courts/tribunals in the Witness Protection
Fund;

iii.
Donations/contributions
from
Charitable

Institutions/Organizations
and
individuals
permitted
by
Central/State
Governments.

iv.
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
11 All. Mithlesh Narayan Tiwari Vs. State of U.P. & Anr.
343
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
344 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
11 All. Mithlesh Narayan Tiwari Vs. State of U.P. & Anr.
345
Witness Protection Application

under

Witness Protection Scheme, 2018

(To be filed in duplicate)

Before,

The Competent Authority,

District

Application for:

1. Witness Protection

2. Witness Identity Protection

3. New Identity

4. Witness Relocation

1.
Particulars of the Witness
(Fill in Capital):

(1) Name

(2) Age

(3)Gender
(Male/Female/Other)

(4) Father's/ Mother's Name

(5) Residential Address

(6) Name and other details
of family members of the
witness who are receiving or
perceiving threats

(7)Contact
details
(Mobile/e-mail)

2.
Particulars
of
criminal
matter:

(1) FIR

(2) Under Section

(3) Police Station

(4) District

(5) D.D. No. (in case FIR
not yet registered)

(6) Cr. Case No. (in case of
private complaint)

3.
Particulars of the accused
(if available/known):

(1) Name

(2) Address

(2) Address

(4) Email id

4.
Name & other particulars
of
the
person
giving/

suspected of giving threats
5.
Nature
of
threat
perception.
Please
give
brief
details
of
threat
received in the matter with
specific date, place, mode
and words used

6.
Type of witness protection
measures prayed by/for
the witness

7.
Details of interim/Urgent
Witness Protection needs,
if required

Protection
needs,
if
required

 Applicant/witness can use extra sheets for
giving additional information.

___________________

(Full Name with signature)
Date:..............................
Place:........................... ...

UNDERTAKING

1 . I undertake that I shall fully cooperate
with the competent authority and the Department of
Home of the State and Witness Protection Cell.

2. I certify that the information
provided by me in this application is true and
correct to my best knowledge and belief.

3 . I understand that in case,
information given by me in this application is
found to be false, competent authority under the
scheme reserves the right to recover the
expenses incurred on me from out of the Witness
Protection Fund.

 --------------------------------

(Full Name with signature)

Date:..............................

Place:..............................

9. After reproducing the aforequoted 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
346 INDIAN LAW REPORTS ALLAHABAD SERIES
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

36. 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."

10. 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.

11. 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
11 All. M/s Sri Maa Chemist, Kanpur Nagar Vs. State of U.P. & Anr.
347
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.

12. 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.
----------
(2021)11ILR A347
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 18612 of 2021

M/s Sri Maa Chemist, Kanpur Nagar
 ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Madhusudan Dikshit

Counsel for the Respondents:
C.S.C.
A. Drugs and Cosmetics Rules, 1945 - Rule 66
- Licence in favour of a Firm - It's cancellation
after
death
of
one
partner
-
Legality
challenged - Opportunity of hearing, when is
not required to be provided - Nature of the
cancellation order, punitive or declaratory -
Impact - Held, the order impugned is not
punitive but declaratory in nature as it merely
declares about the automatic consequence of
condition no. 5 in the licence. Condition no. 5 is
an enabling provision whereunder a firm even
after losing a partner could continue its
business under the licence for three months -
As no fresh licence was obtained within that
window period and by the time the petitioner
gave information regarding death of one of its
partners, already three months had passed, the
licence stood automatically lapsed in terms of
the aforesaid condition no. 5 - Thus the
impugned order being more of an information
about
automatic
lapse
of
licence,
no
opportunity of hearing was required to be
provided
before
its
issuance
-
Since
cancellation order is based on no misconduct,
High Court issued the direction. (Para 7, 8 and
10)
B. Firm - Nature and status - Distinction from
Body Corporate - A body corporate is distinct
legal entity separate from its shareholders,
whereas an ordinary partnership firm is not a
distinct legal entity. It is only a compendium of
its partners - Even the registration of a firm
does not mean that it becomes a distinct legal
entity like a company. Hence, the partners of a
firm are co-owners of the property of the firm,
unlike shareholders who are not co-owners of
the property of the company. (Para 6)
C. Firm - Death of the partner - Effect - On
death of any of the partners of the firm, the
constituents of the firm change though, by an
enabling clause in the partnership agreement,
the firm may not automatically dissolve on
death of any one of the partners -Nevertheless,
on
death
of
one
of
the
partners,
the
constitution of the firm would definitely
change. (Para 6)
Writ petition disposed of .(E-1)
Cases relied on :-