# MAHENDER CHAWLA & ORS v. UNION OF INDIA & ORS

- **Citation:** [2018] 14 S.C.R. 627
- **Court:** Supreme Court of India
- **Decided:** 2018-12-05
- **Bench:** A. K. Sikri, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahender-chawla-ors-v-union-of-india-ors-32686
- **Pages:** 38

## Headnote

Administration of Criminal Justice:
Witness protection - Witnesses are important players in judicial
system, who help the judges in arriving at correct factual findings
- Notwithstanding the same, the conditions of witnesses in Indian
legal system is pathetic - They are threatened at various stages -
Due to lack of witness protection programme and the treatment that
is meted out to the witness, there is a reluctance in coming forward
and making statement during investigation and/or testifying in courts
- One of the main reasons for witnesses to turn hostile is that they
are not accorded appropriate protection by the State - Protection
of witnesses assumes significance to enable them to depose fearlessly
and truthfully - Failure to hear material witness is denial of fair
trial - If one is unable to testify in courts due to threats or other
pressure, it is clear violation of Art. 21 of Constitution - Witness
Protection Scheme, 2018 prepared by Union of India will be
considered as law u/Art. 141/142 of Constitution, till the enactment
of suitable Parliamentary and/or State legislations on the subject -
Constitution of India - Arts. 21, 141 and 142.
Constitution of India:
Art. 32 - Writ petition- By witnesses in a criminal case -
Alleging that they have been threatened by accused with serious
consequences if they deposed against him - It was also alleged that
as many as 10 witnesses had been attacked and 3 witnesses had
been killed - Held: States of Uttar Pradesh and Haryana have been
directed to ensure full and proper protection to the petitioners by
providing adequate security.
[2018] 14 S.C.R. 627
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Disposing of the petition, the Court
HELD : 1.1 In an adversarial system, which is prevalent in
India, the court is supposed to decide the cases on the basis of
evidence produced before it. This evidence can be in the form of
documents. It can be oral evidence as well, i.e., the deposition of
witnesses. The witnesses, thus, play a vital role in facilitating the
court to arrive at correct findings on disputed questions of facts
and to find out where the truth lies. They are, therefore, backbone
in decision making process. Whenever, in a dispute, the two
sides come out with conflicting version, the witnesses become
important tool to arrive at right conclusions, thereby advancing
justice in a matter. This principle applies with more vigor and
strength in criminal cases inasmuch as most of such cases are
decided on the basis of testimonies of the witnesses, particularly,
eye-witnesses, who may have seen actual occurrence/crime.
[Para 1][634-E-H]
1.2 Thus, witnesses are important players in the judicial
system, who help the judges in arriving at correct factual findings.
The instrument of evidence is the medium through which facts,
either disputed or required to be proved, are effectively conveyed
to the courts. This evidence in the form of documentary and oral
is given by the witnesses. A witness may be a partisan or
interested witness, i.e., a witness who is in a near relation with
the victim of crime or is concerned with conviction of the accused
person. Even his testimony is relevant, though, stricter scrutiny
is required while adjudging the credence of such a victim.
However, apart from these witnesses or the witnesses who may
themselves be the victims, other witnesses may not have any
personal interest in the outcome of a case. They still help the
judicial system. [Para 2][635-A-C]
Witness Protection in Criminal Trial in India by Girish
Abhyankar & Asawari Abhyankar - referred to.
1.3 Notwithstanding the same, the conditions of witnesses
in Indian Legal System can be termed as 'pathetic'. There are
many threats faced by the witnesses at various stages of an
investigation and then during the trial of a case. Apart from facing
life threatening intimidation to himself and to his relatives, he
may have to face the trauma of attending th

## Text

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MAHENDER CHAWLA & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No. 156 of 2016)
DECEMBER 05, 2018
[A. K. SIKRI AND S. ABDUL NAZEER, JJ.]
Administration of Criminal Justice:
Witness protection - Witnesses are important players in judicial
system, who help the judges in arriving at correct factual findings
- Notwithstanding the same, the conditions of witnesses in Indian
legal system is pathetic - They are threatened at various stages -
Due to lack of witness protection programme and the treatment that
is meted out to the witness, there is a reluctance in coming forward
and making statement during investigation and/or testifying in courts
- One of the main reasons for witnesses to turn hostile is that they
are not accorded appropriate protection by the State - Protection
of witnesses assumes significance to enable them to depose fearlessly
and truthfully - Failure to hear material witness is denial of fair
trial - If one is unable to testify in courts due to threats or other
pressure, it is clear violation of Art. 21 of Constitution - Witness
Protection Scheme, 2018 prepared by Union of India will be
considered as law u/Art. 141/142 of Constitution, till the enactment
of suitable Parliamentary and/or State legislations on the subject -
Constitution of India - Arts. 21, 141 and 142.
Constitution of India:
Art. 32 - Writ petition- By witnesses in a criminal case -
Alleging that they have been threatened by accused with serious
consequences if they deposed against him - It was also alleged that
as many as 10 witnesses had been attacked and 3 witnesses had
been killed - Held: States of Uttar Pradesh and Haryana have been
directed to ensure full and proper protection to the petitioners by
providing adequate security.
[2018] 14 S.C.R. 627
627
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628 SUPREME COURT REPORTS [2018] 14 S.C.R.
Disposing of the petition, the Court
HELD : 1.1 In an adversarial system, which is prevalent in
India, the court is supposed to decide the cases on the basis of
evidence produced before it. This evidence can be in the form of
documents. It can be oral evidence as well, i.e., the deposition of
witnesses. The witnesses, thus, play a vital role in facilitating the
court to arrive at correct findings on disputed questions of facts
and to find out where the truth lies. They are, therefore, backbone
in decision making process. Whenever, in a dispute, the two
sides come out with conflicting version, the witnesses become
important tool to arrive at right conclusions, thereby advancing
justice in a matter. This principle applies with more vigor and
strength in criminal cases inasmuch as most of such cases are
decided on the basis of testimonies of the witnesses, particularly,
eye-witnesses, who may have seen actual occurrence/crime.
[Para 1][634-E-H]
1.2 Thus, witnesses are important players in the judicial
system, who help the judges in arriving at correct factual findings.
The instrument of evidence is the medium through which facts,
either disputed or required to be proved, are effectively conveyed
to the courts. This evidence in the form of documentary and oral
is given by the witnesses. A witness may be a partisan or
interested witness, i.e., a witness who is in a near relation with
the victim of crime or is concerned with conviction of the accused
person. Even his testimony is relevant, though, stricter scrutiny
is required while adjudging the credence of such a victim.
However, apart from these witnesses or the witnesses who may
themselves be the victims, other witnesses may not have any
personal interest in the outcome of a case. They still help the
judicial system. [Para 2][635-A-C]
Witness Protection in Criminal Trial in India by Girish
Abhyankar & Asawari Abhyankar - referred to.
1.3 Notwithstanding the same, the conditions of witnesses
in Indian Legal System can be termed as 'pathetic'. There are
many threats faced by the witnesses at various stages of an
investigation and then during the trial of a case. Apart from facing
life threatening intimidation to himself and to his relatives, he
may have to face the trauma of attending the court regularly.
Because of the lack of Witness Protection Programme in India
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629
and the treatment that is meted out to them, there is a tendency
of reluctance in coming forward and making statement during
the investigation and/or testify in courts. These witnesses neither
have any legal remedy nor do they get suitably treated. The
present legal system takes witnesses completely for granted.
They are summoned to court regardless of their financial and
personal conditions. Many times they are made to appear long
after the incident of the alleged crime, which significantly
hampers their ability to recall necessary details at the time of
actual crime. They are not even suitably remunerated for the
loss of time and the expenditure towards conveyance etc.
[Para 3][635-G; 636-A-C]
Swaran Singh v. State of Punjab (2000) 5 SCC 68 -
relied on.
1.4 One of the main reasons for witnesses to turn hostile is
that they are not accorded appropriate protection by the State. It
is a harsh reality, particularly, in those cases where the accused
persons/criminals are tried for heinous offences, or where the
accused persons are influential persons or in a dominating
position that they make attempts to terrorize or intimidate the
witnesses because of which these witnesses either avoid coming
to courts or refrain from deposing truthfully. This unfortunate
situation prevails because of the reason that the State
has not undertaken any protective measure to ensure the safety
of these witnesses, commonly known as 'witness protection'.
[Para 5][637-B-D]
1.5 Over the last many years criminal justice system in this
country has been witness to traumatic experience where
witnesses turn hostile. This has been happening very
frequently. There may be many causes for this sordid phenomena.
[Para 6][637-D]
Ramesh and Others v. State of Haryana (2017) 1 SCC
529: [2016] 8 SCR 936 - relied on.
1.6 All this has created problem of low convictions in India.
This has serious repercussions on the criminal justice system
itself. Criminal justice is closely associated with human rights.
Whereas, on the one hand, it is to be ensured that no innocent
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person is convicted and thereby deprived of his liberty, it is of
equal importance to ensure, on the other hand, that victims of
crime get justice by punishing the offender. In this whole process,
protection of witnesses assumes significance to enable them to
depose fearlessly and truthfully. That would also ensure
fair trial as well, which is another concomitant of the rule of law.
[Para 8][643-C-D]
1.7 Failure to hear material witness is denial of fair trial.
The practice, however, to give protection to the witnesses is based
on ad hocism, i.e., on case to case basis. The Courts have adopted
different means to ensure witness protection, viz. (a) Publication
of evidence of the witness only during the course of trial and not
after. (b) Re-trial allowed due to apprehension and threat to the
life of witness. (c) Necessity of anonymity for victims in cases of
rape. (d) Discouraging the practice of obtaining adjournments
in cases when witness is present and accused is absent.
(e) Making threatening of witnesses as a ground for cancellation
of bail. (f) Cross-examination by video conferencing.
[Para 13][645-C-G]
Naresh Shridhar Mirajkar and Others v. State of
Maharashtra and Another [1966] 3 SCR 744 ; Sunil
Kumar Pal v. Phota Sheikh and Other AIR 1984 SC
1591 ; Delhi Domestic Working Women's Forum v.
Union of India (1995) 1 SCC 14 : [1994] 4 Suppl. SCR
528 ; State of U.P. v. Shambhu Nath Singh (2001) 4
SCC 667 : [2001] 2 SCR 854 ; Ram Govind Upadhyay
v. Sudarshan Singh II (2002) SLT 587 - referred to.
1.8 The right to testify in courts in a free and fair manner
without any pressure and threat whatsoever is under serious
attack today. If one is unable to testify in courts due to threats or
other pressures, then it is a clear violation of Article 21 of the
Constitution. The right to life guaranteed to the people of this
country also includes in its fold the right to live in a society, which
is free from crime and fear and right of witnesses to testify in
courts without fear or pressure. [Para 16][647-A-B]
NHRC v. State of Gujarat 2003 (9) SCALE 329 ;
People's Union for Civil Liberties (PUCL) v. Union of
India 2003 (10) SCALE 967 ; Zahira v. State of Gujarat
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(2004) 4 SCC 158 : [2004] 3 SCR 1050 ; Sakshi v.
Union of India (2004) 5 SCC 518 : [2004] 2 Suppl.
 SCR 723 ; Zahira Habibulla Sheikh v. Gujarat 2006
(3) SCALE 967 - referred to.
1.9 The Witness Protection Scheme, 2018 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. [Para 28][662-B]
1.10 The essential features of the Witness Protection
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.
[Para 26][661-F-G]
1.11 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 the 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.
[Para 27][661-G-H]
1.12 In *Sakshi's case, the Court had insisted about the
need to come up with a legislation for the protection of witnesses.
It had even requested the Law Commission to examine certain
aspects, which resulted to 172nd review of rape laws by the Law
Commission. However, the Court specifically rejected the
suggestion of the Law Commission regarding examination of
vulnerable witnesses in the absence of accused. Having regard
to the provisions of Section 273 of the Code of Criminal
Procedure, which is based on the tenets of principle of natural
justice, that the witness must be examined in the presence of the
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS.
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accused, such a principle cannot be sacrificed in trials
and in inquiries regarding sexual offences. In such a
scenario
examination
of
these
witnesses
through
video conferencing provides the solution which balances
the interest of the accused as well as vulnerable witnesses.
[Para 29][662-C-E]
*Sakshi v. Union of India (2004) 5 SCC 518 : [ 2004]
2 Suppl. SCR 723 - referred to.
1.13 Part II(7)(L) of the Witness Protection Scheme, 2018
provides for usage of specially designed court room having special
arrangements like live links, one way mirrors, and screens apart
from separate passages for witnesses and accused with the option
to modify the image of the face of the witness and to modify the
audio feed of the witness's voice, so that he/she is not identified.
[Para 30][662-F]
1.14 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.
[Para 34][664-A-B]
1.15 The Scheme prepared by respondent No.1 is approved.
It comes into effect forthwith. The Union of India as well as States
and Union Territories shall enforce the Witness Protection
Scheme, 2018 in letter and spirit. It shall be the 'law' under Article
141/142 of the Constitution, till the enactment of suitable
Parliamentary and/or State Legislations on the subject. 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. [Para 35][664-C-F]
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The State of Maharashtra v. Bandu @ Daulat 2018 (11)
SCC 163 - referred to.
2. This Court by order dated March 24, 2017 had directed
the States of Uttar Pradesh and Haryana to ensure full and proper
protection to the petitioners by providing adequate security.
[Para 18][647-D]
Case Law Reference
(2000) 5 SCC 68
relied on
Para 4
[2016] 8 SCR 936
relied on
Para 7
2003 (9) SCALE 329
referred to
Para 9
2003 (10) SCALE 967
referred to
Para 9
[2004] 3 SCR 1050
referred to
Para 9
(2004) 2 Suppl. SCR 723
referred to
Para 9
2006 (3) SCALE 967
referred to
Para 9
(2004) 2 Suppl. SCR 723
referred to
Para 11
[1966] 3 SCR 744
referred to
Para 13
AIR 1984 SC 1591
referred to
Para 13
(1994) 4 Suppl. SCR 528
referred to
Para 13
[2001] 2 SCR 854
referred to
Para 13
(2002) SLT 587
referred to
Para 13
(2018) 11 SCC 163
referred to
Para 33
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 156 of 2016.
Under Article 32 of the Constitution of India
Anand Mishra, Gaurav Agrawal, Advs. for the Petitioners.
K. K. Venugopal, AG, Tushar Mehta, SG, Birendra Kumar
Choudhary, Ms. Padma Choudhary, Sanjay Kumar Visen, Ms. Ruchi
Kohli, Ms. Nidhi Jaswal, Ms. Srishti Mishra, Ms. Hemantika Wahi, Ms.
Jesal Wahi, Ms. Puja Singh, Ms. Vishakha, Ms. Deepa M. Kulkarni,
Nishant Ramakantrao Katneshwarkar, Tara Chandra Sharma, Zoheb
Hussain, Ms. Charanya L. Kumaran, B. V. Balaram Das, S. Udaya
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS.
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Kumar Sagar, Mrituyunjai Singh, Guntur Prabhakar, Ms. Prerna Singh,
M. Yogesh Kanna, Gunjan Kumar, Rajeev M. Roy, Ranjan Mukherjee,
Ms. Aprajita Mukherjee, Gopal Singh, Ms. Vimla Sinha, Tapesh Kumar
Singh, Aditya Pratap Singh, Ms. Aruna Mathur, Ms. Avneesh Arputham,
Ms. Anuradha Arputham, Ms. Geetanjali, M/S. Arputham Aruna And
Co, M. Shoeb Alam, Ujjwal Singh, Mojahid Karim Khan, Ms. Abha R.
Sharma, D. S.Parmarr, Ms. Sujeeta Srivastava, Mahender Singh, Jagdish
V., Ms. G. Indira, Mrinal K. M., Sibo Sankar Mishra, M. K. Pandey,
Niranjan, Ms. Shriya Maini, Ms. K. Enatoli Sema, Amit Kumar Singh,
Ms. Bansuri Swaraj, Ms. Swarupma Chaturvedi, Sarvesh Singh Baghel,
B. N. Dubey, Shuvodeep Roy, Rituraj Biswas, Somnath Banerjee, Nishe
Rajen Shonker, D. K. Joy, Alim Anvar, Ms. Reegon S. Bel, Nebji N.,
Leishangthem Roshmani K.H., Ms. Maibam Babina, Ms. Anupama
Ngangom, Suhaan Mukerji, Ms. Astha Sharma, Amit Verma, Abhishek
Manchanda, Ms. Dimple Nagpal, M/s P.L.R. Chambers, Ms. Jaspreet
Gogia, R. Mulchesu, K. V. Lyngdoh, Deniel Stene Lyngdoh, Advs. for
the Respondents.
The Judgment of the Court was delivered by
A. K. SIKRI, J.
1. The instant writ petition filed by the petitioners under Article 32
of the Constitution of India raises important issues touching upon the
efficacy of the criminal justice system in this country. In an adversarial
system, which is prevalent by India, the court is supposed to decide the
cases on the basis of evidence produced before it. This evidence can be
in the form of documents. It can be oral evidence as well, i.e., the
deposition of witnesses. The witnesses, thus, play a vital role in facilitating
the court to arrive at correct findings on disputed questions of facts and
to find out where the truth lies. They are, therefore, backbone in decision
making process. Whenever, in a dispute, the two sides come out with
conflicting version, the witnesses become important tool to arrive at right
conclusions, thereby advancing justice in a matter. This principle applies
with more vigor and strength in criminal cases inasmuch as most of such
cases are decided on the basis of testimonies of the witnesses, particularly,
eye-witnesses, who may have seen actual occurrence/crime. It is for
this reason that Bentham stated more than 150 years ago that "witnesses
are eyes and ears of justice".
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2. Thus, witnesses are important players in the judicial system,
who help the judges in arriving at correct factual findings. The instrument
of evidence is the medium through which facts, either disputed or required
to be proved, are effectively conveyed to the courts. This evidence in
the form of documentary and oral is given by the witnesses. A witness
may be a partisan or interested witness, i.e., a witness who is in a near
relation with the victim of crime or is concerned with conviction of the
accused person. Even his testimony is relevant, though, stricter scrutiny
is required while adjudging the credence of such a victim. However,
apart from these witnesses or the witnesses who may themselves be
the victims, other witnesses may not have any personal interest in the
outcome of a case. They still help the judicial system. In the words of
Whittaker Chambers, a witness is "a man whose life and faith are
so completely one that when the challenge comes to step out and
testify for his faith, he does so, disregarding all risks, accepting all
consequences1."
3. The importance of the witness, particularly in a criminal trial is
highlighted in a book in the following manner:
"In search of truth, he plays that sacred role of the sun, which
eliminates the darkness of ignorance and illuminates the face of
justice, encircled by devils of humanity and compassion.
xxx
xxx
xxx
The value of witnesses can't be denied, keeping in view the
dependency of the criminal proceedings on the testimonies and
cooperation of witnesses in all the stages of the proceedings,
especially in those cases where the prosecution has to establish
the guilt with absolute certainty via oral cross-examination of
witnesses in hearings open to the world at large. In such cases,
the testimony of a witness, even if not as an eye witness, may
prove to be crucial in determining the circumstances in which the
crime might have been committed..."2
Notwithstanding the same, the conditions of witnesses in Indian
Legal System can be termed as 'pathetic'. There are many threats faced
by the witnesses at various stages of an investigation and then during
1Whittaker Chambers, WITNESS QUOTES (January 7, 2014, 10.30 am),
http://www.brainy quote.com/quotes/keywords/witness.
2Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS.
[A. K. SIKRI, J.]
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the trial of a case. Apart from facing life threatening intimidation to
himself and to his relatives, he may have to face the trauma of attending
the court regularly. Because of the lack of Witness Protection Programme
in India and the treatment that is meted out to them, there is a tendency
of reluctance in coming forward and making statement during the
investigation and/or testify in courts. These witnesses neither have any
legal remedy nor do they get suitably treated. The present legal system
takes witnesses completely for granted. They are summoned to court
regardless of their financial and personal conditions. Many times they
are made to appear long after the incident of the alleged crime, which
significantly hampers their ability to recall necessary details at the time
of actual crime. They are not even suitably remunerated for the loss of
time and the expenditure towards conveyance etc.
4. In Swaran Singh vs. State of Punjab3, this Court speaking
through Wadhwa, J. expressed view on conditions of witnesses by stating
that:
"The witnesses are harassed a lot. They come from distant places
and see the case is adjourned. They have to attend the court
many times on their own. It has become routine that case is
adjourned till the witness is tired and will stop coming to court. In
this process lawyers also play an important role. Sometimes
witness is threatened, maimed, or even bribed. There is no
protection to the witnesses. By adjourning the case the court also
becomes a party to such miscarriage of justice. The witness is
not given respect by the court. They are pulled out of the court
room by the peon. After waiting for the whole day he sees the
matter being adjourned. There is no proper place for him to sit
and drink a glass of water. When he appears, he is subjected to
prolong stretched examinations and cross examinations. For these
reasons persons avoid becoming a witness and because of this
administration of justice are hampered. The witnesses are not
paid money within time. The High Courts must be vigilant in
these matters and should avoid harassment in these matters by
subordinate staff. The witnesses should be paid immediately
irrespective of the fact whether he examines or the matter is
adjourned. The time has come now that all courts should be linked
with each other through computer. The Bar Council of India has
3(2000) 5 SCC 68 at 678.
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to play important role in this process to put the criminal justice
system on track. Though the trial judge is aware that witness is
telling lie still he is not ready to file complaint against such witness
because he is required to sign the same. There is need to amend
section 340(3)(b) of Cr.P.C."
5. It hardly needs to be emphasised that one of the main reasons
for witnesses to turn hostile is that they are not accorded appropriate
protection by the State. It is a harsh reality, particularly, in those cases
where the accused persons/criminals are tried for heinous offences, or
where the accused persons are influential persons or in a dominating
position that they make attempts to terrorize or intimidate the witnesses
because of which these witnesses either avoid coming to courts or refrain
from deposing truthfully. This unfortunate situation prevails because of
the reason that the State has not undertaken any protective measure to
ensure the safety of these witnesses, commonly known as 'witness
protection'.
6. Over the last many years criminal justice system in this country
has been witness to traumatic experience where witnesses turn hostile.
This has been happening very frequently. There may be many causes
for this sordid phenomena.
7. In Ramesh and Others vs. State of Haryana4, this Court had
indicated some of the reasons which make witnesses turn hostile, as can
be discerned from the following discussion.
"40. In some of the judgments in past few years, this Court has
commented upon such peculiar behaviour of witnesses turning
hostile and we would like to quote from few such judgments.
In Krishna Mochi v. State of Bihar [Krishna Mochi v. State of
Bihar, (2002) 6 SCC 81 : 2002 SCC (Cri) 1220] , this Court
observed as under: (SCC p. 104, para 31)
"31. It is a matter of common experience that in recent times
there has been a sharp decline of ethical values in public life
even in developed countries much less developing one, like
ours, where the ratio of decline is higher. Even in ordinary
cases, witnesses are not inclined to depose or their evidence is
not found to be credible by courts for manifold reasons. One
4(2017) 1 SCC 529
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS.
[A. K. SIKRI, J.]
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of the reasons may be that they do not have courage to depose
against an accused because of threats to their life, more so
when the offenders are habitual criminals or high-ups in the
Government or close to powers, which may be political,
economic or other powers including muscle power."
"41. Likewise, in Zahira Habibullah Sheikh (5) v. State of
Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat,
(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , this Court highlighted
the problem with the following observations: (SCC pp. 396-98,
paras 40-41)
"40. "Witnesses" as Bentham said: "are the eyes and ears of
justice". Hence, the importance and primacy of the quality of
trial process. If the witness himself is incapacitated from acting
as eyes and ears of justice, the trial gets putrefied and paralysed,
and it no longer can constitute a fair trial. The incapacitation
may be due to several factors, like the witness being not in a
position for reasons beyond control to speak the truth in the
court or due to negligence or ignorance or some corrupt
collusion. Time has become ripe to act on account of numerous
experiences faced by the court on account of frequent turning
of witnesses as hostile, either due to threats, coercion, lures
and monetary considerations at the instance of those in power,
their henchmen and hirelings, political clouts and patronage
and innumerable other corrupt practices ingeniously adopted
to smother and stifle truth and realities coming out to surface....
Broader public and societal interests require that the victims
of the crime who are not ordinarily parties to prosecution and
the interests of the State represented by their prosecuting
agencies do not suffer.... There comes the need for protecting
the witness. Time has come when serious and undiluted thoughts
are to be bestowed for protecting witnesses so that the ultimate
truth presented before the court and justice triumphs and that
the trial is not reduced to a mockery. ...
41. The State has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases involving
those in power, who have political patronage and could wield
muscle and money power, to avert trial getting tainted and
derailed and truth becoming a casualty. As a protector of its
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citizens it has to ensure that during a trial in court the witness
could safely depose the truth without any fear of being haunted
by those against whom he had deposed. Every State has a
constitutional obligation and duty to protect the life and liberty
of its citizens. That is the fundamental requirement for
observance of the rule of law. There cannot be any deviation
from this requirement because of any extraneous factors like
caste, creed, religion, political belief or ideology. Every State is
supposed to know these fundamental requirements and this
needs no retaliation (sic repetition). We can only say this with
regard to the criticism levelled against the State of Gujarat.
Some legislative enactments like the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (in short "the TADA Act")
have taken note of the reluctance shown by witnesses to depose
against people with muscle power, money power or political
power which has become the order of the day. If ultimately
truth is to be arrived at, the eyes and ears of justice have to be
protected so that the interests of justice do not get incapacitated
in the sense of making the proceedings before the courts mere
mock trials as are usually seen in movies."
"42. Likewise, in Sakshi v. Union of India [Sakshi v. Union of
India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] , the menace of
witnesses turning hostile was again described in the following
words: (SCC pp. 544-45, para 32)
"32. The mere sight of the accused may induce an element of
extreme fear in the mind of the victim or the witnesses or can put
them in a state of shock. In such a situation he or she may not be
able to give full details of the incident which may result in
miscarriage of justice. Therefore, a screen or some such
arrangement can be made where the victim or witnesses do not
have to undergo the trauma of seeing the body or the face of the
accused. Often the questions put in cross-examination are
purposely designed to embarrass or confuse the victims of rape
and child abuse. The object is that out of the feeling of shame or
embarrassment, the victim may not speak out or give details of
certain acts committed by the accused. It will, therefore, be better
if the questions to be put by the accused in cross-examination are
given in writing to the presiding officer of the court, who may put
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the same to the victim or witnesses in a language which is not
embarrassing. There can hardly be any objection to the other
suggestion given by the petitioner that whenever a child or victim
of rape is required to give testimony, sufficient breaks should be
given as and when required. The provisions of sub-section (2) of
Section 327 CrPC should also apply in inquiry or trial of offences
under Sections 354 and 377 IPC."
43. In State v. Sanjeev Nanda [State v. Sanjeev Nanda, (2012)
8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3 SCC (Civ) 899] ,
the Court felt constrained in reiterating the growing disturbing
trend: (SCC pp. 486-87, paras 99-101)
"99. Witness turning hostile is a major disturbing factor faced by
the criminal courts in India. Reasons are many for the witnesses
turning hostile, but of late, we see, especially in high profile cases,
there is a regularity in the witnesses turning hostile, either due to
monetary consideration or by other tempting offers which
undermine the entire criminal justice system and people carry the
impression that the mighty and powerful can always get away
from the clutches of law, thereby eroding people's faith in the
system.
100. This Court in State of U.P. v. Ramesh Prasad Misra [State
of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 : 1996
SCC (Cri) 1278] held that it is equally settled law that the evidence
of a hostile witness could not be totally rejected, if spoken in favour
of the prosecution or the accused, but it can be subjected to closest
scrutiny and that portion of the evidence which is consistent with
the case of the prosecution or defence may be accepted. In K.
Anbazhaganv. Supt. of Police [K. Anbazhagan v. Supt. of
Police, (2004) 3 SCC 767 : 2004 SCC (Cri) 882] , this Court held
that if a court finds that in the process the credit of the witness
has not been completely shaken, he may after reading and
considering the evidence of the witness as a whole, with due
caution, accept, in the light of the evidence on the record that part
of his testimony which it finds to be creditworthy and act upon it.
This is exactly what was done in the instant case by both the trial
court and the High Court [Sanjeev Nanda v. State, 2009 SCC
OnLine Del 2039 : (2009) 160 DLT 775] and they found the
accused guilty.
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101. We cannot, however, close our eyes to the disturbing fact in
the instant case where even the injured witness, who was present
on the spot, turned hostile. This Court in Manu Sharma v. State
(NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010)
6 SCC 1 : (2010) 2 SCC (Cri) 1385] and in Zahira Habibullah
Sheikh (5) v. State of Gujarat [Zahira Habibullah Sheikh
(5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC
(Cri) 8] had highlighted the glaring defects in the system like nonrecording of the statements correctly by the police and the
retraction of the statements by the prosecution witness due to
intimidation, inducement and other methods of manipulation. Courts,
however, cannot shut their eyes to the reality. If a witness becomes
hostile to subvert the judicial process, the court shall not stand as
a mute spectator and every effort should be made to bring home
the truth. Criminal judicial system cannot be overturned by those
gullible witnesses who act under pressure, inducement or
intimidation. Further, Section 193 IPC imposes punishment for
giving false evidence but is seldom invoked."
44. On the analysis of various cases, the following reasons can
be discerned which make witnesses retracting their statements
before the court and turning hostile:
(i) Threat/Intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of stock witnesses.
(v) Protracted trials.
(vi) Hassles faced by the witnesses during investigation and trial.
(vii) Non-existence of any clear-cut legislation to check hostility
of witness.
45. Threat and intimidation has been one of the major causes for
the hostility of witnesses. Bentham said: "witnesses are the eyes
and ears of justice". When the witnesses are not able to depose
correctly in the court of law, it results in low rate of conviction
and many times even hardened criminals escape the conviction.
It shakes public confidence in the criminal justice delivery system.
It is for this reason there has been a lot of discussion on witness
protection and from various quarters demand is made for the State
to play a definite role in coming out with witness protection
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programme, at least in sensitive cases involving those in power,
who have political patronage and could wield muscle and money
power, to avert trial getting tainted and derailed and truth becoming
a casualty. A stern and emphatic message to this effect was given
in Zahira Habibullah case [Zahira Habibullah Sheikh
(5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC
(Cri) 8] as well.
46. Justifying the measures to be taken for witness protection to
enable the witnesses to depose truthfully and without fear, Justice
Malimath Committee Report on Reforms of Criminal Justice
System, 2003 has remarked as under:
"11.3. Another major problem is about safety of witnesses and
their family members who face danger at different stages. They
are often threatened and the seriousness of the threat depends
upon the type of the case and the background of the accused and
his family. Many times crucial witnesses are threatened or injured
prior to their testifying in the court. If the witness is still not
amenable he may even be murdered. In such situations the witness
will not come forward to give evidence unless he is assured of
protection or is guaranteed anonymity of some form of physical
disguise. ... Time has come for a comprehensive law being enacted
for protection of the witness and members of his family."
47. Almost to similar effect are the observations of the Law
Commission of India in its 198th Report [ Report on "witness
identity protection and witness protection programmes".] , as can
be seen from the following discussion therein:
"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
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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."
8. All this has created problems of low convictions in India. This
has serious repercussions on the criminal justice system itself. Criminal
justice is closely associated with human rights. Whereas, on the one
hand, it is to be ensured that no innocent person is convicted and thereby
deprived of his liberty, it is of equal importance to ensure, on the other
hand, that victims of crime get justice by punishing the offender. In this
whole process, protection of witnesses assumes significance to enable
them to depose fearlessly and truthfully. That would also ensure fair
trial as well, which is another concomitant of the rule of law.
 9. Since this case relates to the issue of protection of witnesses,
we are eschewing any further discussion on other miseries faced by the
witnesses, though we emphasise the need for addressing other problems
as well, at appropriate level, if the criminal justice system in this country
is to succeed. Adverting to the importance of witness protection, we
may mention that it has been highlighted and emphasised by the courts in
India, including this Court, time and again. Issues of protection of identity
of witnesses and witness protection programme have been raised in
number of judgments like NHRC vs. State of Gujarat5, People's Union
for Civil Liberties (PUCL) vs. Union of India6, Zahira vs. State of
Gujarat7, Sakshi vs. Union of India8 and Zahira Habibulla Sheikh
vs. Gujarat9.
10. In People's Union for Civil Liberties, wherein constitutionality
some of the provisions of the Prevention of Terrorism Act (POTA),
52003 (9) SCALE 329
62003 (10( SCALE 967
7(2004) 4 SCC 158
8(2004) 5 SCC 518
92006 (3) SCALE 967
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2002, were challenged, the Court carefully analyzed Section 30 of the
Act, which had mentioned about the protection of witnesses. This
provision provides for the proceedings to be held in camera in order to
keep the identity of witness confidential. The Court felt the reality that
very often witnesses do not come forward to testify before court in
serious crimes. Witnesses are not ready to give evidence mainly because
their lives might be in danger. In the court's view, Section 30 of the Act
maintains a balance between the rights of a witness, the rights of an
accused and the interest of the public. However, secrecy of the witness
is an exception and not a rule under this section.
11. The protection of a child witness, who may also be a victim,
becomes all the more important. In Sakshi vs. Union of India10, the
Court stressed that there is a dire need to come up with a legislation for
the protection of witnesses. The Court also had issued certain guidelines
on the procedure of taking of evidence from a child witness. The Court
also pointed out the need for special protection to a victim of sexual
abuse at the time of recording her statement in court.