Witness Protection in India
Lenin Raj 17 Feb 2023

Witness Protection in India

It is extremely difficult to maintain peace and order and preserve individual rights in the world's largest democracy and country with the world's largest population and most diverse communities. What's more challenging is bringing justice in a complicated judicial and political system, where each step of the redressal procedure is influenced by many elements that affect the eventual result. In such a complex situation the witness is the key person who highly influences and key element in bringing the ultimate justice, especially in criminal law. Such witnesses are frequently turned hostile due to either corruption or influence by opposing parties, which obstructs the route to justice for ordinary people.

Who is a Witness?

A witness is someone who witnesses a crime and has the ability to express their feelings when questioned by the Court. The term witness is defined under Section 118 of the Indian Evidence Act 1872 as a person competent enough to understand the Court's questions. Thus, according to this provision, anyone can be a witness unless they are unable to understand and respond to the questions posed to them.

Hostile Witness: When Does A Witness Become Hostile

A witness's role is crucial in any country's criminal justice system. Witnesses, according to Bentham, are the "eyes and ears of justice". To understand the concept of a hostile witness, we must first understand how a witness becomes hostile. The investigative powers of the police are dealt with in Chapter XII of the Code of Criminal Procedure. Police officers have the ability to record witness statements under Section 161(3) of the Cr. P C.

However, according to Section 162, these statements are not admissible in court. Section 162 prohibits accused persons from being prejudiced by admissions given to police officers who may put witnesses under duress. As a result, during the trial, the witness must reiterate what he told the police. In this scenario, the police statements serve as a baseline against which the veracity of the witness can be assessed. If the witness retracts earlier comments, he or she may have been hostile.

Reasons For Witness Turning Hostile

Witnesses turning hostile at trial due to threats are no longer limited to cases of serious offenses such as terrorist acts. Various strategies are used to discourage witnesses from appearing in court to offer evidence. The trial falls apart when a witness retracts previous comments. When a witness makes a statement to police about an offense committed without his knowledge but afterward retracts or alters his stand when deposing before the Court during the trial, he is termed hostile. While there is no provision in the Indian Evidence Act to label a witness hostile, Section 154 gives the Court the authority to let anyone who calls a witness ask him any question that might be asked in cross-examination. Section 145 of the Act allows for cross-examination of any witness regarding his earlier written statement. A witness is said to be hostile if he attempts to suppress the facts, so harming the party who calls him. Such evidence should be discarded as misleading. However, per section 6, any discrepancy in a witness's statement cannot be used to refute the prosecution's case.[1]

There are a variety of reasons why witnesses become hostile during a trial. In most cases, witnesses fear the wrath of accused people with power or influence. In the infamous case of Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)[2], 80 witnesses had turned hostile, which led to his acquittal by the lower Court, though reversed by the higher courts. The landmark judgment of the Zahira Habibulla[3] case ("Best Bakery") throws light on the issue of witness protection apart from the quality and credibility of evidence before the Court. The trial for the infamous Sohrabuddin fake encounter case has also been delayed. Such blatant incidents of hostile witnesses show the extreme side of influence and power in a country where finding justice is already difficult. Such witnesses may be charged under Section 191 of the Indian Penal Code, which provides for a seven-year prison sentence and a fine if they provide false evidence. Perjury, on the other hand, is rarely prosecuted.


A witness who testifies at a trial has the civil duty to state only the truth. The obligation of the state is to safeguard a witness against dangers to his life or property in several areas. When a witness is intimidated, killed, or harassed, not only is the witness endangered, but also the fundamental right of a citizen to a free and fair trial is upheld. Currently, India does not have a witness protection law in existence. There are provisions in various statutes for victim assistance and witness protection, but there is no integrated legislation that protects witnesses.

Code of Criminal Procedure, 1973

Section 177 of the Code states that in order to get fair and independent evidence, a witness on his way to Court shall not be obliged to follow a police officer and shall not be subjected to unnecessary confinement or inconvenience. Section 299 lays down the right of the accused to cross-examine the prosecution witnesses. In certain extreme circumstances, such as when the accused is absconding and cannot be produced before the Court, the section allows the prosecution to question witnesses in the absence of the accused. As a result, the accused is legally denied the opportunity to cross-examine a prosecution witness in open court. Section 327 of the Code provides for an open court trial. However, if the presiding Judge or Magistrate believes that the public should not have access for whatever reason, access to the general public may be restricted at any stage of any inquiry into or trial of any individual case. Section 372(2) provides for an in-camera trial when the offense is rape. Trial by the camera would not only keep the victim's self-esteem and confidence in line with legislative intent, but it would also likely improve the value of evidence of a prosecutrix because she would not be as cautious or hesitant to depose in a frank manner as she would in an open court in front of the public. Recording of evidence by video conferencing has been held to be admissible in a recent decision of the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai[4]  Deposing via video conferencing will enable the victim or witness in giving honest answers without any external pressure. Section 173 requires the police officer to provide a report upon completion of the inquiry. The police officer is obligated by Section 173(5)(b) to send to the Magistrate, along with his report, the statements recorded under Section 161 of any persons whom the prosecution intends to examine as witnesses. A statement recorded under Section 161 does not have to be given to the accused if the police officer forms such an opinion in the interests of justice and the grounds for the same are stated to the Magistrate.

Sections 406 and 407 deal with the jurisdiction of the Supreme Court and the High Court to transfer cases and appeals, respectively, if the Court believes it is in the best interests of justice. Section 312 allows criminal courts to pay witnesses or complainants for reasonable expenses incurred while attending court. In the Best Bakery case, the Supreme Court ordered the transfer of the case from Gujarat to Maharashtra, citing concerns about witness protection as well as the quality and credibility of the evidence. Section 195A permits a witness or any other person to submit a complaint if they are threatened or influenced to give false evidence in relation to any offense.

Indian Penal Code, 1860

Section 228A of the IPC prohibits the publication of the identity of the victim of certain rape offenses while allowing for specific conditions in which the identity may be published. As a result, without the prior authorization of the Court, no matter relating to any of the aforementioned offenses may be printed or published.

The Supreme Court of India emphasized the necessity of an honest witness in ensuring the fairness of a trial in its decisions in State of Gujarat v. Anirudh Singh and Zahira Habbibulla H. Sheikh and Others v. State of Gujarat.

In Zahira Habbibulla H. Sheikh and Another v. State of Gujarat[5], it was observed by the Hon'ble Supreme Court in the following lines: This Court in Vineet Narian v. Union of India (1998 (1) SCC 226) has directed that steps should be taken immediately for the constitution of able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecution in England. In the United Kingdom, the Director of Prosecution was created in 1879. His appointment is by the Attorney General from amongst the members of the Bar, and he functions under the supervision of the Attorney General. The Director of Prosecution plays a vital role in the prosecution system. He even administers "Witness Protection Programmes". The Witness Protection Programmes are imperative as well as imminent in the context of the alarming rate of somersaults by witnesses with ulterior motives and purely for personal gain or fear of security. It would be a welcome step if something in those lines were done in our country. That would be a step in the right direction for a fair trial. Expressing concern merely in words without the mind to concretise it by positive action would not only be useless but also amount to a betrayal of public confidence and trust.


The Witness Protection Bill of 2015 is India's first concrete move toward ensuring the protection of witnesses outside of courtrooms who come forward to aid law enforcement agencies and suffer significant pressure and threats, particularly when the accused is in a powerful and influential position.

During any stage of the proceedings, a witness has the option of applying for protection within the jurisdiction of the police station that he is assigned to or at the Court, according to the Bill[6]. The Police Officer is given the authority to investigate the threat and report back to the Court. The Applicant shall be protected from any threat to his life, property, or affiliated people in an attempt to influence the testimony of such witness[7]. "Associated individuals" refers to anyone who is related to or has a connection with the witness. The Bill, on the other hand, did not require any rules or factors to be established in order to decide the need to grant protection. The absence of a broad set of limits bestows a great deal of discretion on the authority and so opens the door to abuse of power. The Bill also fails to address the witness's obligations once the witness has been granted protection.

The Bill recognizes three stages in the process of law during which protection must be provided to the witness:

a) Investigation stage

b) Trial stage

c) Post-trial stage, if deemed necessary by the Court if the threat perception still persists

The Bill includes measures such as maintaining the witness's anonymity in criminal matters for the duration of the trial or permanently as requested by the witness, protecting the witness's residential address and redacting it from all official records, allowing cross-examination to be conducted via two way camera, and allowing the witness to be present in all trials via in-camera proceedings. If necessary, the witness may alter his or her identity or place of residence, either temporarily or permanently. The Bill does not address the possibility of a witness being threatened or harassed following a permanent change of identity or residence. According to the Bill, the witness will be given the option of working in a different occupation. If this is not possible, the appropriate government must commit to providing the witness with a stipend consistent with his or her quality of living. However, in a country like India with a severe job crunch, the feasibility of providing the witness with an alternate employment must be questioned. Furthermore, the financial practicality of presenting witnesses with allowances is questionable. In addition, the anatomy of intimidation and terrorisation in cases of sexual offences against women, among other offences, extends beyond mere physical threats. In such a circumstance, simply providing physical security in the form of round-the-clock constables is insufficient.

The Bill also provides for the constitution of the National Witness Protection Council ("NWPC")[8]  and State Witness Protection Council[9] by the Central Government and State Governments respectively. The NWPC is responsible for, among other things, establishing policies and framework for the witness protection programme, protecting witness details, and evaluating the effectiveness of the witness protection programme in collaboration with other agencies.

In India, the position of a witness protection is currently unappealing. In 2015, the Witness Protection Bill was tabled in Parliament. According to the seventh schedule of the Indian Constitution, police and public order are State Subjects. The state governments and union territories have been unable to achieve a compromise on the Bill. Delhi is the country's first state to implement a Witness Protection Scheme. Though it is a step in the right direction, the Scheme requires a lot more work in terms of measures, staff, and funding. 

[1] Atmaram & Ors. v. State of Madhya Pradesh, (2012) 3 MLJ (Crl) 117 (SC).

[2] Vashisht @ Manu Sharma v. State (NCT of Delhi) 2001 Cri.L.J. 2404

[4] 8 2003 (4) SCC 601.

[5] Zahira Habibulla H. Sheikh and Ors vs State of Gujarat and Ors AIR 2004 SC 346

[6] Section 3 of the Witness Protection Bill, 2015

[7] Section 4 of the Witness Protection Bill, 2015

[8] Section 8 of the Witness Protection Bill, 2015

[9] Section 12 of the Witness Protection Bill, 2015

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