LAW COMMISSION OF INDIA

198TH REPORT

ON

WITNESS IDENTITY PROTECTION

AND

WITNESS PROTECTION PROGRAMMES

AUGUST 2006
 2

JUSTICE M. JAGANNADHA RAO LAW COMMISSION OF INDIA

CHAIRMAN SHASTRI BHAWAN
NEW DELHI-110001
TEL: 23384475
FAX: (011) 23073864, 23388870
E-MAIL: [email protected]
RESIDENCE: 1, JANPATH
NEW DELHI-110011
TEL: 23019465
F. No.6(3) 99-2004LC(LS) 31st August 2006

Dear Sh. Bhardwaj Ji,

Sub: 198th Report of the Law Commission on ‘Witness Identity

Protection and Witness Protection Programme”.

The Supreme Court of India has recently referred to the questions of

‘Witness Identity Protection’ and ‘Witness Protection Programmes’ in a
number of judgments: NHRC v. State of Gujarat: 2003 (9) SCALE 329,
PUCL v. Union of India: 2003(10) SCALE 967, Zahira v. State of Gujarat:
2004(4) SCC 158, Sakshi v.Union of India:2004 (6) SCALE 15 and Zahira v.
Gujarat 2006 (3) SCALE 104. In Sakshi the Court emphasized the need
for legislation on witness protection. In view of these observations, the Law
Commission has taken up the subject suo motu. In this Report it has confined
the Witness Identity Protection procedures to cases triable by the Court of
Session of Courts of equal rank.

Witness Identity Protection may require during investigation, inquiry

and trial while Witness Protection Programmes apply to the physical
protection of the witness outside the Court.

It is accepted today that Witness Identity Protection is necessary in the

case of all serious offences wherein there is danger to witnesses and it is not
confined to cases of terrorism or sexual offences.

Initially, the Law Commission prepared a Consultation Paper on

“Witness Identity Protection and Witness Protection Progammes’ (August
2004) and invited responses to the Questionnaire.

The Consultation Paper contained three parts: Part I – General

(Chapter 1 to IV), Part II – Witness Identity Protection v. Rights of accused
(Chapters V, VI) and Part III – Witness Protection Programmes (Chapter VII).
 3

The Statutes of New Zealand and Portugal were annexed as examples of

existing laws.

Questionnaire attached of Consultation Paper and Responses:

The Questionnaire attached to the Consultation Paper, 2004 contained

two Parts A and B, the former dealing with Witness Identity Protection and
the latter dealing with Witness Protection Programmes.

The Commission held two seminars, one in New Delhi on 9th October,
2004 and another at Hyderabad on 22nd January, 2005 where a number of
Judge of the High Court, lawyers, police officers, public prosecutors,
judicial officers (Magistrates and Sessions Judges) participated.

So far as written responses are concerned, a large number of

responses, about 50, were received from State Governments, Directors
General of Police/Inspectors General of Police, High Court Judges,
international and local organizations, Judges of the subordinate judiciary,
jurists, advocates and public prosecutors. These were analysed.

Final Report:

In this Final Report, the Commission has discussed the responses and
given its recommendations, both in regard to Witness Identity Protection and
Witness Protection Programmes. So far as the Witness Identity Protection is
concerned, it has also annexed a Draft Bill as Annexure I. The Commission
has not given any Draft Bill in regard to Witness Protection Programmes. The
Consultation Paper (August 2004) is annexed as Annexure II.

1. Witness Identity Protection:

We shall briefly refer to our approach on Witness Identity Protection in

Part I of the Final Report.

The accused in our country have a right to an open public trial in a

criminal court and also a right to examination of witnesses in open court in
their presence. But, these rights of the accused are not absolute and may be
restricted to a reasonable extent in the interests of fair administration of
justice and for ensuring that victims and witnesses depose without any fear.
 4

The right of the accused for an open trial in his or her presence, being not
absolute, the law has to balance that right of the accused as against the need
for fair administration of justice in which the victims and witness depose
without fear or danger to their lives or property or those of their close
relatives.

There are three categories of witnesses: (i) victim-witnesses who are

known to the accused; (ii) victims-witnesses not known to the accused (e.g.
as in a case of indiscriminate firing by the accused) and (iii) witnesses whose
identity is not known to the accused. Category (i) requires protection from
trauma and categories (ii) and (iii) require protection against disclosure of
identity.

In category (i) above, as the victim is known to the accused, there is

no need to protect the identity of the victim but still the victim may desire
that his or her examination in the Court may be allowed to be given
separately and not in the immediate presence of the accused because if he or
she were to depose in the physical presence of the accused, there can be
tremendous trauma and it may be difficult for the witness to depose without
fear or trepidation. But, in categories (ii) and (iii), victims and witnesses
who are not known to the accused have a more serious problem if there is
likelihood of danger to their lives or property or to the lives and properties of
their close relatives, in case their identity kept secret at all stages of a criminal
case, namely, investigation, inquiry and trial.

There has been debate in several countries as to how the rights of the
accused and the need for witness identity protection can be balanced. Such
a balance has been achieved even in USA and some other countries where
confrontation of witnesses in open court is indeed a constitutional or statutory
right. They have devised appropriate procedures that can be prescribed in the
interest of victims and witnesses. For that purpose, in the Consultation Paper
as well as in this Report, we have extensively referred to the comparative law
as to how these rights are balanced in other countries.

(i) At the stage of investigation:

We are of the opinion that witness protection is necessary even at the

stage of investigation. This can be provided by the prosecutor moving the
Magistrate to a conduct a preliminary inquiry or voir dire,in his chambers, i.e.
 5

in camera. The Magistrate will have to consider the material relied upon by
the prosecutor for substantiating the danger to the witness or his propery or
those of his relatives, and, if necessary, the Magistrate can examine the
witness. The suspect is not entitled to e heard at this stage during
investigation. If the Magistrate comes to the conclusion that there is
likelihood of danger, he can grant identity will, however, be disclosed to the
Magistrate and none else. Further, the real identity will not be reflected in the
court records but the witness will beis described by a pseudonym or a letter
from the alphabet. The Magistrate, which passing the order will, however,
keep in mind the various matters listed in sec. 5(6) of the Bill. Such an
anonymity order passed at the investigation stage will ensure only during the
‘investigation’ period.

(ii) During inquiry and before recording evidence at the trial:

In the inquiry before the Magistrate or Court of Session (before the

trial starts), the prosecutor or the witness has to make a fresh application and
this is necessary even if some of the witnesses have been allowed anonymity
and given a new identity during investigation. The Magistrate or judge has
to pass a fresh preliminary order granting anonymity. The reason is that,
unlike at the stage of investigation, in the case of identity protection during
inquiry/or before trial, such protection can be granted only after giving a
reasonable opportunity to the accused. We have evolved a procedure in
which inquiry before the Magistrate or before the Sessions Judge before
recording of evidence at the trial, the Magistrate or Judge will consider the
material produced y the prosecutor or the witness as to the danger to his life or
property or that of his relatives, and will, if necessary, hear the witness. All
this has to be in camera and the accused/his lawyer will not be present.
However, the Magistrate or Judge will have to hear the accused or his lawyer
separately and disclose to them the material relating to the alleged danger to
the witness, but not any facts which may enable the accused or his lawyer to
discover the real identity of the witness. This, we have pointed, satisfies the
requirement of law where rights of the accuse and the rights of the witness get
balanced. If, during inquiry, the Magistrate or Judge grants identity
protection by a preliminary order, it will ensure not only for the period during
inquiry, trial, but at the later stages of appeal or revision and even after the
case has been finally concluded. The record of the proceedings shall not,
however, contain the real identity of the witness or any facts from which
identity can be discovered.
 6

(iii) Recording evidence during the trial in the Sessions Court: two-way
closed circuit television :

The next stage is the final stage of trial in the Sessions Court. The
witness, if he had already been granted anonymity by the Magistrate or Judge,
as stated above, he need not apply again for anonymity.

In respect of the evidence during the trial a two-way closed-circuit

television or video link and two-way audio link is proposed and these will be
installed connecting two rooms.

Fortunately, after the decision of the Supreme Court in State of

Maharashtra v. Dr. Praful B Desai, 2003 (4) SCC 601 and Sakshi, 2004 (6)
SCALE 15, such evidence by video-link is admissible.

The trial in Supreme Court will be conducted under a very detailed

procedure which we have prescribed in Chapters IX and X and in sec. 12, 13
and Schedules 1 and II of the Bill annexed to the Report. The procedure, as
stated above, requires the use of a two-way closed-circuit television or video-
link and two way audio system. But then there are two separate procedures,
(a) Chapter IX and sec 12, Schedule 1 cover cases of victims/witnesses not
known to accused who require identity protection and (b) Chapter X and sec
13, Schedule II to victims known to the accused and who are to be protected
from trauma.

(a) So far as the victims and witnesses not known to the accused, whose
identity has to be protected, the procedure in sec. 12 read with Schedule 1 is
as follows:

In one room, (which we may call) (A), the Presiding Judge, the court-
master, the stenographer, the public prosecutor, the threatened witness and the
technical personnel (who will be employees of the court) will be present.

In another room, which we may call (B), the accused, his pleader and
the technical persons operating the system will alone be present.

Both rooms will be connected y a two-way closed circuit television or

video link coupled with a two-way audio link.
 7

The threatened witness (i.e. victim or witness not known to the

accused) will be examined by the prosecutor in Room A directly. The
witness may identity the accused on the video screen in his room but the
camera in Room A where the witness is present shall not be focused on the
witness and therefore his image will not be visible in Room B where the
accused is present.

The witness in Room A shall be cross-examined by the accused or his

pleader who are in Room B, through the two-way video and audio system.

(b) So far as victims known to the accused who have only to be protected
from trauma, the procedure is as per sec. 13 and Schedule II.

In Room A, the Presiding Judge, the court-master and the

stenographer, the accused and the technical personnel will be present.

In this Room B, the victim, the public persecutor and the pleader for the
accused and the technical persons shall be present. Only when the victim has
to identity the accused, the camera in Room A will be focused on the
accused, thereafter the picture of the accused will not be visible in the
screen in Room B.

In this Room B, the witness will be examined or cross-examined by

the prosecutor/defence lawyer.

From Room B, the Judge and the accused can see the witness who is
in Room A and is being examined.

(iv) Applicability:

We have provided that the Act will apply to

(a) victims known to the accused the recording of whose

statements at the trial in the Court of Sessions has not started at
he date of commencement of this Act; and
(b) a threatened witness (i.e. including a victim-witness) whose identity
has not been revealed to the suspect or the accused either during
investigation or during inquiry before the Magistrate or before the
recording of statement at the trial in the Court of Sessions at the date
of commencement of the Act.
 8

II. Witness Protection Progammaes:

In Part II of the Final Report, we have given our recommendations so

far as “Witness Protection Programmes” are concerned. We are not
providing a Bill on this subject in as much as the question of funding is and
important issue. We have recommended that the Central and State
Government must bear the expenditure equally.

Witness Protection Programmes refer witness protection outside the

Court. At the instance of the public prosecutor, the witness can be given a
new identity by a Magistrate after conducting an ex parte inquiry in his
chambers. In case of likelihood of danger of his life, he is given a different
identity and may, if need be, even relocated in a different place along with his
dependants till be trial of the case against the accused is completed.
The expenses for maintenance of all the persons must be met by the State
Legal Aid Authority through the District Legal Aid Authority. The witness
has to sign an MOU which will list out the obligations of the State as well as
the witness. Being admitted to the programme, the witness has an obligation
to depose and the State has an obligation to protect him physically outside
Court. Breach of MOU by the witness will result in his being taken out of the
programme.

We have also dealt with complex situations where the witness has to
prosecute or defend or be a witness in another civil or criminal case
without disclosing his identity.

Under the Act, we have provided for punishment to those who violate
the provisions of the Act and reveal the identity of protected witnesses.

In our recommendations, we have provided a detailed framework for

Witness Identity Protection and Witness Protection Programmes. We may
add a word of caution that this subject is different from the law which is now
being enacted to deal with the problem of hostile witness. What we have
recommended in this Report is totally different, it relates to witness identity
protection during investigation and in Court; and witness protection
programmes outside Court.
 9

We hope the Bill on Witness Identity Protection will be enacted. We

also hope that Witness Protection Programmes (for which we have not given
a draft Bill) will be brought into force as per our recommendations and the
Central and State Government will provide adequate funds for such
programmes.

With regards,

Yours sincerely,

(M. Jagannadha Rao)

Shri H.R. Bhardwaj

Union Minister for Law and Justice
Government of India
Shastri Bhawan
NEW DELHI
 10

INDEX

Chapter No. Title Page No.

I Introductory 3

II PART I- WITNESS IDENTITY PROTECTION

Right to fair public trial of accused not absolute 12

III Certain aspects of Victim and Witness Identity

Protection under special statutes in India 24

IV Questionnaire in Ch. VII of Consultation Paper: Responses 36

V Need for extension of Victim Identity Protection generally

To cases of serious offences triable by the Court of Session 66

VI Inherent power of the Criminal Court to protect Victims

and Witnesses and position in India 78

VII Procedure for deciding anonymity of witnesses in India

(i)during investigation,(ii)at inquiry and (iii)during trial 90

VIII Stage at which identity of witness has to be protected –

Investigation, pre-trial or and post-trial 99

IX Two-way closed-circuit television for examination the victim

and witnesses during trial in the Sessions Court 109

PART II WITNESS PROTECTION PROGRAMMES

XI The Consultation Paper and Resources 150

XII Questionnaire – Discussion Paper and Resources – Recommendations 171

ANNEXURE I WITNESS (IDENTITY) PROCTION BILL, 2006 192

ANNEXURE II CONSULTATION PAPER (2004) 212

 11

Chapter I

Introductory

The Consultation Paper:

The issues of ‘Witness Identity Protection and Witness Protection

Programmes’ were taken up by the Law Commission suo motu in the light
of the observations of the Supreme Court in NHRC vs. State of Gujarat
2003(9) SCALE 329, PUCL vs. Union of India: 2003(10) SCALE 967;
Zahira Habibullah H Sheikh and Others vs. State of Gujarat: 2004(4) SCC
158, and Shakshi vs. Union of India : 2004(6) SCALE 15 that a law in this
behalf is necessary. More recently the same view was expressed by the
Supreme Court in Zahira Habibulla Sheikh vs. Gujarat: 2006(3) SCALE,
104. The Court stated in all the above cases that having regard to what is
happening in important cases on the criminal side in our Courts, it is time a
law is brought forward on the subject of witness identity protection and
witness protection programmes.

The Law Commission of India released a Consultation Paper on

‘Witness Identity Protection and Witness Protection Programmes’ in August
2004. After release of the Consultation Paper, the Criminal Law Review, a
leading law journal published from the United Kingdom, in its issue of
February 2005 (at page 167), reviewed the Consultation Paper under the
heading of ‘Law Reform’ as follows:
 12

“The Law Commission of India has published a substantial Consultation Paper

(pp. 337), “Witness Identity Protection and Witness Protection Programmes”
(August 2004). As its title suggests the paper covers two broad aspects of the
need for witness protection. The first addresses the questions of whether and to
what extent provision ought to be made for witnesses to give evidence
anonymously during criminal trials. One of the remarkable features of the paper
is the breadth of the research that has been undertaken. Chapter 6 of the paper
comprises a comparative study of case law on witness protection and anonymity
which, in addition to common law jurisdictions, encompasses the procedures
adopted by the respective International Criminal Tribunals for Yugoslavia and
Rwanda, and reviews the jurisprudence of the European Court of Human Rights.

The second aspect of witness protection covered by the paper concerns “the
physical and mental vulnerability of witnesses” and the need to take care of
“various aspects of the welfare of witnesses which call for physical protection of
witnesses at all stages of the criminal process”. An extensive comparative review
of witness protection programmes operating in various jurisdictions is set out Ch.
7 of the paper. The paper goes significantly beyond the traditional scope of
comparative studies in criminal justice law reform documents, which is confined
to practices in the more prominent common law jurisdictions. In addition to
statutory schemes in Australia, South Africa, the United States, and Canada, those
operating in continental jurisdictions, including France, the Netherlands,
Germany, Portugal and Italy, fall within the purview of the chapter. The full text
and a summary of the paper can be accessed on the Commission’s website:
http://lawcommissionofindia.nic.in/.”

The Commonwealth Law Bulletin (2004) (Vol. 30) (pp 262 to 272)
has referred to the Consultation Paper and has extracted the summary of the
Consultation Paper and questions contained in the Questionnaire in Chapter
VIII thereof.
 13

Responses to the Consultation Paper:

The Law Commission circulated the Consultation Paper with a view

to obtain the views of governments, police authorities, judiciary, Bar, NGOs
etc. The Paper contained a Questionnaire in Chapter VIII, running into two
Parts, Part A and Part B. Part A related to ‘Witness Anonymity’, while
Part B related to ‘Witness Protection Programmes’.

The Commission held two Seminars, one in New Delhi on 9th

October, 2004 and another at Hyderabad on 22nd January 2005 in which a
large number of Judges of the High Court, lawyers, police officers, public
prosecutors, judicial officers (Magistrates and Sessions Judges) participated.
The Delhi seminar was inaugurated by the Union Minister for Law and
Justice Sri H.R. Bhardwaj.

A large number of responses were received by the Commission. In

all there were about 50 responses out of which 12 are from State
Governments and 12 are from Directors General of Police/Inspectors
General of Police, 3 from High Court Judges and 3 from international and
other organizations, and 2 from the Judges of the subordinate Courts and
remaining 20 are from other Jurists, advocates, public prosecutors and
others.

Summary of Chapters of the Consultation Paper:

 14

We shall give a brief summary of the Chapters in the Consultation

Paper. In Chapter I, we referred in detail to the observations of the
Supreme Court in the judgments cited above and in other cases and in
particular to the specific observation in NHRC vs. State of Gujarat 2003(9)
SCALE 329 and in Zahira 2004(4) SCALE 377. In the second case, the
Court observed (at p 395)

“Legislative measures to emphasise prohibition against tampering

with witnesses, victims or informants, have become imminent and
inevitable need of the day”.

It also added (at p 399):

“Witness protection programmes are imperative as well as imminent

in the context of alarming rate of somersaults by witnesses”.

Similar observations were made by the Supreme Court in the recent decision
in Zahira Habibulla Sheikh vs. Gujarat: 2006(3) SCALE 104.

In Sakshi vs. Union of India 2004(6) SCALE 15, after referring to

techniques of screening and video-conferencing, the Supreme Court
reiterated (at p 35):

“We hope and trust that Parliament will give serious attention to the
points highlighted by the petitioner and make appropriate legislation
with all the promptness which it deserves.”
 15

After referring in Chapter 1 to the above observations of the Supreme

Court, the Commission set out in Chapter II, the provisions of the existing
criminal laws in India relating to right to a public trial and cross-
examination of witnesses in open Court. In this connection, the
Commission referred to the provisions of sec 327 of the Code of Criminal
Procedure, 1973 which provides for an open trial, to sec 207 which deals
with supply of copies of police report and other documents, to sec 208,
which deals with supply of copies of statements and documents in cases
instituted otherwise than on a police report, to sec 273 which requires
evidence to be taken in the immediate presence of the accused. Sections
200 and 202 require the Magistrate to examine the complainant and the
witnesses on oath. We also referred to certain exceptions to these rules
mentioned in the statute. All these provisions existing in the Code ensure a
fair trial to the accused.

In Chapter II, the Commission also referred to some special

provisions of the Code of Criminal Procedure, 1973 where in camera
proceedings are permitted – vide sec 327(2) which provides for such a
procedure in case of trials regarding offence of rape under sec 376 and other
sexual offences in sec 376A to 376D of the Indian Penal Code, 1860. We
referred to sec 228A of the Penal Code which provides for imprisonment
and fine upon any person who prints or publishes the name or any matter
which may identify the person against whom rape is alleged or has been
found to have been committed. We also referred to sec 21 of the Juvenile
Justice (Care and Protection of Children Act, 2000), which prohibits
publication of name, address or school or any other particulars calculated to
lead to identification of the juvenile or the publication of the picture of a
 16

juvenile. Reference was also made to sec 146(3) of the Indian Evidence
Act, 1872 (as amended in 2002) which states that ‘in a prosecution for rape
or attempt to commit rape, it shall not be permissible, to put questions in the
cross examination of the prosecutrix as to her general character’.

These provisions of the Code of Criminal Procedure, 1973 and the

Penal Code, it was pointed out are obviously not sufficient.

In Chapter III, the Commission dealt with some special statutes which
were intended to protect witness identity. These were sec 16 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (TADA) and 30 of the
Prevention of Terrorist Act, 2002 (POTA).

The validity of these special provisions of the TADA was upheld in

Kartar Singh vs. State of Punjab 1994(3) SCC 569 and of the POTA in
PUCL vs. Union of India: 2003(10) SCALE 967.

In Chapter IV, the Commission then surveyed the previous Reports of

the Law Commission, namely the 14th, 154th, 172nd, 178th Reports on the
question. Of course, after the 172nd Report (2000) on ‘Review of Rape
Laws’, the Supreme Court in Sakshi vs. Union of India 2004(6) SCALE 15,
made important suggestions for having ‘video-taped interview’, ‘closed
circuit television’ evidence etc. That would mean that witness protection
got extended to cases other than terrorist cases. But, still we have to
consider the need for such procedures in cases other than those relating to
terrorism or sexual offences, such as where grave offences are involved.
 17

In Chapter V thereof, a survey of case law where some measures at

witness protection were suggested by our Supreme Court, were dealt with.
We do not want to refer to them in detail once again. But, we made
reference to the judgment of the Delhi High Court in Ms. Neelam Katara vs.
Union of India (Crl WP 247/2002) dated 14.10.2003 where certain
guidelines were issued.

The Commission then referred to the view of the Supreme Court that
where witness identity is protected, the principle of open trial cannot be said
to have been breached.

In Chapter VI of the Consultation Paper, a very detailed comparative

law analysis was made, referring to the statutes and judgments from the
United Kingdom, Australia, New Zealand, Canada, The United States of
America and the European Court of Human Rights and to the judgments and
Rules of the International Criminal Tribunal for former Yugoslavia (ICTY)
and also the Rules of the similar Tribunal for Rwanda. The Rules of these
special Tribunals were examined in detail.

Then in Chapter VII, the Commission referred to the Witness

Protection Programmes in Australia (Victoria, National Capital Territory,
Queensland), South Africa, Hong Kong, Canada, Portugal, Philippines,
USA, France, Czechoslovakia, Republic of Korea, Japan, Netherlands,
Germany and Italy.
 18

Finally, in Chapter VIII, the Commission came forward with a

Questionnaire in two parts A and B, one relating to Witness Identity
Protection and another dealing with Witness Protection Programmes.

Final Report:

Part I of this Report (Chapters II to X) deals with Witness Identity

Protection and Part II (Chapters XI to XIII) with Witness Protection
Programmes. A Bill on Witness Identity Protection is annexed. So far as
Witness Protection Programmes are concerned, our recommendations are
contained in Chapter XIII.

Witness Identity Protection:

In this Report, we do not propose to repeat all the literature referred

to in the Consultation Paper. We propose to summarise, at various places,
what we have stated in the Consultation Paper and deal with certain crucial
principles of criminal jurisprudence and procedural details where witness
identity protection is claimed or granted.

Discussion on Witness Identity Protection is covered in Part I,

Chapters II to X.

We are annexing a Draft Bill to this Report in so far Witness Identity

Protection is concerned (Annexure I).
 19

Witness Protection Programmes:

This subject is covered in Part II, Chapters XI to XIII.

So far as Witness Protection Programmes are concerned, we are not

giving a Bill but are giving our recommendations. In as much as the
problem of funding is crucial, we are not incorporating provisions relating
to witness protection programmes as part of the Bill. It will be for the
Government of India and the States to consider our recommendations and
take appropriate administrative or legislative action so far as Witness
Protection Programmes are concerned.

In Chapter XIII of this Report, we shall refer to the various items in

the Questionnaire so far as ‘witness protection programmes’ are concerned,
followed by our recommendations on that subject.

The Consultation Paper is also annexed to this Report (Annexure II).

 20

PART I
WITNESS IDENTITY PROTECTION

Chapter II

Right to Fair Public Trial in presence of the accused not absolute

In most countries governed by democratic constitutions and rule of

law, the position today is that the right to an open ‘public trial’ in the
immediate presence of the accused is fundamental but is not treated as
absolute. This is revealed clearly from the survey of the legal position in
the various countries referred to in our Consultation Paper.

ICCPR:

The right to public trial is specifically mentioned in Art 14(1) of the

International Covenant of Civil and Political Rights’ (ICCPR) to which
India is a party. The ICCPR refers to the right of ‘public, open, fair trial’ to
an accused and it also states in what manner it could be restricted. The
restrictions on the rights as accepted in the ICCPR show that several
competing rights require to be balanced. Such balancing provisions are
incorporated in the Constitutions of some countries or are stated in detail in
the respective Codes or Rules of Criminal Procedure.

Article 14 of the ICCPR reads as follows:

 21

“Article 14:
1. All persons shall be equal before the Courts and tribunals. In
the determination of any criminal charge against him, or of his right
and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent and impartial tribunal established by
law”.

The same article, i.e. 14(1), however, refers to the restrictions and states:

“The press and the public may be excluded from all or part of a trial
for reason of morals, public order (ordre public) or national security
in a democratic society, or when the interests of the private lives of
the parties so require, or to the extent strictly necessary in the opinion
of the Court in special circumstances where publicity would prejudice
the interest of justice; but any judgment rendered in a criminal case or
in a suit at law shall be made public except where the interest of
juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.” (emphasis
supplied)

In addition, Art 14(3) of the ICCPR specifically refers to certain minimum

guarantees

“in the determination of any criminal charge against the said person,
in full equality:

(a) …. …. ….
 22

(b) …. … …
(c) … … …
(d) to be tried in his presence, and to defend himself in person or
through legal assistance of his own choosing; …..
(e) to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him;
(f) … … …
… … …”

So far as freedom of expression and right to information are concerned, Art

19 of the ICCPR states as follows:

“Article 19:
1. …. …. ….
2. Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of position, either
orally, in writing or in print, in the form of art, or through any
other media of his choice.” (emphases supplied)

But clause (3) of Art 19 permits restrictions to be imposed,

“as are necessary, for the purpose of respecting the rights or
reputation of others or for protecting national security or public order
(ordre public) or of public health or morals.”
 23

Thus, the provisions of the ICCPR require that the trial of an accused
must be ‘fair’, should be an “open, public trial” and declares that the
accused has a right to a trial conducted “in his presence and to examine or
have examined, the witnesses against him”. The citizens, public and press
have a right to know and to publish what they know, subject to restrictions
in the interests of respecting rights or reputation of others or for protecting
national security or public order or public health or morals. The press and
public may be excluded for the purpose of protection of the above rights, or
where the interests of private lives so require, to the extent strictly
necessary, in the opinion of the Court, in special circumstances where
publicity would prejudice the interests of justice.

European Convention:

Article 6 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms also speaks of a ‘fair and public hearing’
but says that the ‘press and public may be excluded from all or part of the
trial in the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection of the
private life of the parties so require, or to the extent strictly necessary in the
opinion of the Court in special circumstances where publicity would
prejudice the interest of justice’. (emphasis supplied)

United Kingdom:

In the United Kingdom the principle of ‘open justice’ has been

accepted decades ago but it was also accepted that it is not absolute. This
 24

was laid down in Scott vs. Scott: 1913 AC 417 by Viscount Haldane L.C
and the scope of the exception was laid down as follows:

“The exception must be based upon the operation of some other

overriding principle which defines the field of exception and does not
leave its limits to the individual discretion of the Judge.”

The Crown Court rules (Rule 27), section 8(4) of the Official Secrets Act
1920, sec 47(2) of the Children and Young Persons Act, 1933, section 4(2)
and 11 of the Contempt of Courts Act, 1981 refer to certain statutory
exceptions to the rule of open justice. English Courts have also developed
the ‘inherent power’ doctrine in the Leveller Magazine case (1979 A.C. 44)
and in R vs. Murphy (1989): (see para 6.2.3. and 6.2.10 of the Consultation
Paper).

USA:

In US, the Sixth Amendment guarantees that ‘in all criminal

prosecutions, the accused shall enjoy the right to a speedy and public
trial…; and to be confronted with the witnesses against him….” In
addition, the First Amendment ensures the right to freedom of speech, and
of the press which includes the right to information. Though in certain
earlier judgments of the Supreme Court the right to open confrontation was
treated as absolute, in latter judgments such as Maryland vs. Craig (1990)
497 US 836, the Court agreed that the right was not absolute and accepted
evidence through closed circuit television to be given by a juvenile victim.
 25

Position in India

(A) Constitutional Provisions and Interpretation:

The Indian Constitution does not contain any express provision that
criminal trials must be open public trials nor does it contain anything like
the First Amendment of the US Constitution which contains a confrontation
clause. However, these crucial aspects relating to due process in criminal
procedure have been derived by our Courts by way of interpretation of Art
21 of the Constitution. Art 21 reads as follows:

“Art 21: Protection of life and personal liberty:

No person shall be deprived of his life or personal liberty except

according to procedure established by law.”

Though earlier decisions of the Supreme Court interpreted Art 21 as

requiring merely a ‘procedure established by law’, whatever be its fairness
there was a new turn in Maneka Gandhi’s case 1978(1) SCC 240 where the
Supreme Court held that the Constitutional mandate in Art 21 required a
procedure which was ‘fair, just and reasonable’. It has since been held in a
number of cases that the procedure must be fair. (Police Commissioner
Delhi vs. Registrar, Delhi High Court: AIR 1997 SC 95). It has been held
that the trial must be a public trial. Vineet Narain vs. Union of India : AIR
1998 SC 889.
 26

In addition, the right to a public trial is based on the right to ‘freedom

and expression’ which is contained in Art 19(1)(a) of the Constitution of
India which has been interpreted to include the freedom of press (Express
Newspapers vs. Union of India: AIR 1958 SC 578) and the right of the
public to know (Dinesh Trivedi vs. Union of India: 1997(4) SCC 306 and
to publish the same.

Article 22 of the Constitution guarantees that the accused has a right

to consult and to be defended by a legal practitioner of his choice.

(B) Code of Criminal Procedure, 1973:

The Code of Criminal Procedure, 1973 incorporates certain

provisions of the ICCPR above stated, into our domestic law, in relation to
open public trial.

In fact, such provisions were also there in the Code of Criminal

Procedure, 1898 and have been replaced by similar provisions in the Code
of 1973.

We shall refer to some of the important provisions of the Code of

Criminal Procedure, 1973 to show that while the accused has a right to open
public trial in his presence, that right is, however, not absolute.

(i) Section 273 prescribes that the ‘evidence must be taken in the
presence of accused’. It is, however, clear that this right is not absolute.
Section 273 reads as follows:
 27

“Section 273. Evidence to be taken in presence of accused:

Except as otherwise expressly provided, all evidence taken in

the course of the trial or other proceedings shall be taken in the
presence of the accused, or, when his personal attendance is
dispensed with, in the presence of his pleader.

Explanation: In this section, ‘accused’ includes a person in relation

to whom any proceeding under Chapter VIII has been commenced
under this Code.”

(ii) Section 327 of the Code of Criminal Procedure, 1973 bears the
heading: ‘Court to be open’. It reads, in so far as it is material in the
present context, as follows:

“Section 327: Court to be open: (1) The place in which any criminal
Court is held for the purpose of inquiry into or trying any offence
shall be deemed to be an open Court, to which the public generally
have access, so far as the same can conveniently contain them.”

But this right to open trial is not absolute. There are a number of
exceptions. Some of the exceptions are detailed below.

(a) Under the proviso to subsection (1) of sec 327 it is stated as follows:
 28

“provided that the presiding Judge or Magistrate may, if he thinks fit,

order, at any stage of any injury into or trial of, any particular case,
that the public generally, or any particular person, shall not have
access to, or be or remain in, the room or building used by the Court.”

(b) Subsection (2) of sec. 327 deals with exceptions (in case of sexual
offences) from the provisions of subsection (1). It is provided therein that
in the case of inquiry into or trial of rape (sec. 376) and other sexual
offences (ss 376A, 376B, 376C, 376D) of the Indian Penal Code, 1860 the
same shall be conducted in camera and in such inquiry or trials, the Court
may permit any ‘particular person’ to have access to, or be or remain in, the
room or building used by the Court.

(c) In regard to the in camera proceedings referred to in subsection (2) of

sec 327, it is declared that it shall be not lawful for any person to print or
publish any matter in relation to any such proceedings, except with the
previous permission of the Court.

(d) Certain publications of identity of victim of rape punishable under the

Code:

Section 228A of the Indian Penal Code, 1860 prescribes punishment

if the identity of the victim of rape is published.

(e) In Shakshi vs. Union of India 2004(6) SCALE 15, the Supreme Court
held that where a video screen is employed during recording of the evidence
 29

of a victim, the provisions of sec 273 requiring evidence to be recorded in

the presence of the accused is deemed to have been satisfied.

(f) Section 299 of the Code also indicates certain exceptions. It bears the
heading ‘Record of evidence in absence of accused’. This covers cases
where accused has absconded or where there is no immediate prospect of
arresting him.

(iii) Section 173(5) states that when the Police Report is filed under
section 173 into the Court, the police officer shall forward to the Magistrate
along with the Report -

(a) all documents or relevant extracts thereof on which the

prosecution proposes to rely, other than those already sent to the
Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons whom
the prosecution proposes to examine as its witnesses.
But there is an exception under section 173(6).

Under sec 173(6) of the Criminal Procedure Code, 1973 which refers
to the ‘Report of Police officer on completion of investigation’ (Charge-
sheet), there are certain exceptions statutorily recognized. The subsection
(6) reads as follows:

“Section 173(6): If the police officer is of opinion that any part of

any such statement (i.e. statement under sec 161) is not relevant to
the subject matter of the proceedings or that its disclosure to the
 30

accused is not essential in the interest of justice and is inexpedient in

the public interest, he shall indicate that part of the statement and
append a note requesting the Magistrate to exclude that part from the
copies to be granted to the accused and stating his reasons for making
such request.”

(iv) Under sec 317 of the Code, inquiries and trials can be held in the
absence of the accused in certain cases where the Judge or the Magistrate is
satisfied, for reasons to be recorded, that the personal attendance of the
accused before the Court is not necessary in the interests of justice, or that
the accused persistently disturbs the proceedings in the Court.

(v) Procedure for examination and cross-examination of witnesses is

specified in the Code. Section 231(2) of the Code provides that at the trial
in the Court of Session, the prosecution may produce its evidence on the
date fixed and the defence may cross examine or the date of cross-
examination may be deferred. Section 242(2) permits cross-examination by
accused in cases instituted on police report and trial under warrant
procedure is by magistrates. Section 246(4) provides for cross-examination
of prosecution witness in trials of warrant cases by Magistrates in cases
instituted otherwise than on police report. But witnesses can now be
examined by video conference procedure as per the judgment of the
Supreme Court in Praful Desai’s case 2003 (4) SCC 601.
 31

Summary:

Thus, the above provisions of the Code of Criminal Procedure, 1973

would show that neither the right to an open public trial nor the right of
examination of the prosecution witnesses in the immediate presence of the
accused are absolute. There are a good number of exceptions as shown
above.

There are some other special laws in force in our country which also
provide exceptions to the right of the accused for open public trial as against
the right of the victim for a fair trial. The State has also an interest in the
fair administration of justice. That interest of the State requires that victims
and witnesses depose without fear or intimidation and that the Judge is
given sufficient powers to achieve that object. This is the overriding
principle referred to by Viscount Haldane in Scott vs. Scott (1913) AC 417.

In the case of special statutes concerning terrorist-trials, or unlawful

activities, the Indian Parliament has already come up with some special
procedures which perform the balancing Act. We shall refer to them in the
next chapter (Chapter III).
 32

Chapter III

Certain aspects of Victim and Witness Identity Protection

under special statutes in India

For the first time in 1985, the legislature thought it fit to introduce the
principle of ‘witness identity’ protection in certain special statutes, and this
started with the statutes to prevent terrorist activities. We shall now refer to
them.

Certain Special Statutes: Protection of Witness Identity:

(i) Terrorists and Disruptive Activities Act, 1985: (TADA) (since

repealed) introduces witness anonymity for the first time.

In the year 1985, Parliament enacted the TADA to deal with terrorist
activities and it rightly felt that unless sufficient protection is granted to
victims and witnesses, it is not possible to curb the menace. Sec 13 of that
Act provides a procedure to protect witness identity. It read as follows:

“Section 13(1): Notwithstanding anything contained in the Code, all

proceedings before a Designated Court shall be conducted in camera:
Provided that where public prosecutor so applies, any
proceedings or part thereof may be held in open court.
(2) A Designated Court may, on an application made by a witness
in any proceeding before it or by the public prosecutor in
relation to a witness or on its own motion, take such measures
 33

as it deems fit for keeping the identity and address of the

witness secret.
(3) In particular and without prejudice to the generality of
provisions of sub section (2), the measures which a Designated
Court may take under that subsection may include –
(a) the holding of the proceedings at a protected place;
(b) the avoiding of the mention of the names and address of
witnesses in its order or judgments or in any records of
case accessible to public;
(c) the issuing of any directions for security that the identity
and address of the witnesses are not disclosed.
(4) Any person who contravenes any direction issued under
subsection (3) shall be punishable with imprisonment for a
term which may extend to one year and with fine which may
extend to one thousand rupees.” (emphasis supplied)

(ii) The Terrorist and Disruptive Activities (Prevention) Act, 1987

(TADA 1987) continues witness anonymity subject to conditions:

The 1985 Act was replaced by the 1987 Act with some changes. We
do not propose to extract the section, namely sec 16, but shall refer only to
the changes introduced.

The provisions of sec 16 of this Act of 1987 were similar to those in

sec 13 of the TADA, 1985 with a few changes. Under sec 16 of the new
Act, it is not mandatory in all cases of trials in relation to terrorist acivities
to conduct the proceedings before the Designated Court in camera. The
 34

Court is given discretion to do so wherever the circumstances so desired.

Again sec 16(3)(d) empowered the Court to take measures in public interest
so as to direct that information in regard to all or any of the proceedings
pending before the Court shall not be published in any manner.

The validity of sec 16 was challenged but was upheld in Kartar Singh
vs. State of Punjab: 1994(3) SCC 569.

(iii) Prevention of Terrorism Act, 2002: (POTA), 2002

Continues witness anonymity with conditions: (since repealed w.e.f.
21.9.2004)

The TADA, 1987 was repealed by POTA, 2002. In the POTA,

section 30 deals with the subject of in camera proceedings and witness
identity protection. There are some further changes made in this Act in
respect of the powers of the Court. Section 30 reads as follows:

“Section 30: (1) Notwithstanding anything contained in the Code,

the proceedings under this Act may, for reasons to be recorded in
writing, be held in camera if the special Court so desires.
(2) A Special Court, if on an application made by a witness in any
proceeding before it or by the Public Prosecutor in relation to
such witness or on its own motion, is satisfied that the life of
such witness is in danger, it may, for reasons to be recorded in
writing, take such measures as it deems fit for keeping the
identity and address of such witness secret.
 35

(3) In particular, and without prejudice to the generality of the

provisions of subsection (2), the measures which a Special
Court may take under that subsection may include –
(a) the holding of the proceedings at a place to be decided
by the Special Court;
(b) the avoiding of the mention of the names and addresses
of the witnesses in its orders or judgments or in any
records of the case accessible to public;
(c) the issuing of any directions for securing that the identity
and address of the witnesses is not disclosed;
(d) a decision that it is in public interest to order that all or
any of the proceedings pending before such a Court shall
not be published in any manner.
(4) Any person who contravenes any decision or direction issued
under sub section (3) shall be punishable with imprisonment for a
term which may extend to one year and with fine which may extend
to one thousand rupees.”

The changes brought into POTA, 2002 as contained in the sub section
(1) and (2) are
(i) that the Court has to record reasons for holding the proceedings
in camera and also for coming to the conclusion that the ‘life of
such witness is in danger’.
(ii) an additional clause (d) was added in subsection (3) that
publication of Court proceedings may be prohibited in ‘public
interest’ too.
 36

The validity of the provisions of sec 30 has been upheld in PUCL vs.
Union of India: 2003(10) SCALE 967.

We have discussed Kartar Singh’s case and PUCL case in detail in

paras 5.9 and 5.16 of the Consultation Paper respectively.

The POTA has been repealed by he Prevention of Terrorism (Repeal)

Act, 2004, w.e.f. 21.9.2004.

(iv) The Unlawful Activities (Prevention) Amendment Act, 2004

amended (w.e.f. 21.9.2004)

Since the publication of our Consultation Paper in August 2004, the

repeal of POTA took place and amendment to the Unlawful Activities
(Prevention) Act, 1967, has been made w.e.f. 21.9.2004.

The Act applies to ‘unlawful activities’ and also to ‘terrorist acts’.

Section 2(f) of the Act defines ‘unlawful activities’ as follows:

“2(f) : ‘Unlawful activities’, in relation to an individual or association,

means any action taken by such individual or association (whether by
committing an act or by words, either spoken or written, or by signs
or by visible representation or otherwise) –
(i) which is intended, or supports any claim, to bring about, on any
ground whatsoever, the cession of a part of the territory of
India or the secession of the territory of India from the Union,
 37

or which incites any individual or group of individuals to bring

about such cession or secession;
(ii) which disclaims ‘questions, disrupts or is intended to disrupt
the sovereignty and territorial integrity of India’;
(iii) which causes or is intended to cause disaffection against
India.”

Section 2(k) defines ‘terrorist act’ and says that it has the meaning assigned
to it in sec 15. Section 15 defines ‘terrorist act’ and is a verbatim
reproduction of the definition contained in sec 3 of the POTA, with the
addition of words ‘or foreign country’ in three places.

Section 44 (1) to (4) of the above Act bears the heading ‘Protection of
Witness’ and is in identical language as section 30(1) to (4) of the POTA,
2002. We do not, therefore, propose to repeat them. Obviously, for the
reasons stated in the Judgment of the Supreme Court in PUCL, these
provisions of sec 44 must be treated as valid.

(v) Juvenile Justice (Care and Protection of Children) Act, 2000 –

Protection of identity of Juvenile

The Juvenile Justice (Care and Protection of Children) Act, 2000

provides for ‘prohibition of publication of name, etc. of Juvenile involved in
any proceeding under the Act’ in sec 21 which reads as follows:

“Section 21: (1) No report in any newspaper, magazine,

news-sheet or visual made of any inquiry regarding a juvenile in
 38

conflict with law under this Act shall disclose the name, address or
school or any other particulars calculated to lead to the identification
of the Juvenile nor shall any picture of any juvenile be published:
Provided that for reasons to be recorded in writing, the
authority holding the inquiry may permit such disclosure, if in its
opinion such disclosure is in the interest of the juvenile.”

(vi) Sexual Offences and Victim ‘Screening’:

The 172nd Report of the Law Commission (2002) accepts ‘screening’

procedure:

We have referred to this Report of the Law Commission in detail in

para 4.5 of the Consultation Paper.

The subject of review of rape laws (172nd Report, 2000) was

undertaken by the Law Commission in pursuance of a reference by the
Supreme Court in Sakshi vs. Union of India. During the course of the
study, it was urged before the Law Commission by NGO Sakshi that video-
taped interviews and closed-circuit television be permitted to be used while
recording evidence of victims of sexual offences, especially children and
minors. It was urged that the procedure for trial of such cases must include
(i) permitting use of a video-taped interview of the child’s statement,
in support of the child’s version;
(ii) allowing a child to testify via close-circuit television or from
behind a screen to obtain a full and candid account of the acts
complained of;
 39

(iii) the cross examination of the minor being carried out by the Judge
be based on written questions submitted by the defence upon
perusal of testimony of the minor;
(iv) that whenever a child is required to give testimony, sufficient
break to be given as and when required by the child.

The Law Commission considered these suggestions but did not accept the
same. It referred to sec 273 of the Code of Criminal Procedure which states
“except as otherwise expressly provided, all evidence taken in the course of
a trial or other proceeding, shall be taken in the presence of the accused or
when his personal attendance is dispensed with, in the presence of his
pleader’ and the Commission agreed for a screen to be put in between the
victim and the accused. It suggested insertion of a proviso to sec 273 as
follows:

“provided that where the evidence of a person below sixteen years

who is alleged to have been subjected to sexual assault or any other
sexual offence, is to be recorded, the Court may, take appropriate
measures to ensure that such person is not confronted by the accused
while at the same time ensuring the right of cross examination of the
accused.”

(viii) Victims and Witness screening: Sakshi vs. Union of India: 2004(6)
SCALE 15:

After the 172nd Report was presented to the Supreme Court, it passed
judgment in Sakshi vs. Union of India : 2004(6) SCALE. 15.
 40

The Supreme Court in Sakshi vs. Union of India: 2004(6) SCALE 15

(26.5.2004) accepted ‘video conferencing’ and ‘written questions’ in sexual
and other trials in the absence of a statute.

The Court accepted three of the suggestions made by SAKSHI before

the Law Commission, namely,

(i) video-conferencing procedure, and

(ii) putting written questions to the witnesses.
(iii) sufficient break to be given while recording evidence
These were in addition to the ‘screening’ method suggested by the Law
Commission in its Report.

By the date the Supreme Court decided SAKSHI, on 26.5.2004, the

Court had in another case, the State of Maharashtra vs. Dr. Praful B. Desai:
2003(4) SCC 60) (which concerned allegations as to medical negligence),
permitted the evidence of a foreign medical expert to be received by video-
conferencing. In that case, the Supreme Court followed Maryland vs.
Craig : (1990) 497 US 836 decided by the US Supreme Court.

In Sakshi, the Supreme Court, while following Praful B. Desai case,

accepted that such evidence by video conference must be treated to be in
compliance with requirements of sec 273 which states that all evidence in
the course of the trial or other proceedings shall be taken “in the presence of
the accused” and it does not mean that the accused should have full view of
the witness. The Supreme Court observed in Sakshi (p 34):
 41

“Section 273 CrPC merely requires the evidence to be taken in the

presence of the accused. The section, however, does not say that the
evidence should have been recorded in such a manner that the
accused should have full view of the victim or witnesses. Recording
of evidence by way of video conferencing vis-à-vis sec 273 has been
held to be permissible in a recent decision of this Court in State of
Maharashtra vs. Dr. Praful B. Desai 2003(4) SCC 601.”

The Supreme Court, after stating why the victims and witnesses
should be allowed to give evidence in an uninhibited manner or by means of
a screen interposed, gave the following among other directions (p 35):

“In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the
victim or witnesses (who may be equally vulnerable like the
victim) do not see the body or face of the accused.;
(ii) the question put in cross-examination on behalf of the
accused, in so far as they relate directly to the incident,
should be given in writing to the presiding officer of the
Court who may put them to the victim or witnesses in a
language which is clear and is not embarrassing;
(iii) the victims of child abuse or rape, while giving testimony in
Court, should be allowed sufficient breaks as and when
required.”
 42

It will be seen from the above directions of the Supreme Court in Sakshi
that video-conferencing and putting written questions, were accepted in
addition to screening suggested by the Law Commission. It held that these
procedures do not offend the provisions of sec 273 which requires a trial in
the presence of the accused.

Summary:

Summing up the position, it will be seen that there are various facets
of the criminal trial, namely, there is a right to open trial for the benefit of
the accused and the public have a right to know about the conduct of the
trial, and the accused has a right to have the trial conducted in his presence.
But these rights are not absolute.

There are conflicting privacy rights of the victims of sexual offences

violation of which by the media or others are subject to punishment. There
are provisions for keeping identity of witnesses confidential when the police
files its charge sheet in the Court. There are special statutes relating to trial
of terrorists which contain provisions for protection of identity of witnesses,
whose identity must be kept secret during inquiries as well as trials. There
are recommendations of the Law Commission that in cases of sexual
offences, a screen may be put between a victim (while the victim deposes)
and the accused, so that the victim is more free and uninhibited while giving
evidence. Finally the Supreme Court, in its Sakshi judgment, extended the
procedures involving video-conferencing (a video circuit system) and the
giving of a list of questions to the victims or witnesses, and stated that these
 43

procedures do not violate the principle of the accused’s right to an open trial
in his immediate presence.

Barring the above special offences, the law as far as witness

protection and victim identity protection is concerned, has not yet been
extended to cover the cases of other serious offences where lives of
witnesses or their close relatives or their properties may be equally in
danger. So far such protection is confined to special cases of terrorism and
sexual offences etc. Question is about extending such protection to cases of
inquiries and trails of other serious offences. In fact, the extension of
witness identity protection to other cases of serious offences was part of
Question No.3 in the Questionnaire attached to the Consultation Paper.

Before considering the question of extending witness protection to

witnesses in other cases relating to serious offences, we shall refer to the
various responses received to the questions in the Questionnaire annexed to
the Consultation Paper.
 44

Chapter IV

Questionnaire in Chapter VIII of Consultation Paper: Responses

Before we take up discussion of the important issues, as already

stated, it is necessary to analyse the responses to the Consultation Paper.

Responses to the Consultation Paper

We may state that the subject matter of Witness Anonymity and

Witness Protection Programmes is directly connected with the procedural
aspects of due process in the criminal justice system. Therefore, the Law
Commission felt it necessary to obtain views and suggestions of all the
important players in the criminal justice system. In order to elicit responses
from all important agencies and persons on the relevant issues, the
Commission circulated an exhaustive Consultation Paper along with its
summary and questionnaire, in August 2004 and it was sent to the Union
Government and all the State Governments, Directors General of Police of
all States, Judges of Supreme Court and High Courts, Bar Associations,
Human Right Commission of Union and States. Consultation Paper was
also placed on Law Commission’s website.

The Consultation Paper received widespread recognition not only

within the country but outside the country also. Apart from the views
expressed in various seminars, the Commission received fifty two responses
in writing. Among the respondents, 11 were from the State Governments, 1
from State Law Commission, 12 from Directors General/Inspectors General
 45

of Police, 3 from Judges of High Court and 2 from Judges of subordinate

courts, 3 from International and other organizations, remaining 20 from
Jurists, advocates, public prosecutors and other legal persons. More than 40
respondents have sent their reply to the questionnaire, while rest have sent
their views/suggestions in a general fashion. Answers on each question
given by the respondents are discussed below.

(Q) 1. Should witness anonymity be maintained in all the three stages of

investigation, inquiry, trial and even at stage of appeal in a criminal
case?

As we all know, criminal cases passes through three stages, i.e.

investigation, inquiry and trial. After the conclusion of trial, the court
pronounces the order/ judgment, and thereafter the stage of appeal/revision
starts. If, in respect of a witness, anonymity is required to be maintained,
the question arises whether it should be maintained at all the stages
mentioned above or whether it should be only for a particular stage?

Most of the respondents (36 out of 43) have opined that anonymity
should be maintained in all the three stages including the appellate stage.
Not only this, among them 3 were of the view that anonymity should be
maintained forever, i.e. even after the case is finally over. However, some of
the respondents have suggested that anonymity should be maintained only
in exceptional cases.

Justice Anoop V. Mohta of Bombay High Court is of the view that

anonymity of witness is required only up-to trial stage and there is no need
 46

of maintaining anonymity at the appellate stage. Same is the view of one

Public Prosecutor from Hyderabad.

Lt. Col. S.K. Agarwal from Judge Advocate General branch has
opined that anonymity should be maintained only during investigation,
inquiry and at stage of committal proceedings, if any. But anonymity
cannot be effectively maintained once the trial starts. Same is the view of an
advocate from Hyderabad.

An Advocate from Tamil Nadu is of the view that anonymity can be

maintained only during investigation stage and thereafter maintaining
anonymity will affect free and fair trial. Contrary to it an Advocate from
Maharashtra is of the view that anonymity can be maintained during inquiry
and trial and appeal stage, but should not be maintained during investigation
stage, as it will give undue power to police.

Another Advocate from Maharashtra, who is also member of

Maharashtra State Law Commission is of the view that considering the
social structure in India and the criminal judicial set up, practically it would
not be possible to maintain anonymity at any stage of a case.

(Q) 2. Do you think witness anonymity should be confined to criminal

cases or should anonymity be provided in civil case as well? Should it
be extended to defence witnesses also, as done under some statutes in
other countries?

In some countries, apart from the prosecution witnesses, defence

witnesses can also seek anonymity. Similarly even witnesses in civil cases
 47

in certain circumstances are also entitled to seek anonymity. Now the

question arises whether in India also, defence witnesses and witnesses in
civil cases be allowed to seek anonymity?

On the issue of extending the scope of witness anonymity to the

defence witnesses as well as to witnesses in civil cases, opinion of
respondents is divided.

Out of 41 responses, 24 are in favor that anonymity may be given to

defence witnesses also while 17 respondents have opposed the idea of
giving anonymity to defence witnesses. Among those 24, who have
supported the idea, 6 are from State Governments, 7 are senior police
officers (D.G. Police/ I.G. Police), and 3 are Judges, and 8 are others.
Among 17 respondents, who have not favoured giving anonymity to
defence witnesses, 4 are from State Governments, 4 are senior Police
Officers, and 9 are others.

In respect of providing anonymity to witnesses in civil cases, only 19

respondents out of 41 have agreed while 22 respondents have opposed the
idea of giving anonymity to witnesses in civil cases. Among those 19
respondents, who have agreed to the proposal, 5 are from State
Governments, 5 are Senior Police Officials, and 2 are Judges and 7 are
others. Among 23 respondents, who have not agreed to the proposal, 5 are
from State Governments, 6 are from Senior Police Officials, and 1 is a
Judge and remaining 13 are others.
 48

(Q) 3. Can the provisions of sub-section (3) of section 16 of the Terrorist

and Disruptive Activities (Prevention) Act, 1987 or section 30 of the
Prevention of Terrorism Act, 2002, which permit the Court to pass an
order; -
avoiding the mentioning of the names and addresses of the witnesses in
its orders or judgments or in any records of the cases accessible to
public,
issuing directions for securing that the identity and addresses of the
witnesses are not disclosed, or;
direct that, in public interest, the proceedings pending before the Court
be not published in any manner, -
be made applicable to cases involving other grave offences where the
Court is satisfied that there is material which prima facie shows danger
to the life of the witness or to his relations or to their property?

Section 16 of the TADA, 1987 and section 30 of the POTA, 2002

permit the Court to pass an order for maintaining anonymity of witnesses
and also for prohibiting publication of proceedings of the Court. Though
both these enactments have been repealed, similar provisions have been
brought into the Unlawful Activities (Prevention) Act, 1967 as section 44
vide amendments made in the year 2004.

Now question is whether similar provisions have to be made

applicable in respect of cases involving grave offences, where even it is
necessary to do so?

In all the responses (except one), it was opined that provisions similar
to TADA 1987 & POTA, 2002, should also be made applicable in respect of
cases involving grave offences, where there is danger to the life or property
of witness or his relatives. However, DIG Police H.Q. Madhya Pradesh is
 49

not in favour of such a provision. He has not given any reason in support of
his answer.

(Q) 4. Do you agree that the existing safeguards for protection of

victims of sexual offences and child abuse such as in camera
proceedings and ban on publishing of any material relating to such
proceeding under sec.327 of the Code of Criminal Procedure, 1973 are
not sufficient and do you suggest any other methods for their
protection?

Section 327 of the Code of Criminal Procedure, 1973 empowers the

court to conduct the trial of sexual offences in camera. Court can also order
prohibiting publication of any material in respect of such cases. Question
is whether these and other existing safeguards are sufficient to protect the
victims of sexual offences and child abuse?

Opinion on the issue as to whether existing safeguards available to

the victims of sexual offences and child abuse are sufficient or not, is again
divided. 22 out of 42 respondents are of the view that existing safeguards
are sufficient. Among them 5 responses are from State Governments, 3 are
from Judges, 5 are from senior Police Officers and remaining 9 are others.
Rest of the respondents (20) are either are not satisfied with the existing
safeguards, or have given further suggestion to improve the conditions of
victims of sexual offences. Among these 20 responses, 5 are from State
Governments, 6 are from senior Police Officers, and remaining 9 are others.

State Government of Jharkhand has given many suggestions for

improving the conditions of victims, such as maintaining anonymity of
victims of sexual offences and child abuse, providing adequate police
 50

protection to them, shifting them from their place of residence to some other
safe place, allowing video tape interview of such persons, testifying in court
via closed circuit television or erecting a screen between victim and
accused, cross examination by Presiding Officer on the basis of questions
already given by the accused, and that giving threat or intimidation to
victims or her relatives by the accused be made an offence punishable to
seven years imprisonment, creating a separate directorate with proper
infrastructure for securing the object of giving protection to these victims.

State Government of Orissa has suggested that observations and

directions of the Supreme Court made in Sakshi vs Union of India (2004) 6
SCALE, 15 may be taken into consideration for protection of these victims
and that section 273 of the Cr.P.C., 1973 be suitably amended.

Government of National Capital Territory of Delhi has suggested that

the prosecutrix should be protected from the direct view of the accused as
well as his counsel, questions should be submitted to the Judge, who in turn
will ask the questions from the prosecutrix, and the statements should be
recorded in the local language of the prosecutrix.

State Government of Bihar is of the view that in such cases, the trial
Judge, and the advocates for the prosecution and defence should be female,
so that victim may speak with comparative ease. As the victim would
narrate the occurrence with ease, she would not consider the ordeal of
facing cross-examination to be even worse than rape itself.
 51

State Government of Manipur has suggested that besides the existing

safeguards, system of witness anonymity and Witness Protection
Programmes should be applied in such proceedings.

D.G. Police of Manipur has suggested that directions given by the

Supreme Court in Sakshi case should be incorporated in the Cr.P.C. itself.

D.G. Police of Haryana State, has suggested that victims of sexual

offences should be provided psychological treatment at State expense in
order to make them mentally and physically fit.

An Advocate who is also member of Maharashtra State Law

Commission has suggested that at the stage of investigation of such matter,
judicial supervision should be there so that guilty may be punished. Such
type of law is in existence in the country of Kosovo.

Legal Adviser/PP, Intelligence Dept A.P. is also of the view that

directions issued by the Supreme Court in Sakshi case be incorporated in
Sec. 327 of Cr.P.C., 1973.

South Asia Regional Initiative/Equity Support Program, an

organization has sent a draft of Victim/Witness Protection Protocol, which
is drafted by an expert group.

(Q)5. Would it be sufficient if the Commissioner of Police or

Superintendent of Police seeks anonymity for the witness by certifying
the danger to the life or property of the witness or his relations or
should it be for the Judge to decide, on the basis of evidence placed
 52

before him, that the life or property of the witness or relation is in

danger?

Anonymity to the witnesses can only be provided when there is

danger to life or property of the witness or his relations. Now the question
is, whether the existence of danger certified by higher police official like
Commissioner or Superintendent of Police should be sufficient or the Judge
himself should decide this issue on the basis of material placed before him?

There is no unanimity on this issue as well. 19 respondents (3

Judges, 6 State Governments, 3 Police Officers, and 7 others) are of the
view that this issue should be decided by the Judge himself on the basis of
material placed before him, while 17 respondents (6 Police Officers, 2 State
Governments and 9 others) are of view that certificate given by the Senior
Police Officers are sufficient.

Three respondents (Union Territory of Lakshadweep, D.G. Police

Gujarat State and an Advocate) however, are of the view that Judge as well
as Police Officers both can decide this issue.

In contrast to it, two respondents, (State Government of Punjab and

an Advocate) have opined that this issue should be referred to an
independent committee, and should not be decided either by Judge or Police
Officers.

(Q)6. Should there be a preliminary inquiry by the Judge on the

question whether the case of a witness is a fit one where anonymity
should be granted or not? In such a preliminary inquiry should the
 53

identity and address of the witness be kept secret? Should the accused
or his lawyer be heard at that stage on the question of danger to life or
property of the witness or relatives or, should it be an ex parte inquiry
in camera? Will it serve any useful purpose in giving opportunity to the
accused/defence lawyer, particularly where the identity and address
cannot be revealed in such preliminary inquiry?

As stated above, anonymity to a witness can only be given when there

is danger to the life or property of witness or his relations. In order to
determine the need of anonymity and existence of such a danger question is
whether Judge should hold a preliminary inquiry? And if so, whether
accused or his lawyer be heard or it should be an ex parte inquiry in camera?

Among the 40 responses, which the Commission has received on this

issue, 24 (7 Senior Police Officers, 5 State Governments 3 Judges and 9
others) are of the view that there should be a preliminary inquiry by the
Judge. State Governments of Manipur, and Meghalaya, D.G. Police
Manipur and also of Punjab are of the view that such preliminary inquiry is
needed only in exceptional cases, and not in all cases. State Governments of
Punjab and also of Orissa have opined that such preliminary inquiry be done
by Police Officers and not by the Judge.

However, 10 respondents (State Government of Jharkhand, D.G.

Police of Gujarat State and 8 others) are not in favour of any such
preliminary inquiry.

Most of the respondents who are in favour of holding such

preliminary inquiry are of the view that in such inquiry, identity of the
witness should be kept secret and it should be done ex parte in camera.
 54

(Q) 7. Should the witness satisfy the Judge, in the said preliminary
inquiry, that his life or that his relations or their property is in serious
danger or is it sufficient for him to show that there is ‘likelihood’ of
such danger? Is his mere ipse dixit on the question of danger sufficient
to deny the accused the right for an open trial in the physical presence
of the witness?

Here the question is, whether in the preliminary inquiry (mentioned in

Q. 6) the witness should satisfy the Judge about existence of danger to his
life or property, or that of his relatives or is it sufficient for the witness to
show ‘likelihood’ of such danger?

In all, 32 respondents, have given their opinion on this issue. Among

them 20 (7 Senior Police Officials, 5 State Governments, 1 Judge, and 7
others) are of the view that in the said preliminary inquiry, the witness
should satisfy the Judge about danger to his or his relations life or their
property. Mere likelihood of danger is not sufficient to seek anonymity.

12 respondents (1 Police Officials, 4 State Governments, 2 Judges

and 5 others) however, are of the view that the witness may only be required
to show likelihood of danger to life or property of himself and that of his
relations. There is no need for him to satisfy the Judge about actual
existence of such a danger.

7 respondents have not given any opinion on this issue, as they are
not in favour of holding such a preliminary inquiry at all.
 55

(Q) 8. Should the complainant or the prosecution be required to file an

application before the trial judge for non-disclosure of identity and
address of the witness prior to the stage when copies/the documents are
supplied to the accused under sections 207, 208 of the Code of Criminal
Procedure, 1973?

As per sections 207 and 208 of the Code of Criminal Procedure,

1973, the Magistrate is required to supply free of cost to the accused, copies
of police report and other documents, or copy of complaint and statement of
witnesses. These documents necessarily contain name and address of
witnesses. And if once accused get these copies, he will definitely know
who the witnesses are? In such a situation, an order of anonymity will be of
little use. In this regard, the question is, should prosecution or the
complainant be required to file an application for non-disclosure of identity
of witnesses, prior to the stage of supply of such copies to the accused.

All the respondents, except three advocates, have opined that

complainant or prosecution be required to file an application before the trial
judge for non disclosure of identity of witnesses, prior to the stage of supply
of copies of documents to accused under sections 207 and 208 Code of
Criminal Procedure, 1973.

(Q) 9. Should the Court, if it accepts the request for anonymity, direct
that the identity and address of the witness be not reflected in the
documents to be given to the accused and should it direct that the
original documents containing the identity and address be kept in its
safe custody and further direct that the Court proceedings should not
reflect the identity and address of the witness?
 56

Documents, which are required to be given to the accused, contain

name and address of witness. If the Court accepts the request for anonymity,
it is necessary that their names and addresses should not be reflected in the
said documents, otherwise the purpose of anonymity will be frustrated. For
this purpose, an order of the Court will be required. Further, the original
documents, which contain the identity of witness are, also required to be
kept in safe custody.

All the respondents, except one lawyer, were of the view that if the
Court accepts the request for anonymity, it should direct that identity of
witness should not be reflected in the documents to be supplied to the
accused. Further, the Court should also direct that original documents,
containing the identity of witnesses should be kept in safe custody. Further,
the Court should also ensure that identity of such witness should not be
reflected in Court proceedings.

(Q) 10. At the trial, if the Judge is satisfied about the danger to the
witness, should the recording of statement of the witness be made in
such a manner that the witness and the accused do not see each other
and the Judge, the prosecutor and the defence counsel alone see him
(using two cameras)? Should the witness who is shown on the video-
screen be visible only to the Judge, prosecutor and the defence counsel?
Should the taking of photographs in Court by others be banned?

As per section 273 of the Cr.P.C., 1973, trial is to be conducted in the

presence of the accused. When a witness is granted anonymity, and he is
asked to depose in the presence of accused, his identity will be known to the
accused. Therefore, it is necessary that in such cases the statement of the
witness is recorded in such a manner that the witness and the accused do not
 57

see each other. For this purpose either a screen may be erected or video
conferencing facility may be followed.

Most of the respondents, except a few, are in favour of the proposals

made in this question.

One Judge of A.P. High Court, has stated that ours is a poor country
and cannot afford the luxury of engaging cameras and video-screen in each
and every case where a witness expresses danger to his life. He further
states that the time is not ripe in the Indian conditions to show the witness
on video screen only to the Judge, prosecutor and defence counsel.

An Advocate who is also a member of the Maharashtra State Law

Commission, has opined that recording of statement of a witness, in the
absence of the accused or through video screen is not practicable in India
and the existing system is to be continued. However, in certain
circumstances, the place of trial can be fixed where danger to the life and
property of the witness is less. In certain circumstances, statement of a
witness can be recorded in the presence of defence lawyer only and the
accused be not permitted to attend the same.

Another Advocate from Hyderabad has stated that at the time of trial
the witness, the accused should be visible to each other, otherwise it will be
violation of section 273 of the Cr.P.C.

(Q)11. In the above context, should the witness depose from a different
room or different place, and should there be another judicial officer in
that room to ensure that the witness is free while giving his evidence?
 58

In order to conceal the identity of witness, he may be asked to depose

from a different room or place where the accused is not present. It may be
through video conferencing. In such a situation, it is also necessary that
witness should depose freely. To ensure this, another judicial officer may
remain present in the room or place from where the witness is deposing.
Such a provision exists in Portuguese legislation no. 93/99 of 14th July
1999.

26 respondents (out of 41) have supported the proposal that the

witness should depose from a different room or different place, and there
should be another judicial officer present in that room to ensure that the
witness is free while giving evidence. Among these 26 responses, 8 are from
State Governments, 6 are from Police Officers, 2 are from Judges and
remaining 10 are others.

5 respondents (a Judge from A.P. High Court, State Government of

Manipur, I.G. Police Sikkim, and 2 advocates) are of the view that the
witness should depose from a different room, but there is no need of another
judicial officer in that room.

D.G. Police, Manipur has opined that either a screen may be provided
or arrangement may be made where the witness does not see the body or
face of the accused so that the witness is able to depose about the entire
incident in a free atmosphere without any hesitation and fear.
 59

I.G. Police Assam is of the view that the Judge may record the
statement of the witness in his office chamber instead of the court.

However, 7 respondents (State Governments of Bihar and Meghalaya,

D.G. Police Mizoram, and 4 others) are not in favour of the proposal
altogether. However, the State Govt. of Bihar in its response has stated
that the proposal is impracticable. It stated that there is already an acute
shortage of judicial officers. It will be a complicated affair and expensive
too.

(Q)12. Should the public and media be allowed at such trials subject to
prohibition against publication? What should be the quantum of
punishment for breach of this condition?

As per sec. 327 (1) of the Code of Criminal Procedure, 1973, all
criminal trials are to be held in open court, where any person can have
access to the room or building where the trial is being conducted. But the
proviso below this sub-section empowers the Magistrate or the Judge, to
prohibit public generally, or any person from access to the place of trial.
Now the question is, whether public and media be allowed in such trials
where anonymity to witness is granted; or whether they should be
prohibited? Another point is, if the media and public are allowed, whether
there should be prohibition against publication of court proceedings?

Out of 40 responses, 28 (7 State Governments, 3 Judges, 7 senior

police officials and 11 others) are of the view that in cases where anonymity
to witnesses is granted, public and media should not be allowed to remain
present during the trial.
 60

Remaining 12 (3 State Governments, 3 police officials and 6 others)

are of the view that media and public may be allowed to remain present in
such trials. However, Govt. of NCT Delhi has opined that there should be
prohibition to carry cameras, in such trials. State Government of Bihar is of
the view that only public should be allowed and not media. In respect of
prohibition from publication of court proceedings, all respondents are of the
view that there should be prohibition in respect of publication of court
proceedings.

Most of the respondents are of the view that there should be severe
punishment for breach of condition. In respect of quantum of punishment,
there is no unanimity. Each respondent has suggested different quantum of
punishment.

(Q)13. Should the Court appoint an amicus curiae in every such case,
where witness protection is to be or likely to be granted, to assist the
Court independently both at the preliminary hearing referred to above
and at the trial?

This is regarding appointment of amicus curiae in cases where

witness protection is to be or likely to be granted. Here, question is whether
it should be appointed in every case or not?

In all 23 out of 39 respondents (3 State Governments, 8 Senior Police

Officials and 12 others) have opined that amicus curiae should be appointed
in each case where witness protection is to be or likely to be granted, to
assist the court independently both at the preliminary hearing and at trial.
 61

In 7 responses (4 from State Governments, 2 others and one Judge of

High Court), it is suggested that amicus curiae may be appointed only in
exceptional cases, and not in all cases.

However, in 9 responses (3 from State Governments, 1 from Police

official, 2 from Judges and 3 others) it is stated that there is no need to
appoint amicus curiae in any case.

(Q)14. Should the method of distorting the facial image and voice of the
witness be followed while recording evidence through video-link, in
such cases?

In some countries, for example Portugal, there is a provision that

where evidence is recorded through video-link, the facial image and voice
of the witness may be distorted so that his identity may be kept secret.
Whether such a kind of provision is necessary in our country or not?

26 respondents have supported the idea that method of distorting

facial image and voice of the witness should be followed while recording
evidence through video-link. Among these 26 responses, 5 are from the
State Governments, 9 are from senior police officials, 2 are from Judges and
10 are from others. State Governments of the NCT Delhi, while agreeing
with the proposal, has also suggested that it should be done in the presence
of experts and the experts should be cited as witnesses. The Judge
concerned should verify the presence of the witness deposing. An NGO,
namely SARI has opined that it is important that the victim/witness be able
to effectively identify the accused persons during trial. After the
 62

identification, for the rest of the testimony, victim/witness should be

screened from the accused persons. Distorting of facial image/voice
distortion could be resorted to at the discretion of the judge on case-to-case
basis.

The State Government of Bihar is of the view that method of

distorting the facial image or voice distortion of the witness may not be
practicable in all such cases where evidence is recorded through video-link.
Such a method may be followed rarely.

The State Government of Tripura is also of the view that such method
may be adopted in exceptional cases of grave nature.

13 respondents, (3 State Governments, 1 Judge of High Court, 1

Police Official and 8 others) however, are of the view that such a method of
distortion of facial image and voice distortion of the witness should not be
followed.

(Q.)15. Should the identity and address of the witness be kept

confidential throughout the inquiry and trial (or after trial too) and in
all the Court proceedings upto the stage of judgment or should they be
disclosed just at the commencement of the examination of the witness?
If it is just at the commencement of evidence then, in case the evidence
is not completed in one hearing, is there not the chance of the witness
being threatened by the date of next or subsequent hearing?

Here the question is that upto what stage identity and address of
witness should be kept secret? Whether it should be kept secret upto the
stage of judgment or it can be revealed just before beginning of examination
 63

of witness in the court? But if identity and address is disclosed just before
examination of witness is to begin, then a problem may arise in cases where
examination is not completed on that particular date, and the witness may be
threatened by the date of next hearing. In this context what should be the
stage where identity may be disclosed?

In response to this question, most of the respondents (34 out of 40)

have opined that, identity of the witness should be kept confidential in all
the stages of case. It should not be disclosed at the time of examination of
such witness. Not only this, some respondents have also suggested that
identity should be kept secret even after judgment is pronounced. Among
these 34 respondents, 8 are from the State Governments, 10 are from higher
Police Officials, 2 are from Judges and 14 are from others.

Spl. Commissioner of Police, Intelligence & Operations, Police H.Q.,

New Dehi is of the view that in some cases keeping the anonymity of the
witness is not much relevant after he has been examined in the court and his
identity may be made known after his deposition including cross
examination is over. However, in some cases permanent witness anonymity
may be needed.

5 respondents, however, have opined that identity of witness should

be disclosed before his examination in court begins. Among these
5responses, 1 is from State Government, one from a High Court Judge, and
three are from others.
 64

(Q)16. Instead of examining the witness through the video-link

procedure, will it be sufficient if a list of questions is handed over to the
Court with a request to the Court to put those questions to the witness?
Will it preclude fair and effective cross-examination, if the accused or
his counsel is thus confined to a set list of questions and without the
normal advantage of putting questions arising out of the answers of the
witness to particular questions?

In a normal trial, it is the practice that during examination of a

witness in court, the prosecutor and the defence counsel put questions to the
witness for answer. But in order to preclude the accused and his counsel
from seeing the witness, it is sometimes suggested that a list of questions
may be handed over to the Court with a request that the Court may put those
questions to the witness. Here the question arises whether such a procedure
will be able to qualify the test of ‘fair trial’ which requires effective cross
examination? Because in this procedure, the defence may not be able to put
all those questions which may arise out of the answers given by the witness.

Most of the respondents are not in favour that a list of questions be

handed over to the Court. Such a procedure, as stated by respondents, will
adversely affect right of accused to effectively cross examine the witness.

Only 5 respondents (2 Police Officials, 1 Judge and 2 others) are in

favour that list of questions may be given to the Court and the Court may
put these questions to the witness.

On the other hand, 28 respondents (6 State Governments, 8 Police

Officials, 2 Judges of High Court, and 12 others) have opposed the idea of
submitting list of questions to the Court.
 65

7 respondents, however, are of the view that such a procedure can be

adopted only in a few cases, like offences against women and child, or other
serious offences, and not as a routine course. Among these 8 responses, 2
are from State of Governments, 3 are from Police Officers, and 2 are from
others.

(Q)17. Merely because the Court has refused to grant anonymity at

preliminary hearing referred to above, is the witness to be precluded
subsequently from seeking anonymity or protection at the trial, even if
there are fresh circumstances warranting an order in his favour?

There may be cases where at the time of preliminary hearing, there

may not be sufficient material before the court for making order of
anonymity or protection to witness. But, subsequently if fresh circumstances
warrant anonymity or protection, question arises whether witness should be
allowed to seek anonymity or protection due to changed circumstances?

All the respondents are of the view that if fresh circumstances

warrant, witness should not be precluded from seeking anonymity or
protection subsequently.

The State Government of West Bengal, however, stated that there will
not be any use of seeking anonymity protection at the trial stage if the
identity of the witness is already disclosed earlier.
 66

One Lt. Col. from the JAGs Department, Army, is also of the view
that granting anonymity at later stage of trial will serve no useful purpose,
however, the witness may be granted protection at later stage also.

(Q)18. Can the defence be allowed to contend that the prosecution

witness who is given anonymity is a stock witness?

Normally, the defence is entitled to contend that a particular

prosecution witness is a stock witness. But, when a prosecution witness is
given anonymity, the defence may not be able to know the actual identity of
such witness. In such cases, whether the defence be allowed to contend that
such prosecution witness (who is given anonymity) is a stock witness?

There are mixed responses on this issue. In all 17 respondents have

opined that the defence be allowed to contend that the prosecution witness
who is given anonymity is a stock witness. Among them, 5 responses are
from senior police officials, 2 are from State Governments, 1 from a Judge,
and 9 are from others. Apart from this, 4 respondents (all are others) are of
the view that though the defence may be allowed to contend that the witness
is a stock witness, but the burden should be on the defence to prove that
such witness is a stock witness. Further, 3 respondents (1 Judge of a High
Court, 1 Police Official and 1 State Government) have opined that the
defence may be allowed only if in a given case, circumstances warrant to
allow the defence to contend that the witness is a stock witness.
 67

15 respondents (4 Police Officials, 6 State Governments, 1 Judge and

4 others) are of the view that the defence should not be allowed to contend
that the prosecution witness who is given anonymity is a stock witness.

2 respondents (1 senior police official and 1 State Government),

however, are of the view that the court itself should decide this issue.

(Q)19. Should the tele-link and display on video be conducted only by a

technical officer of the judicial branch and not by a police officer or
other public servant and not by outsourcing to a private contractor?

As stated in questions number 10, 11 and 14, in certain

circumstances, the statement of a witness may be recorded by video
conferencing. This facility certainly requires services of technical
personnel. Now question is, whether these technical personnel should only
be from the judicial branch or they may be other public servants or police
officers? Further, whether these technical personnel may be outsourced
from a private contractor? This aspect is important because it may affect the
impartiality and fairness in the trial.

Majority of the responses (28 in number) suggest that only technical

officer of the judicial branch and not any other police officer or public
servant should conduct tele-link and display on video. Among these 28
responses, 8 are from the police officials, 6 are from the State Government,
3 are from the Judges and 11 are from others.

Two State Governments and one other person have opined that these
technical staff may be either from the judicial branch or they may be other
 68

public servants. However, two other State Governments are of the view that
technical staff should be under the control of the judiciary.

One police officer has stated that the tele-link and video display
should be conducted in such a way to ensure that the identity of the witness
is not compromised whosoever may be conducting the same. Three other
persons are also of the view that it can be conducted by anyone.

Two police officers and two other persons have simply stated that it
should be conducted only by technical persons.

(Q)20. Should these technical staff be located at one place in each State
and move to the concerned Court whenever there is request, as it is not
possible to provide such facilities for each Court or group of Courts in
the districts?

As stated above, technical staff will be required to conduct tele

linking and video display. Each State consist of many districts and
divisions, and in each district or division, there may be number of courts. As
it may not be possible to have separate technical staff for each Court or
group of Courts, it is suggested that these technical staff may be located at
one place in each State, and they may move to the concerned Court as and
when there is a request from such Court.

More then fifty percent responded (22 in number) are in favour of the
suggestion that these technical staff may be located at one place in each
State. Among them, 6 responses are from the State Governments, 8 are from
police officers, 2 are from Judges and 6 are from others.
 69

15 respondents are of the view that these technical staff should be

located at district /divisional head quarter. Even among them some (3) are
of the view that there should be separate technical staff for each court or
group of courts. Among these 15 responses, 4 are from the State
Governments, 2 are from police officers, 1 is from a Judge and 8 are from
others.

One Police Officer has suggested that the High Court of the State may
decide where these technical staff is to be located.

Two advocates have opined that there is a need to recruit Judicial

Officers who are experts in technology or to give training to them.

(Q)21. Should the order as to witness anonymity, for the purpose of

preliminary inquiry, be passed only by Sessions Court and not by any
other Court subordinate thereto?

This relates to the issue as to which Court should have power to pass
an order as to witness anonymity. Whether the Sessions Court should alone
have power and whether other Courts subordinate to Sessions Court should
not have such power?

In all 24 respondents (5 State Governments, 6 Police Officials, 1

Judge and 12 others) are in favour that only Sessions Court should have
power to pass the order as to witness anonymity and no other court
subordinate to Sessions Court should have such a power.
 70

15 respondents (4 State Governments, 5 Police Officials 2 Judges and

4 others) however are not in favour that only Sessions Court should have
such power to order as to witness anonymity. Among them, 9 respondents
are of the view that concerned trial court should have such power to order
witness anonymity. Remaining 6 respondents are of the view that each court
should have such a power.

State Government of Punjab has opined that an independent agency

should decide the issue. 2 other respondents have suggested that senior
police officers preferably with consultation of Sessions Judge should have
such a power.

(Q)22. Against the order granting anonymity to a witness, should the

law provide a right of appeal to the High Court fixing a time frame of
one month from the date of service, for disposal of the appeal?

This is regarding whether the law should provide a right of appeal to

the High Court against the order of granting anonymity to a witness?
Further whether there should be a time frame of one month for disposal of
such appeal.

Majority of the respondents (28 in number) are in favour of providing

such a right of appeal to the High Court with a time frame of one month for
disposal of appeal. Among them 5 are State Governments, 8 are Police
Officers, 2 are Judges and 13 are others. However, one High Court Judge
and an advocate are of the view that instead of appeal there should be a right
of revision.
 71

14 respondents (5 State Governments, 3 Police Officers, 1 Judge and

5 others are not in favour of providing any right of appeal.

(Q)23. Any other suggestions not covered by the above?

Respondents were asked to give their some other suggestions, if any,

relating to witness anonymity on the points, which are not already covered
in the questionnaire. Many respondents have submitted their suggestions.
Some of the important suggestions/views are stated below.

Justice Anoop V. Mohta, Judge, High Court of Bombay stated that

the Criminal Procedure Code, 1973 provides the procedure, whereby, on an
application of the prosecution or of the defence, the Judge/Magistrate may
issue summons to any witness directing him to attend or produce any
document or thing. According to Justice Mohta, the list of witnesses to
whom summons are required to be issued, should be submitted secretly
before the commencement of trial. If it is submitted openly, the purpose of
providing anonymity would be frustrated. The Judge/ Magistrate after
considering the issue of anonymity, may issue summons secretly and direct
the concerned witness to attend the Court on a fixed date. He has stated that
if we want to protect the witness and his family from intimidation and/or
threats, care has to be taken at the initial stage of submitting the list of
witnesses. He further states that list of witnesses or the names of witnesses
may be disclosed to the accused only on the date when the trial is fixed.

Justice Mohta is also of the view that if in respect of a witness, a case

for keeping anonymity is made out, his statement under section 161 or 164
 72

Cr.P.C. may be recorded in the presence of a Magistrate and may be kept

that statement secret. Such statement may be disclosed or opened only just
before the commencement of the trial.

Justice Ch. S.R.K. Prasad, Judge High Court of A.P. stated that the
statute cannot into account every circumstance that arises for application of
anonymity. It should always be left to the discretion of the courts. He further
says that before implementing any programme, necessary infrastructure and
wherewithal has to be furnished. Simply passing legislation will not deliver
the necessary results.

State Government of Orissa through its Law Department has opined

that in respect of anonymity there should not be any general provision viz.,
where punishment is more than seven years, such type of offence will come
under the purview of the proposed law. Anonymity or protection should be
extended to the cases involving drugs, elections, smuggling etc. where
interest of community at large is involved. It is further stated that the
Supreme Court has upheld the validity of section 30 of the POTA since that
Act is special one.

Director General of Police, Punjab has suggested that in cases where

witnesses have been given anonymity or protection, it should be ensured
that their statements are recorded on the date when they are summoned and
no adjournment should be granted since repeated adjournments may at some
stage lead to disclosure of the identity of the witness.
 73

D.G. & I.G. of Police, Gujarat State is of the view that where a
witness feels that his religion, cast or creed will be viewed adversely by the
Prosecution lawyer appointed by the State or the credibility of the
prosecution lawyer appointed by the State is doubtful and also where the
State has a fundamentalist party heading its governance, the witness should
have a right to fetch his own lawyer (to be paid by the State Government-
and this fund should be at the disposal of the judiciary).

South Asia Regional Initiative/Equity Support Program (NGO) has

submitted a victim/witness protocol to prevent and combat trafficking of
women and children in India. According to it the custody/identity/location
of victims of trafficking should not be handed over or made public until an
effective home study has been submitted by the Child Welfare Committee.
Further, the identity and location of decoy customer should remain
confidential and should not be disclosed by the investigating officer. The
victim should not be taken/ transported in the same vehicle in which
accused is taken.

An advocate from Aurangabad (Maharashtra) has suggested that there

should be some provision for “habitual anonymous witness”. Witnesses who
comes forward to depose as an anonymous witness, once or twice often
against the same accused in different cases, or where the said witness comes
repeatedly on behalf of one and same police station, he may be treated as
“habitual anonymous witness”. In these cases, an undertaking should be
taken from such witness that he does not possess any ill-will or enmity
against the accused.
 74

Chapter V

Need for extension of Victim Identity Protection generally to cases of

serious offences triable by Court of Session

Having referred to the responses to the Questionnaire, we shall now

deal with some of the important issues.

The subject of this chapter is important and is part of Question No.3

of the Questionnaire.

In Chapters II and III, we have traced the development of the

procedure in criminal law in relation to inquiries and trials in Courts. We
have seen that while there are some general provisions with regard to open
public trial and the right of the accused to have the witnesses against him or
her examined in his or her presence, these rights of the accused are not
treated as absolute. There are indeed specific types of special cases of
protection to (a) victims in sexual offences against publicity, (b) victims and
witnesses in cases of terrorist acts, in respect of their identity during
inquiries and trials. In the case of sexual offences, the Supreme Court in
Sakshi agreed that using video-screens cannot be treated as diluting the
right of the accused for examination of witnesses in the presence of the
accused.

But barring these special provisions, the legislature has not so far
actively considered the problems of victim protection and witness identity
protection during inquiries and trial in the case of witnesses deposing in
 75

‘serious offences’ such as murder, dowry deaths, rape, offences against the
State, kidnapping, abduction, mischief by fire or explosives, dacoity, etc.
falling within the Indian Penal Code, 1860 which are triable by Courts of
Session where their lives or property may be equally in danger.

It appears to be accepted today that such protection to victims and

witnesses can no longer be confined to special cases of terrorists or sexual
offences against women and juveniles because even in the case of grave
offences like murder, dowry-deaths, rape, dacoity, kidnapping and
abduction etc., there can be serious problems for victims and witnesses who
give evidence in inquiries or trials.

Serious offences: Need for protection of victims and identity of witnesses

Such a need for protection of identity of victims and identity of

witnesses in the case of serious offences has been felt in several countries
and the protection has been extended to inquiries and trials of serious
offences under the ordinary penal codes. Witnesses turning hostile on
account of threats having increased in the cases of such crimes, protection
appears to have become necessary.

(i) Consultation Paper

In para 3.7 of the Consultation Paper, it was stated by us as follows:

“In recent times, the cases where witnesses are turning hostile at trial
due to threats, is no longer confined to cases of terrorism. Even in
 76

other types of offences falling under the Indian Penal Code or other
statutes, this phenomenon has reached alarming proportions. There
is, therefore, need, as in other countries, to generally empower the
Court in such cases – where muscle power, political power, money
power or other methods employed against witnesses and victims – for
the purposes of protecting witnesses so that witnesses could give
evidence without any fear of reprisals and witnesses do not turn
hostile on account of threats of witnesses. That indeed is the
purpose of this Consultation Paper.”

(ii) Several judgments of Courts have applied protection principle to

witnesses in serious offences who suffer from fear or threats:

There are several judgments of Courts visualizing the need for

protection of victims and witnesses generally in the case of serious offences
which do not belong to the above special categories referred to in the earlier
chapters.

The Supreme Court of India stated, as long back as 1952 in

Gurbachan Singh v. State of Bombay (AIR 1952 SC 221), while ordering
externment of the accused and directing him to be shifted to a different
place (viz.) Amritsar (later modified for being shifted to Kalyan), observed
that such an order was permissible under sec. 27 of the Bombay Police Act,
1902. In respect of offences in Chapters XII, XVI or XVII of the Indian
Penal Code, 1860, or abetment of such offences, where ‘witnesses are not
willing to come forward to give evidence in public on account of
apprehension for ‘safety of their person or property’, it was permissible to
 77

pass such orders under that Act. The Court said: “Such orders could be
passed in the interest of the general public and to protect them against
dangerous and bad characters whose presence in a particular locality may
jeopardize the peace and safety of the citizens”. This was a general case
and not a case relating to terrorists or sexual offences.

In Talab Haji Hussain v. Madhukar Purushottam Mondka: AIR 1958

SC 374, the Supreme Court observed that ‘witnesses should be able to give
evidence without inducement or threat either from the prosecutor or the
defence’. If ‘any conduct on the part of an accused person is likely to
obstruct a fair trial, there is occasion for the exercise of the inherent power
of the High Court to secure ends of justice’ to prevent suborning or
intimidation of witnesses or obstruction of a fair trial’. The Court based
the principle on the ‘inherent powers’ of the High Court. This too was a
general case not concerned with terrorism or sexual offences.

Even though Kartar Singh v. State of Punjab 1994 (3) SCC 569
related to trial of terrorists (TADA), there are general observations of the
Supreme Court in regard to ‘fear of harassment’ of witnesses which needs to
be prevented.

In Swaran Singh v. State of Punjab: AIR 2000 SC 2017, the Supreme

Court described the plight of witnesses who were not only threatened but
are maimed, or are done away with or even bribed. This was again a
general case.
 78

Likewise, though PUCL v. Union of India 2003 (10) SCALE 967 was
dealing with the terrorist (POTA), there are general observations as to the
protection of victims and witnesses so that they can give evidence without
fear.

The concept of a fair trial was explained in NHRC v. State of Gujarat:

2003 (9) SCALE 329 to mean that the trial must be fair not only to the
accused but also to the victims. Protection of victims and witnesses
becomes necessary in several cases. (The above case was a case of a
serious offence under the Indian Penal Code).

The Delhi High Court in Ms Neelam Katara v. Union of India (Crl.

WP 247 of 2002) (dated 14.10.2003) issued guidelines for witness
protection in a case relating to alleged murder. In the guidelines framed, the
word ‘accused’ was defined as follows:

“Accused means a person charged with or suspected with the

commission of crime punishable with death or life imprisonment”

We have referred to the detailed guidelines laid down by the Delhi

High Court to the above case in para 5.14 of the Consultation Paper and do
not propose to repeat them.

It is clear that the Delhi High Court felt that if the offences were such
that they attracted a maximum punishment of death or life sentence, witness
protection may become necessary.
 79

A recent case relating to serious offences under the Indian Penal

Code, 1860 where the Supreme Court emphasised the need for protection of
witnesses is the one in Zahira’s case 2004 (4) SCALE 373.

(iii) Provisions in other jurisdictions which generally deal with witness

protection:

(a) To start with, Art. 14(1) of the ICCPR and Art. 6(1) of the European
Convention permit restrictions in case there is ‘prejudice’ to administration
of justice. Impliedly, they permit witness protection as an exception. In
our view, the scope for the said protection applies both to special offences
as well as general ones provided there is proof of ‘prejudice’ to the
administration of justice.

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 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
 80

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.

(b) The best example of general protection is the New Zealand Evidence
Act, 1908 as amended by the Evidence (Witness Anonymity) Amendment
Act, 1997. The protection that sec. 13B to 13J visualize, is applicable to all
indictable offences and is, therefore, not offence specific but is witness
specific (see sec. 13B and sec. 13C). Sec. 13C(4) of the above Act states
that the Judge may, make an anonymity order, if he is satisfied that:

“(a) the safety of the witness or of any other person is likely to be

endangered, or there is likely to be serious damage to the property, if
the witness’s identity is disclosed; and
(b) either
(i) there is no reason to believe that the witness has a motive
to be untruthful having regard (where applicable) to the
witness’s previous convictions or the witness’s
relationship with the accused or any associates of the
accused; or
(ii) the witness’s credibility can be tested properly without
the disclosure of the witness’s identity; and
(c) the making of the order would not deprive the accused of a fair
trial”
 81

(c) On the same lines, the Portuguese Act No.93 of 1999 speaks of
‘witness protection’ and sec. 16 thereof requires that identity of witnesses
may not be disclosed if the witnesses or their relatives or other persons in
close contact with them ‘face serious danger of attempt to their lives,
physical integrity, freedom or property of considerable high value’ where
the offences attract a sentence of imprisonment of 8 years or more, or under
ss. 169, 299, 300, 301 of the Criminal Code and sec. 28 of the Cabinet
Order No.15/93 dated 22nd January. The section requires that the witness’
credibility is beyond reasonable doubt and has probative value.

(d) The provisions of sec. 2A(1)(b) of the Australian Evidence Act, 1989
deals with ‘special witnesses’ who are described as persons suffering from
trauma or are likely to be intimidated or to be disadvantaged as witnesses.
Special arrangements can be made by the court in their favour including
exclusion of public or the accused from the Court. Video-taped evidence
can also be allowed.

(e) We shall refer to a few cases decided in other countries dealing with
victim protection and witness identity protection generally.

In England, such a general principle of administration of justice was

laid down in Marks v. Beysus: (1890) 25 QBD 494.

In Cain v. Glass: (NUL) (1985) NSWLQ 230 McHugh JA said that

the principle of anonymity was applicable not only to police informers but
that the said principle applied even to persons other than registered
informers.
 82

The Supreme Court of Victoria (Australia), in Jarvie & Another v.

The Magistrate’s Court of Victoria at Brunswick: 1995 (1) VR 84 held that
the Magistrate had the ‘jurisdiction’ to pass anonymity order in favour of all
witnesses and that the power was not confined to undercover police officers.
It applied

“to other witnesses whose personal safety may be endangered by the

disclosure of their identity”

The Court laid down four propositions of which proposition (2) reads
as follows:

“(2) the same policies which justify the protection of informers as an

aspect of public immunity also justify the protection of undercover
police officers. However, the claim to anonymity can also extend to
other witnesses whose personal safety is endangered by disclosure of
their identity.”

Summary and conclusion:

Thus, while it is the common law rule that the accused has a right to
know the names and addresses of prosecution witnesses so that he may
inquire whether the witnesses were competent to give evidence in regard to
the offence and so that he may exercise his right of cross-examination, the
said right is not absolute. It has to be balanced against the rights of the
victim and other prosecution witnesses so that they can depose without any
 83

fear or danger to their lives or property or to the lives or property of their

close relatives. In such cases, the victim can be permitted to depose with
an intervening screen or through video-link so that he need not face the
accused; and the prosecution witnesses may depose by an arrangement
under which the accused will not be able to see them and their identity will
not be disclosed to the accused or his lawyer. In either case, the Judge will
be enabled to see the victim or the prosecution witness while they are
deposing.

We may reiterate that today it is accepted that the need for protection
of victims and witnesses is not necessarily confined to cases of terrorism, or
sexual offences against women or children in respect of whom special
statutes exist so that they may give evidence without fear and the
prosecution witnesses may also depose without fear. The principle has
been extended generally to cases of serious offences where the Court is
satisfied that there is evidence about the likelihood of danger to the lives or
property of the victim or to their relatives or to the lives or property of the
witnesses or of their relatives. No doubt, it is also accepted that this
procedure must be resorted only in exceptional circumstances and provided
further the Court is satisfied that the victim or witness’s evidence is
credible. It must be further assured that the Judge while deciding about the
guilt of the accused must not be weighed against the accused merely
because an anonymity order is passed or a victim is given protection.

The Judge must be satisfied, as held in Accused (CA 60/97) (1997)

15 CRNZ 148 (at 156) (NZ) (CA) that
 84

(1) a substantial risk of serious harm to a witness exists;

(2) the risk should not be undertaken; and
(3) there is no reasonably practicable alternative means of avoiding
the risk or lessening it to an acceptable level.
Factors (2) and (3) require “assessment bearing in mind any possible
detrimental effect which may result to an accused … by the particular order
envisaged”. The right to a fair trial to the accused must be treated as
relevant when the Judge exercises his jurisdiction to pass such orders in a
criminal case. It is also necessary to bear in mind that the fears or dangers
to the victims or witnesses or to their relatives or property must be proved in
the individual facts of each case.

We have stated that victim and witness protection must be available

to all cases where offences are ‘serious’. What is the meaning of the words
‘serious offences’. We propose to describe them as offences triable by
Court of Sessions. The criterion obviously is the nature of the offence and
the procedure for the trial.

The Code of Criminal Procedure provides for four types of

procedures. They are

(a) Trial before a Court of Session (Ch XVIII);

(b) Trial of warrant cases by a Magistrate (Ch XIX);
(c) Trial of summon cases by a Magistrate (Ch XX);
(d) Summary trials (Ch XXI).
 85

Schedule 1 of the Code classifies cases according to the Court by

which they are triable. The Court of Session is the highest Court on the
criminal side. Obviously, cases relating to offences which are serious are
classified as triable by Courts of Sessions.

There may also be Courts equivalent in rank as Sessions Courts and

also Special Courts dealing with serious offences.

Therefore, in our view, all criminal cases relating to offences under

the Indian Penal Code, 1860 or under special laws, if they are exclusively
triable by a Courts of Session, or by Courts equivalent in rank to Courts of
Session or by Special Courts trying serious offences, then they must be
treated as ‘serious’ cases for purposes of victim and witness protection.
 86

Chapter VI

Inherent power of the Criminal Court to protect

Victims and witnesses & Position in India

One of the other important issues relates to the power of the Criminal
Courts to grant victim or witness identity protection. It is based on the
‘inherent power’ of the Court to pass orders as to such protection or whether
such a power has to be conferred by statute?

We shall refer to the relevant case law on the subject.

(a) UK:

The House of Lords in Attorney General v. Leveller Magazine 1979

AC 440 clarified that the Court can pass anonymity orders in respect of
witnesses under its ‘inherent power’. The Court described the prosecution
witness not by his name but as ‘Colonel B’. It was held that there can be
exceptions to the rule of open trial, because the rule as well as the
exceptions were both in the interests of administration of justice. Though
the Court could pass orders as to anonymity without legislation or rules
made therefor, the legislature could also legislate on the subject. Lord
Diplock stated (at p. 450) as follows:

“However, since the purpose of the general rule is to serve the ends of
justice, it may be necessary to depart from it where the nature or
circumstances of the particular proceedings are such that the
 87

application of the general rule in its entirety would frustrate or render

impracticable, the administration of justice or would damage some
other public interest for whose protection Parliament has made some
statutory derogation from the rules. Apart from statutory exceptions,
however, where a Court in the exercise of its inherent power to
control the conduct of proceedings before it departs in anyway from
the general rule, the departure is justified to the extent and to no more
than the extent that the Court reasonably believes it to be necessary in
order to serve the ends of justice” (emphasis supplied)

In the course of the judgment, Lord Diplock referred to the decision

of the Court of Appeal, New Zealand in Taylor v. Attorney General: 1975
(2) NZLR 675 to the effect that the Court had inherent power to make an
order directing to what extent the proceedings should or should not be
published outside Court.

‘Inherent power of Court’ was also emphasized in R vs. Murphy

(1980) (see para 6.2.10 of the Consultation Paper)

(b) Australia:

In Australia, the principle of ‘inherent power’ appears to be the basis

of the orders passed by Courts as to ‘anonymity’ of witnesses. This is clear
from the fact that these orders were passed in the absence of statutory
powers. In the Consultation Paper (see para 6.3.7), we summarized the
Australian position as follows:
 88

“Summarising the position, the Courts in Australia have agreed that

in cases where there is evidence of likelihood of danger or harm to
the witnesses, or their families, the Court has inherent power to grant
orders as to anonymity and this procedure is not confined to serious
cases of terrorism or police informers or extortion or police
undercover agents. What is material is the proof of reasonable
likelihood of danger to the witness. Such a procedure for screening
and anonymity is held to be consistent with the right of the accused
for fair trial. Video taped evidence is also admissible”

The Supreme Court of Victoria in Jarvie & Another v. The

Magistrate’s Court of Victoria at Brunswick and others: 1995 (1) VR 84
declined to follow the Queensland decision in R vs. The Stipendiary
Magistrate a Southport ex parte Gibson: 1993(2) Qd. R. 687. The Court
held that it could grant anonymity orders to two undercover police officers
at the stage of committal proceedings under inherent powers. It was held
that though, on facts, the trial Court did not grant such an order,
nevertheless the Court did have the ‘jurisdiction’ to make such orders. The
Court’s order was applicable at the stage of committal proceedings as well
as trial. The Supreme Court held that the principle was not limited to
undercover police officers. It applied also to:

‘other witnesses whose personal safety may be endangered by the

disclosure of identity’

In Witness v. Mausden & Another: 2000 NSW (CA) 52, in a

defamation action, the Court of Appeal (Heydon JA, Mason P and Priestly
 89

JA) set aside an order of the trial Court and granted anonymity holding that
the right to open trial can be subjected to a ‘minimalist interference’ by
granting anonymity orders.

(c) New Zealand:

In their commentary on New Zealand Bill of Rights, authors Paul

Rishworth, et al (Oxford Univ Press, 2003) state (p. 697):

“The traditional requirement that witnesses testify in the Courtroom

and in sight of the accused has been modified both by statute and by
the exercise of a trial Judge’s inherent jurisdiction at common law”

But, the law in New Zealand, initially was the other way, the courts
taking the view that it was for the legislature and not for the courts to create
exceptions to the principle of open justice. In respect of undercover police
officers, Richardson J stated in R v. Hughes: 1986 (2) NZLR 129 (CA) that
any relaxation would be a ‘slippery slope’ and the right to open trial would
be ‘emasculated’ as held by the US Supreme Court in Smith v. Illinois:
(1968) 390 US 129. But the minority judgment delivered by Cook P and
Mc Mullen JJ took the opposite view and based it on the ‘inherent
jurisdiction’ of the Court.

The legislature, in deference to the views of the minority introduced

sec. 13A into the New Zealand Evidence Act, 1908 by sec. 2 of the
Evidence (Amendment) Act, 1986 giving powers to the Courts in two types
of cases – those involving drug offences under the Misuse of Drugs Act
 90

(1975) (exceptions 7 and 13) and offences tried on indictment where

sentence could be more than 7 years imprisonment.

When the question of witnesses other than police informers came up

in R v. Coleman and others (1990) 14 CRNZ (2002) 258, Bargavanath J
followed the spirit of the 1986 Amendment, in a pre-trial decision,
following the UK cases in R v. DJX, CCY, GGZ (1990) 91 Cr. App Rep 36
and R v. Watford Magistrates ex-parte Lehman (1993) Crl LR 253. In
Coleman’s case, at the time of trial, Robertson J followed Bargawanath J.
But thereafter, in R v. Hines: (1997) 15 CRNZ 158, the Court of Appeal
refused to relax the view it took earlier in R v. Hughes and stated that it was
for the legislature and not for the Courts. Gault and Thomas JJ dissented
and observed that the right to grant anonymity was part of the ‘inherent
power’ of the Courts.

Meanwhile, the New Zealand Bill of Rights, 1990 came in stating in

sec. 25(f) about the right of cross-examination is a ‘basic right’. Art. 25(f)
refers to:

“The right to examine the witnesses for the prosecution and to obtain
the attendance and examination of witnesses for the defence under the
same conditions as the prosecution”

In a rape case, the Court of Appeal clarified in R v. L (1994) (2)

NZLR 54 that the right to cross-examination was not absolute and an earlier
deposition of the rape victim (who died) could be put against the accused.
 91

In order to resolve the problem created by R vs. Hines, the

Legislature enacted ss. 13B to 13J into the Evidence Act, 1908 by the
Evidence (Witness Anonymity) Amendment Act, 1997 making the
protection applicable to all witnesses whose lives were ‘likely’ to be
endangered.

After the amendment of 1997 in R v. Atkins 2000 (2) NZLR 46 (CA),

the provision of the ss. 13B to 13J introduced in 1997 came up for
consideration and the provisions of the Amendment were explained. We
have referred extensively to this judgment in para 6.4.7 of the Consultation
Paper. This is the position in New Zealand.

(d) Canada:

The Canadian Courts have laid down the principle of “innocence at

stake” as part of the ‘inherent power’ jurisdiction. The Canadian
Constitution Act, 1982 contains the Charter of Rights and Freedoms in Part
I. Sec. 7 speaks of personal integrity, and states:

“Sec. 7: Personal Integrity: Everyone has the right to life, liberty

and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice”

Sec. 11(d) speaks of ‘fair public hearing’:

Sec. 11: Fair trial: Every person is

(a) … … …
 92

(b) … … …
(c) … … …
(d) to be presumed innocent until proven guilty according to law in a
fair and public hearing by an independent and impartial tribunal”

The principles laid down by the Canadian Supreme Court in R vs.

Dunette 1994(1) SCR 469 appear again to be based on ‘inherent power’ of
the Courts. The Supreme Court held that the right to fair public trial was
not treated as absolute. Relaxation was permissible in favour of granting
anonymity only if the Crown showed that disclosure of identity would
prejudice the interests of informants, or of innocent persons or of the law-
enforcement authorities and also showed that such prejudice outweighed the
interests of the accused.

In R v. Khela: 1995 (4) SCR 201, it was the case of identity of a

police informer. Sec. 24(1) of the Charter was relied on for the accused.
Sec. 24(1) deals with ‘access to Courts’ and sec. 24(2) says that ‘where in
proceedings under sec. 24(1), a Court concludes that evidence was obtained
in a manner that infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is established that, having
regard to all the circumstances, the admission of it in the proceedings would
bring the administration of justice into disrepute.

The question in the above case was about the denial of cross-
examination of an ‘approver’ and at the time of cross-examination, the
witness wore a ‘hood’ to ensure his safety. The Supreme Court held that if
there was danger to the person’s life, his name and address need not be
 93

disclosed till just before trial. In the first round that went upto the Supreme
Court, the Court passed an order directing disclosure of anonymity of the
witnesses. In the second round, the Supreme Court held that the earlier
order had to be implemented or the Crown must seek modification of the
earlier order of the Supreme Court if it had fresh material to say that the life
of the informant was endangered.

In R v. Leipert: 1997 (1) SCR 281, the Supreme Court held that the
accused who sought to establish that a search warrant was not supported by
reasonable grounds, was entitled to the information pertaining to the
identity of the informer if the information was ‘absolutely essential’. The
accused had to establish that ‘innocence was at stake’. Otherwise, the
informer’s identity must be protected in as much as certain schemes
enabling voluntary submission of information would fail if the informers
were not granted anonymity. On the facts of the case, the Supreme Court
granted anonymity as the accused failed to prove that informer’s identity
was essential to prove his innocence.

In R v. Mentuck: 2001 (3) SCR 442, the Supreme Court allowed

anonymity of the undercover police officers to prevent ‘serious risk’ to the
‘proper administration of justice’. However, the Court refused to ban
disclosure of the operational matters used in the investigation of the
accused.

The above case law from Canada and the absence of any statute in
this area, shows that the Supreme Court was indeed enunciating that
anonymity orders could be passed under the inherent power of the Courts.
 94

(e) South Africa:

In South Africa, sec. 153 of the Criminal Procedure Code permits in

camera proceedings at the discretion of the Court and sec. 154 permits
prohibition of publication of certain information relating to criminal
proceedings. The South African Law Commission has published
Discussion Paper 90 (2000) Project 101 which deals with these aspects.
The right of cross-examination is basic in South Africa but the Courts are of
the view that it is not absolute either under the common law or statute law.
In S v. Leepile: 1986 (4) SA 187 (W), the Court permitted witnesses to give
evidence from behind closed doors. In S v. Pastoors 1986 (4) SA 222 (W),
the Court allowed witness identity to be kept confidential as there was a
‘real risk’. In the absence of a statute, obviously such orders were being
granted under ‘inherent power’ of the Courts.

(f) USA:

In USA, the dissenting view of White J in Smith v. Illinois: (1968)

390 US 129 that ‘it is appropriate to excuse a witness from answering
questions about his or her identity, if the witness’s personal safety was
endangered’, slowly became the law in latter cases starting with Maryland v.
Craig: (1990) 497 US 836, where evidence by way of close-circuit
television was accepted as valid. It was held nonetheless that the right to
confront accusatory witnesses may be satisfied, absent a physical, face-to-
face confrontation or trial only where denial of such confrontation is
 95

‘necessary to further an important public policy’ and only where the

testimony’s reliability was otherwise answered. The case related to child-
abuse and to the victim’s evidence. Obviously, such orders were passed
under ‘inherent powers’.

(g) European Courts of Human Rights:

The European Court of Human Rights too felt in the cases of

Kostovski (1989), Vissier (2002) and Fitt (2000) that if the national Courts
felt that anonymity was necessary, the European Court would not interfere.
(see para 6.8 of the Consultation Paper)

Summary:

The above case law of various countries, in our view, clearly

establishes that the Court has ‘inherent power’ to pass orders of anonymity
in the larger interests of administration of justice. Either the Courts
declared they were exercising ‘inherent power’ or they were otherwise
passing such orders presumably under inherent powers. That was on the
basis that the Court has inherent power to regulate its proceedings in such a
way that administration of justice does not suffer and that as part of that
policy, the Court has to balance the right of the accused for open public trial
and the right of the accused for cross-examination, in the interests of the
victim or accused. No doubt, the Courts should not easily breach the rights
of the accused unless it felt that the interests of the victim or witnesses
required that identity or face-to-face confrontation needed to be protected.
Though the liberty of the accused and due process are basic, still the rights
 96

of the accused are always liable to be balanced against the need for
protection of the interests of the victim and witnesses for a fair trial. For
that purpose the Court may, under its inherent powers, grant protection to
the identity of witnesses, or allow the victim to depose behind a screen or
impose a ban on publication of identity of witnesses against the press and
media. The Court may permit the accused to watch the victim while
deposing but may screen the accused from the victim. It may allow the
witnesses who require protection to depose by closed circuit television so
that the Judge and the defence counsel may observe the demeanour of the
witnesses. No doubt, in a preliminary inquiry, it has to be proved that such
a special order is necessary for protecting the life and property of the victim,
witnesses or their close relatives.

INDIA:
Peculiar Position in India: Under the Code of Criminal Procedure, 1973,
trial courts have no inherent jurisdiction: Only High Court has inherent
powers:

In this context, we may state that under sec 482 of the Code of
Criminal Procedure, 1973, it is declared that, nothing in the Code, shall be
deemed to limit or affect the inherent powers of the High Court. This is an
obvious declaration that in criminal matters, the High Court has inherent
jurisdiction. But, curiously the position of the other criminal courts like the
Magistrate’s Courts and the Courts of Session is different.

The absence of such a provision in the Code saving the inherent

power in so far as Sessions Courts and Magistrates’ Courts are concerned,
has led the Supreme Court to conclude that these subordinate Courts do not
 97

have inherent powers. This position was made clear by the Supreme Court
in Bindeswari Prasad Singh vs. Kali Singh: AIR 1977 SC 2432.

Therefore, whatever be the position in other countries, criminal

Courts at the trial stage, like the Magistrates’ Courts and Sessions Courts in
our country cannot pass orders as to ‘anonymity’ of witnesses under
inherent powers. Therefore, legislation is necessary to confer powers on
these Courts to pass ‘anonymity’ orders.

While it is true that Courts whose inherent powers are accepted or

recognized can pass witness anonymity orders under those inherent powers,
the Courts of Sessions and Courts of Magistrates in our country cannot pass
‘anonymity’ orders unless such powers are conferred by the legislature.
 98

Chapter VII

Procedure for deciding on anonymity of witnesses in India –

(i) during investigation and at inquiry; and (ii) during trial

As stated earlier, it is essential that there should be a procedure for

granting anonymity (i) during investigation and (ii) during inquiry and (iii)
also during trial. But we are, however, confining ourselves with cases
triable by a Sessions Court and other equivalent special Courts in which
witness anonymity may be necessary.

Before we refer to the procedure (see under (D) below), we shall first
refer to the existing procedure under some special statutes and the procedure
and certain case law in other countries on the subject.

(A) Procedure under earlier special statutes in India

Though sec 16(2) and (3) of the TADA (1987) and sec 30 of the
POTA, 2002 and sec 44 of the Unlawful Activities (Prevention)Act, 1967
(as amended in 2004) contain certain provisions for granting witness
anonymity, the threshold procedure was with Designated Court or Special
Court under these respective Acts.

But as we are now dealing with offences to be tried exclusively by the

Sessions Court and other equivalent special Courts, we have to ensure that
there is a procedure at the three stages mentioned above, so that, where
 99

necessary, the identity of the witnesses can be directed to be kept

confidential.

We have already stated in Chapter III that the POTA provisions of

2002 were an improvement on the TADA provisions of 1987. In the POTA,
2002, sec 30 laid down the witness anonymity procedure as follows:

“Section 30: Protection of Witnesses: (1) Notwithstanding

anything contained in the Code, the proceedings under this Act may,
for reasons to be recorded in writing, be held in camera if the Special
Court so desires.

(2) A Special Court, if on an application made by a witness in any

proceeding before it or by the Public Prosecutor in relation to such
witness or on its own motion, is satisfied that the life of such witness
is in danger, it may, for reasons to be recorded in writing, take such
measures as it deems fit for keeping the identity and address of such
witness secret.

(3) In particular, and without prejudice to the generality of the

provisions sub section (2), the measures which a Special Court may
take under that sub section may include:

(a) the holding of the proceedings at a place to be decided by the

Special Court;
 100

(b) the avoiding of the mention of the names and addresses in its
order or judgment or in any record of the case accessible to the
public;
(c) the issuing of any directions for securing that the identity and
address of the witnesses are not disclosed;
(d) a decision that it is in the public interest to order that all or any
of the proceedings pending before such a Court shall not be published
in any manner.

(4) Any person who contravenes any decision or direction issued

under sub section (3) shall be punishable with imprisonment for a
term which may extend to one year and with fine which may extend
to one thousand rupees.”

On repeal of POTA, these provisions have now been incorporated in

the Unlawful Activities (Prevention) Act, 1967 by the amendments of 2004.

There are some drawbacks in the procedure formulated in the above

special Acts. The provisions do not refer to the danger to the life of the
witness’s relatives or to danger to property of witness or relatives. They
do not contemplate the passing of an order by the Court but state that
reasons for granting anonymity should be “recorded” in writing. There is,
therefore, need for specific provisions that a witness anonymity order be
passed where the life or property of the witness or the life or property of his
or her relatives are in danger. It is necessary that an order of the Court be
passed in as much as it is not sufficient if the Court merely “records” its
reasons in its file. Care must be taken while drafting the order that the
 101

identity of the witness to whom anonymity is granted is not disclosed in the

order of the Court.

(B) Procedure in other countries: (UK, Australia, New Zealand)

We shall now refer to a few decisions from other countries in this

context which deal with the procedural aspects.

In R vs. David, Johnson and Rowe : 1993(1) WLR 613, it was held
that the non-disclosure can be permitted in ex parte proceedings.

In Jarvie & Another vs. The Magistrate’s Court of Victoria at

Brumwick and Others : (1995)1 V.R. 84 (Victoria, Australia), the Court
held that the trial Courts order was applicable at the stage of committal as
well as the trial.

In New Zealand in R vs. Hines: (1997)15 CRNZ 158, the majority, as

already stated, felt that if witness anonymity was to be given, it was a matter
for legislation. But, Gault and Thomas JJ dissented and held that there was
no need for legislation and that the Court could grant anonymity under
inherent powers. They, however, stated that the Court must grant
anonymity except where the witness’s credibility was ‘reasonably in issue’.
They felt that the witness’s fear must be real and justified and that the
accused is not to be easily deprived of a fair trial. The need for granting
anonymity must be decided in a ‘voir dire’ proceeding.
 102

We have already stated that the New Zealand Parliament enacted

sections 13B to 13J under the Evidence (Witness Anonymity) Amendment
Act, 1997. This Act provided for a preliminary or rather voir dire
proceeding for dealing with the issue. These provisions, in our view,
contain a fair balancing of rights of witnesses and victims on the one hand
and the rights of the accused on the other, and can be a model on the basis
of which we can suggest changes to suit our conditions.

The New Zealand provisions provided for an anonymity order to be

passed at the pre-trial stage (sec 13B), and at the stage of trial (sec 13(C).
We shall first refer to these provisions before we suggest the modifications.

(1) Section 13B, which related to the pre-trial anonymity stated in sub
section (2) as follows:

“Sec 13B(1): ………………………

……………………..
(2) At any time after the person is charged, the prosecutor or
defendant may apply to a Judge for an order
(a) Excusing the applicant from disclosing to the other party prior
to the preliminary hearing the name, address and occupation of
any witness (except with the leave of the Judge), any other
particulars likely to lead to the witness’s identification; and
(b) Excusing the witness from stating at the preliminary hearing
his or her name, address and occupation and (except with leave
of the Judge) any other particulars likely to lead to the
witness’s identification.
 103

Further, at the pre-trial stage, section 13B(3) states that the hearing must be
in chambers and the Court must hear both sides and the identity shall, of
course, be disclosed to the Judge. Sec 13B(3) states as follows:

“Section 13B(3) The Judge must hear and determine the application
in Chambers, and
(a) The Judge must give each party an opportunity to be heard on
the application; and

(b) Neither the party supporting the application nor the witness
need disclose any information that might disclose the witness’s
identity to any person (other than the Judge) before the
application is dealt with.

(2) Section 13C, at the stage of trial, is on the same lines as sec 13B and
we need not again extract the provisions of sec 13C.

Analysing the same, it is clear that in New Zealand, the procedure at

the pre-trial stage, (i.e. after the accused is charged of the offence), required
that an application for anonymity be filed by the prosecutor for granting
anonymity prior to the preliminary hearing and also for exempting the
witness from stating his identity at the preliminary hearing. The Judge has
to hear the matter in chambers and give an opportunity to the applicant
(prosecution) as well as to the accused. The prosecutor and the witness
need disclose identity of witnesses only to the Judge and none others. The
section as it is drafted there applies even to an application for anonymity of
a defence witness. If the prosecution files an application for grant of
anonymity in respect of a witness at the pre-trial stage, it is obvious that
 104

before the application is taken up for hearing in chambers, the witness’s

identity must not be disclosed to the accused. Otherwise, the very purpose
of the application is lost. Once the Judge deals with the application of the
prosecution in chambers as above stated, he has to pass an order under sec
13B(4) if the Judge believes that there are ‘reasonable’ grounds that

“(a) the safety of the witness or of any other person is likely to be

endangered or there is likely to be serious damage to property, if the
witness’s identity is disclosed prior to trial; and

(b) withholding the witness’s identity until the trial would not be
contrary to the interests of justice.”

This in New Zealand is the role of the Judge at the pre-trial preliminary
hearing application filed by the prosecution. But the Judge has some more
duties. The Judge, as stated in sec 13B(5), has to have regard to six other
factors:

(a) the general right of an accused to know the identity of witnesses;

and

(b) the principle that witness anonymity orders are justified only in
exceptional circumstances; and

(c) the gravity of the offence; and

(d) the importance of the witness’s evidence to the case of the party
who wishes to call the witness; and

(e) whether it is practical for the witness to be protected prior to the

trial by any other means; and
 105

(f) whether there is other evidence which corroborates the witness’s

evidence.”

If the Court at the pre-trial stage grants anonymity, then under sec 13B
(6), the following consequences follow, namely:

“(a) the prosecution must give the Judge the name, address and
occupation of the witness; and

(b) the witness may not be required to state in Court his or her
name, address or occupation; and

(c) during the course of the preliminary hearing –

(i) no oral evidence may be given, and no question shall be

put to any witness, if the evidence or question relates to the
name, address, or occupation of the witness who is subject to
the order; and

(ii) except with leave of the Judge, no oral evidence may be

given, and no question may be put to any witness, if the
evidence relates to any other particulars likely to lead to the
identification of the witness who is subject to the order; and

(d) No person may publish in any report or account relating to the

proceeding, the name, address or occupation of the witness or any
particulars likely to lead to the witness’s identification.

Similarly, in New Zealand, sec 13C provides for an order at the trial and
virtually the same procedure under sec 13B is incorporated in sec 13C also.
We do not propose to extract sec 13C provisions again.
 106

It will be clear that subsection (6) of sec 13B and subsection (6) of
sec 13C ensure that, even after trial, the anonymity continues.

Section 13J creates offences for intentional breach of the provision of

sec 13B and 13C and we recommend the same to be adopted.
 107

Chapter VIII

Stage at which identity of witness has to be protected –

investigation, pre-trial or trial and post-trial

The next important question that has to be considered is as to the

stage at which the witness identity protection is to be granted in our country.
We must make it clear that our proposals in this Report deal only with
‘serious offences’, namely, those triable by a Sessions Court or equivalent
designated/Special Court.

There is some distinction between protection to victims on the one

hand and witnesses on the other.

(a) In several cases, the victims may be known to the

accused but this is not an absolute rule. There may be
cases where the victim may not be known to the accused
such as a case in which there is an indiscriminate firing
by the accused. There may be several such situations.
There may also be cases where the victim and the
accused are known to each other.
(b) So far as witnesses other than victims are concerned, it is
possible in most cases, that the accused does not know
the witness. Barring close associates or eye-witnesses to
the offence who may sometimes be known to the
accused, most of the prosecution witnesses may
generally be not known to the accused. It can also
 108

happen that in the matter of serious offences, not only

the life but the property of the witnesses or their relatives
may be in grave danger if the witness identity becomes
known to the accused during investigation or during the
inquiry or before the commencement of trial.

It is, therefore, necessary to deal separately with the stages of (A)

investigation; (B) inquiry; (C) trial; and (D) post trial.

(A) Investigation:

This is the first stage. We are of the view that witness identity
protection is necessary at the stage of investigation also. In fact, in the
responses to the Questionnaire issued along with the Consultation Paper, it
was stated in 36 responses out of 43 that such protection is necessary even
at the stage of investigation.

There are certain stages of the investigation at which point the

witness identity may get revealed to the accused and it is there that witness
identity protection is necessary. We shall refer to the relevant steps in the
investigation where such anonymity is necessary.

(1) Chapter XII of the Code of 1973 deals with ‘Information to Police
and their power to investigate’. (ss 154 to 176) Section 173 deals with the
‘Report of Police Officer on Completion of Investigation’.
 109

Section 173(1) states that the Report must contain

(a) name of the parties;
(b) nature of the information;
(c) the names of the persons who appear to be acquainted with the
circumstances of the case.
…………
and sec 173(5) states that
(e) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already
sent to the Magistrate during investigation;
(f) the statement recorded under sec 161 of all the persons
whom the prosecution proposes to examine as its
witnesses;
be filed along with the Report.

Further sub-section (6) states as follows:

“Sec. 173(6): If the police officer is of opinion that any part of any
such statement is not relevant to the subject matter of the proceedings
or that its disclosure to the accused is not essential in the interests of
justice and is inexpedient in the public interest, he shall indicate that
part of the statement and append a note requesting the Magistrate to
exclude that part from the copies to be granted to the accused and
stating the reasons for making such request.”
 110

(2) Again, under sec 164(6), the Magistrate recording a confession of the
accused or statement of a witness shall forward the same to the Magistrate
who inquires or tries the case.

Therefore, these provisions relating to certain stages of investigation

show that the identity of witnesses may, unless protected, become known to
the accused i.e. at the stage of recording statements under sec 161 or sec
164 or at the stage of filing of the charge-sheet under sec 173 into the
Magistrate’s Court. At these stages of investigation, protection of identity
may become necessary in some cases.

The copies of the charge sheet, FIR, sec. 161 and 164 statements of
the persons and other documents, as stated above, have to be given to the
accused under sec 207 except where the Police under sec. 173(6) may
request that those portions of the statements which disclose the identity of
the witnesses be not granted. There may be a large number of cases where
the police officer has not made a request under sec. 173(6).

As we propose to grant protection to witnesses in the cases of serious

offences, namely, offences triable by the Sessions Court, it is obvious that
even at the above stages of investigation adequate safeguards as to the non-
disclosure of identity of the witnesses has to be considered and granted by
the Magistrate. We have to devise a procedure and confer statutory power
on these courts.
 111

Procedure for ‘Preliminary inquiry’ for granting anonymity during

Investigation:

(i) Where a police officer, before recording statements of

witnesses under sec 161, feels that witness identity has to be protected, he
must have the liberty to apply before the Magistrate concerned seeking
permission to record the statement under a pseudonym subject to making the
identity known only to the Magistrate.

(ii) However, where the identity is not kept confidential at the

stage of recording the statement of witnesses as stated in (i) above but
where the prosecution feels later during investigation, that it has to be kept
confidential when copies of charge sheet and sec 161 statements etc. will be
granted under sec 207, the police must be at liberty to apply to the
Magistrate for such protection before the Magistrate takes cognizance of the
offence.

(iii) There should be a preliminary inquiry, in camera, and at the

stage of investigation, there is no need to hear the accused or giving him an
opportunity.

We are proposing to provide such a procedure for seeking witness

identity protection at the stage of investigation, by way of an application to
be presented to the Magistrate under sections 4, 5 and 6 of the Draft Bill
attached to this Report. This is so far as investigation is concerned.
 112

(B) Preliminary inquiry during Inquiry as provided in Ch. 14 to Ch. 16

before the Magistrate:

(a) Chapter XVI of the Code of Criminal Procedure, 1973 is titled

‘Commencement of Proceedings before Magistrates’. There are some
sections in this chapter which are relevant on the question of identity of
witnesses. Sec. 207, as stated above, deals with ‘Supply of police report by
the police and other documents’. The documents referred to in sec 207
are:

(i) the police report;

(ii) the first information report recorded under sec. 154;
(iii) the statement recorded under subsection (3) of sec. 161 of all
persons whom the prosecution proposes to examine as its
witnesses, excluding therefrom any part in regard to which a
request for such exclusion has been made by the police officer
under subsection (6) of sec. 173;
(iv) confessions and statements, if any, recorded under sec. 164;
(v) any other documents or relevant extract thereof forwarded to the
Magistrate with the police report under subsection (5) of sec. 173.

Section 208 likewise refers to supply of copies of statements and

documents to accused in other cases triable by a Court of Session.

(b) A preliminary hearing has to be conducted by the Magistrate or the

Session Judge, in camera, but it will be necessary to hear the accused. We
 113

are proposing that the accused may be heard separately and not in the
presence of the victim or witness who are not known to the accused.

(c) In as much as, during the course of investigation, when the Police
applies through the public prosecutor before the Magistrate for a
preliminary order granting anonymity, the accused is not given a hearing, it
is necessary, in our opinion, that at the stage of inquiry, there should be a
fresh preliminary hearing, even in respect of the same witness, for the
purpose of granting anonymity at the stage the witness gives evidence at the
regular trial. This is because, in the preliminary inquiry now conducted
(i.e. the preliminary inquiry after investigation), the accused will have to be
heard on the question of granting anonymity to the witness.

Whenever such an application is made after commencement of

inquiry, the Magistrate has to conduct a preliminary or voir dire inquiry as
to whether the witness’s life or property or that of his relatives is in danger.
An in camera hearing is necessary. As to how this will be conducted will be
explained in the next chapter.

Where during Inquiry, the Magistrate grants an anonymity order, it

will ensure for the subsequent stages including trial and thereafter.

We are providing the procedure in sections 8 to 11 which covers the

preliminary inquiry procedure at the stage of Inquiry and before
commencement of recording evidence at the trial.
 114

(C) Preliminary inquiry before the Sessions Judge before commencement

of recording statement of witnesses in Sessions Court:

In respect of other witnesses whose identity protection has not been

sought at the stage of sec 161, 164 or 207, i.e. during investigation or
inquiry but where it is still considered necessary and in the case of fresh
witnesses to be examined at the trial, there must again be an opportunity to
the prosecution to apply for maintaining anonymity during the trial and, if
need be, thereafter. Such power has again to be conferred on the Sessions
Court.

In this connection, we may refer to the judgment of the Supreme

Court in Kartar Singh’s case 1994 (3) SCC 569 under the TADA where in
relation to sec. 16 of that Act, the Supreme Court stated (at p. 290) that the
‘identity, names and addresses of the witnesses may be disclosed before the
trial commences’ as was held by the Full Bench of the Punjab and Haryana
High Court in Bimal Kaur’s case (AIR 1988 P&H p.95 (FB)).

We may also refer in this connection to the judgment of the Canadian

Supreme Court in R v. Khela: 1995 (4) SCR 201 where the said Court too
stated that if there was danger to the witness’s life, the name and address
need not be disclosed till ‘just before the trial’.

But in our opinion, the view expressed in these judgments for grant of
identity protection to witness at a stage just before the starting of the trial,
would in most cases frustrate the very object for protection. There are
today not many cases coming before the Sessions Court in which the trial is
 115

completed in respect of all witnesses nor even of a single prosecution

witness in a single day . Hence, in our view, the protection granted by the
Magistrate or by the Sessions Court must last till the completion of the trial
in the Sessions Court and cannot be confined to a stage just before the trial.

(D) Procedure for recording statement of such witnesses at the Regular

trial in Sessions Court and beyond:

(i) So far as the identity protection at the trial is concerned, if indeed

the witnesses have been given a pseudonym during the
investigation or inquiry or before commencement of trial, there
can be no difficulty in allowing the further proceedings at the trial
to be held on the basis of the same pseudonym. Here, we are
proposing (see Ch. IX) a two-way television or video link and
two-way audio link for recording evidence of victims and
witnesses not known to the accused and for whom anonymity is
considered necessary.
(ii) After the trial, in appeals and even after the conviction or acquittal
the said pseudonym will continue. We do not see any advantage
to the accused in the Court proceedings if the identity is not
disclosed after trial. If the disclosure of the identity of the
witnesses is not going to be of any advantage to the accused then,
in our view, in the further proceedings like appeal etc., or after the
conviction has become final, or even if he is acquitted, the
anonymity may still be continued. If that is done, the life and
property of the witness or relatives can remain out of any danger
during the further proceedings also.
 116

The procedure at the trial is proposed in sec. 12 and Schedule 1of

the proposed Bill.
(iii) So far as victims who are known to the accused and who have not
sought anonymity and victims who have been refused a protection
order, but whose trauma has to be taken care of, the evidence at
the trial will be by use of a two-way close-circuit television or
video-link and two-way audio system so that the victim need not
depose in the immediate presence of the accused for otherwise he
may face trauma.
This procedure is proposed in sec. 13 read with Schedule 2 of the
proposed Bill.
 117

Chapter IX

Two-way closed-circuit television for examining the

victim and witnesses during trial in the Sessions Court

We shall now refer to the procedure of closed circuit television or

video link, to which we have referred to earlier. That procedure can be
followed at the trial by the Sessions Court in respect of witnesses or victims
who have earlier obtained witness protection orders during investigation or
inquiry or before commencement of recording of evidence at the trial.

So far ‘screening or closed-circuit television’ is not part of the Code of

Criminal Procedure, 1973 or special Acts:

Screening or closed-circuit television methods are not contained in

the Code of Criminal Procedure, 1973 nor in the special Acts referred to in
the earlier chapters.

We have noticed in Chapter III that the TADA 1987 did deal with
procedure for witness protection in sec. 16. Neither ‘screening’ nor ‘closed
circuit television’ were mentioned in sec. 16. Sec. 16 mentioned in camera
proceedings. Sec. 16(3)(c) merely stated that the Court may issue ‘any
directions for securing that the identity and addresses of the witnesses are
not disclosed’.

In the POTA 2002, sec. 30(1) referred to ‘in camera’ proceedings and
sec. 30(2)(c) was in the same language as sec. 16(3)(c).
 118

In Kartar Singh’s case (1994) (3) SCC 569 which dealt with sec. 16
of the TADA, there is no reference to ‘screening’ or ‘closed-circuit
television’.

In PUCL v. Union of India, 2003 (10) SCALE 967, which dealt with
sec. 30 of the POTA, the Supreme Court observed (para 62) (at p. 994):

“It is not feasible for us to suggest the procedure that has to be

adopted by the Special Courts for keeping the identity of the witness
secret.”

For the first time, before the Law Commission when it was preparing
the 172nd Report (2000) (as stated earlier) in the case of child abuse or
sexual offences there was a request for incorporating provisions such as
(i) video taped interview of the child,
(ii) via closed-circuit television testimony or giving evidence from
behind a screen.

But the Law Commission accepted the ‘screening’ method. In the

draft amendment, it however, did not use the word ‘screening’ but proposed
insertion of a general proviso in sec. 273 which stated:

“Provided that where the evidence of a person below sixteen years

who is alleged to have been subjected to sexual assault or any other
sexual offence, is to be recorded, the Court may take appropriate
measures to ensure that such person is not confronted by the accused
 119

at the same time ensuring the right of cross-examination of the

accused.”

When the 172nd Report came up before the Supreme Court in Sakshi
v. Union of India, 2004 (6) SCALE 15, the Supreme Court referred to the
argument of the NGO, (Sakshi) before the Law Commission as stated
earlier. The Supreme Court accepted as admissible video-conferencing
method for purpose of hearing the victim or witnesses. Recording by way
of video-conferencing was accepted in view of the earlier judgment of the
Supreme Court in State of Maharashtra v. Dr. Praful B. Desai: 2003 (4) SCC
601(see para 31). It was stated that this was consistent with sec. 273 of the
Code. However, in the final directions, the Supreme Court suggested the
method of using a ‘screen’ or ‘some such arrangement’ (see para 32). The
Court also referred to the need for in camera proceedings as stated in sec.
327 of the Code.

Praful B. Desai’s case was not a criminal case but was a civil case in
which one party wanted to examine a foreign medical expert. While
permitting video-conferencing, the Supreme Court relied upon Maryland v.
Craig (1990) 497 US 836 (which was a criminal case) to say that video-
conferencing evidence is admissible in evidence.

In a case arising under the Consumer (Protection) Act, 1986 the

Supreme Court in J.J. Merchant v. Shrinath Chaturvedi: AIR 2002 SC 2931
stated that under that Act, the Commission could examine witnesses on
commission under sec. 13(4)(v) and that cross-examination could take place
 120

by video-conferencing. The Supreme Court stated that affidavits could be

initially filed and,

“if the cross-examination is sought for by the other side and the
Commission finds it proper, it can easily evolve a procedure
permitting the party who intends to cross-examine by putting certain
questions in writing and those questions also could be replied by
experts including doctors on affidavits. In case where stakes are very
high and still party intends to cross-examine such doctors or experts,
there can be video-conferences or asking questions by arranging
telephone conference and at the initial stage, this cost should be borne
by the person who claims the video-conference. Further cross-
examination can be taken by the Commissioner appointed by it at the
working place of such experts at a fixed time.”

In sum, so far as the criminal jurisdiction is concerned, there is, at the

moment, no provision in the Code of Criminal Procedure, 1973 which
permits ‘screening’ or ‘closed-circuit television’. In Sakshi, the Supreme
Court referred to screening and video-conferencing as acceptable
procedures but in the ultimate directions given by it, it used the words
‘screening’ or ‘some other arrangement’ and followed Praful B. Desai case.
Praful B. Desai followed Maryland v. Craig.

The Maryland Rules on closed-circuit television:

As the Supreme Court in Praful Desai’s case referred to Maryland v.

Craig: (1990) 497 US 836, we shall refer to the Rules applicable to
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Maryland Courts which were interpreted in Maryland v. Craig. There,

under the procedure contained in the Maryland Courts & Judicial Procedure
Code, 1989 (section 9-102(a)(i)(ii)) the child aged six years, who was
allegedly sexually abused would be at a distant place and would be
examined in chief and also cross-examined while the Judge, Jury and the
accused would remain in the Courtroom, where the testimony would be
displayed on a video-screen by using a closed-circuit television. In
Maryland v. Craig, the Supreme Court rejected Craig’s objection that the
use of one-way closed-circuit procedure violated the confrontation clause
contained in the Sixth Amendment. The Court held that if there was direct
confrontation between them in the Courtroom, the child victim and other
witnesses would suffer serious emotional distress which they would not be
able to express.

The Supreme Court held that the purpose of the Sixth Amendment
was to ensure the reliability of the evidence against an accused by
subjecting the witness to rigorous testing in an adversarial proceeding
before the trial Court and that purpose is served by the combined effects of
confrontation, physical presence, oath, cross-examination and observation
of demeanour by the trial Court. Although face to face confrontation
formed the core of the Sixth Amendment, it was not an indispensable
element of the confrontation right. If it were, the Sixth Amendment would
abrogate virtually every hearsay exception, a result rejected as unintended
and too extreme (Ohio v. Roberts) (448 US 50). The Amendment must be
interpreted in a manner sensitive to its purpose and to the necessities of trial
and adversary process (Kirby v. US: 174 US 47). Nonetheless, the right to
confront accusatory witnesses may be satisfied absent a physical, face to
 122

face confrontation or trial only where denial of such confrontation is

necessary to further an important public policy and only where the
testimony’s reliability is otherwise answered (Coy v. Iowa). A State’s
interest in the physical and psychological well-being of child-abuse victims
may be sufficiently important to outweigh, at least in some cases, an
accused’s right to face his or her accusers in Court. The Court will use the
video-procedure only if it is satisfied that the child would otherwise be
traumatized. Maryland v. Craig has been approved by our Supreme Court
in Praful B. Desai’s case (2003 (4) SCC 601).

The same reasoning applies to cases of witnesses who, in the case of

serious offences, are likely to suffer danger to their lives or properties, or
where victims suffer emotional distress and the need to allow them to give
evidence fearlessly outweighs the rights of the accused for face to face
cross-examination.

Victim’s evidence procedure under Maryland Rules:

Maryland’s rule deals with child abuse cases and procedure at trial
and Title 11, dealing with ‘Victims and Witnesses’ and sec. 11.303, is in 4
clauses:

(a) scope of section;

(b) in general;
(c) preliminary determination by Court (whether to allow the child
victim to testify by closed circuit television);
(d) procedure during testimony.
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It contemplates a preliminary hearing before regular trial.

As to (a), scope of section, it is said that the section applies to a case

of child-abuse under Title 5, Subtitle 7 of the Family Law Article or sec.
3.601 or sec. 3.602 of the Criminal Law Code.

As to (b), ‘in general’, it refers (i) to the preliminary hearing i.e. when
a Court decides if evidence in Court can result in the victim suffering such
emotional distress which will make the victim not reasonably communicate
and (ii) to the evidence taken during the proceedings (i.e. regular
proceeding).

Clause (c) is important. It refers to ‘determination by Court’ i.e. the

preliminary hearing procedure. It contains sub-clause (1)(i) and (ii) and
sub-clause (2)(i) and (ii). Under sub-clause (1)(i), the Court may observe
and question the child victim inside or outside Courtroom and under sub-
clause (1)(ii), the Court may hear testimony of a parent or guardian and the
person who has dealt with the child in a therapeutic setting. Under sub-
clause (2), it is stated that when the Court decides the issue ‘whether to
allow a child victim to testify by closed-circuit television, (i) each accused
can have one attorney in the Court along with the victims’ attorney and the
prosecuting agency (i.e. neither victim nor the accused), and (ii) if the Court
decides to observe or question the child victim, the Court may not allow the
accused but the counsel for accused and the prosecuting agency and one
attorney for the victim will be present.
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Hence, under those Rules, at the preliminary hearing, the accused will
not be physically present though the counsel for accused will be present,
wherever the Court wants to observe or question the child victim. If the
Court decides in the preliminary hearing to use of closed-circuit television,
then under (d), the following procedure had to be followed:

(1) Where the victim is present, the prosecutor, the attorney for accused
and attorney for victim and the operators of the closed-circuit
equipment, and any other person whose presence, according to the
Court, contributes to the well-being of the child, including the
person who dealt with the child in therapeutic setting shall be
present.

(2) In the Courtroom, the Judge, the accused shall be present.

In addition, there would be a two-way audio connection between the

room where the victim and lawyers are stationed and the Courtroom where
the Judge and accused are present.

INDIA:

Closed circuit television procedure at the trial in the Sessions Court:

We have already referred to the in camera examination of the witness

before the Magistrate at the stage of investigation for purpose of deciding
anonymity during investigation. Here the accused is not heard.
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We have also referred to the preliminary inquiry procedure before the

Magistrate during inquiry or before the Sessions Judge before the
commencement of recording of evidence at the regular trial. In these
preliminary inquiries, the accused is separately heard. Therefore, there is
no need to go in for a two-way television or video link procedure.

Such a need, as stated below, arises only at the stage of recording

evidence at the regular trial before the Sessions Judge.

At the trial, if a witness or victim has not sought for anonymity earlier
or had sought and the request was rejected, there is no need for a closed
circuit television or video link procedure. But where the witness or victim
had applied at the stage of inquiry before the Magistrate or before the stage
of recording evidence at trial before the Sessions Court and where those
Courts have granted anonymity, there is need for closed circuit television
procedure to be followed at the trial. The following situations may arise:

(i) There may be a case in which a victim’s identity is known to the

accused and vice-versa,
(ii) There may also be cases where the victim is not known to the
accused such as where an accused fires with his pistol at random.
In such cases, a victim may need anonymity,
(iii) There are cases where the witness’s identity is not known to the
accused and the witness may need identity protection.

It is obvious that a common procedure can be evolved for (ii) and (iii)
where victims as well as witnesses are not known to the accused and a
 126

separate procedure can be prescribed for (i) where victim is known to the
accused.

(i) Victim known to the accused:

So far as cases under (i) are concerned, where a victim is known to

the accused, there is no need to prevent the accused from seeing the victim.
But the witness has to be permitted to give evidence without facing the
accused if he claims trauma. Here, the only need is to prevent trauma for
the victim-witness which he or she will suffer if there is face to face
confrontation with accused and there is no need for victim identity
protection. As we shall discuss presently, even here two-way television or
video link is necessary but is limited to victim deposing without seeing the
accused physically or on the video screen, so as to prevent trauma.

(ii) Victim and witness not known to the accused:

(a) So far as (ii) victims whose identity is not known to the accused are
concerned and so far as (iii) other witnesses whose identity is not known to
the accused, prosecution may seek and that the Court may grant identity
protection after conducting a preliminary hearing. Here the victim or
witness cannot be allowed to be seen by the accused. A two-way television
or video link is necessary for achieving that object.

(b) In the Draft Bill, we propose to define ‘witness’ as including a victim

also, so that the same procedure for securing a ‘identity’ protection order
 127

may be applicable (a) both at the stage of investigation and (b) also at
subsequent stages i.e. inquiry and trial.

(c) It is obvious that a victim who is not known to the accused – such as
where the accused has indiscriminately fired at several persons, and who
fears danger to his life or property or to those of his close relatives is in the
same position of a witness not known to the accused who has similar
apprehensions.

(d) It is equally obvious that where the prosecution or a victim feels that
his or her identity is known to the accused, the prosecution or the victim
will not apply for identity protection and such victims may apply only for an
order that they may not be required to depose in the immediate physical
presence of the accused or they may not even like to see the accused on the
video screen while deposing.

We propose two separate sections in the Draft Bill to deal with (1)
victims and witnesses not known to the accused, who have obtained a
protection order before trial and (2) victims known to the accused who
found no need to obtain any such protection order before trial.

Procedure: (Trial stage):

(i) Victim-witnesses who have not sought identity protection as they are
known to the accused (protection from trauma):
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Where the victim-witness is known to the accused, though the victim

had not sought identity protection earlier, he may, as already stated, not like,
during trial, to suffer from any trauma by deposing to the details of the
crime while physically facing the accused. The mechanism by which this
can be achieved is not difficult to prescribe.

We can have an arrangement where the victim-witness does not,

while deposing, see the accused but the accused is able to see the victim-
witness. This is, however, subject to one exception. The victim must face
the accused at least once for the purpose of identifying the accused as the
person who is guilty of the crime and for that purpose also, the arrangement
can provide a mechanism.

The Supreme Court has, no doubt, made an observation in Sakshi

case that a screen may be erected to preclude the victim seeing the accused.
But, in our view, psychologically, a victim is not free if the accused is in the
same room and they are merely separated by a screen.

In our view, if the victim is in a different room, he or she will be more

free to depose without any trauma. We, therefore, propose a two-way
television or video link coupled with a two-way audio system connecting
two rooms.

We can have a two-way closed-circuit television with a video screen

in each of two different rooms. The victim-witness will be present in a
room and in that room, the prosecutor, the defence lawyer and the technical
personnel who operate the close-circuit television will also be present. The
 129

Judge and the accused, the technical personnel, the courtmaster and
stenographer, will be in the Courtroom.

There will be a video screen in the Courtroom so that the Judge and
the accused can watch the victim-witness, the prosecutor and the defence
lawyer examining the victim-witness. In the other room where the victim
and the two lawyers are present, there can be another screen which will be
used only at the initial stage when the victim has to identify the accused.
After that is done, that video camera in the room where the accused is
stationed, will not be focussed on the accused. While the victim deposes
thereafter in chief or cross-examination, he will not be seeing the accused in
the screen in his room any longer. The defence lawyer sees the victim
directly in his room and can examine his or her demeanour. The Judge and
the accused can see the victim on the screen in their room and watch his or
her demeanour. The courtmaster and the stenographer can also be in the
room where the Judge is sitting.

There will be a two-way audio mechanism by which the persons in

each room can talk to the others in another room.

(ii) & (iii) Victim and witnesses who have sought identity protection:

Where the victim-witness or other witnesses seek identity protection

at the trial, it is necessary to protect their identity at the stage of
investigation, inquiry and before trial – as per the procedure already
candi____ - provided danger to the life or property of such victim or witness
or of their relatives is proved. (We have already stated that there may be
 130

victims – such as those injured in an indiscriminate firing by an accused –

who may not be known to the accused.)

Question is as to the mechanism by which this can be achieved in

cases where identity protection has been granted to witnesses, including
victims who have to finally depose at the trial.

Where victim/witness has been granted identity protection earlier and

he is giving evidence at the trial, it is essential that the accused as well as
the counsel for accused must be precluded from identifying the
victim/witness concerned. But, here too, - in the case of both the victim-
witness or the witness, - who are, in both cases, not known to the accused -,
they may have to first identify the accused as the person guilty of the crime.
Therefore, there must be a two-way closed circuit television with screens in
the room where such victim-witnesses are present and give evidence. Both
the accused and defence lawyer must be in a separate room, in as much as
both of them should not see the victim-witness or witness concerned, who
will be in another room. If such victim-witness or witnesses seeking
protection is in another room and the public prosecutor also is in that room,
there can be allegations of the victim/witness for prosecution being
prompted invisibly by the prosecutor. Therefore, it is advisable that the
Judge also must be in that room wherefrom the victim-witness or witness
deposes.

Thus, the arrangement must be that the victim/witness who seeks

protection of identity, the public prosecutor and the Judge, his courtmaster
and stenographer and the technical personnel will be in the Courtroom while
 131

the accused and the defence lawyer will be in another room. There will be
a video-screen in each room. The camera in the room of the
victim/witness, Prosecutor and Judge will not be focussed on the
victim/witness whose identity is to be kept confidential. It will be
focussed on the Judge and the prosecutor who are in the Courtroom. The
Judge and the prosecutor over whom the camera is focussed will be seen on
the screen which is kept in the room of the accused and the defence lawyer.

There will have to be a two-way audio system also connecting both

rooms.

We are providing these procedures in Schedule 1 and Schedule 2 of

the proposed Bill.

The courtmaster, the stenographer and the technical personnel must

take an oath that they will not disclose the identity of the witness-victim
(who has earlier obtained protection order) who is giving evidence at the
trial. Breach of the oath can be visited by proceedings for contempt of
court, in accordance with law.
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Chapter X

Consideration of Responses to the Questionnaire and Recommendations

on the Question of Witness Anonymity

It will be seen that most of the questions contained in the

Questionnaire in Chapter VIII of the Consultation Paper have been
answered in sufficient detail in the preceding Chapters V to IX of this
Report. It is, however, necessary to summarise the answers to the questions
in the form of our recommendations. The questions posed in Chapter VIII
of the Consultation Paper will now be answered seriatum. (As we are
proposing witness anonymity only in relation to offences triable by Courts
of Session, the undermentioned discussion will be understood in that sense.)

(1) Should witness anonymity be maintained in all three stages of

investigation, inquiry, trial and even at the stage of appeal in a criminal
case?

(i) So far as the stage of “investigation” is concerned, we think that a

provision is necessary to deal with witness anonymity at that stage. As
stated in Chapters VII and VIII, it may be that the Police may consider that
witness anonymity is necessary in certain cases during investigation.
Therefore, whether it is at the stage of recording of statements under sec.
161 or sec. 164 or forwarding copies given under sec. 164(6), or when
chargesheet and documents are filed under sec. 173 and copies thereof are
supplied under sections 207 and 208, it is necessary to have provision to
enable the Police to move the concerned Magistrate through the public
prosecutor, seeking anonymity in respect of the witness concerned.
 133

Witnesses will, if the Magistrate grants an identity protection order, be

described by a pseudonym or by a letter in the English alphabet, though the
real identity will be disclosed to the Magistrate.

(ii) We are also of the view, as stated in Chapter VIII, that there must be
provisions permitting anonymity to witnesses at the stage of inquiry.
Witnesses will be described by letters from English alphabets. If an order of
anonymity is granted, it will enure during inquiry and extend to the trial
upto conviction or acquittal and beyond.

(iii) We are also of the view that there must be witness identity protection
just before the stage of the Sessions trial i.e. before recording evidence of
witnesses at the trial, so that protection is available to witnesses in respect
of whom no orders were sought or passed during the earlier stages of
investigation or inquiry. The witnesses will again have to be described by
pseudonym or English alphabets. We are of the view that, at the trial and
after the trial, in the judgment of the Sessions Court, the anonymity must be
reflected and continued.

(iv) After the judgment in the Sessions Court too, the anonymity must be
continued in all appellate proceedings. Even in and after the judgment of
the High Court or Supreme Court, as the came may be, the pseudonym or
alphabet alone has to be mentioned. Even in the law reports or newspaper
publications, the pseudonym or alphabet alone must be used.

We recommend that witness anonymity must be maintained at all the

stages, investigation, inquiry, trial and even at the appeal and thereafter also.
 134

(2) Question is whether anonymity must be confined to criminal

cases or should also be extended to civil cases as well? Should it be
extended to defence witnesses also as done under the statutes in some
other countries?

In our view, anonymity, for the present be confined to criminal cases

only and to prosecution witnesses, where it is more needed. No doubt there
are anonymity procedures even for defence witnesses also in some countries
such as in sec. 13B(2) of the New Zealand Evidence Act, 1908 as amended
in 1997 (see the Annexure to the Consultation Paper).

But, for the present, we are of the view that anonymity procedure be
confined to prosecution witnesses in criminal cases.

(3) The question is whether the anonymity provisions which were till
recently confined to TADA and POTA (terrorist cases) and now to
trials under the Unlawful Activities Act, 1967 (as amended in 2004)
should be extended to trials of all other serious offences triable by
Sessions Courts (or Court equivalent thereto) provided the conditions
required for granting anonymity are satisfied?

We have dealt with this aspect elaborately in Chapter V of this

Report. In our view, in all cases triable by Courts of Session and Courts of
equal designation or Special Courts, wherever there is proof of danger to the
life or property of the witness or of his or her relatives, witness protection
must be available. It is not necessary that witness protection be confined
only to cases of terrorism and sexual offences.

While the class of cases where anonymity will be given will be those
triable by Courts of Sessions, it will be a matter for decision in each case,
 135

having regard to the nature of the offence and the facts of the case. Even in
the case of an individual trial, it has to be extended only to prosecution
witnesses in respect of whom there is adequate proof of danger to the life or
property of the witnesses or of their close relatives. In other words, the
case of each prosecution witness in respect of whom application is made,
has to be separately taken up and decided. In fact, it is witness specific in
all cases triable by Courts of Session.

The witness identity protection is a must in all cases triable by

Sessions Court where there is danger to the witnesses to his properties or to
whose of his close relatives. So far other cases are concerned, we further
recommend that after the experience in cases triable by Sessions Courts, the
Government may consider extending the procedure to other cases as well by
appropriate statutory provisions.

(4) The question is whether the existing safeguards for protection of

victims of sexual offences and child abuse – such as in camera
proceedings and ban on publishing any material relating to such
proceeding while under sec. 327 of the Code of Criminal
Procedure, 1973 are sufficient and whether we would suggest any
more measures.

This aspect has been elaborated in Chapter III. We have shown that
when the 172nd Report was submitted upon a reference by the Supreme
Court in Sakshi case, it was urged before the Law Commission that in
addition to the above, - screening of victim, close-circuit television, listing
of questions to be answered by the victim should be brought into the statute.
 136

But in the 172nd Report, the method of ‘screening’ the victim was
alone recommended.

After the Report was placed before the Supreme Court, in the
judgment in Sakshi 2004 (6) SCALE 15, the Supreme Court accepted not
only “screening” but also “video-conference” procedure and suggested that
a list of questions can be prepared and given to the Court to be put to the
victim or witnesses. But, in the ultimate directions, however, the Court
merely directed ‘screening’ or ‘some such arrangement’, obviously referring
to video-conferencing procedure.

In our view, the procedures referred to in the question are not

sufficient and in addition to the existing provisions concerning victims of
sexual offences including children, the procedure of using “two-way
closed-circuit television or video-link” and ‘two-way audio link’ must also
be introduced. These provisions should apply to victims and also witnesses
who seek identity protection. It must also apply to victims who have not
applied for identity protection but have requested that they may be
permitted to depose not in the immediate presence of the accused on the
ground of trauma.

This is provided in sec 12 of the Draft Bill.

(5) Question is whether it would be sufficient if the Commissioner of

Police or Superintendent of Police seeks anonymity on behalf of
the witness by certifying danger to the life and property of the
witness or his relatives or should it be for the Judge to decide, on
the basis of evidence placed before him, that the life or property
of the witness or relatives is in danger.
 137

As stated in para 7.1 of the Consultation Paper, in Australia, the

Commissioner of Police certifies and there is a similar procedure in
Victoria, National Capital Territory, Queensland. In fact, sec. 21F of the
Evidence (Witness Anonymity) Amendment Act, 2000 mentions the ‘Effect
of Witness Anonymity Certificate’. Upon such a certificate, the witness
gets anonymity.

We shall refer to the procedure in New Zealand and some case law in
this behalf.

In the New Zealand Evidence Act, 1908 (as amended in 1997) sec.
13B(3) reads as follows:

“13B(3): The Judge must hear and determine the application in

chambers, and –
(a) The Judge must give each party an opportunity to be heard on the
application; and
(b) Neither the party supporting the application nor the witness need
disclose any information that might disclose the witness’s identity
to any person (other than the Judge) before the application is dealt
with.”

Evidence may relate to previous conduct of the accused against other

witnesses in some other cases. Evidence may be about his conduct towards
this very witness. Evidence may be about the fact that the accused is
powerful and is part of a mafia.
 138

If the Judge has to decide on certain facts and circumstances about

the danger to the life or property of the witness or of his relatives which are
not disclosed to the accused, it cannot be said that there is no fair trial. As
stated in Scott v. Scott 1913 AC 417, there can be other overriding
principles relating to administration of justice such asgiving assurance to
witnesses that they can depose without fear, – which require some
relaxation of the rule of open trial. In R v. Atkins: 2000 (2) NZLR 46
(CA), the NZ Court of Appeal observed (see para 6.4.8 of the Consultation
Paper):

“We are mindful of the fact that the matters deposed to, have not been
tested by cross-examination and that there has been no opportunity to
present contradictory evidence in respect of the non-disclosed
assertions. But, in applications of this nature, the Court will
necessarily be called upon to consider untested evidence, and to
evaluate evidence some of which could be classed as hearsay. We
accept Mr. Calver’s submission that in such an exercise, care must be
taken in making the evaluation and in drawing conclusions, and is to
be exceptional. But we do not accept the proposition that unless the
evidence was sufficient to warrant prosecution for a normal offence,
it should not be acted upon. The weight to be given to any particular
assertion will depend upon many differing factors, including source,
reliability and the existence or absence of supporting material. This
aspect is dealt with admirably on a sec. 13C application in R v.
Dunnil: 1998 (2) NZLR 341.
 139

…. The starting point must be the legislation’s recognition that

ensuring the anonymity of witness does not necessarily negate the
concept of a fair trial.”

The Court in Atkins pointed out that sec. 13C(6) does not expressly
prohibit questions other than those which can properly be said are likely to
lead to identification of the witness – that there is a real or substantial risk
of that resulting (in identification). Secondly, the trial Judge has a residual
power to allow such questions, which power would be exercised having
regard to all the circumstances including the relative substantiality of the
risk and the importance of the question. These are very much matters
under judicial control at trial.

But, in our view, in India, it will be necessary for the Court to require
the passing of an order granting ‘anonymity’ to the witness in regard to
whom the prosecution wants anonymity, whether at the stage of
investigation, inquiry or trial. The subjective satisfaction of the
Commissioner of Police or of the senior Police Officer is not sufficient. It
is a matter for a judicial order by a Court and not a matter for a police
authority to pass an administrative order. Not only is the certificate not
sufficient but it will lead to complex problems and it may also result in the
police officer’s certificate being challenged in parallel proceedings under
Art. 226 of the Constitution of India and this will delay the proceedings.

We, therefore, recommend that wherever anonymity is sought by the

prosecution in respect of anonymity, the certificate by the Police
Commissioner or other senior police officer is not sufficient. The matter
 140

requires an order of the Court by way of a judicial order. However, such

certificate may be a piece of evidence which the Court shall have to
consider while deciding whether to grant anonymity or not.

(6) Should there be a preliminary inquiry by the Judge/Magistrate?

In such preliminary inquiry, should the identity of the witness be
kept secret? Should the accused or his lawyer be heard or should
it be an ex parte inquiry? Should the inquiry be in camera?

We have discussed these aspects in detail in Chapter VII.

In our view, there should be a preliminary inquiry before the

Magistrate for purposes of deciding the issue whether anonymity is
necessary. At the stage of investigation, an application can be moved by the
Police that in respect of the particular witness anonymity is necessary while
recording statements under sec. 161 or sec. 164 of the Code of Criminal
Procedure. A decision here will enure only for the period upto the filing of
chargesheet.

Again, before the starting of the inquiry before the Magistrate, there
should be an enabling provision for preliminary inquiry if anonymity is
required for same witness or other witnesses for purposes of inquiry and
trial and if granted, such orders will enure beyond the judgment of the
Sessions Court and for purposes of appeal or revision and thereafter.

There should also be a provision for grant of anonymity before the

Court of Session before it actually starts recording evidence at the trial, if
anonymity is necessary in respect of some fresh witnesses or in respect of
 141

witnesses for whom anonymity was not sought earlier or was refused. Here
a preliminary order will have to be passed in respect of such witnesses by
the Sessions Court before recording evidence relating to the trial. The
anonymity granted by the Session Court must continue till trial is completed
and thereafter also.

At the stage of inquiry and trial, such application can be filed by the
prosecutor or even by the witness. At the stage of investigation, only the
police can file such application.

In all these preliminary inquiries, the identity of the witness will have
to be kept secret and the prosecution must place the necessary material
before the Magistrate or Sessions Judge as to why there should be an
anonymity order.

The Police may file the certificate of a senior police officer of the
rank of Commissioner or District Superintendent of Police and in addition
place other material before the Court.

In the preliminary inquiry during investigation, it is not necessary to

hear the suspect. The Magistrate may personally question and examine the
witness in his chambers in the presence of the prosecutor.

In the preliminary inquiry by the Magistrate during inquiry or by the

Sessions Judge before recording evidence at the trial, they shall hear the
defence lawyer or the accused separately on the question without divulging
facts which may enable the defence lawyer or accused to know about the
 142

identity of the witness. It is necessary to give an opportunity to the defence

lawyer/accused by hearing them separately in cases where anonymity is
claimed for witnesses during inquiry and before recording evidence at the
trial.

The proceedings before the Magistrate/Sessions Court must be in

camera.

In the above preliminary inquiries by the Magistrate or Judge, as

already stated, there is no need to use the closed circuit television or video
link methods. Such a procedure we are recommending only for
examination of protected witnesses or victims when they depose at the stage
of trial in Sessions Court.

Thus, there should be a preliminary inquiry by the Magistrate or Sessions

Judge. In such preliminary inquiry, the identity of the witness has to be kept
secret and the accused or his lawyer can be heard separately. The inquiry
will be in camera. But at the stage of investigation, in any such preliminary
inquiry, the accused need not be heard.

(7) In the application for granting anonymity before the Magistrate

or Court of Session, - should the Judge be satisfied that the life or
property of the witness or his relation “is” in serious danger or is
it sufficient to show that there is ‘likelihood’ of such danger? Is
the mere ipse dixit of the witness sufficient?

It is obvious that it is neither necessary nor is it possible for the

prosecution to prove that life or property of himself or his relatives “is”
 143

actually in danger. All that is possible for the prosecution is to prove that
there is ‘likelihood’ of such danger, having regard to either previous
attempts of the accused or his associates or having regard to the incidents
with which the accused or his associates are notoriously involved etc.

The meaning of the words ‘likely’ used in sec. 13C(4)(a) of the New
Zealand statute has been discussed in para 6.4.7 of the Consultation Paper.
The Court in Atkins (see para 6.4.8 of the Consultation Paper) referred to
the meaning of the word ‘likely’ given in other cases. It observed:

“In its context, the word ‘likely’ bears a common meaning – a real
risk that the event may happen – a distinct or significant possibility.
As Cook P observed in Commissioner of Police v. Ombudsman: 1988
(1) NZLR 385 (391) in construing the Official Information Act, 1982
which protected information ‘likely to produce a fair trial’: to require
a threat to be established as more likely to eventuate than not, would
be unreal. It must be enough if there is a serious or real and
substantial risk to a protected interest, a risk that might well
eventuate. This Court has given ‘likely’ that sense in a line of
criminal cases, a recent example of which is R v. Piri (1987) (1)
NZLR 66. It is a test familiar in other branches of the law also (see
for instance the House of Lords case R v. Secretary of State for the
Home Department, ex parte Sivakumaran, 1988 (1) All ER 193)…..
… It is the existence, in a real sense, of danger to safety (or serious
danger) which can, not will, give rise to an order. What is being
considered is a threshold, one which is directed to persons who, as
part of their civil duty, are being required to take part in the Court
 144

process, and their personal safety, or the well-being of their property,

which may be affected by reason of their participation……..
… This approach is consistent with that adopted by the English
Court of Appeal in R v. Lord Saville of Newdigate: 1999 (4) All ER
860…. Lord Woolf MR, giving the judgment for the Court said that
the issue was not to be determined by the onus of proof, and approved
the dictum of Lord Diplock in Fernandez v. Government of Singapore
1971 (2) All ER 691….. Prejudice involving a risk of inappropriate
trial or punishment was there at issue. Lord Diplock said at p. 647:
“My Lords, bearing in mind, the relative gravity of the consequences
of the Court’s expectation being falsified in one way or in the other, I
do not think that the test of applicability of para (c) is that the Court
must be satisfied that it is more likely than not that the figutive will
be detained or restricted if he is returned. A lesser degree of
likelihood is in my view, sufficient; and I would not quarrel with the
way in which the test was stated by the magistrate or with the
alternative way in which it was expressed by the Divisional Court “A
reasonable chance” or ‘substantial ground for thinking’ or ‘a serious
possibility’.”

That is also our view as to the meaning of the word ‘likelihood’ of danger.

The ipse dixit of the witness about danger to himself or to his

relatives or to their property can be accepted only if the Court finds the
material produced by the prosecution or the evidence of the witness
‘reliable’. In Maryland v. Craig: (1990) 497 US 836 the US Supreme Court
said that the reliability of the testimony is to be judged. Sec. 13C(4) of the
 145

New Zealand Evidence Act, 1908 (as amended in 1997) requires in Cl.(b)
that the Court must be satisfied, in the case of anonymity of defence
witnesses, that (i) there is no reason to believe that the witness has a motive
or tendency to be untruthful having regard (where applicable) to the
witness’s previous conviction or the witness’s relationship with the accused
or any associate of the accused; or (ii) the witness’s credibility can be tested
properly without the disclosure of the witnesses’ identity.

Further, 13C(5)(f) requires the Judge to consider ‘whether there is

other evidence which corroborates the witness’s evidence’.

Likewise, sec. 17 of the Portuguese Act (see para 6.9 of the

Consultation Paper), subclause (c) refers to the credibility of the witness
being beyond reasonable doubt.

We are proposing a definition of ‘threatened witness’ which includes

victims who seek anonymity orders and we have used the word ‘likelihood’
of danger to the life or property of the witness or of his close relatives in
that definition. We have also proposed a definition of ‘close relatives’.

Therefore, we recommend that there need be no proof of actual

‘danger’ to the life of the witness or his relatives or their property but proof
of ‘likelihood’ is sufficient. The material or evidence placed for the
purpose must be reliable.

(8) The question is whether the complainant (in the case of a private
complaint) or the prosecution should file an application before
the Magistrate seeking non-disclosure of identity of the witness,
 146

before the stage of sec. 207, 208 of the Code of Criminal

Procedure, 1973.

As discussed in Chapter VII, the stage at which anonymity may be

claimed during investigation is the stage when sec. 161 or sec. 164(6)
statements are recorded. Anonymity may also be claimed before copies of
documents are issued to the accused under ss 207, 208.

(9) What should be the consequence of an anonymity order passed

during the stage of investigation or inquiry? Should the identity
and address of the witness be directed to be not reflected in the
documents to be given to the accused and should the original
documents be kept in safe custody? Should it direct that the
Court proceedings (before actual trial) not also reflect the
identity?

(A) At the stage of investigation/inquiry, if the Magistrate comes to the

conclusion that witness anonymity order has to be passed, he shall have to
direct that in all documents which contain references to identity, including
the 161 statements or sec. 164 statements, the chargesheet of which a copy
has to be given to the accused, the name and address and other information
that may lead to the identification of the witness should not be reflected.

In the POTA (which has since been repealed in 2004 and which
provisions have been brought into sec. 44 of the Unlawful Activities
(Prevention) Act, 1967) it was stated in sec. 30(3)(b) and (c) that the Special
Court may direct as follows:
 147

“(b) the avoiding of the mention of the names and addresses of the
witnesses in its orders or judgments or in any records accurible to the
public;
(c) the issuing of any directions for securing that the identity and
address of the witnesses are not disclosed;
(d) … … …”

For example, Rule 75 of the Rules of the Trial Chamber International

Criminal Tribunal for former Yugoslavia (ICTY) requires in clause (B)(a)
the

“(a) expunging names and identifying information from the

Chamber’s public records;
(b) non-disclosure to the public of any records identifying the
victim;
(c) … … …
(d) assignment of a pseudonym.

Such a procedure must be followed. We do not find any such rule in

the New Zealand Evidence Act, 1908 as amended in 1997. The above
provision of ICTY must, therefore, be incorporated.

(B) Likewise, when an application claiming anonymity is filed before the

trial, similar provisions are necessary.

We recommend that as a consequence of the anonymity order, the

identity and address should not be reflected in the document to be given to
 148

the accused and the original documents should be kept in safe custody. The
above details should not be reflected in the Court proceedings also.

We have, in fact, made provisions in this behalf in sections 6, 10, 12

of the Draft Bill annexed hereto.

(10) At the trial, if the Judge is satisfied about the danger to the
witness, should the recording of statement of the witness be made
in such a manner that the witness and the accused do not see each
other and the Judge, the prosecutor and the defence counsel alone
see him (using two cameras)? Should the witness who is shown on
the video-screen be visible only to the Judge, prosecutor and the
defence counsel? Should the taking of photographs in Court by
others be banned?

(11) In the above context, should the witness depose from a different
room or different place, and should there be another judicial
officer in that room to ensure that the witness is free while giving
his evidence?

So far as question 10 is concerned, as already stated, there are again

two types of cases (1) where victim is known to the accused who does not
want identity protection but only does not want to face the accused
physically; and (2) where victim and witnesses are not known to the accused
and want an identity protection order. Hence, separate procedures must be
adopted in such cases as stated in detail in Chapter IX.

Question 11 deals with the aspect as to who will be present in the

room from where the witness is deposing.
 149

In Chapter IX, we have separately detailed the procedure as to how

two-way closed circuit television should be used in the case of victim-
witness known to the accused and to the cases of victims and witnesses not
known to the accused.

We recommend two-way close circuit television or video link along

with two way audio link procedure as indicated in detail in Chapter IX and
these are contained in the Draft Bill in sec. 12 read with Schedule I and sec.
13 read with Schedule II, the former covering threatened witnesses and
victims who have been granted anonymity and the latter covering victims
who are known to the accused and who merely want that they should not
face the accused physically while deposing.

(12) Extract from page 51

So far as the victim-witness known to the accused is concerned, who

gives evidence from a different room through closed-circuit television is
concerned, there is no need to exclude the public or media inasmuch there is
no question of witness anonymity involved. The accused knows the victim.
Of course in the case of sexual offences sec. 327 requires in camera hearing
and in the case of juveniles, the statute require in camera proceedings.
Barring such cases where the victim is known to the accused, it is not
necessary to exclude the public or the media.

We recommend, in the case of victims/witnesses not known to the

accused, in as much as question of witness identity is involved, it is
necessary to exclude the public and media from both the witness-room as
 150

well as the Courtroom. Such exclusion in the interests of administration of

justice and preserving the privacy of witnesses and protecting them from
danger to their life or property, will be valid and not hit by Art. 14 or Art. 19
(1) of the Constitution of India. In case of victims not known to the
accused, it is not necessary to exclude the public or the media.

Such exclusion is provided in sec. 12(3) of the Draft Bill dealing with
evidence at trial of witnesses and victims who are granted anonymity.
There is no need for such a provision in sec. 13 which deals with evidence
at trial.

(13) Copy from page 52.

Several statutes in other countries (see for example the New Zealand
statute referred to in the Consultation Paper) provide for appointment of an
amicus.

But, in our view, there is no need to allow a separate counsel or

amicus curiae.

(14) Copy from page 53.

In the case of victim/witness not known to the accused, we have

stated in Chapter IX that the camera will not be focussed on such persons
and hence there is no need for distorting the image. So far as the voice is
concerned, it may be distorted by an audio-device.
 151

This is provided at the trial stage in sec. 12 of the Draft Bill so far as
witnesses and victims who have a protection order in their favour.

We recommend accordingly.

(15) Copy from page 54

This aspect has been discussed earlier. In the judgment of the

Supreme Court in Kartar Singh’s case 1994 (3) SCC 569 (para 290) it was
stated that as suggested by the Full Bench of the Punjab and Haryana High
Court in Bimal Kaur’s case (AIR 1998 P&H 95) (FB)

‘the identity, names and addresses of the witnesses may be disclosed

before the trial commences’

In the Canadian case in R v. Khela: 1995 (4) SCR 201 (see para 6.5.2
of the Consultation Paper) also, it was suggested that the identity of the
approver be revealed to the accused ‘just before the trial’.

But, as stated earlier, such a procedure is not generally accepted in

other countries. There is good reason for not doing so because it is common
that trial is not completed in one day, not even the evidence of a protected
witness may be completed in a day.

Further, it is, in our view, necessary that the identity should be kept
confidential, throughout, and after judgment and in further proceedings.
 152

It is so provided in the Draft Bill in sec. 10.

We recommend that it is not sufficient to reveal the identity of

witnesses just before commencement of the trial. The confidentiality must
be maintained even during the trial also and later.

(16) copy from page 55

This question refers to the procedure at the trial.

In this final Report, we have suggested that at the stage of preliminary

inquiry during Investigation, accused need not be heard; and at the stage of
preliminary Inquiry during inquiry and before recording evidence at the
Trial, the accused is to be heard separately. We have provided in sec. 9(4)
that in the latter type of situations, a list of questions can be given by or on
behalf of the accused but not those which may lead to the identity of the
witness.

In our view, it is not an effective alternative to closed-circuit TV with

audio facility added. In the closed circuit TV, there is a semblance of a
regular hearing though identity is not disclosed. Further the great advantage
is that the defence lawyer can put further questions which arise out of the
answers given by the witnesses. If a list of questions alone is given to the
witness, the defence lawyer is confined to those questions and cannot put
any further questions arising out of the answers of the witness.
 153

There is no question of furnishing a list of questions at the regular

trial. The two-way television or video link procedure will be followed and
under that procedure, questions can be put via audio and video.

We, therefore, prefer to two-way closed-circuit television with two-

way audio facility rather than the procedure of listed questions.

(17) copy from page 57

On the question, all the respondents answered in favour of granting

fresh opportunity.

In our view, it should be permissible to the same witness to apply

again if he or she has either not applied earlier or such application has been
refused.

(18) copy from page 58

The question, as posed, arises at the trial. The responses in this

behalf were divided, some in favour of permitting such a contention, some
against it and some stating that it may depend upon circumstances and
burden must be placed on the accused.

From a practical point of view, though the accused may contend that
the witness is a stock witness, he shall have to substantiate the contention by
material or circumstances which do not identify the witness. Thus, though
 154

it is technically permissible to raise such a contention, it appears to impose a

very heavy burden on the accused.

This can be best left to be decided by the Judge and hence no separate
provision in the Bill is necessary.

(19) copy from page 60

The majority of the responses were that the technical staff must be
employees of the judicial branch.

We have made provision in this behalf in Schedule I and Schedule II

of the Bill where, while describing these technical persons, we have
described them as employees of the court.

(20) copy from page 60

We have confined the use of the two-way television or video link and
audio systems to the actual trial in the Courts of Session or equivalent
Courts or Special Courts. Even so, we are of the view that it may not be
necessary to provide the systems for each Sessions Court. This aspect can
be left to the High Court while making Rules under sec. 16 as to the places
where the infrastructure in this behalf may be provided.

(21) copy from page 61

 155

24 respondents stated that the anonymity order be passed only by

Sessions Courts while 15 stated they may be passed even by Magistrates.
Some suggested an independent agency.

We recommend that during Investigation, the orders will be passed by

Magistrates in a preliminary inquiry and this suits local convenience also.
At the stage of Inquiry, it will be again be in a preliminary inquiry by
Magistrates. But where application is filed before recording of evidence at
the Trial, the application will be filed before the Sessions Court and will
have to be decided before the recording of the regular evidence of the trial
commences.

(22) copy from page 62

A majority of respondents favoured appeal to High court and a time

frame of one month.

We recommend that so far as an order by the Magistrate at the stage

of investigation is concerned (see sec. 6 of the Draft Bill), there need be no
appeal by the prosecution or the witness if the application is refused by the
Magistrate because an appeal can delay the investigation which is time
bound.

There is no question of the suspect filing any appeal against an order

under sec. 6.
 156

But, so far as an order in a preliminary inquiry during Inquiry

proceedings passed by the Magistrate or by the Sessions Judge before
commencement of recording evidence, it is necessary to provide an appeal –
whether the application is granted or refused. The appeal must be to the
High Court against an order granting anonymity or refuses anonymity and
the time frame must, as far as possible, be one month from the date of
service of notice on the respondents in the appeal.
 157

Part II

WITNESS PROTECTION PROGRAMMES

Chapter XI

The Consultation Paper and Responses:

The Consultation Paper was published in August 2004 and it invited

responses from various quarters. Part III and IV of the said Paper dealt with
Witness Protection Programmes. Each of these Parts contained a single
chapter. Chapter VII in Part III dealt with the details of programmes in
force in Australia, South Africa, Canada, United States of America,
Philippines, Hong Kong and also in Portugal, France, Czechoslovakia,
Republic of Korea, Japan, Netherlands, Germany and Italy. Chapter VIII in
Part IV contained the Questionnaire both in relation to Witness-Identity
Protection and Witness Protection Programmes, separately. There were 14
questions on this subject of Witness Protection Programmes in Chapter
VIII. At the end of the Consultation Paper, the rules relating to the
programmes in Portugal were appended as a model.

Forty responses to the Consultation Paper on this subject supported

the need for Witness Protection Programmes in our country. Among the 40,
there were 10 from State Governments, 10 from Senior Police Officials, 3
from Judges, 17 from lawyers, Jurists and others.

We do not propose to repeat, in this final Report, all the literature

containing Witness Protection Programmes to which we have referred in
 158

Chapter VII of the Consultation Paper. We shall, however, try to summarise

the basic features common to the various programmes in other countries.

Basic features of Witness Protection Programmes in other countries

At present, we do not have any Witness Protection Programmes in

our country which deal with the protection to victims and witnesses, outside
Court proceedings.

From the various programmes in force in several countries, as

referred in the Consultation Paper, certain basic features can be gathered.
They are as follows:

(1) There is a determination, initially, either by a Senior Police Officer

or by a Court that a victim witness or other witnesses requires
protection (i.e. protection outside Court);

(2) The protection is generally granted in the case of witnesses who

have to depose in trials relating to ‘serious’ crimes.

(3) The protection is granted at the stage of investigation, and is

continued thereafter till the trial is completed;

(4) The State/Police in charge of protection programmes and the

victim-witness or other witnesses have to enter into an MOU
which specifies the mutual obligations of both sides;

(5) Among the types of protection, the most important are those
relating to (a) giving the witness a ‘new identity’ and/or (b)
relocation in a different place;
 159

(6) As a consequence of the MOU, the witness agrees to give

evidence as required in the proceedings while the State has to bear
the expenses of relocation, custody and maintenance of children,
tax obligations of the victim-witnesses or other witnesses;

(7) The witness may be granted accommodation in the Court or police

premises subject to surveillance and security;

(8) Protection may be extended in addition to physical protection of

relatives;

(9) There can be change in the physiognomy or the body of the

protected person;

(10) No person is allowed to disclose the name of the witness admitted

to the programme or of his identity in any manner whatsoever, nor
draw any picture, illustration or painting or photograph, pamphlet,
poster etc. of the witness;

(11) (a) In respect of other civil proceedings to which a protected

person is a party or in which he is a witness, if it appears to a
Superior Court that if the protected person is to file or defend a
civil case or be a witness therein, his safety is likely to be
endangered when he initiates, defends or continues the civil
proceedings, the Court may make an appropriate order with regard
to allowing him to file the case, defend or continue it under his
new identity or the Court may stay the proceedings. The purpose
of the stay order is to prevent disclosure of the new identity or
relocation of the said protected person. The Court may take steps
to ensure on the one hand that the rights or obligations of the
 160

protected person are not unduly restricted while on the other hand,
it may direct his identity or relocation be kept secret;

(b) If the protected person has to file a criminal case, he may do

so under his new identity and such stay thereof. If he is an
accused or a witness in a criminal case, after disclosing his real
identity to the Court, the proceeding has to be stayed.

(12) The identity and relocation will not be published in any Court
proceedings or documents nor given publicity outside court or in
the media;

(13) Breach of MOU by the prosecution witness would enable the State
to terminate the MOU.

These are the general features contained in the witness protection

programmes of various countries.

The question is as to the procedure to be followed in our country in

respect of witness protection programmes.

In the next chapter (Chapter XII), we shall set out the responses to the
Questionnaire contained in the Consultation Paper, in relation to Witness
Protection Programmes.

In the chapter thereafter (Chapter XIII), we shall consider the

responses and give our recommendations.
 161

Chapter XII

Analysis of responses to Questionnaire

WITNESS PROTECTION PROGRAMME

(Q.) 1. Do you support the view that a Witness Protection Programme should
be established to protect the safety, welfare and the interests of the
witnesses? Such Programmes are already in existence in various
countries like Australia, Canada, South Africa, Portugal, Netherlands,
Philippines, New Zealand.

In order to protect the safety, welfare and interests of the witnesses, many
countries, for example, Australia, Canada, South Africa, Portugal, Netherlands,
Philippines, and New Zealand are having Witness Protection Programmes. Now
question is, whether such kind of Witness Protection Programmes should be
established in India, so that safety and interests of the witness and his family may
be ensured?

Most of the respondents (40 out of 42) have supported the view that in India
also a Witness Protection Programme should be established. Among the 40
respondents who have supported the view, 10 are from the State Governments, 10
are from the senior Police Officials, 3 are from Judges and 17 from others. The
State Government of Punjab though supported the view that such a Programme
should be established, but has stated that benefit of it should be given in very rare
cases. The State Government of Tripura has expressed their view that as the
implementation of such a Protection Programme will involve a lot of expenditure,
 162

it should be funded entirely by the Central Government. An Advocate from Tamil

Nadu has opined that though Witness Protection Programme is essential but we
can not copy the Programmes in this regard existing in other countries if
implemented in our country, there will be chaos and it will be bad to our society.

Only 2 respondents are not in favour of having such kind of Witness

Protection Programe. D.I.G. Police, from Police H.Q. (Crime Investigation Dept.)
Madhya Pradesh, has stated that instead of the Programme, general security
should be strengthened by making preventive action more effectively. Shri Vepa
P. Sarathi has opined that witnesses should certainly be protected, but the
programmes possible in the various countries will not work in India.

(Q.)2 Apart from the change of identity, should other measures for the
protection of witnesses be also provided. For example,
(a) mention in the proceeding of an address different from one he uses or
which does not coincide with the domicile location provided by the civil
law;
(b) being granted a transportation in a State vehicle for purposes of
intervention in the procedural act;
(c) being granted a room, eventually put under surveillance and security
located in the court or the police premises;
(d) benefiting from police protection extended to his relatives or other
persons in close contact with him;
(e) benefiting from inmate regimen which allow him to remain isolated from
others and to be transported in a separate vehicle;
(f) delivery of documents officially issued;
(g) changes in the physiognomy or the body of the beneficiary;
 163

(h) granting of a new place to live in the country or abroad, for a period to
be determined;
(i) free transportation of the beneficiary, his close relatives and the
respective property, to the new place of living;
(j) implementation of conditions for the obtaining of means of maintenance;
(k) granting of a survival allowance for a specific period of time.

Apart from the change of identity, there are many other measures, which
may be provided in the Witness Protection Programme. These measures (eleven in
number) are mentioned in the question. Now question is, whether all or any of
these measures should be included in our Witness Protection Programme?

Most of the respondents (39 out of 41) have opined that apart from the
change of identity, other measures should also be included in Witness Protection
Programme. Among these 39 respondents (10 State Governments, 9 Police
Officers, 3 Judges and 17 others) 27 are of the view that all 11 measures (a to k)
suggested in the question should be included in the Programme, while 12
respondents are of the view that some of these measures be included.

Justice Ch. S.R.K. Prasad, Judge, A.P. High Court has opined that all these
things can be provided at the State expenses, but it should be extended to grave
offences only, which are punishable with 10 years imprisonment or more.

The State Government of Jharkhand is not in favour of extending benefit of

changes in physiognomy or the body of beneficiary.
 164

The State Government of Punjab has suggested that whenever an order for
witness protection by changing his place of residence or facial identity of the
witness is made, then it has to be ensured first, that such person does nor have any
civil or criminal litigation. If there is any such matter, then some how it be
disposed off before such protection is given otherwise whole purpose shall be
frustrated.

Special Commissioner of Police, New Delhi has suggested that these

suggested measures requires big infrastructure to implement them. These
infrastructures should be in place before we go for it.

Punjab State Law Commission is of the view that ordinarily change of

identity may be sufficient for the protection of witness but in a given case, the
court may provide any of the protection enumerated in the question, depending
upon the facts and circumstances of each case.

Shri Venkat Bedre, Advocate and Member Maharashtra State Law

Commission has opined that all these schemes are too expensive, therefore, it is to
be provided only in organized crimes against the State or society.

I.G. Police H.Q. of Assam is of the view that only change of identity is
sufficient.

Shri Vepa P. Sarathi has stated that every one of the suggestions is
impractical in our country.
 165

(Q.)3 Who among the following should be made in-charge of the

implementation of the entire Witness Protection Programme:
(a) Judicial Officer (b) Police Officer (c) Government
Department (d) Autonomous body.

Here question is who should be made in-charge of the entire Witness

Protection Programme? Whether he should be a judicial officer or police officer or
it should be implemented by a Government Department or by an autonomous
body?

There is no unanimity amongst the respondents on this issue. However,

majority (15 in number) are in favour that Judicial Officer should be made in-
charge of this Witness Protection Programme. Among these 15 respondents, 4 are
Police Officials, 1 from a State Government, 1 from a High Court Judge, and 9 are
from others.

11 respondents (6 State Governments, 2 Police Officers and 3 others) are of

the view that Government Department be made in-charge of this Programme.

8 respondents (2 Police Officers, 1 State Government, 1 High Court Judge

and 4 others) are in favour that an Autonomous Body should be made in-charge of
Witness Protection Programme.

Only 6 respondents (2 State Governments, 3 Police Officers, and 1 Judge of

a subordinate court) have opined that a Police Officer be made in-charge of the
Programme.
 166

(Q.)4. Should apart from prosecution witness, a defence witness be also

eligible to be admitted into the Witness Protection Programm, if danger
to his life or property exists due to his being a witness?

So far as a prosecution witness is concerned, he is certainly eligible to be

admitted into the Witness Protection Programme, if danger to his life or property
exists due to his being such a witness. But, here question is, whether a defence
witness should also be also eligible to be admitted into such Programme, if danger
to life or property to such witness exists due to his being a witness? In some cases
danger to life or property of defence witness may also exist. Every witness
whether he is a prosecution witness or defence witness, is important for fair
adjudication of a criminal case.

27 respondents out of 40 are in favour that a defence witness be also eligible

to be admitted into the Witness Protection Programme, if danger to his life or
property exists due to his being a witness. Among these 27 responses, 6 are from
State Governments, 6 are from senior Police Officers, 3 are from Judges and 12
are from others.

However, 13 respondents (3 State Governments, 4 Police Officers and 6

others) are not in favour of extending the benefit of Witness Protection
Programme to the defence witnesses.

(Q.)5 Should the Superintendent of Police/ Commissioner of Police be

empowered to certify whether a particular person or victim or witness
is in danger and entitled to be admitted to the Witness Protection
Programme? Should such certificate be further reviewed by the trial
 167

Judge before making an order of witness protection? Should such

proceedings in court be held in camera?

A particular witness or victim can be admitted into the Witness Protection

Programme, if there is danger to his life or property exists due to his being a
witness or victim. Now, question is, who has to certify that such a danger exists
and that the witness is entitled to be admitted into the Programme? Whether senior
police officers like Superintendent of Police or Commissioner of Police be
empowered to certify about the existence of danger and also to certify that
particular person is entitled to be admitted into such Witness Protection
Programme? Another point is that whether such certificate is itself sufficient for
admitting a person into the Programme or it should be further reviewed by the trial
judge before making an order of witness protection? Whether reviewing
proceedings in the court should be held in camera.

Most of the respondents (33 out of 40) are of the view that senior police
officers like Superintendent of Police or Commissioner of Police should be
empowered to certify whether a particular person or victim or witness is in danger
and is entitled to be admitted into the Witness Protection Programme. Among
these 33 respondents, 8 are from the State Governments, 10 are from Police
Officials, 3 are from the Judges and 12 are from others. Among these respondents,
15 respondents have further opined that such certificate of Police Officers should,
further be reviewed by the trial judge, while 8 respondents are of the view that
there is no need of further reviewing by the trial judge. Among these 15
respondents, 7 are also of the view that such reviewing proceedings in the court
should be held in camera.
 168

Only 7 respondents (1 State Government and 6 others) are of the view that
S.P. or Commissioner of Police should not be empowered to certify whether a
particular person is in danger and is entitled to be admitted into the Programme.

(Q.) 6. Whether protection under the Programme should also be extended to

the family members, close relatives and friends of the threatened
witness? If so, who should be included in the list of such persons?

It is often seen that apart from the witness, his family members, close
relatives and even sometime friends, are also threatened by opposite party.
Further, family members of witness are dependent upon him. Question arises that
whether protection under the Witness Protection Programme should also be
extended to the family members, close relatives and friends of the witness? And
who should be included in the list of such persons?

Most of the respondents (38 out of 40) have supported the view that
Protection under the Witness Protection Programme should be extended to family
members, close relatives etc. Among these 38 responses, 8 are from the State
Governments, 10 are from the Police Officers, 3 are from the Judges and 17 are
others.

Only State Government of Delhi and one other respondent have opposed the
view.

In respect of question that who should be included in the list, there is no

uniformity in the responses. Some have suggested that depending upon the facts of
 169

each case, such protection may be extended to family members, close relatives and
friends. Some have opined that parents, siblings, sons and daughters, spouse may
be included in the list.

(Q.)7. Should necessary funds be provided by both the Central and State
Governments for implementation of the Witness Protection
Programme?

For the purpose of implementation of the Witness Protection Programme, a

lot of funds may be required. In such a situation it is suggested that both the
Central as well as State Governments should provide necessary funds for the
purpose of implementation of the Witness Protection Programme. As the
“Administration of Justice” falls under entry 11A of the concurrent list of the 7th
Schedule of the Constitution of India, it is the responsibility of both the Central as
well as State Governments.

31 out of 40 respondents have agreed that for the purpose of implementation

of Witness Protection Programme, necessary funds should be provided by both the
Central as well as State Government concerned. Among these 31 respondents, 6
are State Governments, 8 are Police Officials, 3 are Judges and 14 are others. State
Government of Bihar and Administraton of Union Territory of Lakshadwep have
suggested that the Central Government should meet 75 % expenditure of the
Programme.
 170

State Governments of Orissa, West Bengal and Tripura are of the view that
the Central Government should provide entire funds. Similar view is expressed by
the Director General of Police of Punjab State and of Manipur.

Contrary to it, 4 respondents have suggested that it should be funded by the

State Government concerned.

(Q.)8. Should a witness who is being admitted into the Programme be

required to enter into a memorandum of understanding with the in-
charge of the Programme setting out his rights, obligations, restrictions
as well as of the person in-charge of the Programme? What are the
means of enforcing such rights and obligations?

In most of the countries, where the Witness Protection Programmes exists,

there is provision that the witness who is admitted into the Programe, is required
to enter into a Memorandum of Understanding (MOU) with the in-charge of the
Programme. The said MOU contains the rights, obligations and restrictions of the
witness as well as of the in-charge of the Programme. Whether in our country a
witness who is being admitted into the Programme should be required to enter into
such kind of MOU? Further, what should be the means for enforcing such rights
and obligations?

Most of the respondents (29 out of 37) have supported the view that a
witness who is being admitted into the Witness Protection Programme should be
required to enter into a MOU with the in-charge of the Programme setting out his
rights, obligations and restrictions as well as of the person in-charge of the
 171

Programme. Among them 6 responses are from the State Governments, 9 are from
the Police Officers, 3 are from the Judges and 11 are from others.

In respect of the question that how these rights and obligations can be
enforced, various options have been suggested. The State Government of
Jharkhand has suggested that a special Act may be enacted making provision for
penal clause in case of violation of MOU: D.G.Police, Gujarat is of the view that
the Police under a special statute can enforce it. D.G.Police, Haryana, has
suggested that some security in shape of documents, title to property may be taken
from the person admitted into the Programme. Such person may enforce his rights
through court of law. D.G. Police Goa, is of the view that some rules have to be
formulated for enforcing such rights & obligations. D.G. Police, Punjab has
suggested that for the purpose of enforcement of such rights and obligations,
Criminal Procedure Code, 1973 may be amended. Shri Justice Anoop V. Mohta,
Judge, Bombay High Court is of the view that heavy penalty should be imposed in
case of violations of restrictions and obligations. A retired D.G.Police of M.P.
suggests amendment in Section 446 Cr.P.C.

Only 8 respondents (2 State Governments, 1 Police Officer and 5 others) are

not in favour of requirement of entering into a MOU by the person admitted into
the Witness Protection Programme.

(Q.)9. When the identity of a person is changed, and he later becomes a party
as plaintiff or defendant or a witness in any other civil proceedings,
then should such proceeding be allowed to be suspended temporarily
and be subject to order of the Court regarding institution, trial or
judgment in such proceedings?
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This is an important issue. When the Court grants anonymity to a person

and thereby his identity is changed, and later on if he becomes a party or a witness
in any other civil proceedings, question arises how he should be identified in such
later civil proceedings. If his actual identity is made known, then the whole
purpose of giving anonymity to him would be frustrated. It is suggested that the
later civil proceeding may be allowed to be suspended temporarily and the civil
court may pass order regarding institution, trial or judgment in such proceedings.
Similar kind of provision exists in Section 15 of the Witness Protection Act, 1998,
of South Africa. It provides that any civil proceedings in which a protected person
is a party or witness may be proceeded as per the order of the High Court in an ex
parte application made to him in chamber. The High Court may make an
appropriate order with regard to the institution, prosecution or postponement of
those civil proceeding.

30 out of 37 respondents have agreed that such later civil proceedings be

allowed to be suspended temporarily and should be subject to the order of the
court regarding institution, trial or judgment in such proceedings. Among these 30
respondents, 7 are State Governments, 9 are Police Officers, 1 is Judge and
remaining 13 are others.

State govt. of West Bengal is of the view that in such cases the witness may
sue or be sued in his actual name.

Special Commissioner of Police, H.Q. New Delhi has suggested that for
those persons there is no need of any witness protection.
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Shri Justice C.R.K. Prasad, Judge A.P. High Court has suggested that such
civil proceedings be conducted in camera.

Shri Justice Anoop V. Mohta is of the view that normally such civil
proceeding should not be suspended. But in exceptional circumstances only such
proceeding may be suspended under the order of the Court.

3 respondents (1 State Govt. of Bihar and 2 others), however are not in

favour of suspension of civil proceedings.

(Q.)10. When the identity of a person is changed, and he is an accused or a

witness in any other criminal proceeding under his former identity,
should the person in-charge of Protection Programme be authorized to
disclose his identity to the prosecutor, judge or magistrate and or to
defence lawyer in such cases?

This is also an important issue. It relates to a situation where the identity of

a person is changed, and such person is an accused or witness in any other
criminal proceeding under his former identity. In such cases, whether the in-
charge of Witness Protection Programme should be authorized to disclose the
identity of protected person to the prosecutor, Judge/ magistrate and/or to the
defence lawyer? As per Section 17 (5) of the Witness Protection Act, 1998 of
South Africa, the Director of Witness Protection Programme is authorized to
disclose the identity of a protected person in any criminal proceeding. Similar kind
of provision exists in the Witness Protection Act, 1996 of National Capital
Territory of Australia.
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26 out of 38 respondents have agreed with the suggestion that the person in-
charge of the Witness Protection Programme may be authorized to disclose the
identity of the protected person if such protected person is an accused or a witness
in any other criminal proceeding under his former identity. However, many
respondents are of the view that identity may be disclosed to the judge or
magistrate concerned but should not be disclosed to the defence lawyer. Among
those 26 responses which have favoured the above suggestion, 7 are from the State
Governments, 7 are from senior Police Officials, 1 response is from a Judge of
High Court and remaining 11 are from others.

Special Commissioner Police, New Delhi is of the view that in such cases,
no protection should be given to such persons.

11 respondents (2 State Governments, 2 Police Officers, 2 Judges and 5

others) are not in favour of giving power to the person in-charge of the Programme
to disclose the identity of protected person if such person is accused or witness in
any other criminal proceeding.

(Q.)11. Should a person be held liable to punishment if he discloses the

identity of any protected person without the authorization of the Court
that granted the protection? If so, what punishment should be
prescribed?

This is regarding the liability of a person who discloses the identity of a

protected person without any authorization of court. Whether such person if
discloses the identity, should be punished? And if so, what should be the quantum
of punishment?
 175

All the 40 respondents, who have given their answer to this question, have
agreed that if any person discloses the identity of a protected person without any
authorization of the Court, he should be held criminally liable for such disclosure.
In regard to quantum of punishment, most responses have suggested that penalty
should be severe and stringent. There is no unanimity in respect of period of
imprisonment and amount of fine, which is to be prescribed. It starts from 3
months imprisonment and goes upto 7 years. Similarly amount of fine suggested
by the respondents’ starts from Rs. 5000/- to 50,000/-.

(Q.)12. Do you support the view that where a witness who is admitted to the
Programme fails or refuses to testify without any just cause, he should
be prosecuted for contempt of court and the protection order be
cancelled?

The main purpose of having a Witness Protection Programme is to protect

the witnesses so that they may come forward to testify in the Court. Their
testimony may be necessary for rendering justice in the case. If such a witness fails
or refuses to testify without any just cause, should he not be prosecuted for
contempt of court? Should his protection order be not cancelled?

32 out of 40 respondents (7 State Governments, 7 Police Officers 2 Judges

and 17 others) have supported the view that where a witness who has admitted
into the Witness Protection Programme fails to testify without any just cause, he
should be prosecuted for contempt of court and his protection order should also be
cancelled.
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2 State Governments, 2 police officials and one Judge of a High Court are
of the view that in such a situation only the protection order should be cancelled
and there is no need to prosecute such witness for contempt of court.

2 respondents, however have not supported the above view altogether.

(Q.)13. Should the decision either admitting or refusing to admit a person to

the Witness Protection Programme, be made appealable? To avoid
delays, should such appeal lie directly to the High Court?

This is about the question that whether there should be right to appeal
against the order of admitting or refusing to admit a person to the Witness
Protection Programme? If there is need to have right to appeal, to which Court
should such appeal lie? In order to avoid delay it is suggested that such an appeal
may go directly to the High Court.

27 respondents (out of 38) are of the view that there should be right to
appeal against the order of admitting or refusing to admit a person to the Witness
Protection Programme. Except the State Govt. of West Bengal all others have
agreed that such appeal may lie to the High Court. Many respondents have opined
that such appeal should be disposed off in a fixed time period. Among these 27
responses, 5 are from State Governments, 8 are from Police Officers, 2 from
Judges and 12 are from others.

State Governments of Orissa and of Manipur, and organization (SARI) have

opined that there should be right of appeal only against order of refusal to admit
into the Programme and not against the order for admitting into the Programme.
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8 respondents (2 State Governments, 2 Police Officer, a Judge of a High

Court and 3 others are not in favour of providing any appeal against the order of
admitting or refusing to admit into the Programme.

(Q.)14. Do you have any other suggestions in respect of Witness Protection

Programme?

Many respondents have given their suggestions. But there is no much

substance in them. Therefore, these are not discussed here.
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Chapter - XIII

Questionnaire – Discussion of responses – Recommendations

We have analysed the responses to the 14 Questions dealing with

Witness Protection Programmes in the Questionnaire extensively in our
Summary in Chapter XI. In this chapter we propose to discuss the
responses and give our recommendations.

1) The question is whether Witness Protection Programmes should

be established to protect witnesses outside Court.

As stated in the last Chapter, almost all those who responded, (except
two) supported the introduction of Witness Protection Programmes. Some
of the respondents suggested that while all those measures which are in
force in other countries are not feasible in our country, at least some of the
important measures could be introduced. At any rate, the programmes must
be confined to cases of ‘serious’ offences, it was suggested.

Answer:

In our view, Witness Protection Programmes are necessary in our

country and may be limited to cases of ‘serious’ offences and must apply to
victims and prosecution witnesses alike. They can be confined, in our
view, to cases triable by Sessions Courts or Courts of equal rank and
Special Courts where, witness protection outside the Court is felt necessary.
Such a determination must be made in the Court of a Magistrate on an
application by the investigation agency or the public prosecutor. It is
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obvious that Witness Protection Programmes require finances and unless the
Central/State Governments come forward to meet the expenditure, the
programmes cannot be introduced.

Of course, only if identity protection is given and not other types of

protection (referred to in Question 2) expenditure may be listed.

We have stated in para 7.7.5 of the Consultation Paper that in USA,

after the introduction of the programmes, “it has obtained an overall
conviction rate of 89% as a result of protected witness’s testimony”. If the
Union and State Governments want better conviction rates, they must come
forward and allocate the necessary finances for Witness Protection
Programmes.
(Q.)2 Apart from the change of identity, should other measures for the
protection of witnesses be also provided. For example,
(a) mention in the proceeding of an address different from one he uses or
which does not coincide with the domicile location provided by the civil
law;
(b)being granted a transportation in a State vehicle for purposes of
intervention in the procedural act;
(c) being granted a room, eventually put under surveillance and security
located in the court or the police premises;
(d)benefiting from police protection extended to his relatives or other persons
in close contact with him;
(e) benefiting from inmate regimen which allow him to remain isolated from
others and to be transported in a separate vehicle;
(f) delivery of documents officially issued;
(g) changes in the physiognomy or the body of the beneficiary;
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(h)granting of a new place to live in the country or abroad, for a period to be

determined;
(i) free transportation of the beneficiary, his close relatives and the respective
property, to the new place of living;
(j) implementation of conditions for the obtaining of means of maintenance;
(k)granting of a survival allowance for a specific period of time.

In respect of the above measures, the responses were that change of

identity is sufficient but that other measures (a) to (k) may be taken
wherever the circumstances require. Of course, as stated above, it is agreed
that the programme should be confined to exceptional cases where the
offences are triable by Courts of Session. We have examined these
responses in detail.

(A) In our view, the concerned witness may be given a different identity,
(say) he or she may be described by a letter in the English alphabet, and his
or her address may be kept secret. If any statement is recorded from the
witness, the name and address should not be disclosed except to the
investigation agency, and to the Magistrate who hears the application for
grant of the protection under the programme.

If the Witness Protection Programme offers no more than identity

protection, such protection is not very expensive and no heavy allocation of
funds is necessary. The only difference between such protection and witness
identity protection discussed in Part I of this Report is that identity
protection given under the programme is intended for purposes outside
Court in various situations whereas identity protection dealt with in Part I
deals with protection during investigation before Police and inquiry and
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trial in the Court. The witness moves in society under a different name or
identity under the witness protection programme.

The Magistrate while granting such identity protection under the

programme, need not to give any notice to the accused. The Police may
place the relevant material before the Magistrate or the Magistrate may
record the statement of the witness – keeping his or her identity confidential
– and he may pass an order in that behalf and the new identity will apply in
all transactions or proceedings outside Court also.

(B) It is only where the other measures such as re-location, maintenance,

providing accommodation, transport etc. are given, apart from identity
protection, that it will be effective but it then becomes necessary for the
Union/State Governments to make adequate funds available under the
programme.

There may indeed be a few grave cases where apart from giving
identity protection, the other measures (a) to (k) referred to above, may be
necessary. It cannot be suggested that there will be no cases requiring
some of the other measures (a) to (k) to be given.

Therefore, in our view, it is implicit that the programme must

contemplate other measures, in addition to identity protection, to be taken
wherever necessary even though such measures will be confined to
extraordinary cases among the class of cases of serious offences triable by
Courts of Session.

It is, therefore, not possible to deny the benefit of other measures

absolutely at least in deserving cases, however small in number they may
be.
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We, therefore, recommend that the various measures (a) to (k)

referred to above, must be part of the programme and adequate funds must
be allocated by the Union and State Governments.
(Q.)3 Who among the following should be made in-charge of the
implementation of the entire Witness Protection Programme:
(a) Judicial Officer (b) Police Officer (c) Government
Department (d) Autonomous body.

In the responses received to this question, there was no unanimity.

15 responses, however, suggested that the implementation should be with
the Judicial Officer. Among these 15 were 4 Police officers, a State
Government, a High Court Judge and 9 others; 6 State Governments, 2
Police Officers and 3 others suggested that a Government Department must
be in charge. 8 persons, including 2 Police Officers, a State Government
and a High Court Judge and 4 others) suggested it should be under an
autonomous body. Six respondents (including 2 State Governments, 3
Police Officers, a trial Judge) suggested that a Police Officer be in charge.

In the Witness Protection Programme, the control ultimately must be

with Judicial officers. The Police may decide which witness requires to be
placed under the Witness Protection Programme but it must be for the
Magistrate to decide whether a witness has to be admitted to the
programme. The expenditure incurred for the grant of different identity,
relocation, maintenance, transport, accommodation etc. must be met by the
Union and the State Governments jointly, because we are dealing with
serious crimes listed in the Indian Penal Code, 1860 which is a Central
statute though the offence is committed within the territories of a State.
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The Chief Justice of the State High Court must be the Patron-in-chief
of the Witness Protection Programme and he may administer the fund
through the State Legal Aid Authority, which is constituted for each High
Court and which is headed by a High Court Judge. Whenever a Magistrate,
upon an application by the District Superintendent of Police or
Commissioner of Police or the Public Prosecutor, passes an order admitting
a witness to the Witness Protection Programme, the order should be
communicated to the State Legal Aid Authority and the latter should issue
appropriate directions to the District Legal Services Authority, for release of
funds for the purpose of implementing the order. Out of the amount
allocated to the State Legal Aid Authority, a certain amount must, therefore,
be set apart for funding the witness Protection Programmes.

For this purpose, if necessary, an amendment may be carried into the

Legal Services Authorities Act, 1987 to say that the Chief Justice of the
High Court shall be the Patron-in-chief of the Programme that the State
Legal Aid Authority and the District Legal Aid Authority shall exercise the
powers and perform duties assigned to them under the Witness Protection
Programmes, including the administration of funds allocated for that
purpose by the said Governments.

(Q.)4. Should apart from prosecution witness, a defence witness be also

eligible to be admitted into the Witness Protection Programm, if danger
to his life or property exists due to his being a witness?

Over 27 respondents out of 40 are in favour of defence witnesses also

being admitted to the programmes if danger to their life or property exists.
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Of these 6 are State Governments, 6 are police officers and 3 are from
Judges and 12 others. Others are not in favour.

The benefit of the programme could be extended to defence witnesses

also because the basis of extending the programme to defence witnesses is
that their life and property is in danger.

But, as the question of funding the programme may have some

constraints, for the present, the programme may be confined to prosecution
witnesses and victims in the matter of crimes triable by a Court of Session.
(Q.)5 Should the Superintendent of Police/ Commissioner of Police be
empowered to certify whether a particular person or victim or witness
is in danger and entitled to be admitted to the Witness Protection
Programme? Should such certificate be further reviewed by the trial
Judge before making an order of witness protection? Should such
proceedings in court be held in camera?

In the responses, 33 out of 40 were of the view that a senior police

officer like the Superintendent of Police/Commissioner of Police should be
empowered to certify about the need for protection and 15 of them further
stated that the decision of the Police Officer must be reviewed by a Judge.

First, the police must be satisfied that a victim or a witness’s life is

“likely” to be in serious danger. Such a decision must be taken by a senior
police officer of the rank of Superintendent of Police/Commissioner of
Police and he must, after recording his reasons for coming to such a
conclusion, certify about his satisfaction. But, this alone, without a further
order of Court, is not sufficient.
 185

The police or the public prosecutor must then move the Court of the
concerned Magistrate who may examine the certification and material on
which the certificate is based and pass a judicial order. Such a procedure
before a Magistrate must take place in camera. In that inquiry, there is no
need to hear the suspect or the accused.

The Magistrate must also decide whether the witness should not
merely be granted a different identity but whether, any other measures are
required in the case like relocation, financial assistance etc. as stated earlier.
(Q.) 6. Whether protection under the Programme should also be extended to
the family members, close relatives and friends of the threatened
witness? If so, who should be included in the list of such persons?

Most of the respondents, about 38 out of 40, supported the view that
the programme must be extended to cover other family members, close
relatives etc. as to who should be included in the list, it is said, it must
depend upon the circumstances of each case.

In several cases, it may not be sufficient to grant protection only to

the witness. There may be threats to the spouse, children or parents, brother
or sisters of the witness. Depending upon who is living close to the witness
and who is likely to be threatened, an assessment of the extent of threat to
each such family members, must, no doubt, be made and if there is danger,
the protection will have to extended. It is common experience that a spouse
or children of a witness are generally threatened with abduction.

Further, if it is decided to relocate a witness or victim at a different

place and he or she happens to be the breadwinner, the immediate family
members of the witness may be deprived of all means of livelihood if the
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witness alone is relocated and in such cases, interests of justice certainly

require that the immediate family members be also relocated.

As proposed in the Draft Bill in the case of Witness Identity

Protection (which is annexed hereto), the ‘close family members’ may be
confined to spouse, children, parents, grand parents, brothers and sisters, but
relief may be limited to those whose life or property may be in danger.

(Q.)7. Should necessary funds be provided by both the Central and State
Governments for implementation of the Witness Protection
Programme?

About 31 out of 41 respondents stated that the necessary funds must

be provided both by the Central and State Governments. Among the 31
respondents, 6 were State Governments, 8 were police officers, 3 were
Judges and 6 were others. The Government of Bihar and Administration of
Union Territory of Lakshadweep have suggested that Central Government
should meet 75% of the expenses while the States of Orissa, West Bengal
and Tripura, and the Director General of Police, Punjab and the Director
General of Manipur stated that the Central Government must bear 100% of
the expenses. Only 4 respondents stated that the State Government must
bear the expenses.

As stated earlier, the expenditure for Witness Protection Programmes

must be borne by the Central Government and State Governments equally,
50% each. It is to be noted that the Indian Penal Code, 1860 is a piece of
Central Legislation, which is being administered by the Courts established
 187

by the State Governments. So is the Code of Criminal Procedure, 1973.

Further, in 1976, by constitutional amendment, the subject of
‘Administration of Justice has been shifted in Schedule 7 of the Constitution
from the State List to the Concurrent List under Entry 11A and by that, the
Central and State Governments have assumed joint responsibility for the
‘administration of justice’. The Central Government cannot, in our view,
throw the entire burden on the State Governments on the ground that ‘law
and order’ is a State subject. The subject of ‘Witness Protection
Programmes’ is not strictly a ‘law and order’ issue, but is directly connected
with ‘Administration of Justice’ so that witnesses may depose without fear
while making statements during investigation or giving evidence during
inquiry and trial. We have already referred to the fact, as stated in para
7.7.4 of the Consultation Paper that in USA, since the programme’s
inception, it has obtained an overall conviction rate of 89% as a result of
testimony of witness who wee admitted to witness protection programmes.
We are of the view the Central and State Governments have to bear the
expenditure equally.

8) The question is whether a witness must enter into an MOU with

the programme-in-charge, setting out the right, obligations and
restrictions of both parties and if so, what is the means of
enforcing those rights and obligations?

Most of the respondents (29 out of 37) have supported the need for
entering into an MOU under the Witness Protection Programme. This
includes 6 State Governments, 9 Police Officers, 3 Judges and 11 others.
Others were not in favour of an MOU. So far as enforcement of the rights
and obligations under the MOU, some respondents have suggested
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enactment of a special Act or execution of documents under which the

witness may give property in the form of security. The Director General of
Police, Punjab has suggested that provision can be made in the Code of
Criminal Procedure, 1973. Some suggested amendment of sec. 446 of the
Code.

We shall refer to a few provisions in other countries as to what should

be contained in the MOU.

CANADA:

Under the Canadian Witness Protection Act, 1996 (see para 7.4 of the
Consultation Paper), the statute in sec. 8 specifies that

“(a) on the part of the ‘Commissioner of the Fora’, he is obliged to take

such reasonable steps as are necessary to provide for the protection
referred to in the agreement to the protector and
(b) on the part of the protectee, he has an obligation
(i) to give the information or evidence or participation as
required in relation to the inquiry, investigation and
prosecution to which the protection provided in the
agreement relates,
(ii) to meet all financial obligations incurred by the protectee, at
law that are not, by the terms of the agreement, payable by
the Commissioner,
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(iii) to meet all legal obligations incurred by the protectee

including any obligations regarding the custody and
maintenance of children,
(iv) in refrain from activities that constitute an offence against
an Act of Parliament or that might compromises the security
of the protectee,
(v) to accept and give effect to reasonable requests and
directions made by the Commissioner in relation to the
protection provided to the protectee and the obligations of
the protectee”

Under sec. 11(1) of that Act, no information about the location or

change of identity of a protectee or a former protectee can be disclosed by
any person.

SOUTH AFRICA:

Under sec. 11(4) of the South African ‘Witness Protection Act, 1998’,
the Director of the Office of Protection has the following obligations:

“(a) (i) to take such reasonable steps as are necessary to provide the
protected person with the protection and related services, as referred
to in the protection agreement concerned; and
(ii) not to keep a protected person under protection in any prison or
police cell, unless otherwise agreed upon;

(b) the obligations of the witness or related person are

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(i) where applicable, to give evidence as required in the

proceedings to which the protection relates;
(ii) to meet all financial obligations incurred by him or her that are
not payable by the Director in terms of the protection
agreement;
(iii) to meet all legal obligations incurred by him or her including
any obligations regarding the custody and maintenance of
children and taxation obligations;
(iv) to refrain from activities that constitute a criminal offence;
(v) to refrain from activities that might endanger his or her safety
or that of any other protected person;
(vi) to accept and give effect to all reasonable requests and
directions made or given by any members of the office in
relation to the protection provided to him or her and his or her
obligations;
(vii) to inform the Director of any civil proceedings which have or
may be instituted by or against him or her or in which he or she
is otherwise involved;
(viii) to inform the Director of any criminal proceedings which have
or may be instituted by or against him or her or in which he or
she is involved, either as a witness or as accused or otherwise;
and
(ix) not to endanger the security or any other aspect of the
protection of witnesses and related persons or related services
or any other matter relating to a witness protection programme
provided for in this Act.
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(c) any other prescribed terms and conditions agreed upon; and

(d) a procedure in accordance with which the protection agreement may,

if necessary, be amended.”

Sec. 17 states that no person shall disclose any information which he

has acquired in exercise of powers or functions etc. under the Act, except
for the purpose of giving effect to the provisions of the Act or when
required to do by any Court. Subsections (5) to (7) refer to the manner and
conditions in which the Director may disclose any information.

As regards execution of an MOU by the witness, we have stated in

the previous chapter that it is the procedure in almost all countries wherever
the Witness Protection Programmes are in force that there is an MOU
between the witness and the concerned Police authorities or Prosecutor and
the statute concerned contains a list of the rights and obligations of both
parties. They have to be incorporated into the MOU.

We recommend that the MOU has to be entered by the victim/

witnesses with the District Superintendent of Police or the Commissioner of
Police, as the case may be, and they would move the Magistrate for
admitting the victim/witness to the programme. On such orders, funds will
be released thereafter by the Legal Aid authorities as stated earlier. Various
obligations of the parties, listed above, which have to be covered by the
MOU can be listed. The MOU must provide that each party to the MOU
will abide by the terms of the MOU. The MOU must contain the broad
obligations such as those listed in Canada and South Africa
 192

As to enforcement of the provisions of the MOU, once the rights and

obligations are set out in the statute, it can also provide, if necessary, that
the parties to the MOU may approach the Magistrate Court for the purpose
of enforcement of its terms. In case of breach of MOU by the
victim/witness or the police or any other person, the affected party can move
the Magistrate for appropriate orders.

(Q.)9. When the identity of a person is changed, and he later becomes a party
as plaintiff or defendant or a witness in any other civil proceedings,
then should such proceeding be allowed to be suspended temporarily
and be subject to order of the Court regarding institution, trial or
judgment in such proceedings?

We may state that 30 out of 37 respondents agreed that such later

civil proceedings which come into being later may be allowed to be
suspended temporarily and should be subject to the order of the Court in
which the proceeding has to be filed or is pending regarding the institution,
trial or judgment in such proceedings. Among these, 7 are State
Governments, 9 are Police Officers and 1 is a Judge and there are 13 others.

(a) A civil proceeding, if it has to be instituted by the protected

victim/witness, as a plaintiff or a petitioner, then instead of making a
provision for extending period of limitation, it will be sufficient if the
protected person is enabled to file the case under a pseudonym, where his or
her real name and address are not disclosed in the court records but are
 193

disclosed only to the Judge. The same procedure can be adopted if a civil
proceeding is pending at the time when the witness is declared as a
protected witness and has to be continued. The proceedings will reflect the
pseudonym and the new address will be kept secret except to the Judge in
the civil case. Thereafter the civil proceeding has to be stayed temporarily
till the criminal case in which the person is a protected witness under the
programme is completed.

(b) Where the protected person is sued in his real name, and is a
defendant/respondent, the proceeding may again have to be stayed
temporarily after substituting his name by a pseudonym and his new address
has to be kept confidential except to the Judge in the civil case.

The stay of the civil proceeding in both situations will be till the
completion of the criminal case (in the trial Court) in respect of which he
has been admitted to the Witness Protection Programme.

(c) Such stay orders have to be granted ex-parte and in in-camera

proceedings in the Court in which the civil case is filed or is pending and
they will have to be passed upon the application of the abovesaid police
authorities or the public prosecutor or the affected witness by using his
pseudonym in that civil court.

Such a procedure staying the civil case is available under sec. 15 of

the South African Witness Protection Act, 1998 (see para 7.2 of the
Consultation Paper).
 194

(Q.)10. When the identity of a person is changed, and he is an accused or a

witness in any other criminal proceeding under his former identity,
should the person in-charge of Protection Programme be authorized to
disclose his identity to the prosecutor, judge or magistrate and or to
defence lawyer in such cases?

26 out of 38 respondents suggested that the person incharge of the

Witness Protection Programme be authorized to disclose the real identity to
the Judge or prosecutor. Several suggested that the real identity cannot be
disclosed to the ‘defence’ lawyer.

Reference has been made in Chapter XII to the procedure in South

Africa and Australia where the real identity is disclosed only to the
Magistrate or Judge in whose Court the criminal case is filed against the
protected witness. The following procedure has to be adopted if a criminal
case is filed by/against the protected witness:

(i) Where a criminal case is filed against the victim/witness

admitted to a witness protection programme, his or her real
identity and pseudonym/relocated address may be disclosed
only to the Magistrate or Judge dealing with such proceeding,
i.e. the proceeding filed against the protected witness and the
said Magistrate or Judge will have to stay the criminal
proceeding till the trial in the earlier proceeding in which the
person so accused is a protected witness is completed.
(ii) Where the victim/witness is a complainant in a criminal case or
a prosecution witness, the real identity and address will be
 195

disclosed to the Judge/Magistrate before whom the matter

would come up and that proceeding has to be stayed till the
trial of earlier proceeding in which the person is a protected
witness is completed.

(Q.)11. Should a person be held liable to punishment if he discloses the

identity of any protected person without the authorization of the Court
that granted the protection? If so, what punishment should be
prescribed?

(i) All the respondents have agreed that any breach of the statutory
provision regarding maintenance of confidentiality must be made
punishable and punished severely.

We recommend that the unauthorized disclosure by any person of the

identity of a witness admitted to a Witness Protection Programme must be
made an offence under the proposed law and must be made severely
punishable.

(ii) As regards the quantum of punishment, the suggestions of the

respondents ranged from 3 years to 7 years and fine between Rs.5000 and
Rs.50,000.

We recommend that having regard to the fact that we are proposing

Witness Protection Programmes for offences triable by a Sessions Court,
 196

breach of security as to identity must be visited with a punishment of 3

years with fine which may go upto Rs.10,000.

(Q.)12. Do you support the view that where a witness who is admitted to the
Programme fails or refuses to testify without any just cause, he should
be prosecuted for contempt of court and the protection order be
cancelled?

32 out of 40 respondents (including 7 State Governments, 7 Police

Officers, 2 Judges and 17 others) stated that not only action should be taken
for contempt of Court but that the protection be withdrawn.

If the protected witness violates the MOU and fails or refuses to

testify without justifiable cause, both action for contempt of Court and
cancellation of the order admitting the witness to the programme must
follow.

It is true that so far as our subordinate Courts are concerned, they do

not have power to punish anybody for contempt of Court but the Contempt
of Courts Act, 1971 envisages that the Judge inform the concerned High
Court to take action under the Act and, therefore, this procedure will have to
be followed. In addition, the police or the public prosecutor can move the
Magistrate who passed the orders admitting the witness to the programme,
for cancellation of the order admitting the witness to the programme.
 197

(Q.)13. Should the decision either admitting or refusing to admit a person to

the Witness Protection Programme, be made appealable? To avoid
delays, should such appeal lie directly to the High Court?

27 out of 38 respondents were in favour of providing a right of appeal

against an order admitting or refusing to admit a witness to the programme.
Mostly, it has been stated that appeal should lie to the High Court. Among
these, 5 responses were from State Governments, 8 from Police Officers, 2
from Judges and 12 from others.

If a victim/witness is given physical protection outside Court or is

relocated and given a different name, that no way affects the rights of the
accused in that case and he can have no grievance as long as the person will
be brought before the Court to depose against him. However, if such
victim/witness has, in addition, a witness identity protection order, the
accused has a right of appeal to the High Court as provided in sec. 15 of our
Draft Bill.

However, if a Magistrate refuses to admit witness/victim to a witness

protection programme, the witness/victim must have a right of appeal to the
High Court.

There is no contradiction in not providing an appeal at the instance of

an accused where a witness is admitted to protection outside Court under a
programme on the one hand and providing an appeal in favour of the
victim/witness in as much the case of a victim/witness who has been
wrongly denied admission to the programme will compel such a person to
 198

live in fear outside Court throughout the period during which the criminal
case may be pending.

We recommend accordingly in respect of the thirteen questions posed

in the Consultation Paper in relation to ‘Witness Protection Programmes’.

(Justice M. Jagannadha Rao)

Chairman

(R.L. Meena)
Vice-Chairman

(Dr. D.P. Sharma)

Member Secretary

Dated: 31.8.2006
 199

ANNEXURE I

The Witness (Identity) Protection Bill, 2006

A Bill to provide for identity protection to threatened witnesses in criminal

cases involving serious offences and to provide for procedure and
mechanism for such protection and for such other matters incidental thereto:

Be it enacted by Parliament in the Fifty Seventh year of the Republic

of India as follows:-

CHAPTER I
PRELIMINARY

Short title and commencement.-

1. (1) This Act may be called the Witness (Identity) Protection Act,
2006.
(2) It extends to the whole of India except the State of Jammu and
Kashmir.
(3) It shall come into force on such date as the Central Government
may, by notification in the Official Gazette appoint.

Definitions.-

2. In this Act, unless the context otherwise requires:-

 200

(a) “identity” in relation to a person includes name, sex, names of

parents, occupation and address of such person;.
(b) “close relative” includes spouse, parents, grand parents, sons,
daughters, grand children, brothers and sisters;
(c) “judge” means the Presiding Judge of the Court of Session or
Judge of a Court of equivalent status or of a Special Court;
(d) “serious offence” means an offence which is described as
triable by a Court of Session in the First Schedule to the Code
of Criminal Procedure, 1973 (2 of 1974) and includes any
offence which is required to be tried by a Court of Session or
any other equivalent designated court or special court, by a
special law;
(e) “threatened witness” means any witness in respect of whom,
there is likelihood of danger to the safety of his life or life of
his close relatives; or serious danger to his property or property
of his close relatives, by reason of his being a witness;
(f) “victim” means any person who has suffered physical, mental,
psychological or monetary harm or harm to his property as a
result of the commission of any offence;
(g) “witness” means:
(i) any person who is acquainted with the facts and
circumstances, or is in possession of any information or has
knowledge, necessary for the purpose of investigation,
inquiry or trial of any crime involving serious offence, and
who is or may be required to give information or make a
statement or produce any document during investigation,
inquiry or trial of such case, and
 201

(ii)includes a victim of such serious offence.

(h) words and expressions not defined in this Act and defined in
the Code of Criminal Procedure, 1973 (2 of 1974) shall have
the meanings assigned respectively to them in that Code.

Application of the Act and overriding effect.-

3. (1) The provisions of this Act shall be applicable to the

investigation, inquiry and trial of serious offences.
(2) In case of any inconsistency, the provisions of this Act shall
have effect notwithstanding anything inconsistent therewith
contained in any provision of the Code of Criminal Procedure, 1973
(2 of 1974), or in any provision of any other law for the time being in
force.

CHAPTER II

WITNESSES IDENTITY PROTECTION ORDER

Part I
Identity Protection During Investigation

Application for seeking Identity protection order:-

4. (1). During the course of investigation of any serious offence, if the

officer in-charge of investigating agency is satisfied that for the
purpose of effective investigation of the case, it is necessary to
 202

protect the identity of any threatened witness, he may, through the

Public Prosecutor or Assistant Public Prosecutor, as the case may be,
apply in writing to the Judicial Magistrate First Class or Metropolitan
Magistrate, seeking an identity protection order.
(2). In every application made under sub-section (1), the true identity
of the threatened witness, and any other particulars which may lead to
the identification of the threatened witness, shall not be mentioned,
and instead a pseudonym or a letter of English alphabet shall be
mentioned to identify the threatened witness, but the true identity and
other particulars shall be disclosed to the Magistrate.
(3). Every application under sub-section (1),
(a) shall be accompanied by the relevant
material and documents which are evidence
that the witness is a threatened witness and
of the need to grant a protection order, and
(b) may be accompanied by a certificate of an
officer of the rank of Superintendent of
Police or Commissioner of Police
certifying that the witness is a threatened
witness.

Ex parte preliminary inquiry by the Magistrate.-

5. (1). The Magistrate shall, upon receipt of an application under section

4, hold a preliminary ex parte inquiry in camera to determine whether
the witness is a threatened witness as claimed in the application and
 203

whether there is necessity to pass a protection order, and shall follow

the procedure laid down in this section for such determination.
(2). The Magistrate may require the prosecution to place before him
any material or document which has not been already submitted, and
which he considers relevant for the disposal of the application.
(3). The Magistrate shall hear the prosecution and, in his discretion,
may examine any person including the witness who is subject of the
application orally, and shall record the substance of the statement.
(4). During the course of the preliminary inquiry, no prosecutor,
officer of the Court, or other person present or involved in the
preliminary hearing shall disclose or reveal or leak out any
information regarding the true identity of the witness, or any other
particulars likely to lead to the witness’s identification.
(5). During the course of the preliminary inquiry, no oral evidence
shall be given, and no question may be put to any person, if such
evidence or question relates directly or indirectly to the true identity
of the witness who is subject of the application.
(6). While considering the application, the Magistrate shall have
regard to the following:-
(i) the general right of the accused to know the identity of
witness;
(ii)the principle that witness anonymity orders are justified
only in exceptional circumstances;
(iii)the gravity of the offence;
(iv)the importance of the threatened witness’s evidence in
the case;
 204

(v) whether the witness’s statement, if any, under subsection

(3) as to why he is a threatened witness and as to why
there is necessity to pass a protection order, is reliable;
and
(vi) whether there is other evidence, which
corroborates the threatened witness’s evidence in respect
of the offence.

Order by the Magistrate.-

6. (1). If, after consideration of

(a) the application and all material and documents submitted
in support of the application under section 4; and
(b) the statement of any person recorded, if any, under sub-
section (3) of section 5;
and, after hearing the prosecution, the Magistrate is satisfied
that
(a) the witness who is subject of the application is a
threatened witness;
(b) withholding the threatened witness’s identity until the
investigation is completed and final report or charge
sheet is submitted in the court, would not be contrary
to the interests of justice; and
(c) the need for passing a protection order outweighs the
general right of the accused to know the identity of
the witness,
 205

he shall, pass a reasoned judicial order that until the investigation is

completed and the police report referred to in sub section (2) of
section 173 of the Code of Criminal Procedure, 1973 or charge sheet
under any other law is forwarded to the Magistrate or Judge, the
identity of threatened witness shall not be reflected or mentioned in:
(a) any document prepared or any statement recorded
under sections 161 and 164 of the Code of Criminal
Procedure, 1973 (Act 2 of 1974) or any other
statement recorded during the course of investigation,
including the case diary ;
(b) the police report or charge sheet referred to above and
documents forwarded along with the police report or
charge sheet;
(c) any other document forwarded to the Magistrate or
Judge in any proceeding in relation to such offence;
(d) any proceeding before the Magistrate or before any
other Court, during investigation, in relation to such
offence.
(2). If, however, after such consideration and hearing as referred to
in sub-section (1), the Magistrate is satisfied that
(a) the witness who is the subject of the application is
not a threatened witness, or
(b) withholding the identity of such a witness
(i) would be contrary to the interests of justice, or
(ii) would not outweigh the right of the accused to
know the identity of the witness,
he shall, by a reasoned judicial order, dismiss the application.
 206

Prohibition of mentioning identity of witness.-

7. (1) The true identity of witness who is subject of the application shall
not be mentioned or reflected in any order sheet or proceeding under
this part.
(2). It shall not be lawful for any person to print or publish in any
manner any matter in relation to any proceeding under this part.
 207

Part II

Identity Protection after completion of investigation

Application for Identity Protection.-

8. (1). If, after the Police Report referred to in sub section (2) of section
173 of the Code of Criminal Procedure, 1973 (2 of 1974) or charge
sheet referred to in any other law is forwarded to the Magistrate or
Judge, as the case may be, but before the examination of witnesses
begins to commence at the trial, including inquiry, the Assistant
Public Prosecutor or the Public Prosecutor, as the case may be, is if
opinion that it is necessary to protect the identity of a threatened
witness, whether or not, identity protection in respect of such
threatened witness was sought or ordered at the stage of investigation
under Part I, he may, move an application in writing to the Judicial
Magistrate First Class or Judge, before whom the case is pending
seeking an identity protection order.
(2). The application referred to in sub-section (1) may also be
moved by the threatened witness, if such a witness intends to seek a
protection order.
(3). Provisions of sub-sections (2) and (3) of section 4 shall apply
mutatis mutandis to the application made under this section.
(4). Where an application filed under subsection (1) before the
Magistrate or Judge, as the case may be, has been rejected at any time
under Part I or this Part, such rejection, shall not preclude a fresh
application being filed before the Magistrate or Judge, if fresh
 208

circumstances have arisen after the rejection of the earlier application

for the grant of a protection order.

Preliminary Inquiry by Magistrate or Judge.-

9. (1). The Magistrate or Judge, as the case may be, shall, upon receipt
of an application under section 8, hold a preliminary inquiry in
camera to determine whether the witness is a threatened witness as
claimed in the application and whether there is necessity for the
passing of a protection order and shall follow the procedure laid
down in this section for such determination.
(2). The Magistrate or Judge, as the case may be, may require the
prosecution or the threatened witness who has moved the application
under section 8, to place before him any material or document which
has not already been submitted, and which he considers relevant for
the disposal of the application.
(3). The Magistrate or the Judge, as the case may be, shall hear the
prosecution, and subject to provisions of sub-sections (4) and (5), the
accused and may examine any person including the witness who is
subject of the application, orally and shall record the substance of the
statement.
(4). The Magistrate or Judge, as the case may be, shall, on the basis
of the information which has come before him under sub section (1)
of section 8(1) and sub section (2) and (3), inform the accused or his
pleader as to the apprehensions of the witness and as to why he is a
threatened witness and the necessity for passing a protection order
 209

and, for that purpose, give a hearing to the accused before passing an
order of protection.
Provided that the Magistrate or Judge shall not disclose the
identity of the witness or any other particulars which may lead to the
identification of the said witness.
Provided further that if the accused or his pleader wants to
elicit further information from the prosecution of the threatened
witness on the question of likelihood of danger to the life or property
of the said witness or his close relatives, they may be permitted to
furnish a list of questions to be answered by the prosecution or the
said witness but no question or information which may lead directly
or indirectly to the identification of the said witness shall be
permitted.
(5). The accused and his pleader shall not be allowed to remain
present during such inquiry when the Magistrate or Judge, as the case
may be, is
(i) examining the witness or any other person under
subsection (3); and
(ii) hearing the submissions of the prosecutor or the
applicant witness, as the case may be.
(6). Provisions of sub-sections (4) to (6) of section 5 shall, mutatis
mutandis, apply to the preliminary inquiry under this part.

Order by the Magistrate or Judge.-

10. (1). If, after consideration of

 210

(a) the application and all materials and documents submitted

in support of the application by the parties; and
(b) the statements recorded under sub-section (3) of section 9,
if any;
and, after hearing the submissions of the prosecutor or the applicant
witness, as the case may be, and the accused, the Magistrate or Judge,
as the case may be, is satisfied that
(a) the witness who is subject of the application is a
threatened witness;
(b) withholding the threatened witness’s identity until the
judgment in trial is given and if any appeal or revision is
presented against the judgment, until the decision in the
appeal or revision, as the case may be, is given, would not
be contrary to the interests of justice; and
(c) the need for passing a protection order outweighs the
general right of the accused to know the identity of the
witness,
he shall, pass a reasoned judicial order that until the judgment in trial
is given and if any appeal or revision is presented against the
judgment, until the decision of the appeal or revision, as the case may
be, is given, the identity of threatened witness shall not be reflected or
mentioned in,
(i) any document produced before the Magistrate or Judge,
or before an appellate or revisional Court, in relation to
such case;
 211

(ii) any proceeding (including judgment and order) before

the Magistrate or Judge, or before an appellate or
revisional Court, in relation to such case;
(iii) any copy of documents required to be supplied to the
accused as specified in, sections 207 and 208 of the
Code of Criminal Procedure, 1973 (2 of 1974) or under
any other special law.
(2). If, however, after such consideration and hearing as referred to
in sub-section (1), the Magistrate or Judge, as the case may be, is
satisfied that
(a) the witness who is subject of the application is not a
threatened witness, or
(b) that withholding the identity of such a witness
(i) would be contrary to the interests of justice, or
(ii) would not outweigh the right of the accused to
know the identity of the witness,
he shall, by a judicial reasoned order, dismiss the application.

Prohibition of mentioning identity of witness -

11. (1) The true identity of witness who is subject of the application shall
not be mentioned or reflected in any order sheet or proceeding under
this part.
(2). It shall not be lawful for any person to print or publish in any
manner any matter in relation to any proceeding under this part.
212
 213

CHAPTER III
PROTECTION OF WITNESSES AND VICTIMS AT THE TRIAL

Recording of statements of threatened witnesses at the trial by

close-circuit television.-

12. (1) When in respect of a threatened witness, an order for identity

protection has been passed under subsection (1) of section 10, his
statement in the Court during trial shall be recorded as per the
procedure indicated in Schedule I, by using two-way closed circuit
television or video link in such a manner that the accused and his
pleader shall not be able to see the face or body of the witness.
Provided that the accused and his pleader shall, subject to the
provisions of subsection (2), be entitled to hear the voice of the
witness during recording of the statement.
(2) The Presiding Judge may, on his own or on an application
made by the prosecution or the threatened witness, if he is so
satisfied, direct that while recording the statement referred to in
subsection (1), the voice of the witness shall be distorted, and in that
event, the accused or his pleader shall be entitled to hear the distorted
voice:
Provided that the undistorted voice-recording shall be kept in a
sealed cover and the Presiding Judge shall have the exclusive right to
access the undistorted voice.
(3) When the statement is recorded as mentioned in subsection (1),
the public generally, including the media personnel, shall not have
 214

access to, or be or remain, in the room or other places used by the

court for the purpose of recording of the statement.
(4) Where the statement of the threatened witness is recorded as
mentioned above in subsections (1) and (2), it shall not be lawful for
any person to print or publish in any manner whatsoever, the identity
of the threatened witness whose statement is so recorded.

Recording of statements of victim at the trial of serious offences

where protection order has not been sought or has been refused.-

13. Where in the case of trial of a serious offence, no application for a

protection order has been made or having been made, has been
refused but where the victim seeks that he may be permitted to depose
without seeing the accused either physically or through television or
video link to avoid trauma, the Court may, except for enabling the
victim to identify the accused either physically or through television
or video link, direct that examination of the witness shall be
conducted by using two-way closed circuit television or video link
and two-way audio system in the manner specified in Schedule II.

Oath of secrecy to be administered to certain persons referred to

in Schedules I and II.-

14.(1) The technical personnel operating the two-way television or video

link and the two-way audio system and the courtmaster or
stenographer of the Judge referred to in Schedule I and II, shall be
administered an oath of secrecy in respect of the identity and other
particulars of the threatened witness and
 215

(2) It shall not be lawful for any of the persons referred to in sub
section (1) to reveal the identity of the witness to any other person or
body.

Applicability of the Act.-

15. The provisions of this Act shall apply to

(a)victims of serious offences the recording of whose statements at

the trial in the court of Session has not commenced, and
(b)threatened witnesses in relation to serious offences whose identity
has not been revealed to the suspect or the accused and whose
statements have not been recorded during investigation or during
inquiry before the Magistrate or before their statements are
recorded by the Court of Session during trial,
at the date of commencement of this Act.
 216

CHAPTER IV
MISCELLANEOUS
Appeal.-

15. (1) Any person who is aggrieved by an order passed under section 10,
may appeal against such order to the High Court within thirty days
from the date of order.
(2). The High Court shall decide the appeal as expeditiously as
possible and preferably within thirty days from the date of service of
notice on respondent.

Offences.-

16. Whoever contravenes the provisions of sub-section (2) of section 7,

sub section (2) of section 11 and sub section (2) of section 14, shall
be punished with imprisonment of either description which may
extend to two years and shall also be liable to fine which may extend
upto rupees ten thousand.

Power of High Court to make rules.-

17. (1) Every High Court may, make rules for the purpose of enforcement
of the provisions of the Act in the Court of the Magistrate or of the
Judge.
(2) In particular and without prejudice to the generality of the
provision of subsection (1), such rules may refer to
 217

(a) the manner in which and the places at which the

statement of threatened witnesses referred to in
section 12 and Schedule I and the statement of victim
referred to in section 13 and Schedule II may be
recorded by using two way close circuit television or
video link and two-way audio system;
(b) as to the appointment, control and making
availability of technical staff necessary for
installation and operation of close circuit television
and video link system, and for screening the victim
and other witnesses from accused.
(3) All rules made under this section shall be published in the Official
Gazette.
 218

Schedule I
(section 12)

(1) There shall be a two-way closed circuit television or video link and a
two-way audio system established between the room from which the
Presiding Judge functions (hereinafter called Room A) and another room
(hereinafter called Room B).

(2) In Room A, the Presiding Judge, the courtmaster and the

stenographer, the public prosecutor, the threatened witness in whose favour
a protection order under section 10 has been passed and the technical
personnel of the Court operating the television or video link and the audio
system, shall alone be present.

(3) In Room B, the accused, his pleader and the technical personnel of
the Court operating the television or video link and the audio system, shall
alone be present.

(4) (a) The threatened witness shall be examined by the prosecutor

who is in Room A directly, and he may identify the accused on the video
screen but the camera in Room A shall not be focussed on the threatened
witness and his image shall not be visible on the screen in Room B.
(b) The said witness who is in Room A shall be cross-examined by
the accused or his pleader who are in Room B through the two-way
television or video link and the two-way audio system, subject to the
procedure stated in subsections (1) and (2) of section 12.
 219

Schedule II
(section 13)

(1) There shall be a two-way closed circuit television or video link and a
two-way audio system established between the room from which the
Presiding Judge functions (hereinafter called Room A) and the other room
(hereinafter called Room B).

(2) In Room A, the Presiding Judge, the courtmaster and stenographer,

the accused and the technical personnel operating the two-way television or
video link and the two-way audio system shall be present and the camera
will not be focussed on the accused except when the victim has to identify
the accused.

(3) In Room B, the victim, the public prosecutor and the pleader of the
accused shall be present and except as permitted by clause (2), the image of
the accused shall not be shown on the screen in Room B.

(4) The victim shall be examined by the prosecutor or cross-examined by

the pleader of the accused directly and the image of the accused who is in
Room A shall not be visible on the screen in Room B.
 220

ANNEXURE II

LAW COMMISSION OF INDIA

CONSULTATION PAPER

ON

WITNESS IDENTITY PROTECTION

AND

WITNESS PROTECTION PROGRAMMES

AUGUST 2004
 221

INDEX

Summary of the Consultation Paper

4-15

PART - I
GENERAL

CH: I Protection of witnesses in criminal cases – 16-21

Need for new law - Observations of Supreme Court

CH: II Public trial and cross-examination of witnesses 22-

32
in open court: Indian laws

CH: III Protection of identity of witnesses: 33-39

Special statutes in India

CH: IV Earlier Reports of Law Commission of India

40-48

PART - II

WITNESS IDENTITY PROTECTION Vs. RIGHTS OF ACCUSED

CH: V Protection of identity of witness Vs 49-81.

Rights of Accused – Principles of law developed
by Supreme Court and High Courts

CH: VI Witness anonymity and balancing of 82-230

rights of accused – A comparative study of
case law in other countries

(a) UNITED KINGDOM

(b) AUSTRALIA
 222

(c) NEW ZEALAND

(d) CANADA
(e) SOUTH AFRICA
(f) UNITED STATES OF AMERICA
(g) EUROPEAN COURT OF HUMAN RIGHTS
(h) PORTUGAL
(i) INTERNATIONAL CRIMINAL TRIBUNAL FOR
YUGOSLAVIA
(j) INTERNATIONAL CRIMINAL TRIBUNAL FOR
RWANDA

PART - III

WITNESS PROTECTION PROGRAMMES

CH: VII Witness protection programmes – A comparative

231-297
study of programmes in various countries

(a) AUSTRALIA
(i) VICTORIA
(ii) NATIONAL CAPITAL TERRITORY
(iii) QUEENSLAND
(b) SOUTH AFRICA
(c) HONG KONG
(d) CANADA
(e) PORTUGAL
(f) PHILIPPINES
(g) UNITED STATES OF AMERICA
(h) FRANCE
(i) CZECHOSLOVAKIA
(j) REPUBLIC OF KOREA
(k) JAPAN
(l) NETHERLANDS
(m) GERMANY AND ITALY
 223

PART - IV

QUESTIONNAIRE

CH: VIII Questionnaire

298-306

APPENDIX

Statutes of New Zealand and Portugal

 224

Law Commission of India’s

Consultation Paper on Witness Protection

Summary

This is a summary of the contents of the various chapters in this

Consultation Paper.

Chapter I - Introduction

There are two broad aspects to the need for witness protection. The
first is to ensure that evidence of witnesses that has already been collected at
the stage of investigation is not allowed to be destroyed by witnesses
resiling from their statements while deposing on oath before a court. This
phenomenon of witnesses turning `hostile’ on account of the failure to
`protect’ their evidence is one aspect of the problem. This in turn would
entail special procedures to be introduced into the criminal law to balance
the need for anonymity of witnesses on the one hand and the rights of the
accused, on the other, for an open public trial with a right to cross-
examination of the witnesses, after knowing all details about witnesses.
The other aspect is the physical and mental vulnerability of the
witness and to the taking care of his or her welfare in various respects which
call for physical protection of the witness at all stages of the criminal
justice process till the conclusion of the case, by the introduction of witness
protection programmes.
While the first aspect of protecting the evidence of witnesses from the
danger of their turning ‘hostile’ has received limited attention at the hands
of Parliament in some special statutes dealing with terrorism, there is an
urgent need to have a comprehensive legislative scheme dealing with the
second aspect of physical protection of the witness as well. Further, both
aspects of anonymity and witness protection will have to be ensured in all
criminal cases involving grave crimes not limited to terrorist crimes. The
 225

implementation of such a law would involve drawing up (a) procedures for

granting anonymity to witnesses and also (b) introducing Witness Protection
Programmes as well in which personal protection is granted to the witness;
sometimes by shifting the witness to a different place or even a different
country; or by providing some money for maintenance or even by providing
employment elsewhere. These are all the various aspects for discussion in
this Consultation Paper.
The Law Commission has taken up the subject suo motu on account
of the observations of the Supreme Court in certain important cases and also
because of immediate importance of the subject in our country. The
Commission has prepared this Consultation Paper in order to invite
responses from all sections of society. After receiving the responses, it will
make its final recommendations possibly along with a draft Bill.

Chapter II – Public trial and cross-examination of witnesses in open

court: Indian laws
Sec.327 Cr.PC provides for trial in the open court and 327 (2) provides for
in-camera trials for offences involving rape under s.376 IPC and under
s.376 A to 376 D of the IPC. Sec. 273 requires the evidence to be taken in
the presence of the accused. Sec. 299 indicates that in certain exceptional
circumstances an accused may be denied his right to cross-examine a
prosecution witness in open court. Further, under Sec.173 (6) the police
officer can form an opinion that any part of the statement recorded under
Sec.161 of a person the prosecution proposes to examine as its witness need
not be disclosed to the accused if it is not essential in the interests of justice
or is inexpedient in the public interest.
Sec. 228A IPC prescribes punishment if the identity of the victim of
rape is published. Likewise, Sec. 21 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 prohibits publication of the name, address
and other particulars which may lead to the identification of the juvenile.
Under Sec. 33 of the Evidence Act, in certain exceptional cases,
where cross examination is not possible, previous deposition of the witness
can be considered that relevant in subsequent proceedings. The Evidence
Act requires to be looked into afresh to provide for protection to a witness.
 226

Chapter III – Protection of identity of witnesses: Special Statutes in

India
In the pre-constitutional era, Sec. 31 of the Bengal Suppression of Terrorist
Outrages Act, 1932 empowered the special Magistrate to exclude persons or
public from the precincts of the court. Sec. 13 of TADA, 1985 and Sec. 16
TADA 1987 provided for protection of the identity and address of a witness
secret. Sec. 30 POTA 2002 is on the same lines as Sec. 16 TADA, 1987.
Apart from these provisions in special statutes, there is a need for a general
law dealing with witness anonymity in all criminal cases where there is
danger to the life of the witness or of his relatives or to his property.

Chapter IV – Earlier reports of the Law Commission of India

The 14th Report of the Law Commission (1958) examined, inter alia, the
question of providing adequate facilities to witnesses attending cases in
courts. The 4th Report of the National Police Commission (1980)
acknowledged the troubles undergone by witnesses attending proceedings in
courts. The 154th Report of the Law Commission (1996) particularly noted:
“Necessary confidence has to be created in the minds of the witnesses that
they would be protected from the wrath of the accused in any eventuality.”
The 172nd Report of the Law Commission (2000), dealing with the review of
rape laws suggested that the testimony of a minor in the case of child sexual
abuse should be recorded at the earliest possible opportunity in the presence
of a Judge and a child support person. It further urged that the court should
permit the use of video-taped interview of the child or allow the child to
testify by a closed circuit television and that the cross examination of the
minor should be carried out by the Judge based on written questions
submitted by the defence. The Commission also recommended insertion of a
proviso to sec. 273 Cr.P.C to the effect that it should be open to the
prosecution to request the court to provide a screen so that the child victim
does not see the accused during the trial.
In its 178th Report (2001), the Law Commission recommended the insertion
of s.164A in the Cr.PC to provide for recording of the statement of material
witnesses in the presence of Magistrates where the offences were
punishable with imprisonment of 10 years and more. On the basis of this
recommendation, the Criminal Law (Amendment) Bill, 2003 was introduced
in the Rajya Sabha and is pending enactment.
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Chapter V – Protection of identity of witnesses v. Rights of accused –

Principles of law developed by the Supreme Court and the High Courts
In the pre-Maneka Gandhi phase the Supreme Court, in Gurbachan Singh v.
State of Bombay AIR 1952 SC 221, upheld a provision of the Bombay
Police Act, 1951 that denied permission to a detenue to cross-examine the
witnesses who had deposed against him. It was held that the law was only to
deal with exceptional cases where witnesses, for fear of violence to their
person or property, were unwilling to depose publicly against bad character.
At this stage, the issue was not examined whether the procedure was ‘fair’.
The decisions in G.X. Francis v. Banke Bihari Singh AIR 1958 SC 209 and
Maneka Sanjay Gandhi v. Rani Jethmalani (1979) 4 SCC 167 stressed the
need for a congenial atmosphere for the conduct of a fair trial and this
included the protection of witnesses.
In Kartar Singh v. State of Punjab (1994) 3 SCC 569 the Supreme Court
upheld the validity of ss.16 (2) and (3) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (TADA) which gave the discretion to the
Designated Court to keep the identity and address of a witness secret upon
certain contingencies; to hold the proceedings at a place to be decided by
the court and to withhold the names and addresses of witnesses in its orders.
The court held that the right of the accused to cross-examine the prosecution
witnesses was not absolute but was subject to exceptions. The same
reasoning was applied to uphold the validity of Sec. 30 of the Prevention of
Terrorism Act, 2002 (POTA) in People’s Union of Civil Liberties v. Union
of India (2003) 10 SCALE 967.
In Delhi Domestic Working Women’s Forum v. Union of India (1995) 1
SCC 14 the Supreme Court emphasised the maintenance of the anonymity
of the victims of rape who would be the key witnesses in trials involving the
offence of rape. The importance of holding rape trials in camera as
mandated by s.327 (2) and (3) Cr.PC was reiterated in State of Punjab v.
Gurmit Singh (1996) 2 SCC 384. In Sakshi v. Union of India (2004) 6
SCALE 15 the Supreme Court referred to the 172nd Report of the Law
Commission and laid down that certain procedural safeguards had to be
followed to protect the victim of child sexual abuse during the conduct of
the trial. In the Best Bakery Case (2004) 4 SCC 158, in the context of the
collapse of the trial on account of witnesses turning hostile as a result of
intimidation, the Supreme Court reiterated that “legislative measures to
 228

emphasise prohibition against tampering with witness, victim or informant,

have become the imminent and inevitable need of the day.”
Although, the guidelines for witness protection laid down by the Delhi High
Court in Neelam Katara v. Union of India (judgment dated 14.10.2003)
require to be commended, they do not deal with the manner in which the
identity of the witness can be kept confidential either before or during the
trial. The judgment of the Full Bench of the Punjab and Haryana High Court
in Bimal Kaur Khalsa AIR 1988 P&H 95, which provides for protection of
the witness from the media, does not deal with all the aspects of the
problem.
These judgments highlight the need for a comprehensive legislation on
witness protection.

Chapter VI – Witness anonymity and balancing of rights of accused – a

comparative study of case law and other countries
In the United Kingdom, the judgment of the House of Lords in Scott v. Scott
1913 AC 417 required that the exception to the general rule that
administration of justice should take place in open court should be based
“upon the operation of some other overriding principle which … does not
leave its limits to the individual discretion of the Judge.” In the Leveller
Magazine case (1979) it was held by the House of Lords that apart from
statutory exceptions it was open to the court “in the exercise of its inherent
powers to control the conduct of proceedings” so long as the court
“reasonably believes it to be necessary in order to save the ends of justice.”
This was subsequently recognised by the enactment of s.11 of the (UK)
Contempt of Court Act, 1981. Under s.24 of the Youth Justice and Criminal
Evidence Act, 1999 evidence may be given through a live telecast link
where the witness is outside UK or is a child. Ss.16 to 33 of the same Act
require the court to consider special measures of various kinds for the
protection of vulnerable and intimidated witnesses. In R vs. DJX, SCY,
GCZ (1991) Crl. A Rep. 36, the Court of Appeal allowed child witnesses to
be screened from the accused. In R vs. Tailor (Gary) 1995 Crl. LR 253
(CA), various guidelines were issued.
The Lord Diplock Commission, appointed to consider various issues
concerning the violent confrontations in Ireland, suggested that witnesses
could be screened from the accused. In R v. Murphy (1989) it was held that
 229

identity of the witness should be kept secret not only from the accused but
also from the defence lawyer. In R v. Lord Saville of Newdigate 1999 (4) All
ER 860 the Court of Appeal overturned the decision of the Lord Saville
Tribunal appointed to enquire into the incident of shooting of 26 people
during a demonstration at Londonderry, refusing to grant anonymity to
military witnesses. The Court of Appeal held that the approach of the
Tribunal was not fair to the soldiers as the risk to them and their families
was “a serious possibility.” In the second round (Lord Saville v. Widgery
Soldiers 2002 (1) WLR 1249), the Court of Appeal overturned the decision
of the Lord Saville Tribunal to shift the enquiry from London to
Londonderry in Northern Ireland holding that the elements at Londonderry
in Ireland “pose a threat to the enquiry and those who are or will be taking
part in it, and in particular, a solider witnesses.” The venue, according to
the Court of Appeal, should be London only. Further, since there would be
live video linkage to Londonderry “the public confidence will not be eroded
by holding a part of the enquiry in London.” The same approach was
adopted in regard to the recording of the evidence of police witnesses.
Following the ruling of the European Court on Human Rights in Chahel v.
UK, the Special Judgment on Appeals Commission Act, 1997 and the
Northern Ireland Act, 1998 have been enacted which provide for courts to
sit in camera where it was necessary on national security grounds and for
appointing special counsel to represent individuals in those proceedings.
In Australia, the Supreme Court of Victoria (Australia) in Jarvie (1995)
approved of non-disclosure of the names and addresses of informers and
undercover police officers as well as other witnesses whose personal safety
would be endangered by the disclosure of their identity. This has been
followed in a series of other cases as well. Australia also has 8 different
statutes (in each of the States) dealing with witness protection but not with
the anonymity or screening aspects. S.2A (1)(b) of the Australian Evidence
Act, 1989 deals with special witnesses – suffering from trauma or likely to
be intimidated.
In New Zealand, under s.13A of the (New Zealand) Evidence Act, 1908
(introduced 1986), protection is available to undercover officers in cases
involving drug offences and offences tried on indictment attracting a
maximum penalty of at least 7 years imprisonment. A certificate has to be
given by the Commissioner of Police to the court that the police officer
requiring protection has not been convicted of any offence. In 1997, s.13G
was introduced making protection applicable to all witnesses if their lives
 230

were likely to be endangered. In R v. L 1994 (2) NZLR 54 (CA), this

provision came to be tested on the anvil of s.25(f) of the New Zealand Bill
of Rights which provides for the right to cross-examination to an accused.
The court upheld the provision on the ground that the right of cross-
examination was not absolute. Under s.13C(4) the Judge, might make an
anonymity order where he is satisfied that the safety of a witness is likely to
be endangered if his identity was disclosed. Sub-section (5) of sec. 13C
provides for the factors to be accounted for by the court and sub-section (6),
the conditions to be fulfilled. The power of the court to exclude the public
or to direct screening of the witnesses or to give evidence by close circuit
television is provided under s.13G. The 1997 legislation is comprehensive
and has been held by the courts to be ‘fair’ vis-à-vis the New Zealand Bill
of Rights in R vs. Atkins 2000(2) NZLR 46(CA).
In Canada, the courts have granted more importance to the exception of
‘innocence at stake’ rather than the needs of administration of justice. In
other words, anonymity of witnesses is treated as a privilege granted under
the common law unless there is a material to show that it will jeopardize the
proof of innocence of the accused. The important cases in this regard are R
v. Durette 1994 (1) SCR 469; R v. Khela 1995 (4) SCR 201; CBC v. New
Brunswick 1996 (3) SCR 480; R v. Leipert 1997 (1) SCR 281 and R v.
Mentuck 2001 (3) SCR 442.
In South Africa, the approach is on a case by case basis in order to balance
the conflict of interests with a view to ensuring proper administration of
justice. S.153 of the (South Africa) Criminal Procedure Code permits
criminal proceedings to be held in camera to protect privacy to the witness.
S.154 gives discretion to the court to refuse publication of the name of the
accused. The South African courts have permitted the witness to give
evidence behind close doors or to give witness anonymity. The courts prefer
to prohibit the press from reporting on identity rather than exclude them
from the court room. The important cases are S v. Leepile 1986 (4) SA 187
and S v. Pastoors 1986 (4) SA 222.
The courts in the US have held that the constitutional protection in favour of
the right to confrontation by way of cross examination, as provided in the 6th
Amendment to the Constitution, is not absolute and could be restricted for
the purpose of protecting witness identity by using video link or by
shielding the witness from the accused though not from the lawyers to the
defence or the court or the jury. The important cases are Alford v. US
(1931); Pointer v. Texas (1965) and Smith v. Illinois (1968). In Maryland v.
 231

Craig (1990), the court upheld the procedure under the Maryland Courts
and Judicial Procedure Code which provided for protection of child
witnesses by way of one-way closed-circuit procedure and held that it did
not violate the right to confrontation guaranteed by the 6th Amendment.
The European Court of human rights has in Kostovski (1990), Doorson
(1996), Vissier (2002) and Fitt (2002) recognised the need to protect
anonymity of witnesses while, on account of Article 6 of the European
Convention, more importance appears to have been given to the rights of the
accused. If national courts had determined that anonymity was necessary or
not necessary in public interest, the European court could not interfere.
The judgments of the International Criminal Tribunal for former Yugoslavia
(ICTY) in the ‘Tadic’ and ‘Delaic’ cases in the context of protection of
witnesses, anonymity, re-traumatisitation and general and special measures
for their protection have been discussed in detail. Likewise, the decisions of
the International Criminal Tribunal for Rwanda (ICTR) (1994) with
reference to the relevant statute which provide for protection of victims and
witnesses have also been discussed in great detail in the Consultation Paper.

Chapter VII – Witness Protection Programmes: A comparative study of

programmes in various countries
This chapter discusses the Witness Protection Programmes in the States of
Victoria, the National Capital Territory, Queensland in Australia. It
discusses the provisions of the Australian Crime Commission Bill, 2003.
This chapter also deals with the programmes in South Africa, Hong Kong,
Canada, Portugal, Philippines and the United States of America.

Chapter VIII – Questionnaire

This sets out the questions on which specific responses are sought by the
Law Commission to the issues raised in the Consultation Paper. The final
report of the Law Commission is proposed to be prepared after taking into
account the responses received from a wide cross-section of respondents.
 232

PART I

Chapter – I

Introduction

Protection of Witnesses in Criminal Cases – Need for new

law – Observations of the Supreme Court

1.1 The criminal justice system in our country has been the focus of
several studies and reports of expert bodies. The Law Commission of
India has itself submitted several reports on topics related to the
substantive and procedural aspects of the criminal justice system.
Among the problem areas that have been highlighted is the one
relating to intimidation or allurement of victims or witnesses for the
prosecution leading to the inevitable consequence of the collapse of
the trial. The criminal courts in the capital city New Delhi have
witnessed this phenomenon with fair regularity in the recent past in a
series of trials involving sensational and ghastly crimes. The impunity
with which persons facing charges of mass murders, rape and
gruesome killings are able to frustrate the justice process through the
tactics of intimidation, threats and even elimination of witnesses has
given cause for grave concern. Several recent pronouncements of the
Supreme Court of India, including the one in the Best Bakery case,
have highlighted the immediate need for legislation in this area.
1.2 There are two broad aspects to the need for witness protection. The
first is to ensure that evidence of witnesses that has already been
collected at the stage of investigation is not allowed to be destroyed
by witnesses resiling from their statements while deposing on oath
before a court. This phenomenon of witnesses turning `hostile’ on
account of the failure to `protect’ their evidence is one aspect of the
problem. This in turn would entail special procedures to be
introduced into the criminal law after knowing all details about
witnesses, to balance the need for anonymity of witnesses on the one
hand and rights of the accused for an open public trial with a right to
cross-examination of the witnesses, on the other hand.
1.3 The other aspect is the physical and mental vulnerability of the
witness and to the taking care of his or her welfare in various respects
 233

which calls for physical protection of the witness at all stages of the
criminal justice process till the conclusion of the case.
1.4 While the first aspect of protecting the evidence of witnesses from the
danger of their turning `hostile’ has received limited attention at the
hands of Parliament, there is an urgent need to have a comprehensive
legislative scheme dealing with the second aspect of physical
protection of the witness as well. Further, witness protection will
have to be ensured in all criminal cases involving grave crimes not
limited to terrorist crimes. The implementation of such a law would
involve drawing up of Witness Protection Programmes.
1.5 Today, “Witness Identity Protection” statutes as well as “Witness
Protection Programmes” have come into being in a number of
countries. Initiatives have been taken, both on the judicial side as well
as by legislation, in several countries including the USA, UK,
Scotland, Germany, Canada, South Africa, France, Portugal, Brazil,
Japan, Philippines, Hong Kong, Korea, Pakistan, Malaysia, China,
Fiji, Laos, Nigeria, Tanzania, Papua New Guinea and Thailand. These
encompass witness identity protection and witness protection
programmes. The statutes and rules governing the functioning of the
Tribunals constituted by the United Nations to try the crimes against
humanity in Yugoslavia and Rwanda also make provisions not only
for protection of identity of witnesses for the prosecution (including
victims of offences) but also, in certain cases, to the protection of
identity of witnesses on behalf of the defence.
1.6 The judicial pronouncements of the courts in some of the countries
referred to above have dealt with complex issues concerning the
rights of witnesses/ victims for protecting their identity and for a
proper balancing of the rights of the accused to a fair trial. In several
countries case law as well as rules require the witnesses to be
examined under a one way video-link where the witness does not see
the accused or where the accused does not see the witness, but the
Judge and the defence counsel will be able to see the witness and
watch his demeanour. Likewise, statutes or rules have been made in
several countries in regard to comprehensive Witness Protection
Programmes.
1.7 In certain situations the public and the media are not allowed inside
the court and in certain other cases, media is prohibited from
publishing facts relating to the identity of witness. We may point out
incidentally that issues also arise whether public or the media can be
allowed to know the identity of the victim/ witness. Cases where the
 234

witness’s identity has to be kept confidential have raised serious

issues of alleged breach of right of the accused to confront the
witness by way of cross examination in open Court and questions are
debated as to whether there can be an effective cross-examination if
the crucial facts relating to the identity and place of residence of the
witness are not disclosed to the accused. Statutes as well as Court
judgments have come forward with a variety of solutions to balance
rights of the accused and of the witnesses. There are also a large
number of Witness Protection Programmes in other countries in
which personal protection is granted to the witness; sometimes he is
shifted to a different place or even a different country; he is paid
some money for his maintenance or he is even provided with
employment elsewhere. These are all the various aspects for
discussion in this Consultation Paper.

Need for a law on various aspects of witness protection – Supreme

Court’s observations
1.8 In the order dated 8.8.2003 made by the Supreme Court in National
Human Rights Commission v. State of Gujarat and Others, 2003 (9)
SCALE 329, the Supreme Court referred to the need for legislation on
the subject. In the judgment of the High Court of Delhi, dated 14th
October 2003 (Crl.W.No.247 of 2002) in Ms Neelam Katara v. Union
of India, certain directions/ guidelines on witness protection have
been issued, pending the making of legislation but these are only a
beginning.
1.9 In the recent judgment of the Supreme Court in PUCL v. Union of
India, 2003 (10) SCALE 967 while dealing with the validity of
section 30 of the Prevention of Terrorism Act, 2002, the Supreme
Court has referred in detail to the subject of ‘protection of the
witnesses’ and to the need to maintain a just balance between the
rights of the accused for a fair trial (which includes the right to cross
examine the prosecution witnesses in open court) and to the need to
enable (1) prosecution witnesses whose identity is known to the
accused to give evidence freely with being overawed by the presence
of the accused in the Court and (2) protection of the identity of
witnesses who are not known to the accused, – by means of devices
like video-screen which preclude the accused from seeing the witness
even though the Court and defence counsel will be able to see and
watch his demeanour.
 235

1.10 Zahaira Habibulla H. Sheikh & Another v. State of Gujarat and

Others (2004) 4 SCALE 375, (the Best Bakery Case), was a case
involving the killing of fourteen persons in a communal riot in
Gujarat. 37 of the prosecution witnesses, including several eye
witnesses, some of them relatives of the deceased, turned hostile at
the trial. The 21 accused persons were all acquitted by the trial court.
The appeal by the State of Gujarat was dismissed by the High Court.
While reversing the acquittal and ordering a retrial outside Gujarat, in
the State of Maharashtra, the Supreme Court made several
observations on the question of protection of witnesses. In this case
too, the Supreme Court observed that (p.395) “Legislative measures
to emphasise prohibition against tampering with witnesses, victim or
informant, have become the imminent and inevitable need of the
day”. The Court also referred (p.399) to “Witness Protection
Programmes” formulated in various countries. It said: “The Witness
Protection Programmes are imperative as well as imminent in the
context of alarming rate of somersaults by witnesses”. In fact, the
Court has since sought responses from various States on the question
of witness protection.
1.11 In Sakshi v. Union of India, 2004 (6) SCALE 15 (at p.32), the
Supreme Court while dealing with the plea for enlargement of the
definition of the word ‘rape’, and protection of victims of child sexual
abuse, observed that in matters relating to such sexual offences there
need to provide victim protection at the time of recording statement
made before the Court. On the need for legislation, the Supreme
Court again observed:
“We hope and trust that Parliament will give serious attention to the
points highlighted by the petitioner and make appropriate suggestions
with all the promptness it deserves.”

1.12The Law Commission has taken up the subject suo motu on account of
the observations of the Supreme Court and also because of immediate
importance of the subject in our country. The Commission has prepared
this Consultation Paper in order to invite responses from all sections of
society. After receiving the responses, it will make its final
recommendations possibly along with a draft Bill.

1.13Part I of the Consultation Paper deals with general matters; Part II with
protection of witness identity vis-à-vis rights of accused. Witness
Protection Programmes are discussed in Part III. Part IV contains a fairly
 236

exhaustive ‘Questionnaire’ to which the Commission hopes to receive

responses from a wide cross-section of people.

CHAPTER II

PUBLIC TRIAL AND CROSS EXAMINATION OF WITNESSES IN

OPEN COURT: EXISTING INDIAN LAWS

2.1 Introduction: Public trial and cross examination of

witnesses: existing Indian laws

The adversary system of trial which has been adopted in India is

founded on the basis of two vital principles, firstly, that the burden of proof
lies on the prosecution to prove the guilt of the accused and secondly, that
the accused is presumed to be innocent until the contrary is proved. These
principles provide a level playing field to an accused as against the mighty
power of the State and its instrumentalities. In a criminal trial, the
prosecution and defence prepare their respective cases and the prosecution
has to first lead evidence. The defence cross-examines the prosecution
witnesses to test the veracity of the prosecution case. The accused has the
right to silence and need not normally examine witnesses unless he chooses
to examine himself or some defence witnesses and this is generally done in
cases where he has a special plea or a plea of alibi. The Indian Evidence
Act, 1872 and the Code of Criminal Procedure, 1973 lay down a
comprehensive legal framework for recording the testimony of witnesses in
criminal cases. In addition, clause (3) of Art. 20 the Constitution protects
the accused against self-incrimination.

2.2 Code of Criminal Procedure, 1973: Existing Law

 237

In the Code of Criminal Procedure, 1973, section 327 provides for

trial in open court. Further, for ensuring a fair trial, elaborate provisions
have been made in section 207 (supply of copies of police report and other
documents to the accused), section 208 (supply of copies of statements and
documents to accused in other cases triable by Court of Sessions), and
section 273 (evidence to be taken in the presence of accused). Section 299
refers to the right of the accused to cross-examine the prosecution
witnesses. These provisions are intended to guarantee an open public trial
with a right to the accused to know the evidence gathered by the prosecution
and also a right to cross-examination to safeguard the interest of the
accused. This is so particularly because the accused is presumed to be
innocent unless proved guilty beyond reasonable doubt.

2.2.1 Section 273 is not without exceptions. The Supreme Court referred
to sec. 273 of the Code of Criminal Procedure, 1973 in Sakshi vs. Union of
India: 2004(6) SCALE 15 and observed that in spite of sec. 273 which
requires evidence to be taken in the presence of the accused, it is open to the
court to examine the witness using a video screen in as much as video
recorded evidence has now been held to be admissible by the Supreme
Court in State of Maharashtra vs. Dr. Praful B. Desai 2003(4) SCC 601.
We shall be referring to this case in detail in Chapter V, para 5.17.

2.2.2 Record of evidence in absence of the accused may be taken under

section 299 of the Code. No doubt, this section empowers the Magistrate to
record the deposition of certain witnesses in the absence of the accused.
Such recording of evidence in absence of an accused has been provided
only where an accused person has absconded and there is no immediate
prospect of arresting him. In such cases, the competent court may examine
the witnesses produced on behalf of the prosecution and record their
depositions and such depositions may be given in evidence against him on
the inquiry into or trial for the offence with which the accused is charged, if
the deponent is dead or incapable of giving evidence or cannot be found or
his presence cannot be procured without an amount of delay, expense or
inconvenience which, under the circumstances of the case, would be
unreasonable.

2.2.3 Section 200 of the Code of Criminal Procedure provides that a

Magistrate shall examine upon oath the complainant and the witnesses
present, if any. Under section 202 (2) of the Code of Criminal Procedure, in
 238

an inquiry, the Magistrate may, if he thinks fit, take evidence of witnesses

on oath. Moreover, section 204 (2) of the Code provides that no summons
or warrant shall be issued against accused unless a list of the prosecution
witnesses has been filed. For the examination of witnesses, the Magistrate
shall fix a date under section 242 in case of warrant cases instituted on
police report and under section 244 in cases other than those based on
police report.

2.2.4 Further, as to right of cross-examination by the accused, it would be

evident on a reading of section 299 of the Code that while the right to cross-
examine the prosecution witnesses is normally guaranteed, there are certain
exceptional circumstances in which an accused may be denied his right to
cross-examine a witness of the prosecution in open court.

2.2.5 In addition to section 299 of the Code, reference may be made to sub-
section (6) of section 173 of the Code. Section 173 which deals with the
report of the police officer on completion of investigation, provides under
sub-section (5) (b), that the police officer shall forward to the Magistrate
along with his report the statements recorded under section 161 of all the
persons whom the prosecution proposes to examine as its witnesses.
However, sub-section (6) of section 173 provides that if the police officer is
of opinion that any part of any such statement is not relevant to the subject-
matter of the proceeding or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public interest, he shall
indicate that part of the statement and append a note requesting the
Magistrate to exclude that part from copies to be granted to the accused and
stating his reasons for making such request.

Thus, while the requirement of providing information to the accused

is the rule, the exception to the extent permitted as above under section 173
(6) is limited only to a part of the statement made under section 161 of the
Code and not to the entire statement deposed to by any person including a
prosecution witness under section 161 of the Code.

2.3 Code of Criminal Procedure, 1973: Protection of witnesses

Coming to the issue of protection of witnesses in a criminal trial, it

would appear that barring rape cases, there are, as of today, no general
statutory provisions in the Code of Criminal Procedure, 1973 on this
subject. Section 327 (2) of the Code of Criminal Procedure, 1973 deals
 239

with ‘in camera proceedings’. This section has laid down clearly that the
inquiry into and trial of rape under section 376 and cases under sections
376A to 376D, Indian Penal Code shall be conducted in camera. This would
enable the victim to be a little more comfortable and answer the questions
frankly which could ultimately improve the quality of evidence of the
prosecutrix or the victims.

2.3.1 The Supreme Court has referred to sec. 327(2) in its judgment in State
of Punjab vs. Gurmit Singh 1996(2) SCC 384 as to the adoption of in
camera proceedings and reiterated the same again in its recent judgment in
Sakshi vs. Union of India: 2003(4) SCC 60, where it stated that sec. 327(2)
applies to inquiry or trial of offences under sections 354 and 377 of IPC and
has vast applications in rape and child abuse cases. We shall refer to this
case in detail in Chapter V, para 5.16.

2.3.2 Further, section 228A of the Indian Penal Code provides that the
Court shall impose a sentence of two years imprisonment and fine upon any
person who prints or publishes the name or any matter which may identify
the person against whom rape has been found or alleged to have been
committed. This protection is given with a view to protect the rape victim’s
privacy from general public and so that the media may not cast stigma on
the victim by disclosure of her identity.

2.3.3 Similarly, in the Juvenile Justice (Care and Protection of Children)

Act, 2000 section 21 prohibits the publication of name, address or school or
any other particular calculated to lead to the identification of the juvenile. It
also prohibits the publication of the picture of any such juvenile.

2.4 Evidence Act, 1872:

Evidence as defined in section 3 of the Indian Evidence Act, 1872

means either oral evidence or documentary evidence. The depositions of
witnesses and documents included in the term ‘evidence’ are two principal
means by which the materials, upon which the Judge has to adjudicate, are
brought before him. In a criminal case, trial depends mainly upon the
evidence of the witnesses and, the provisions of the Code of Criminal
Procedure, 1973 and of the Evidence Act, 1872 exhaustively provide for the
depositions of the witness and the rules regarding their admissibility in the
proceedings before the Court.
 240

2.4.1 The Evidence Act refers to direct evidence by witnesses. As to proof

of facts, direct evidence of a witness who is entitled to full credit shall be
sufficient for proof of any fact (section 134), and the examination of
witnesses is dealt with in sections 135 to 166 of the Act (both inclusive).
Section 135 provides that the order in which witnesses are produced and
examined shall be regulated by the law and practice for the time being
relating to civil and criminal procedures respectively, and, in the absence of
such law, by the discretion of the Court. The general law as to the testimony
of witnesses in the Code of Criminal Procedure has already been dealt with
in earlier part of this Chapter.

2.4.2 Section 138 of the Evidence Act not only lays down the manner of
examining a particular witness but also impliedly confers on the party, a
right of examination-in-chief, cross-examination and re-examination. The
examination of witnesses is generally indispensable and by means of it, all
facts except the contents of document may be proved. Anybody who is
acquainted with the facts of the case can come forward and give evidence in
the Court. Under the Evidence Act, the right of cross-examination available
to opposite party is a distinct and independent right, if such party desires to
subject the witness to cross-examination. On the importance of the right of
cross-examination, the Supreme Court in Nandram Khemraj vs. State of
M.P. 1995 Cr.L.J. 1270 observed:

“The weapon of cross-examination is a powerful weapon by which

the defence can separate truth from falsehood piercing through the
evidence given by the witness, who has been examined in
examination-in-chief. By the process of cross-examination the
defence can test the evidence of a witness on anvil of truth. If an
opportunity is not given to the accused to separate the truth from the
evidence given by the witness in examination-in-chief, it would be as
good as cutting his hands, legs and mouth and making him to stand
meekly before the barrage of statements made by the witnesses in
examination-in-chief against him or sending him to jail. Law does
not allow such things to happen”.

2.4.3 Under the Evidence Act, in certain exceptional cases, where cross-
examination is not possible, then the previous deposition of a witness can be
considered relevant in subsequent proceedings. This is provided in section
33 of the Evidence Act. The essential requirements of section 33 are as
follows:
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(a) that the evidence was given in a judicial proceedings or before any
person authorized by law to take it;
(b) that the proceeding was between the same parties or their
representatives-in-interest;
(c) that the party against whom the deposition is tendered had a right
and full opportunity of cross-examining the deponent when the
deposition was taken;
(d) that the issues involved are the same or substantially the same in
both proceedings;
(e) that the witness is incapable of being called at the subsequent
proceeding on account of death, or incapable of giving evidence or
being kept out of the way by the other side or his evidence cannot
be given without an unreasonable amount of delay or expense.

The conditions mentioned above must be fulfilled before a previous

deposition can be admitted in evidence, without cross-examination. It is
significant to note as stated in (c) above, that where such deposition is to be
admitted in criminal proceedings, a party against whom a deposition is
tendered must have had a right and full opportunity of cross-examining the
deponent when the deposition was taken.

2.4.4 The aforesaid provisions of the Evidence Act have been designed to
ensure a fair trial to the accused as he is presumed to be innocent till he is
proved guilty beyond reasonable doubt. However, there are instances where
crucial witnesses, i.e., key witnesses or material witnesses, disappear either
before or during a trial or a witness is threatened, abducted or done away
with. These incidents do not happen by accident and the inevitable
consequence is that in many of these matters, the case of the prosecution
fails (Turnor Morrison & Co. vs. K.N. Tapuria, 1993 Cr.L.J. 3384 Bom.).

2.4.5 On the need for protection of witnesses from harassment on account

of delays, following observations by Justice Wadhwa in Swaran Singh vs.
State of Punjab, AIR 2000 SC 2017 are appropriate:

“In the course of the trial, more than 50 prosecution witnesses were
given up having being won over and the case hinged on the statement
of seven witnesses which lead to the conviction of Shamsher Singh
and Jagjit Singh by the trial court, and upheld by the High Court and
now affirmed by this Court”.
 242

In the same case, Justice Wadhwa further observed:

“A criminal case is built on the edifice of evidence, evidence that is

admissible in law. For that witnesses are required whether it is direct
evidence or circumstantial evidence. Here are the witnesses who are
harassed a lot. … Not only that witness is threatened; he is abducted;
he is maimed; he is done away with; or even bribed. There is no
protection for him”.

In the above scenario, it is imperative that the provisions of the

Evidence Act are required to be looked into afresh to ensure fair trial by
affording protection to a witness so that true and correct facts come up
before the trial Court.

2.4.6 As to the limitation upon the right of cross-examination of the

prosecutrix in rape cases, amendments restricting the scope of cross-
examination, have been made by the Indian Evidence (Amendment) Act,
2002. This will be discussed in detail in the next paragraph.

2.5 Section 146 (3) of Evidence Act, 1872 introduced in 2002

Recently, the Indian Evidence (Amendment) Act, 2002 has inserted a

proviso below sub-section (3) of section 146 of the Evidence Act, 1872
thereby giving protection to a victim of rape from unnecessary questioning
her about her past character.

The said proviso reads as follows:

“Provided that in a prosecution for rape or attempt to commit rape, it

shall not be permissible, to put questions in the cross-examination of
the prosecutrix as to her general immoral character.”

2.5.1 It may be recalled that the Law Commission of India in its 185th
Report on Law of Evidence had recommended insertion of a broader
provision by way of a new sub-section (4) in section 146 which reads as
follows:

“(4) In a prosecution for an offence under sections 376, 376A, 376B,

376C and 376D of the Indian Penal Code or for attempt to commit
 243

any such offence, where the question of consent is in issue, it shall

not be permissible to adduce evidence or to put questions in the cross-
examination of the victim as to her general moral character, or as to
her previous sexual experience with any person for proving such
consent or the quality of consent.

Explanation: ‘Character’ includes reputation and disposition.”

2.6 Thus, a survey of the provisions of the Criminal Procedure Code,

1973 and the Indian Evidence Act, 1872 reveals that the accused has a right
of open trial and also a right to cross-examine the prosecution witnesses in
open court. There are a few exceptions to these principles and the
Supreme Court has declared that the right to open trial is not absolute and
video-screening techniques can be employed and such a procedure would
not amount to violation of the right of the accused for open trial. The Code
of Criminal Procedure contains a provision for examination of witnesses in
camera and this provision can be invoked in cases of rape and child abuse.
There is, however, need for extending the benefit of these special provisions
to other cases where the witnesses are either won over or threatened, so that
justice is done not only to the accused but also to victims.
 244

CHAPTER III

PROTECTION OF IDENTITY OF WITNESSES; SPECIAL

STATUTES IN INDIA

3.1 Protection of identity of witness: Special statutes

The need for the existence and exercise of a general power to grant
protection to a witness and preserve his or her anonymity in a criminal case
has been universally recognized as being in the interests of the community
and the administration of justice, to ensure that serious offences like
terrorist acts or organized crime are effectively prosecuted and punished. It
is notorious fact that a witness who gives evidence which is unfavourable to
an accused in a trial for (say), a terrorist offence would expose himself to
severe reprisals which can result in death or severe bodily injury to him or
to his family members. While the present Consultation Paper is being
issued for formulating similar procedures in the case of other offences, it is
first necessary to take notice of existing provisions relating to witness
anonymity and prosecution. For the present, we shall therefore refer to
some special statutes dealing with specific types of offences where such
protection is granted. In this Chapter, we propose to refer to these
statutes.

3.2 The West Bengal Act of 1932: exclusion of persons or public from
Court:

In the pre-constitutional state of law, we had section 31 of the Bengal

Suppression of Terrorist Outrages Act, 1932 which empowered a Special
Magistrate to exclude persons or public from precincts of the Court.
Section 31 reads as follows:

“Section 31. – A special Magistrate may, if he thinks fit, order at any

stage of a trial that the public generally, or any particular person, shall
not have access to, or remain in the room or building used by the
Special Magistrate as a Court:

Provided that where in any case the Public Prosecutor or

Advocate-General, as the case may be, certifies in writing to the
special Magistrate that it is expedient in the interests of public, peace
or safety, or of peace or safety of any of the witnesses in the trial that
 245

the public generally should not have access to, or be or remain in the
room or building used by the special Magistrate as a Court, the
special Magistrate shall order accordingly.”

The aforesaid provision clearly states that the safety of the witnesses
at trial was considered as a ground for exclusion of public from a criminal
trial. But, it will be noticed that while the main part of the section gives
discretion to the Magistrate to exclude any person or public from the Court,
the proviso gives importance to the certificate of the Public Prosecutor or
Advocate-General for such exclusion and gives little discretion to the Court
in the matter of exclusion of the public or a person from the court-hall.

3.3 TADA 1985 and TADA 1987: Protection of identity

In view of increase in terrorist activities in recent times, initially, the

Terrorist and Disruptive Activities (Prevention) Act, 1985 and thereafter the
Terrorist and Disruptive Activities (Prevention) Act, 1987 were enacted.
These Acts contained specific provisions in regard to the protection of
witnesses. Section 13 of the Terrorist and Disruptive Activities
(Prevention) Act, 1985 refers to protection of the identity and address of the
witness and in camera proceedings. It reads as follows:

“13. (1) Notwithstanding anything contained in the Code, all

proceedings before a Designated Court shall be conducted in camera:

Provided that where public prosecutor so applies, any

proceedings or part thereof may be held in open court.

(2) A Designated Court may, on an application made by a witness

in any proceedings before it or by the public prosecutor in relation to
a witness or on its own motion, take such measures as it deems fit
keeping the identity and address of the witnesses secret.

(3) In particular and without prejudice to the generality of

provisions of sub-section (2), the measures which a Designated Court
may take under that sub-section may include -

(a) the holding of the proceedings at a protected place;

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(b) the avoiding of the mention of the names and address of what
witnesses in its orders or judgments or in any records of case
accessible to public;
(c) the issuing of any directions for security that the identity and
addresses of the witnesses are not disclosed.

(4) Any person who contravenes any direction issued under sub-
section (3) shall be punishable with imprisonment for a term which
may extend to one year and with fine which may extend to one
thousand rupees.”

3.4 Terrorist and Disruptive Activities (Prevention) Act, 1987 which

followed the Act of 1985 provided likewise for the protection of identity of
witnesses in section 16 with a few charges. Section 16 differed from section
13 of TADA Act, 1985 in two respects. Firstly, whereas it was mandatory
to hold proceedings in camera under section 13 of TADA Act, 1985 the
proceedings could be held in camera under section 16 of TADA Act, 1987
only where the Designated Court so desired. Secondly, sec. 16(3)(d) of the
TADA Act, 1987 empowered a Designated Court to take such measures in
the public interest so as to direct that information in regard to all or any of
the proceedings pending before such a Court shall not be published in any
manner. The provisions of sec. 16 were elaborately considered by the
Supreme Court in Kartar Singh vs. State of Punjab 1994(3) SCC 569. We
shall be referring to that case in detail when we come to Chapter V, in para
5.7.

3.5 POTA 2002:

Section 30 of the Prevention of Terrorism Act, 2002 enacted recently,

is on the same lines as section 16 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 referred to above. It reads as follows:

“30. Protection of witnesses.- (1) Notwithstanding anything

contained in the Code, the proceedings under this Act may, for reason
to be recorded in writing, be held in camera if the Special Court so
desires.
(2) A Special Court, if on an application made by a witness in any
proceeding before it or by the Public Prosecutor in relation to such
witness or on its own motion, is satisfied that the life of such witness
is in danger, it may, for reasons to be recorded in writing, take such
 247

measures as it deems fit for keeping the identity and address of such
witness secret.
(3) In particular, and without prejudice to the generality of the
provisions of sub-section (2), the measures which a Special Court
may take under that sub-section may include-
(a) the holding of the proceedings at a place to be decided by
the Special Court;
(b) the avoiding of the mention of the names and addresses of
the witnesses in its orders or judgments or in any records
of the case accessible to public;
(c) the issuing of any directions for securing that the identity
and address of the witnesses are not disclosed;
(d) a decision that it is in the public interest to order that all or
any of the proceedings pending before such a Court shall
not be published in any manner.
(4) Any person who contravenes any decision or direction issued
under sub-section (3) shall be punishable with imprisonment for a
term which may extend to one year and with fine which may extend
to one thousand rupees.”

The validity of section 30 has been upheld in PUCL vs. Union of India:
2003(10) SCALE 967 which will be referred to in detail in Chapter V, para
5.15.

3.6 As already stated in the previous Chapter (para 2.3.3), there is yet
another special statute, the Juvenile (Care and Protection of Children) Act,
2000, sec. 21 which prohibits the publication of name, address or school or
any other particulars calculated to lead to the identification of the juvenile.
It also prohibits the publication of the picture of any such juvenile.

3.7 Present need for a general law on Protection of identity of

witnesses even in cases which do not relate to terrorism or disruptive
activities.

The above analysis of the state of the statute law, both the general and
special law, shows that there is no general law on protection of identity of
witnesses in criminal cases – apart from the provisions for protection of
witnesses in the special statutes governing terrorist-crimes, such as the
Prevention of Terrorism Act, 2002 etc. In recent times, the cases where
witnesses are turning hostile at trial due to threats, is no longer confined to
 248

cases of terrorism. Even in other types of offences falling under the Indian
Penal Code or other special statute, this phenomenon has reached alarming
proportion. There is therefore need, as in other countries, to generally
empower the Court in such cases - where muscle power, political power,
money power or other methods employed against witnesses and victims -
for the purpose of protecting the witnesses so that witnesses could give
evidence without any fear of reprisals and witnesses do not turn hostile on
account of threats by the accused. That, indeed, is the purpose of this
Consultation Paper.
 249

Chapter IV

Earlier Reports of the Law Commission of India

14th Report of Law Commission (1958): ‘inadequate arrangements’ for

‘witnesses’:

4.1 In the 14th Report of the Law Commission (1958), ‘witness

protection’ was considered from a different angle. The Report referred to
inadequate arrangements for witnesses in the Courthouse, the scales of
traveling allowance and daily batta (allowance) paid for witnesses for
attending the Court in response to summons from the Court. This aspect too
is important if one has to keep in mind the enormous increase in the expense
involved and the long hours of waiting in Court with tension and attending
numerous adjournments. Here the question of giving due respect to the
witness’s convenience, comfort and compensation for his sparing valuable
time is involved. If the witness is not taken care of, he or she is likely to
develop an attitude of indifference to the question of bringing the offender
to justice.

4.2 Between 1958 and 2004, there has been a total change in the crime
scene, in as much as, not only crime has increased and cases of convictions
have drastically fallen, but there is more sophistication in the manner of
committing offences for, today, the offender too has the advantages of
advances in technology and science. There are now more hostile witnesses
than before and the witnesses are provided allurements or are tampered with
or purchased and if they remain firm, they are pressurized or threatened or
 250

even eliminated. Rape and sexual offence cases appear to be the worst
affected by these obnoxious methods.

4.3 Fourth Report of the National Police Commission (1980): handicaps

of witnesses:

In June 1980, in the Fourth Report of the National Police

Commission, certain inconveniences and handicaps from which witnesses
suffer have been referred to. The Commission again referred to the
inconveniences and harassment caused to witnesses in attending courts.
The Commission referred to the contents of a letter received from a senior
District and Sessions Judge to the following effect:

“A prisoner suffers from some act or omission but a witness suffers

for no fault of his own. All his troubles arise because he is
unfortunate enough to be on the spot when the crime is being
committed and at the same time ‘foolish’ enough to remain there till
the arrival of the police.”

The Police Commission also referred to the meagre daily allowance

payable to witnesses for appearance in the Courts. It referred to a sample
survey carried out in 18 Magistrates’ Courts in one State, which revealed
that out of 96,815 witnesses who attended the Courts during the particular
period, only 6697 were paid some allowance and even for such payment, an
elaborate procedure had to be gone through.

4.4 154th Report of the Law Commission (1996): Lack of facilities and
wrath of accused referred:
 251

In the 154th Report of the Commission (1996), in Chapter X, the

Commission, while dealing with ‘Protection and Facilities to Witnesses’,
referred to the 14th Report of the Law Commission and the Report of the
National Police Commission and conceded that there was ‘plenty of
justification for the reluctance of witnesses to come forward to attend Court
promptly in obedience to the summons”. It was stated that the plight of
witnesses appearing on behalf of the State was pitiable not only because of
lack of proper facilities and conveniences but also because witnesses have
to incur the wrath of the accused, particularly that of hardened criminals,
which can result in their life falling into great peril. The Law Commission
recommended, inter alia, as follows:

“6. We recommend that the allowances payable to the witnesses

for their attendance in courts should be fixed on a realistic basis and
that payment should be effected through a simple procedure which
would avoid delay and inconvenience. … Adequate facilities should
be provided in the court premises for their stay. The treatment
afforded to them right from the stage of investigation upto the stage
of conclusion of the trial should be in a fitting manner giving them
due respect and removing all causes which contribute to any anguish
on their part. Necessary confidence has to be created in the minds of
the witnesses that they would be protected from the wrath of the
accused in any eventuality.

7. Listing of the cases should be done in such a way that the

witnesses who are summoned are examined on the day they are
summoned and adjournments should be avoided meticulously. …The
 252

courts also should proceed with trial on day-to-day basis and the
listing of the cases should be one those lines. The High Courts
should issue necessary circulars to all the criminal courts giving
guidelines for listing of cases.”

The following points emerge from the above recommendations:

(a) Realistic allowance should be paid to witnesses for their

attendance in Courts and there should be simplification of the
procedure for such payment.
(b) Adequate facilities should be provided to witnesses for their stay
in the Court premises. Witnesses must be given due respect and it
is also necessary that efforts are made to remove all reasonable
causes for their anguish.
(c) Witnesses should be protected from the wrath of the accused in
any eventuality.
(d) Witnesses should be examined on the day they are summoned and
the examination should proceed on a day-to-day basis.

4.5 172nd Report of the Law Commission (2000) : Reference by

Supreme Court to the Law Commission: screen technique:

In March 2000, the Law Commission submitted its 172nd Report on

‘Review of Rape Laws’. The Law Commission took the subject on a
request made by the Supreme Court of India (vide its order dated 9th August,
 253

1999, passed in Criminal Writ Petition (No. 33 of 1997), Sakshi vs. Union
of India.

The petitioner ‘Sakshi’, an organization, interested in the issues

concerning women, filed this petition, seeking directions for amendment of
the definition of the expression ‘sexual intercourse’, as contained in section
375 of the IPC. The Supreme Court requested the Law Commission ‘to
examine the issues submitted by the petitioners and examine the feasibility
of making recommendations for amendments of the Indian Penal Code or to
deal with the same in any other manner so as to plug the loopholes’.

The Law Commission discussed the issues raised by the petitioner

with Petitioner NGO and other women organizations. The Commission also
requested ‘Sakshi’ and other organizations to submit their written
suggestions for amendment of procedural laws as well as the substantial
law.

Accordingly, these women organizations submitted their suggestions

for amendment of Cr.P.C. and the Evidence Act and also I.P.C. One of the
views put forward by the organizations was that a minor complainant of
sexual assault shall not have to give his/her oral evidence in the presence of
the accused, as this will traumatic to the minor. It was suggested that
appropriate changes in the law should be made for giving effect to this
provision.

It was further suggested that a minor’s testimony in a case of child

sexual abuse should be recorded at the earliest possible opportunity in the
 254

presence of a judge and the child-support person, which may include a

family friend, relative or social worker whom the minor trusts. For the
purpose of proper implementation of the above suggestion, it was urged that
the court should take steps to ensure that at least one of the following
methods is adopted:
(i) permitting use of a video-taped interview of the child’s statement
by the judge in the presence of a child support person;
(ii) allowing a child to testify via closed circuit television or from
behind a screen to obtain a full and candid account of the acts
complained of;
(iii) the cross examination of the minor should only be carried out by
the judge based on written questions submitted by the defence
upon perusal of the testimony of the minor;
(iv) whenever a child is required to give testimony, sufficient breaks
shall be given as and when required by the child.

The Commission considered the above suggestions along with other issues
raised and the order of the Supreme Court and gave its 172nd Report on 25th
March, 2000. In respect of the suggestion that a minor who has been
assaulted sexually, should not be required to give his/her evidence in the
presence of the accused and he or she may be allowed to testify behind the
screen, the Law Commission referred to section 273 of the Cr.P.C., which
requires that ‘except as otherwise expressly provided, all evidence taken in
the course of a trial or other proceeding, shall be taken in the presence of the
accused or when his personal attendance is dispensed with, in the presence
of his pleader’. The Law Commission took the view that his general
principle, which is founded upon natural justice, should not be done away
 255

with altogether in trials and enquiries concerning sexual offence. However,

in order to protect the child witness the Commission recommended that it
may be open to the prosecution to request the Court to provide a screen in
such a manner that the victim does not see the accused, while at the same
time providing an opportunity to the accused to listen to the testimony of the
victim and give appropriate instructions to his advocate for an effective
cross-examination. Accordingly, the Law Commission in para 6.1 of its
172nd Report recommended for insertion of a proviso to section 273 of the
Cr.P.C. 1973 to the following effect:

“Provided that where the evidence of a person below sixteen years

who is alleged to have been subjected to sexual assault or any other
sexual offence, is to be recorded, the Court may, take appropriate
measures to ensure that such person is not confronted by the accused
while at the same time ensuring the right of cross-examination of the
accused”.

In respect of other suggestions mentioned above, made by Sakshi

organization, the Law Commission expressed its view that these suggestions
were impracticable and could not be accepted.

178th Report of the Law Commission (2001): preventing witnesses turning

hostile:

In December, 2001, the Commission gave its 178th Report for

amending various statutes, civil and criminal. That Report dealt with hostile
witnesses and the precautions the Police should take at the stage of
 256

investigation to prevent prevarication by witnesses when they are examined

later at the trial. The Commission recommended three alternatives, (in
modification of the two alternatives suggested in the 154th Report). They
are as follows:

“1. The insertion of sub-section (1A) in Section 164 of the Code of

Criminal Procedure (as suggested in the 154th Report) so that the
statements of material witnesses are recorded in the presence of
Magistrates. [This would require the recruitment of a large number of
Magistrates].
2. Introducing certain checks so that witnesses do not turn hostile,
such as taking the signature of a witness on his police statement and
sending it to an appropriate Magistrate and a senior police officer.
3. In all serious offences, punishable with ten or more years of
imprisonment, the statement of important witnesses should be
recorded, at the earliest, by a Magistrate under Section 164 of the
Code of Criminal Procedure, 1973. For less serious offences, the
second alternative (with some modifications) was found viable.”

4.6 However, it is to be noted that the Law Commission, in the above

Report, did not suggest any measures for the physical protection of
witnesses from the ‘wrath of the accused’ nor deal with the question
whether the identity of witnesses can be kept secret and if so, in what
manner the Court could keep the identity secret and yet comply with the
requirements of enabling the accused or his counsel to effectively cross
examine the witness so that the fairness of the judicial procedure is not
sacrificed.
 257

4.7 The Criminal Law (Amendment) Bill, 2003: preventing witnesses

turning hostile:

In the Criminal Law (Amendment) Bill, 2003, introduced in the Rajya

Sabha in August, 2003, the above recommendations have been accepted by
further modifying the recommendation (3) of recording statement before a
Magistrate to apply where the sentence for the offence could be seven years
or more. A further provision is being proposed for summary punishment of
the witness by the same Court if the witness goes back on his earlier
statement recorded before the Magistrate. Another provision is also being
made to find out whether the witness is going back on his earlier statement
because of inducement or pressure or threats or intimidation.

4.8 Thus, the above analysis of the various recommendations of the Law
Commission made from time to time, including the 178th Report shows that
they do not address the issue of ‘protection’ and ‘anonymity’ of witnesses or
to the procedure that has to be followed for balancing the rights of the
witness on the one hand and the rights of the accused to a fair trial. In the
absence of such a procedural law, the Supreme Court has had to step in on
the judicial side in recent case to give various directions and these
judgments will be discussed in the next chapter, Chapter V.

4.9 It is, therefore, proposed to deal with the above gaps in the law, in
detail in the Consultation Paper.
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PART II

WITNESS IDENTITY PROTECTION Vs. RIGHTS OF ACCUSED

Chapter V

PROTECTION OF IDENTITY OF WITNESSES Vs. RIGHTS OF

ACCUSED – PRINCIPLES OF LAW DEVELOPED
BY THE SUPREME COURT AND THE HIGH COURTS

5.1 Introduction:

In the absence of a general statute covering witness identity

protection and partial restriction of the rights of the accused, the Supreme
Court has taken the lead. Some of the High Courts have also gone into this
issue recently. We shall start our discussion with the law declared by
Supreme Court in 1978.

5.2 The decision of the Supreme Court in Maneka Gandhi’s case (AIR
1978 SC 597: 1978(1) 240 continues to have a profound impact on the
administration of criminal justice in India. In terms of that case, the phrase
“procedure established by law” in Article 21 of the Constitution no longer
means “any procedure” whatsoever as interpreted in earlier judgments of the
Court but now means a “just, fair and reasonable” procedure. In a criminal
trial, a fair trial alone can be beneficial both to the accused as well as
society in as much as the right to a fair trial in a criminal prosecution is
enshrined in Article 21 of the Constitution of India.
 259

The primary object of criminal procedure is to bring offenders to

book and to ensure a fair trial to accused persons. Every criminal trial
begins with the presumption of innocence in favour of the accused; and, in
India, the provisions of the Code of Criminal Procedure, 1973 are so framed
that a criminal trial should begin with and be throughout governed by this
essential presumption. A fair trial has two objectives in view, i.e. first, it
must be fair to the accused and secondly, it must also be fair to the
prosecution or the victims. Thus, it is of utmost importance that in a
criminal trial, witnesses should be able to give evidence without any
inducement, allurement or threat either from the prosecution or the defence.

These judgments of the Supreme Court have laid down various rules
or guidelines for protection of witnesses but they cannot and are not
complete and, in any event, cannot be as effective as the provisions of a
special statute on the subject would otherwise be. We have already stated in
Chapter I that in a vast number of countries, the problem is attempted to be
solved by enacting legislation. But until appropriate legislation is made,
judgments of Courts will certainly be helpful. Courts have also suggested
that appropriate statutory provisions should be made to protect the rights of
witnesses and victims on the one hand and the rights of the accused to a fair
trial, on the other.

We shall now refer to the case law in India in this behalf.

5.3 Gurbachan Singh’s case (sec. 27 of the Greater Bombay Police Act,
1902) (1952)

In 1952, in Gurbachan Singh vs. State of Bombay (AIR 1952 SC

221) decided by the Supreme Court, the challenge was to an order of
 260

externment passed against the appellant (writ petitioner), a resident of

Bombay, to the effect that he should shift to Amritsar, (later modified as a
shift to Kalyan), so that witnesses may depose freely against him in
Bombay. The order was passed by the Commissioner of Police under sec.
27 of the Greater Bombay Police Act, 1902 (which is now replaced by the
Bombay Police Act, 1951). That section permitted the Commissioner to
direct any person to remove himself outside the State or to such place within
the State and by such route and within such time as the Commissioner shall
prescribe and not to enter the State or, as the case may be, the Greater
Bombay, if it appears to the Commissioner:

“(a) that the movements or acts of any person in Greater Bombay

are causing or calculated to cause alarm, danger or harm to person or
property, or that there are reasonable grounds for believing that such
person is engaged or is about to be engaged in the commission of an
offence involving force or violence, or an offence punishable under
Chapters XII, XVI or XVII of the Indian Penal Code, or in the
abetment of any such offence, and where in the opinion of the
Commissioner, witnesses are not willing to come forward to give
evidence in public against such person by reason of apprehension on
their part as regards the safety of their person or property”.

One of the contentions of the appellant was that section 27 which permitted
the Court to order the accused to be removed outside the State or to another
place within the State, imposed an unreasonable restriction on the appellant
violating Art. 19(1)(d) of the Constitution of India and was not saved by
 261

clause (5) of Art 19. The Supreme Court upheld sec. 27 and rejected the
challenge to its validity, and observed as follows:

“There can be no doubt that the provisions of section 27(1) of the

Bombay Act, (conferring on the Commissioner of Police the power to
extern), was made in the interest of the general public and to protect
them against dangerous and bad characters whose presence in a
particular locality may jeopardize the peace and safety of the
citizens.”

The Supreme Court also held that the procedure in the Act which denied
permission to be present when the witness was cross-examined was not
unreasonable. The law was an extraordinary one and was made only to deal
with exceptional cases where witnesses, for fear of violence to their person
or property, were unwilling to depose publicly against bad characters whose
presence in certain areas might constitute a menace to the safety of the
public residing there. This object would be wholly defeated if a right to
confront or cross examine these witnesses was given to the suspect. The
power under sec 27 was vested in a high dignitary and was justified. It
should be noted that the Court treated the procedure as valid as it was not
necessary before Maneka Gandhi’s case, to go into the question whether the
procedure was ‘fair’.

5.4 Talab Haji Hussain Case: (cancellation of bail): (1958)

The facts in Talab Haji Hussain vs. Madhukar Purushottam Mondkar:

AIR 1958 SC 376 were that the person was accused of having committed
 262

an offence which was bailable but the High Court, in exercise of its inherent
power, allowed an application by the complainant for cancelling the bail on
the ground that “it would not be safe to permit the appellant to be at large”.
The Supreme Court confirmed the order of cancellation and observed that
the primary purpose of the Criminal Procedure Code was to ensure a fair
trial to an accused person as well as to the prosecution. The Court
observed:

“It is therefore of the utmost importance that, in a criminal trial,

witnesses should be able to give evidence without inducement or
threat either from the prosecution or the defence….the progress of a
criminal trial must not be obstructed by the accused so as to lead to
the acquittal of a really guilty offender…. there can be no possible
doubt that, if any conduct on the part of an accused person is likely to
obstruct a fair trial, there is occasion for the exercise of the inherent
power of the High Court to secure the ends of justice…. and it is for
the continuance of such a fair trial that the inherent powers of the
High Courts, are sought to be invoked by the prosecution in cases
where it is alleged that accused person, either by suborning or
intimidating witnesses, or obstructing the smooth progress of a fair
trial.”

The cancellation of bail was justified on the basis of the conduct of the
accused subsequent to release on bail.

5.5 Harpreet Kaur’s Case (Preventive detention) (1992)

 263

This case, Harpreet Kaur v. State of Maharashtra, AIR 1992 SC 779

arose under the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers and Drug offenders Act (1981). An order of
preventive detention was passed against the detenu for indulging in
transportion of illicit liquor and keeping arms with him while transporting
liquor. He was also creating fear psychosis. Four witnesses, on condition
of anonymity gave statements to the police and clearly stated that they
would not depose against the detenu for fear of retaliation as the detenu had
threatened to do away with anyone who would depose against him. The
Supreme Court held that the activities of the detenu affected the even tempo
of the society by creating a feeling of insecurity among those who were
likely to depose against him as also the law enforcement agencies. The fear
psychosis created by the detenu in the minds of the witnesses was aimed at
letting the crime go unpunished. These activities, it was held, fell within
sec. 2(a) of the Act, as to permit the detenu’s preventive detention in the
interests of maintaining ‘public order’.

5.6 Francis v. Banka Bihau Singh (1958): (case transferred anticipating

communal violence) The preserving of a congenial atmosphere for the
conduct of a fair trial has been viewed as imperative by the superior courts.
If the atmosphere is surcharged with tension on account of the hostility
between the parties, or within the community, it is bound to have impact on
the fairness of the trial. The necessity for ensuring protection of witnesses
assumes significance in this context as well. This case in Francis and the
next one relating to Maneka Gandhi state that if there are serious local
tensions which are likely to preclude a fair trial, the case can be transferred
 264

for trial to a distant place. These cases were followed recently in NHRC
case also (see para 5.14).

5.7 In G.X. Francis vs. Banke Bihari Singh, A.I.R. 1958 SC 209 the
Supreme Court was deciding a transfer petition filed under section 527 of
the Cr.P.C. 1898 for the transfer of a criminal case from Jashpuranagar, in
the state of Madhya Pradesh, to some other State, preferably New Delhi or
Orissa. The complainant in the case was a member of the royal family of
Jashpur, who used to reside at Jashpurnagar. All the seven accused, except
one, were Roman Catholics and the other one was a Jacobite Christian. One
of the grounds for asking transfer of the case was that there was bitterness
among the communities of the accused and the complainants i.e. Christians
and Hindus, in the area of Jashpurnagar. In view of the unanimity of
testimony from both sides about the nature of surcharged tension in
Jashpurnagar, the Supreme Court ordered transfer of the case from
Jashpurangar to the State of Orissa, for fair trial . Vivian Bose J, speaking
for the Court observed:

“…But we do feel that good grounds for transfer from Jashpurnagar

are made out because of the bitterness of local communal feeling and
the tenseness of the atmosphere there. Public confidence in the
fairness of a trial held in such an atmosphere would be seriously
underminded, particularly among reasonable Christians all over India,
not because the Judge was unfair is biased but because the machinery
of justice is geared to work in the midst of such conditions. The calm
detached atmosphere of a fair and impartial judicial trial would be
 265

wanting and even if justice were done it would not be ‘seen to be

done’.”

5.8 Maneka Sanjay Gandhi’s case (1979): transfer of case can be made if
there are local tensions: The Supreme Court in Maneka Sanjay Gandhi vs.
Rani Jethmalani (1979) 4 SCC 167 stressed the need for a congenial
atmosphere for fair and impartial trial. Krishna Iyer J while defining the
need for congenial atmosphere for a fair and impartial trial, observed at para
5:

“This tendency of roughs and street roughs to violate the serenity of court
is obstructive of the course of justice and must surely be stamped out.
Likewise the safety of the person of an accused or complainant as an
essential condition for participation in a trial and where that is put in peril
by commotion, tumult, or threat on account of pathological conditions
prevalent in a particular venue, the request for a transfer may not be
dismissed summarily. It causes disquiet and concern to a court of justice
if a person seeing justice is unable to appear, present one’s case, bring
only witnesses or adduce evidence. Indeed, it is the duty of the court to
assure propitious conditions which conduce to comparative tranquility at
the trial. Turbulent conditions putting the accused’s life in danger or
creating chaos inside the Court hall may jettison public justice. If this vice
is peculiar to a particular place and is persistent the transfer of the case
from that place may become necessary. Likewise, if there is general
consternation or atmosphere of tension or raging masses of public in the
entire region taking sides and polluting the climate, vitiating the necessary
neutrality to hold a detached judicial trial, the situation may be said to
have deteriorated to such an extent as to warrant transfer”.

5.9 Kartar Singh’s case: (sec. 16 of TADA)(1994)

 266

Kartar Singh vs. State of Punjab 1994(3) SCC 569 is a landmark and
is a case nearest to the subject matter of this Consultation Paper. That case
was dealing with the provisions of section 16(2) and (3) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987. Sec. 16(2) gives discretion to
the Designated Court to keep the identity and address of any witness secret
on the following three contingencies:

(1) on an application made by a witness in any proceedings before it;

or
(2) on an application made by the Public Prosecutor in relation to such
witness; or
(3) on its own motion.

Section 16(3) refers to the measures to be taken by the Designated Court

while exercising its discretion under subsection (2).

If neither the witness nor the Public Prosecutor has made an

application in that behalf nor the Court has taken any decision of its own,
then the identity and address of the witnesses have to be furnished to the
accused. The measures are to be taken by the Designated Court under any
of the above contingencies so that a witness may not be subjected to any
harassment for speaking against the accused.

Section 16(3) refers to the measures that the Court without prejudice
to its general power under section 16(2), may take. These include:
 267

(a) the holding of the proceedings at a place to be decided by the

Designated Court;
(b) the avoiding of the mentioning of the names and addresses of the
witnesses in its orders or judgments or in any records of the cases
accessible to public;
(c) the issuing of any directions for securing that the identity and
addresses of the witnesses are not disclosed;
(d) directing, in the public interest, that all or any of the proceedings
pending before such a Court, shall not be published in any manner.

Subsection (4) of section 16 refers to the punishment that can be imposed

for contravention of any direction issued under subsection (3). It says that
such persons shall be punishable with imprisonment for a term which may
extend to one year and with fine which may extend to Rs. 1000/-.

In Kartar Singh, the Supreme Court upheld the special provision

envisaged in section 16(2) and (3) stating as follows: (pp 688-689)

“Generally speaking, when the accused persons are of bad character,

the witnesses are unwilling to come forward to depose against such
persons fearing harassment at the hands of those accused. The
persons who are put for trial under this Act are terrorists and
disruptionists. Therefore, the witnesses will all the more be reluctant
and unwilling to depose at the risk of their life. The Parliament,
having regard to such extraordinary circumstances has thought it fit
that the identity and addresses of the witnesses be not disclosed in
any one of the above contingencies.”
 268

The Supreme Court then referred to the provision of section 228A of

the Indian Penal Code, (inserted in 1983) which states that disclosure of the
identity of the ‘victims’ of certain offences, (sections 376, 376A, 376B,
376C, 376D) as contemplated by sub-section (1) of that section is
punishable but will be subject to sub-section (2). Sub-section (2) states that
nothing in subsection (1) shall extend to any printing or publication of the
name of any person which may make known the identity of the victim if
such printing or publication is made:

“(a) by or under the orders in writing of the officer-in-charge of the

police station or the police officer making the investigation into such
offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or
with the authorization in writing of the next of kin of the
victim.”

Subsection (3) of section 228A of the Indian Penal Code states that whoever
prints or publishes any matter in relation to any proceeding before a Court
with respect to an offence referred to in subsection (1) without the previous
permission of such Court shall be punished with imprisonment of either
description for a term which may extend to two years and shall also be
liable to fine. Explanation below sub-section (3) states that the printing or
publication of the judgment of any High Court or the Supreme Court does
not amount to an offence within the meaning of the section.
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The Supreme Court (p. 689) then explained the permissible

restrictions upon the right of the accused to cross-examine the prosecution
witnesses, as follows:

“However, when the witnesses are examined in the presence of the

accused, then the accused may have the chances of knowing the
identity of the witnesses if they are already known to the defence.
But if the witnesses are unknown to the defence, there is no
possibility of knowing the identity of the witnesses even after they
enter into the witness box. During a trial, after examination of the
witness-in-chief, the accused have a right of deferring the cross-
examination and calling the witnesses for cross-examination on some
other day. If the witnesses are known to the accused, they could
collect the material to cross-examine at the time of cross-examination
in such circumstances. Whatever may be the reasons for non-
disclosure of the witnesses, the fact remains that the accused persons
to be put up for trial under this Act which provides severe
punishment, will be put to disadvantage to effective cross-examining
and exposing the previous conduct and character of the witnesses.”

The following final observation of the Supreme Court in Kartar Singh’s

case (para 290) is important:

“Therefore, in order to ensure the purpose and object of the cross-

examination, we feel that, as suggested by the Full Bench of the
Punjab and Haryana High Court in Bimal Kaur (AIR 1988 P&H p 95
(FB)) the identity, names and addresses of the witnesses may be
 270

disclosed before the trial commences; but we would like to qualify it

by observing that it should be subject to an exception that the Court
for weighty reasons in its wisdom may decide not to disclose the
identity and addresses of the witnesses especially if the potential
witnesses whose life may be in danger.”(Emphasis supplied)

The Supreme Court has, therefore, upheld the provision of sub-sections 1(2)
and (3) of section 16 of the TADA, 1987 by treating the right of the accused
to cross-examine the prosecution witnesses as not being absolute but as
being subject to exceptions in the case of trials of alleged offenders by the
Designated Court.

5.10 Delhi Domestic Women’s Forum case (SC)(1995): As

compared to statutory provisions, the judicial pronouncements have gone
far ahead in protecting the witnesses and more particularly the protection of
victim’s witness as in the case of a rape. In the Delhi Domestic Working
Women’s Forum vs. Union of India (1995) 1 SCC 14, the Supreme Court,
while indicating the broad parameters that can assist the victims of rape,
emphasized that in all rape trials “anonymity” of the victims must be
maintained as far as necessary so that the name is shielded from the media
and public. The Court also observed that the victims invariably found the
trial of an offence of rape trial a traumatic experience. The experience of
giving evidence in court has been negative and destructive and the victims
have often expressed that they considered the ordeal of facing cross-
examination in the criminal trial to be even worse than the rape itself.

5.11 Swaran Singh’s case: (Plight of witnesses in criminal cases) (2000)

 271

The expenses payable to witnesses provided in sec. 312 of the Code

of Criminal Procedure, 1973 came up for discussion in Swaran Singh vs.
State of Punjab AIR 2000 SC 2017. The Supreme Court (Wadhwa J)
described the plight of witnesses in criminal courts as follows:

“Not only that a witness is threatened; he is maimed; he is done away

with; or even bribed. There is no protection for him.”

5.12 Shambhu Nath Singh’s case: (criminal trial on day to day basis (2001)

The Supreme Court stated in State of UP vs. Shambhu Nath Singh

2001 (4) SCC 667 that section 309 of the Code of Criminal Procedure, 1973
requires that the criminal trial must proceed from day to day and should not
be adjourned unless ‘special’ reasons are recorded by the Court. In that
case, after several adjournments, PW1 was not examined even when
present. The Supreme Court observed:

“If any Court finds that day to day examination of witnesses

mandated by the legislature cannot be complied with due to the non-
cooperation of the accused or his counsel, the Court can adopt any of
the measures indicated in the sub section, i.e. remanding the accused
to custody or imposing costs on the party who wants such
adjournments (the costs must be commensurate with loss suffered by
the witnesses, including the expenses to attend the Court). Another
option is, when the accused is absent and the witness is present to be
examined, the Court can cancel his bail, if he is on bail.”
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5.13 NHRC vs. State of Gujarat: (Best Bakery Case) (2003): need for law
of witness protection:

We now come to the Best Bakery case from Gujarat which came up to
the Supreme Court. In the public interest case, (W.P. Crl. No. 109/2003 and
batch) in National Human Rights Commission vs. State of Gujarat a series
of orders were passed by the Supreme Court.

There, the National Human Rights Commission (NHRC) filed a

public interest case seeking retrial on the ground that the witnesses were
pressurised by the accused to go back on their earlier statements and the
trial was totally vitiated. In its order dated 8.8.2003 NHRC vs, State of
Gujarat (2003(9) SCALE 329), the Supreme Court observed:

“……. A right to a reasonable and fair trial is protected under Articles

14 and 21 of the Constitution of India, Art. 14 of the International
Covenant on Civil and Political Rights, to which India is a signatory,
as well as Art. 6 of the European Convention for Protection of Human
Rights and Fundamental Freedoms.

On perusal of the allegations in the special leave petition and

number of criminal cases coming to this Court, we are prima facie of
the opinion that criminal justice delivery system is not in sound
health. The concept of a reasonable and fair trial would suppose
justice to the accused as also to the victims. From the allegations
made in the special leave petition together with other materials
 273

annexed thereto as also from our experience, it appears that there are
many faults in the criminal justice delivery system because of apathy
on the part of the police officers to record proper report, their general
conduct towards the victims, faulty investigation, failure to take
recourse to scientific investigation etc.”

Then, on the question of protection of witnesses, the Supreme Court

referred to the absence of a statute on the subject, as follows:

“No law has yet been enacted, not even a scheme has been framed by
the Union of India or by the State Government for giving protection
to the witnesses. For successful prosecution of the criminal cases,
protection to witnesses is necessary as the criminals have often access
to the police and the influential people. We may also place on record
that the conviction rate in the country has gone down to 39.6% and
the trials in most of the sensational cases do not start till the witnesses
are won over. In this view of the matter, we are of opinion that this
petition (by NHRC) be treated to be one under Art. 32 of the
Constitution of India as public interest litigation.”

The Court directed that in the counter-affidavit of the Gujarat Government,

it should indicate the steps, if any, taken by it for extending protection to the
lives of victims, their families and their relations; if not, the same should be
done. The Court also wanted to know whether any action had been taken by
the Gujarat Government against those who had allegedly extended threats of
coercion to the witnesses, as a result whereof the witnesses had changed
their statements before the Court. The Court also directed the Union of
 274

India to inform the Court about the proposals, if any, “to enact a law for
grant of protection to the witnesses as is prevalent in several countries”.

By a subsequent order passed on 12th July, 2004, the Supreme Court

issued directions to all States and Union Territories to give suggestions for
formulation of appropriate guidelines in the matter.

5.14` Ms. Neelam Katara case (Delhi High Court): (2003) Guidelines for
witness protection issued:

We shall next refer to the guidelines suggested by the Delhi High

Court in Ms. Neelam Katara vs. Union of India (Crl. W No. 247 of 2002) on
14.10.2003, as applicable to cases where an accused is punishable with
death or life imprisonment. The significance of the guidelines is that they
are not confined to cases of rape, or sexual offences or terrorism or
organized crime. The Court suggested the following scheme:

Definitions:

(1)
(a) “’Witness’ means a person whose statement has been recorded by
the Investigating Officer under section 161 of the Code of
Criminal Procedure pertaining to a crime punishable with death or
life imprisonment.
(b) ‘Accused’ means a person charged with or suspected with the
commission of a crime punishable with death or life imprisonment.
 275

(c) ‘Competent Authority’ means the Secretary, Delhi Legal Services

Authority.
(d) Admission to protection: The Competent Authority, on receipt of
a request from a witness shall determine whether the witness
requires police protection, to what extent and for what duration.

(2) Factors to be considered:

In determining whether or not a witness should be provided police

protection, the Competent Authority shall take into account the following
factors:

(i) The nature of the risk to the security of the witness which may
emanate from the accused or his associates.
(ii) The nature of the investigation in the criminal case.
(iii) The importance of the witness in the matter and the value of the
information or evidence given or agreed to be given by the
witness.
(iv) The cost of providing police protection to the witness.

(3) Obligation of the police:

(i) While recording statement of the witness under sec. 161 of the
Code of Criminal Procedure, it will be the duty of the Investigating
Officer to make the witness aware of the ‘Witness Protection
Guidelines’ and also the fact that in case of any threat, he can
approach the Competent Authority. This, the Investigating Officer
will inform in writing duly acknowledged by the witness.
 276

(ii) It shall be the duty of the Commissioner of Police to provide

security to a witness in respect of whom an order has been
passed by the Competent Authority directing police
protection.”

The above guidelines laid down by the Delhi High Court are the first
of its kind in the country and have to be commended. But, they deal only
with one aspect of the matter, namely, protection of the witnesses. They do
however not deal with the manner in which a witness’s identity can be kept
confidential either before or during trial nor to the safeguards which have to
be provided to ensure that the accused’s right to a fair trial is not
jeopardized.

5.15 Bimal Kaur Khalsa’s case (P&H High Court, Full Bench): Protection
of witnesses from media: (1988)

We shall next refer to the Full Bench judgment of the High Court of
Punjab and Haryana in Bimal Kaur Khalsa case AIR 1988 P&H p. 95. In
that case, it was observed that neither the Court nor the government can
ensure the ‘total safety’ of a prosecution witness. A witness deposing in a
criminal case does so with a sense of public duty. The Court can however
take steps to stop the dissemination of information regarding the identity
and address of the witness ensuring that the name, address and identity of
the witness are not given publicly in the media.

Even this judgment does not deal with all the aspects relating to
witness protection.
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5.16 PUCL case: Witness protection under sec.30 of the POTA (2003)

In PUCL vs. Union of India: 2003 (10) SCALE 967, where the
validity of several provisions of the Prevention of Terrorism Act, 2002
(POTA), came up for consideration, the Supreme Court considered the
validity of section 30 of the Act which deals with ‘protection of witnesses’.
The provisions of section 30 are similar to those in section 16 of the TADA,
1987, which were upheld in Kartar Singh’s case already referred to above.
In PUCL, the Court referred to Gurubachan Singh vs. State of Bombay 1952
SCR 737, and other cases, and observed that one cannot shy away from the
reality that several witnesses do not come to depose before the Court in
serious cases due to fear of their life. Under sec. 30 a fair balance between
the rights and interests of witnesses, the rights of the accused and larger
public interest has, it was held, been maintained. It was held that section
30 was also aimed to assist the State in the administration of justice and to
encourage others to do the same under given circumstances. Anonymity of
witnesses is to be provided only in exceptional circumstances when the
Special Court is satisfied that the life of witnesses is in jeopardy.

The Court in PUCL has pointed out that the need for existence and
exercise of power to grant protection to a witness and preserve his or her
identity in a criminal trial has been universally recognized. A provision of
this nature should not be looked at merely from the angle of protection of
the witness whose life may be in danger if his or her identity is disclosed but
also in the interests of the community to ensure that heinous offences like
terrorist acts are effectively prosecuted and persons found guilty are
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punished and to prevent reprisals. Under compelling circumstances, the

disclosure of identity of the witnesses can be dispensed with by evolving a
mechanism which complies with natural justice and this ensures a fair trial.
The reasons for keeping the identity and address of a witness secret are
required to be recorded in writing and such reasons should be weighty. A
mechanism can be evolved whereby the Special Court is obliged to satisfy
itself about the truthfulness and reliability of the statement or deposition of
the witness whose identity is sought to be protected.

On the subject of protection of identity of witnesses, section 30 of the

Prevention of Terrorism Act, 2002 is similar to section 16 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987. It is necessary to advert
to the contentions raised in the case. While challenging the constitutional
validity of section 30 of the Prevention of Terrorism Act, 2002 in People’s
Union of Civil Liberties vs. Union of India (2003) 10 SCALE 967, the
petitioner (PUCL) argued as follows:

“… that the right to cross-examine is an important part of fair trial

and principles of natural justice which is guaranteed under article 21;
that even during Emergency, fundamental rights under articles 20 and
21 cannot be taken away; that section 30 is in violation of the dictum
in Kartar Singh’s case because it does not contain the provision of
disclosures of names and identities of the witnesses before
commencement of trial; that fair trial includes the right for the
defence to ascertain the true identity of an accused; that therefore the
same has to be declared unconstitutional.”

Responding on behalf of Union of India, the learned Attorney-

General for India submitted as follows:

“Such provisions (section 30) or exercise of such powers are enacted

to protect the life and liberty of a person who is able and willing to
give evidence in prosecution of grave criminal offences; that the
section is not only in the interest of witness whose life is in danger
but also in the interests of community which lies in ensuring that
heinous offences like terrorist acts are effectively prosecuted and
 279

punished; that if the witnesses are not given immunity they would not
come forward to give evidence and there would be no effective
prosecution of terrorist offences and the entire object of the Act
would be frustrated; that cross-examination is not a universal or
indispensable requirement of natural justice and fair trial; that under
compelling circumstances, it can be dispensed with, and natural
justice and fair trial can be evolved; that the section requires the court
to be satisfied that the life of witness is in danger and the reasons for
keeping the identity of witness secret are required to be recorded in
writing; that therefore, it is reasonable to hold that section is
necessary for the operation of the Act.”

In PUCL, the Supreme Court speaking through Justice Rajendra Babu

observed (in para 57) as follows:

“In order to decide the constitutional validity of section 30, we do not

think, it is necessary to go into the larger debate, which learned
counsel for both sides have argued, that whether right to cross-
examine is central to fair trial or not. Because right to cross-
examination per se is not taken away by section 30. The section only
confers discretion to the concerned court to keep the identity of
witness secret if the life of such witness is in danger.

…In our view, a fair balance between the rights and interests of
witness, rights of accused and larger public interest has been
maintained under section 30. It is also aimed to assist the State in
justice administration and encourage others to do the same under the
given circumstance. Anonymity of witness is not the general rule
under section 30. Identity will be withheld only in exceptional
circumstances when the special court is satisfied that the life of
witness is in jeopardy.”

The Court further observed (in para 59) as follows:

“The present position is that section 30 (2) requires the Court to be

satisfied that the life of a witness is in danger to invoke a provision of
this nature. Furthermore, reasons for keeping the identity and address
of a witness secret are required to be recorded in writing and such
reasons should be weighty. In order to safeguard the right of an
 280

accused to a fair trial and basic requirements of the due process, a

mechanism can be evolved whereby the Special Court is obligated to
satisfy itself about the truthfulness and reliability of the statement or
deposition of the witness whose identity is sought to be protected.”

Finally, the Court while upholding the validity of section 30,

observed (in para 62) as follows:

“It is not feasible for us to suggest the procedure that has to be

adopted by the special Courts for keeping the identity of witness
secret. It shall be appropriate for the concerned courts to take into
account all the factual circumstances of individual cases and to forge
appropriate methods to ensure the safety of individual witness.”

In PUCL, the attention of the Court was drawn to the legal position in
USA, Canada, New Zealand, Australia and UK, as well as the view
expressed in the European Court of Human Rights in various decisions.
However, the Court did not consider it necessary to refer to any of them in
detail because the legal position has been fully set out and explained in
Kartar Singh’s case.

It was stated further in PUCL that the effort of the Court is to strike a
balance between the right of the witness as to his life and liberty and the
right of the community in the effective prosecution of persons guilty of
heinous criminal offences on the one hand and the right of the accused to a
fair trial, on the other. The Court observed: (p 993)

“This is done by devising a mechanism or arrangement to preserve

anonymity of the witness when there is an identifiable threat to the
 281

life or physical safety of the witness or others whereby the Court

satisfies itself about the weight to be attached to the evidence of the
witness. In some jurisdictions, an independent counsel has been
appointed for the purpose to act as amicus curiae and after going
through the deposition evidence assist the Court in forming an
opinion about the weight of the evidence in a given case or in
appropriate cases to be cross-examined on the basis of the question
formulated and given to him by either of the parties. Useful reference
may be made in this context to the recommendation of the Law
Commission of New Zealand.”

While elaborating further the need for keeping the identity of the witness
secret, the Court observed: (p 994)

“…It is not feasible for us to suggest the procedure that has to be

adopted by the Special Courts for keeping the identity of witness
secret.”

5.17 Sakshi case (2004)

The Supreme Court in Sakshi vs. Union of India 2004 (6) SCALE 15
referred to the argument of the petitioner that in case of child sexual abuse,
there should be special provisions in the law to the following effect:-
(i) permitting use of videotaped interview of the child’s statement by
the judge (in the presence of a child support person).
(ii) allowing a child to testify via closed circuit television or from
behind a screen to obtain a full and candid account of the acts
complained of.
 282

(iii) that the cross examination of a minor should only be carried out by
the judge based on written questions submitted by the defence
upon perusal of the testimony of the minor.
(iv) that whenever a child is required to give testimony, sufficient
breaks should be given as and when required by the child.

During the pendency of the case in Sakshi, the Supreme Court requested the
Law Commission to examine the question as to the expansion of the
definition of rape. The Commission gave its 172nd Report dealing with
various aspects of the problem. Details of the Report have been set out in
Chapter IV para 4.5.

The Supreme Court in Sakshi, after receipt of the Report of the Law
Commission (172nd Report, Chapter VI), did not accept the above said
arguments of the petitioner in view of sec. 273 of the Code of Criminal
Procedure as, in its opinion, the principle of the said section of examining
witnesses in the presence of the accused, is founded on natural justice and
cannot be done away with in trials and inquiries concerning sexual offences.
The Supreme Court however pointed out that the Law Commission had
observed that in an appropriate case, it may be open to the prosecution to
request the Court to provide a screen in such a manner that the victim does
not see the accused and at the same time provide an opportunity to the
accused to listen to the testimony of the victim and the Court could give
appropriate instructions to his counsel for an effective cross examination.
The Law Commission had also suggested that with a view to allay any
apprehensions on this score, a proviso could be placed above the
Explanation to sec. 273 Cr.P.C to the following effect: “Provided that where
 283

the evidence of a person below 16 years who is alleged to have been

subjected to sexual assault or any other sexual offence, is to be recorded, the
Court may, take appropriate measures to ensure that such person is not
confronted by the accused while at the same time ensuring the right of cross
examination of the accused”. In para 31 and 32 the Supreme Court
observed as follows:
“31. The whole inquiry before a Court being to elicit the truth, it
is absolutely necessary that the victim or the witnesses are able to
depose about the entire incident in a free atmosphere without any
embarrassment. Section 273 Cr.P.C. merely requires the evidence
to be taken in the presence of the accused. The Section, however,
does not say that the evidence should be recorded in such a
manner that the accused have full view of the victim or the
witnesses. Recording of evidence by way of video conferencing
vis-à-vis Section 272 Cr.P.C. has been held to be permissible in a
recent decision of this Court in State of Maharashtra vs. Dr. Praful
B. Desai 2003(4) SCC 601. There is a major difference between
substantive provisions defining crimes and providing punishment
for the same and procedural enactment laying down the procedure
of trial of such offences. Rules of procedure are hand-maiden of
justice and are meant to advance and not to obstruct the cause of
justice. It is, therefore, permissible for the Court to expand or
enlarge the meaning of such provisions in order to elicit the truth
and do justice with the parties.
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
 284

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 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 Cr.P.C. should also apply in inquiry or trial of
offences under Section 354 and 377 IPC.”

The Court in Sakshi referred to State of Punjab vs. Gurmit Singh

1996(2) SCC 384 where the Supreme Court had highlighted the importance
of section 327(2) and (3) of the Cr.P.C. which require evidence to be
recorded in camera in relation to holding rape and other sexual offences.
The Court gave the following directions, in addition to those given in
Gurmit Singh’s case, namely,
(1) The provisions of sub-section (2) of section 327
Cr.P.C. shall, in addition to the offences mentioned
 285

in that sub-section, would also apply in inquiry or

trial of offences under sections 354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made
where the victim or witnesses (who may be equally
vulnerable like the victim) do not see the body or
face of the accused;
(ii) the questions put in cross-examination on behalf of
the accused, in so far as they relate directly to the
incident, should be given in writing to the
Presiding Officer of the Court who may put them
to the victim or witnesses in a language which is
clear and is not embarrassing;
(iii) the victim of child abuse or rape, while giving
testimony in court, should be allowed sufficient
breaks as and when required.

Finally, the Court in Sakshi added that cases of child abuse and rape
are increasing with alarming speed and appropriate legislation in this regard
is, therefore urgently required. They observed:

“We hope and trust that the Parliament will give serious attention to
the points highlighted by the petitioner and make appropriate
suggestions with all the promptness which it deserves.”

5.18 Zahira’s case, 2004 (4) SCALE 373: Protection of witnesses

 286

This is also one of the most recent cases. In this case, the Supreme
Court dealt with ‘witness protection’ and the need for a fair trial, whereby
fairness is meted out not only to the accused but to the victims/witnesses.
On the question of ‘witness protection’, the Court observed (p.392):

“If the witnesses get threatened or are forced to give false evidence,
that also would not result in a fair trial.”

(Page 394):

“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 social interest require that the victims of the crime who are
not ordinarily parties to prosecution and the interests of State
representing by their presenting agencies do not suffer (p.395) …
there comes the need for protecting the witnesses. Time has come
when serious and undiluted thoughts are to be bestowed for
protecting witnesses so that ultimate truth presented before the Court
and justice triumphs and that the trial is not reduced to mockery. 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. …As
a protector of its citizens, it has to ensure that during trial in court, the
witness could safely depose truth without any fear of being haunted
by those against whom he has deposed.”

(Page 395):
 287

“Legislative measures to emphasize prohibition against tampering

with witness, victim or informant, have become the imminent and
inevitable need of the day.”

(Page 399)[Referring to UK]:

“The Director of Prosecution plays a vital role in the prosecution

system. He even administers ‘witness protection programmes’.
Several countries for example, Australia, Canada and USA have even
enacted legislation in this regard. The Witness Protection
Programmes are imperative as well as imminent in the context of
alarming rate of summersaults by witnesses with ulterior motive and
purely for personal gain or fear for security. It would be a welcome
step if something in those lines is done in our country. That would be
a step in the right direction for a fair trial.”

5.19 Other illustrative cases

We may also refer, by way of illustration, to a few cases in which the

Indian Courts have given witness protection:

(a) One Mohammed Shaken Sajjad, a victim of the Naroda-

Patia carnage in 2002, who was also a key witness in the
case, had been beaten brutally by a group of 30 people
while he was sitting outside his shop in Vatva. Three of
his children were killed. According to him, one Ahmed,
an anti-social element of that locality, was shouting and
threatening if the victim was venturing to give evidence
before the Nanavati Commission on 1.10.2003 naming
the persons in the mob. He was given one police guard
for his protection.
 288

(b) Ketan Thirodkar, an ex-journalist, had filed a complaint

against the police alleging various illegal acts against the
police and referring to their links with the underworld.
He filed a petition in the Bombay High Court seeking
police protection. The prosecution opposed the plea
contending that Thirodkar had also links with the
underworld. He was given protection for a limited
period by the Court. (Treatment and Protection of
Witnesses in India by Mr. Dhruv Desai, 4th Year Law
student, Symbiosis Society’s Law College, Pune in
http://legalsauaeindia.com/articles/witness.htm).

5.20 Summary: Need to evolve proposals for a statute for witness

protection

In the context of the above discussion and in particular the

observations of the Supreme Court in the above cases, emphasizing
that there should be statutes governing witness protection in our
country, we are making proposals in the Consultation Paper.
 289

Chapter VI

WITNESS ANONYMITY AND BALANCING OF

RIGHTS OF ACCUSED - A COMPARATIVE STUDY OF
CASE LAW IN OTHER COUNTRIES

6.1 In this Chapter, we propose to deal with the principles

laid down in the judgments of various countries, namely,
the United Kingdom, Australia, New Zealand, Canada, the
United States of America and of the European Court of
Human Rights and also the decisions of the United
Nation’s War Crime Tribunals for Yugoslavia and Rwanda,
on the question of witness protection and anonymity. A
survey of the case law will bring about common aspects as
well as the sharp differences in the law laid down in
various countries and will also reveal the manner in which
the Courts and Tribunals have tried to balance the rights of
the accused for a fair trial (which includes right to an open
public trial and right to cross examine the witness) on the
one hand and the need to grant adequate witness protection
or anonymity to witnesses, and in particular about their
names and addresses and other details relating to their
identity.
(a) 6.2 United Kingdom:

In the United Kingdom, the Courts have laid down that the right to
open justice and cross-examination of the prosecution witnesses is not
absolute and that witness anonymity or video-screened evidence could be
ordered by the Courts under its inherent powers. We shall presently refer to
the cases chronologically. Incidentally, we shall also be referring to certain
statutes dealing with the subject.
 290

Open justice and exceptions:

In the United Kingdom, the principle of “open justice” is of ancient

origin dating back to the days before the Norman Conquest1. There are
references to the principle in the reports of the seventeenth century trials.
Hale in the seventeenth century and Blackstone, in the eighteenth century,
proclaimed the virtues of a public trial. Secrecy would breed abuse while
openness would result in transparency. Public attendance would secure
strong confidence in the judicial system. The principle of “open justice”
has, in fact, been described as the enduring contribution of Britain to the
law of other nations before it became engrafted into the European
Convention which came into force in 1953. But, at the same time, it has
always been accepted that the principle of “open justice” is subject to
exceptions.

Art. 6(1) of the European Convention for the Protection of Human

Rights and Fundamental Freedoms which applies to United Kingdom,
speaks not only of the right to “open justice” but also to the need for
exceptions in the interests of morals, public order, national security and for
protecting the privacy of juveniles and others where publicity could
otherwise prejudice the interests of justice. Article 6(1) of the Convention
reads as follows:

“Art. 6(1) In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a fair and
1
1. See “Secret Witnesses” by Mr. Gilbert Marcus 1990 Public Law 207 and Phipsons’s Law of
Evidence (15th Edition, 2000).
 291

public hearing within a reasonable time by an independent and

impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of
the trial in the interest of morals, public order or national security in a
democratic society, where the interest of juveniles or the protection of
the private life of the parties so require, or to the extent strictly
necessary in the opinion of the Court in special circumstances where
publicity would prejudice the interest of justice.”

6.2.1 Scott vs. Scott (1913): Principle of “open justice” and exceptions
thereto:

We start with the earliest case on the subject, decided by the House of
Lords. In Scott vs. Scott (1913 AC 417) Viscount Haldane L.C. referred to
‘open justice’ as the rule and stated that any exceptions thereto must be
based on some overriding principle which defines the field of the exception
and not leave it to the discretion of the Judge. He said (at p.435):

“The power of an ordinary Court of justice to hear in private cannot

rest merely on the discretion of the Judge or on his individual view
that it is desirable for the sake of public decency or morality that the
hearing shall take place in private. If there is any exception to the
fixed principle which requires the administration of justice to take
place in open court, that exception must be based upon the operation
of some other overriding principle which defines the field of
exception and does not leave its limits to the individual discretion of
the judge.”
 292

The Crown Court Rules provide for the exercise of certain kinds of
jurisdiction in Chambers to permit evidence excluding the public (Rule 27),
such as where national security is involved or cases falling under section 8
(4) of the Official Secrets Act, 1920. This latter Act permits the Court to
exclude members of the public from the Court in the trial of offences under
the said Act on the ground that the publication of evidence could prejudice
national safety. However, it states that the passing of the sentence must be
in public. In Youth Courts, the public are excluded but the press is admitted
under section 47(2) of the Children and Young Persons Act, 1933. In some
cases, an order restricting the reporting of all or part of the proceedings may
suffice. This is permitted by section 11 of the Contempt of Courts Act,
1981. A Court can, under section 4(2) of that Act, also postpone
publication of Court proceedings, where it is necessary to avoid risk of
prejudice to the administration of justice; the Court can prohibit publication
of identity of a child or young person under 18 years and also in appropriate
cases, the names, identity of victims of rape and other sexual offences.

6.2.2 We shall next refer to certain leading cases decided after Scott,
chronologically.

It has been held that the names of allegedly blackmailed witnesses in

a case of blackmail may be withheld (R vs. Socialist Worker Printers etc. ex
parte. Attorney Gen: 1975 QB 637. It has been pointed out that there may
be cases in which it is necessary to exclude the public from the court though
not the press; (R vs. Walterfield : (1975) 60 Crl Ap. Rep 296).
 293

6.2.3 “Leveller Magazine” case (1979) – ‘anonymity’ order under statutory

or inherent power of Court

In UK, the power of the Court to withhold the name of the witness in
a criminal trial is treated as inherent in the Court. Such a power may also be
conferred by statute.

Attorney General vs. Leveller Magazine (1979 A.C. 440) arose under
the Contempt of Courts Act which was in force before the 1981 Act. In
certain committal proceedings of Nov. 1977, in relation to offences under
the Official Secrets Act, the Magistrate initially allowed an application filed
by the prosecution seeking that the prosecution witness be described as
‘Colonel B’ and that his actual name should be known only to the
defendants and their counsel and the Court, for reasons of national safety.
But, the said prohibition was violated and consequently proceedings under
the Contempt of Courts Act were taken out by the Attorney General against
the press which published the evidence given in the criminal proceedings.
The defence in the contempt case was that “Col B” had, in fact, disclosed
his real name and address at the criminal trial and that therefore, he must be
deemed to have waived the protection given to him under the order for
anonymity. This contention was ultimately accepted and it was held that
there was no contempt. But during the course of the judgment, Lord
Diplock laid down the general principle of open justice and pointed out that
there could be exceptions to that principle of open trial either by statute or
under the inherent powers of the Court. Lord Diplock stated (p. 450):
 294

“However, since the purpose of the general rule is to serve the ends of
justice, it may be necessary to depart from it where the nature or
circumstances of the particular proceedings are such that the
application of the general rule in its entirety would frustrate or render
impracticable, the administration of justice or would damage some
other public interest for whose protection Parliament has made some
statutory derogation from the rule. Apart from statutory exceptions,
however, where a Court in the exercise of its inherent power to
control the conduct of proceedings before it departs in any way from
the general rule, the departure is justified to the extent and to no more
than the extent that the Court reasonably believes it to be necessary in
order to save the ends of justice.”
(emphasis supplied)

In the course of the judgment, Lord Diplock referred to the decision

of the Court of Appeal of New Zealand in Taylor vs. Att. Gen:1975(2)
NZLR 675 to the effect that the Court had inherent power to make an
express order directing to what extent the proceedings should be published
or not published outside Court.

6.2.4 Section 11 of the Contempt of Courts Act, 1981:

After the above said 1979 judgment in Leveller Magazine case, the
legislature in UK recognized the principle laid down in the case by making
adequate provision in section 11 of the (UK) Contempt of Court Act, 1981,
which provided that
 295

“In any case where a Court (having power to do so) allows a name or
other matter to be withheld from the public in proceedings before the
Court, the Court may give such directions prohibiting the publication
of that name or matter in connection with the proceedings as appear
to the Court to be necessary for the purpose for which it was so
withheld.”

It may, however, be noted that the House of Lords, in the Leveller

Magazine case, did not have occasion to consider the question of balancing
the rights of the accused for an open trial as against the right of the
victim/witness to seek anonymity while adducing evidence.

6.2.5 Evidence through Television: certain statutes:

Evidence through television links is permissible under sec. 24 of the

Youth Justice and Criminal Evidence Act, 1999. Evidence may be given by
a witness (other than the defendant) through a live telecast link, with the
leave of the Court, in two situations (a) if the witness is outside UK and (b)
if the witness is a child. (see also section 32(1) of Criminal Justice Act,
1988 and section 55 of Criminal Justice Act, 1991).

6.2.6 Video-recorded evidence: certain statutes

Video recorded evidence is admissible in certain cases: (a) an offence

which involves an assault on or injury or a threat of injury to, a person (b)
offences of cruelty to persons under the age of 16 years, contrary to section
1 of the Child and Young Persons Act, 1933; (c) offences under the Sexual
 296

Protection Act, 1956, Indecency with Children Act, 1960, Sexual Offences
Act, 1967, section 54 of Criminal Law Act 1977 and Protection of Children
Act, 1978 etc.

6.2.7 Anonymity and screening of witnesses:

It is a proper practice in criminal trials in UK where children give

evidence about sexual abuse to allow a screen to be erected between the
witness and the defendant. If a defendant in person seeks to dominate,
intimidate or humiliate a complainant, or should it be reasonably
apprehended that he will do so, a screen can be erected (R vs. Brown
(Milton) 1998(2) Crl. App R 364 CA). Sections 16 to 33 of the Youth
Justice and Criminal Evidence Act, 1999 require the Court to consider
special measures of various kinds for protection of vulnerable and
intimidated witnesses.

Section 23 of that Act deals with ‘screening witness from accused’.

Subsection (2) however provides that the screen or the other arrangement
(which screens the witness) must not prevent the witness from being able to
see and to be seen by
(a) the Judge, Jury
(b) legal representative acting in the proceedings,
(c) any interpreter or other person appointed to assist the witness.

6.2.8 Cases after 1990:

 297

In Re Crook, 1991Crl App p 17, it was held that the public can be
excluded from the trial.

R vs. DJX, SCY, GCZ: (1990) 91. Crl. App R 36 (CA) concerned
children who were allowed to be shielded from the defendants (accused).
After stating that there can be exceptions to the rule of open cross
examination, and directing a screen to be used, Lord Lane CJ observed:

“What it really means is, he (the trial Judge) has got to see that the
system operates fairly: fairly not only to the defendants but also to the
prosecution and also to the witness. Sometimes, he has to make
decisions as to where the balance of fairness lies. He may come to
the conclusion that in this case the necessity of trying to ensure that
these children would be able to give evidence outweighed any
possible prejudice to the defendant by the erection of the screen.”

In R vs. Watford ex parte Lehman (1993) Crim LR 388 where a

group of youths had rampaged through Watford and violently attacked four
people, witnesses had serious concerns about their personal safety. The
Divisional Court followed Lord Lane CJ’s observations referred to above
and upheld the decision of the trial Judge to allow the witnesses to give
evidence anonymously at the committal stage, by screening them from the
defendant but not counsel. Their voices were disguised, and their names
were withheld from the defence.

In another case in R vs. Taylor (Gary): (1995) Crim LR 253, (CA),

the Court of Appeal upheld a decision of the trial court directing witnesses
 298

to be given anonymity. The witness’s evidence was crucial as it provided

the only independent corroboration of the removal of the victim’s body from
the pub where the murder allegedly took place. The judgment in the case
referred to the last two cases referred to above. The Court held that for
maintaining the appropriate balance, the following factors must be satisfied
before an order for witness’s anonymity can be granted:

(1) there must be real grounds for fearing the consequences if a

witness gives evidence and his or her identity is revealed. Those
consequences need not be limited to the witness himself or herself;
(2) the evidence must be sufficiently relevant and important to make it
unfair to compel the prosecution to proceed without it;
(3) the prosecution must satisfy the Court that the creditworthiness of
the witness has been fully investigated and the results of that
inquiry have been disclosed to the defence, so far as is consistent
with the anonymity sought;
(4) the Court must be satisfied that no undue prejudice is caused to the
defendant (the term ‘undue’ is used deliberately since some
prejudice will be inevitable); and
(5) the Court can balance the need for anonymity – including the
consideration of other ways of providing witness protection (e.g.
screening the witness or holding in camera hearing where
members of public are excluded) – against the unfairness or
appearance of unfairness in the particular case.
 299

In 1996, the judgment in Taylor’s case has been followed in R vs. Liverpool
City Magistrates’ Court ex parte Director of Public Instruction: ( CO 1148
Queen’s Bench Division, d. 19.7.96)(Bedlam LJ (Smith J).

R vs. Ward: 1993(2) ALL ER 577.

R vs. Ward, 1993(2) ALL ER 577 decided by the Court of Appeal

laid down that the prosecution was bound to disclose all evidence which it
had, to the accused and, if indeed, it wanted to claim public interest
immunity on the ground of national security or danger to witnesses’ life, it
should leave the matter to the Court to give a decision on the question of
such non-disclosure and that the prosecution could not itself be the Judge of
such questions. In that case which involved the death of several persons by
bomb explosion, the accused, a lady, was finally acquitted by the Court of
Appeal, reversing the conviction by the trial Court, because the decision as
to non-disclosure of several pieces of evidence to the accused on the ground
of public interest immunity, ought not to have been taken by the prosecution
and that hence the trial was not fair to the accused.

6.2.9 Montgomery (1995): an unjust decision:

We may also refer to the rather extraordinary judgment of the Court

of Appeal in Montgomery : 1995(2) All ER 28, where a witness was
punished for three months imprisonment even though the refusal by him to
give evidence was due to fear of reprisals by the accused. The witness had
earlier supplied the police with a statement that he was one of the persons
concerned in the hurling of missiles at police vehicles, in which a police
 300

officer was seriously injured. Subsequently, he refused to take oath and to

give evidence at the trial of the ten accused persons. The trial Judge then
permitted his statement to be read in evidence under sec. 23(3)(b) of the
Criminal Justice Act, 1988 on the ground that the witnesses had refused to
give oral evidence through fear. But, at the same time the Judge imposed a
punishment of imprisonment for twelve months on the witness for his
refusal to give evidence, though it was on account of fear. Section 23(3)(b)
contained certain curious provisions.

“Section 23: (1) A statement made by a person in a document shall

be admissible in criminal proceedings as evidence of any fact of
which direct oral evidence by him would be admissible if………
(2)……….
(3) (a)………………………
(b) The person who made it does not give oral evidence
through fear or because he is kept out of the way….”

There was, in fact, an earlier precedent to the contrary before the

above case in Montgomery was decided. In an earlier case in Action
Justices and Others (1991) 92 Cr App. R 98(105), Watkin L J in the Court
of Appeal observed:

“Fear of what and whether that is relevant is a matter for the Court’s
consideration in the given circumstances….”

and he said it was sufficient that the Court is sure that the witness is in fear
as a consequence of the commission of the material offence or of something
 301

said or done subsequently in relation to that offence and the possibility of

the witness testifying to it.

But, in spite of the above precedent, the Court of Appeal, in

Montgomery, confirmed the conviction but merely reduced the sentence of
imprisonment to three months. The reduction of sentence from twelve
months to three months was on the basis that the relatives and supporters of
the ten accused were in the gallery when Mr. Montgomery refused to give
evidence. The judgment has been widely criticized. Nicholas Reville
observes: (see ‘The Fearful Witness’ in (1995) Vol. 145, New Law Journal
p. 1774):

“…it is difficult to see why Mr. Montgomery was convicted and

punished for contempt when he was in fear. If someone in Mr.
Montgomery’s position refuses to testify through fear , the imposition
of a penalty would be unjustified as retribution and irrelevant as a
deterrent. When the fear is based on reasonable ground, it would be
unreasonable for the law to impose a duty of heroism on the reluctant
testifier.”

6.2.10 North Ireland Bloody Sunday cases and “Diplock Courts”:

We shall next deal with the cases which arose from Northern Ireland
and where important principles were laid down.

The specialty of the Irish cases is that here the issue related to the
protection of the accused who were military officers whose life was in
 302

danger. Likewise, there were police witnesses who claimed protection.

The common issue however was whether video screening evidence could be
allowed under the inherent powers of the Court. These rulings have been
followed by the Courts in New Zealand while dealing with protection of
prosecution witnesses. (see paras 6.4.7, 6.4.8 in this chapter)

In Ireland, towards the end of 1972, three years after the deployment
of British troops and in the wake of a series of bloody sectarian
confrontations, Lord Diplock Commission was appointed to consider
various issues concerning the terrorist problems. The Commission,
keeping Art. 6 of the European Convention in mind, suggested that
witness safety must be protected if witnesses were to testify
voluntarily and without fear of revenge. With several of these
amendments being accepted, the Northern Ireland (Emergency
Provisions) Act, 1973 was enacted giving birth to the ‘Diplock
Courts’, where witnesses could be ‘screened’ from the accused.

The Murphy Case (1989):

R. vs. Murphy: (Northern Ireland Crown Court)(1989)(unreported)

related to the murder of two British army corporals at an I.R.A. funeral in
1988. Some 27 “media” witnesses were subpoenaed principally to give
evidence of the authenticity of the video and photographic material, taken
during the course of the violent incidents. The Crown filed an application
for an order that these witnesses should not be identified in Court and, in
particular, that when they give evidence, their faces should not be seen by
the accused or by the public or the press, but should be seen only by the
Court and by the counsel and solicitors appearing on behalf of the
prosecution and the defence. Hutton L.C. J, after holding in favour of the
inherent power of the Court, held that the identity of the witnesses should be
kept secret not only from the accused but also from the defence lawyer, in
 303

order to save the ends of justice He did not prohibit the press or the public
from noticing the identity of the witness. So far as the accused was
concerned, he held that by the use of photographs, defence counsel could
ask the witness whether, if the person shown in certain photographs was
proved to be one of the accused, and if he (witness) had seen that accused in
places different from where he was alleged to have been. (See ‘Secret
Witnesses’ by Mr. Gilbert Marcus, (1990) Public Law 207 (214).

After the Diplock Commission, a Tribunal to inquire into the

incidents on 30.1.72 (Bloody Sunday) was constituted and it was headed by
Lord Widgery who decided that inquiry should be held in London and not in
Ireland, where the incidents took place. Later, he was succeeded by Lord
Saville of Newdigate, in whose tenure number of precedents laid down by
the said lawlord in the Commission were set aside by the Courts, in the
interests of the safety of accused or witnesses.

6.2.11 Lord Saville of Newdigate and others (I) (1999)(28.7.99):

Anonymity of witnesses:

It is necessary to refer to the several principles laid down by Lord

Woolf in the Court of Appeal in R vs. Lord Saville of Newdigate and others
vs. ex parte A & Others 1999(4) All ER 860(CA) (dt. 28.7.99). The matter
arose out of the orders dt. 5.5.1999 passed by the Tribunal appointed under
the Tribunals of Inquiry (Evidence) Act, 1921 headed by Lord Saville, to
inquire into the shooting of 26 people during a demonstration at
Londonderry (N. Ireland) on 30th January, 1972 (called the Bloody Sunday).
The Tribunal rejected the application of the State for granting “anonymity”
 304

to the military witnesses (who were in the position of accused) as it would

violate the principle of open trial. It, however, held that the apprehension of
the witnesses as to danger to their life was a reasonable one.

The decision was appealed against by 17 soldiers who had actually

opened fire contending that the military witnesses should have been given
anonymity. The Divisional Court allowed their appeal on 17.6.99 and held
that anonymity be given to the military witnesses. The Court of Appeal
affirmed the decision of the Divisional Court.

On further appeal, Lord Woolf, in the Court of Appeal, observed that

it seemed that the subsequent tribunal of Lord Saville had not been
sufficiently aware that the denial of anonymity would affect the soldiers
perception of the fairness of the inquiry. The anonymity would only have a
limited effect on the openness of the inquiry since the soldiers would still be
giving their evidence in public, their names would be known to the tribunal,
their higher officers would be named, a particular soldier could still be
named if there was reason to do so, and the tribunal’s ability to search for
truth would not be undermined. Accordingly, the grant of anonymity to the
soldiers was the only possible decision open to the tribunal. After referring
to the principle of open justice in a democratic society and to the
‘compelling countervailing factors’, Lord Woolf stated: (p.877)

“It is difficult to envisage a more compelling factor than that the

withdrawal of anonymity could subject the soldiers to risk of a fatal
attack. Furthermore, it is important not to overstate the extent to
which the failure to name the soldiers would detract from the open
 305

search for truth. The soldiers would still give evidence openly in
public. The tribunal and counsel for the tribunal would know their
names. If any investigation as to their credibility was required, the
tribunal could carry out this investigation. Having carefully
considered Mr. Clarke’s submission, we are left with the clear
impression that not only would the tribunal not be hampered in its
objective of finding the truth, but in fact the open search for the truth
would only be restricted in a marginal way……the tribunal has not
assessed what would be the real disadvantage of the soldiers giving
their evidence under labels rather than in their own names.”

Referring to the burden of proof, Lord Woolf supported the view that once a
prima facie case was made out for such an order, the party which is
opposing the anonymity order must satisfy the Court why the risk to the
witness needs be increased. Lord Woolf stated (p 878) that the approach of
the tribunal was not fair to the soldiers:

“The problem about the risk to which they are subjected is that once
their identity is revealed, the dye is cast and it is too late for the
protection provided by anonymity, to be restored. The increased risk
referred to earlier has subsequent relented. It could again increase…
….”.

The risk to the soldiers and their families was serious, and the risk was ‘a
serious possibility’, and there was ‘reasonable chance’ or ‘substantial
ground for thinking’ so. (Fernandez vs. Govt. Of Singapore: 1971(2) All ER
691 (HC)).
 306

Lord Woolf observed: (at p.882)

“When what is at stake is the safety of the former soldiers and their
families, adopting Lord Diplock’s approach, the risk is extremely
significant. After all, the individual’s right to life is, as Lord Bridge
stated in Bugdaycay vs. Secy. of State for Home Department 1987(1)
All ER 940 (952), the most fundamental of all human rights……”

and concluded:

“… We do not consider that any decision was possible other than to

grant the anonymity to the soldiers.”

Lord Saville of Newdigate II: Venue Case (19.12.2001)

This case decided by the Court of Appeal reversed the decision of

Lord Saville Tribunal, to conduct the inquiry in Ireland and consequently
the original venue at London as decided by Lord Widgery was restored.
This case lays down principles of law as to when the trial at the place of
occurrence of the crime, can be shifted outside.

This case reported in Lord Saville of Newdigate & others vs. Widgey
Soldiers & others: 2002(1)WLR 1249 = (2001 EWCA (19.12.2001)(CA)
2048 is known as the “venue” case. It was decided by Lord Philips MR,
Lord Justice Jonathan Parker, Lord Justice Dyson.
 307

The case arose out of the proceedings of the Lord Saville Tribunal
subsequent to the judgment referred to earlier in this para, namely, R vs.
Lord Saville of Newdigate Exp A: 1999(4) All ER 860. It appears that
earlier, Lord Widgery Tribunal had fixed the venue for trial to be at London
rather than at Londonderry in Ireland, but the Lord Saville Tribunal shifted
it to Londonderry in N. Ireland, purportedly to enable the family members
of Irish victims to witness the open trial in Ireland. This was challenged
successfully by the soldiers before the Administrative Court. They
contended that once the venue was fixed at London, there must be
‘compelling reasons’ to shift the venue from London to Londonderry. This
plea was accepted. The Lord Saville Tribunal appealed before the Court of
Appeal.

The reasoning of the Court of Appeal, while affirming the decision of

the Administrative Court, was as follows. It referred to the earlier judgment
of Lord Woolf dt. 28.7.99 in Newdigate where the Court of Appeal had held
that the soldiers had reasonable grounds for fearing for their lives if they
were identified and that in those circumstances, and once that was prima
facie proved, the Tribunal had to demonstrate that there were compelling
reasons for naming them and not giving them anonymity. On the same
lines, it was now held that there must be ‘compelling reasons’ as to why the
witnesses should give evidence at Londonderry in Ireland rather than at
London. There were good grounds for evidence being recorded at London –
away from Londonderry in Ireland,- in as much as the witnesses’ life would
not be in danger in London and they would not be under any mental stress.
The procedure must be fair to the witnesses too.
 308

The Court of Appeal stated, “The majority in Londonderry and that

majority includes the families of those who were killed or injured on Bloody
Sunday, wish the inquiry well and are anxious that it should continue to be
peacefully held in Londonderry. It is, however, common ground that there
were, in Londonderry in particular but also elsewhere, dissident Republican
elements who are not prepared to observe the cease-fire, but are anxious to
disrupt the peace process…. These elements pose a threat to the inquiry and
those who are or will be taking part in it, and in particular, the soldier
witnesses. The security agencies considered that this threat is “sufficiently
real and imminent” to call for precautionary measures”.

The soldiers here, it was held, have a subjective element of fear which
was relevant. Their subjective fear had to be assessed and it was to be seen
if their fear could be alleviated in case they gave evidence at a place other
than Londonderry. This balancing exercise was for the Court. As the
Administrative Court observed, if heavy security was arranged at
Londonderry, it might be treated as a hostile and intimidating environment
by witnesses. The witnesses, if indeed they had to go to Londonderry,
would go there with a subjective fear. Recent events showed that violence
might indeed increase. The Court observed:

“Assessment of terrorist risk involves consideration of both threat and

vulnerability. Threat is the likelihood that terrorist will seek to attack
an individual. Vulnerability is the susceptibility of that individual to
an attack. It will depend in part upon the precautionary measures that
are in place to protect against attack. Threat and vulnerability are
 309

interrelated in that terrorists will be likely to attempt an attack where

the target is vulnerable.”

Changing the venue, it was held, would not affect the Tribunal’s
capacity to arrive at the truth. The families of deceased or injured could see
from Londonderry what transpired at London in as much as facilities would
be put in place for that purpose. “There would be live video-linkage to
Londonderry. The public confidence will not be eroded by holding a part of
the inquiry in London.”

Donaughy Re Application for Judicial Review: (2002) NICA

(8.5.2002)

This is a further continuation of the second Newdigate case.

The case dealt with the need to use of ‘screening’ techniques to
protect the safety of “police” witnesses, while they deposed at
London.
This appeal was before the Court of Appeal in Northern
Ireland and was against the decision of the Queen’s Bench
Division (Kerry J). The earlier cases related to evidence of the
“military” officers who had fired and whose safety was involved.
The present case involved “police” witnesses living in Ireland.

The Tribunal had accepted ‘screening’ the police witnesses while

deposing at London and had held:

“We, in short, accept that the applicants do have reasonable

and genuine fears for their safety, and we further accept that
these fears could be alleviated to a significant degree by
screening.”
 310

The appellant sought the quashing of the decision of the Tribunal allowing
police officers to give evidence from behind screens.

The Court of Appeal affirmed ‘screening’ and observed as

follows:-

“As expressed, this assessment relates to all the police witnesses who
thus face a risk to their lives which cannot be shrugged off as an
unrealistic one. Further more, the risk is expressed to be greater than
that faced by military personnel, the risk to whom, in the opinion of
the English Court of Appeal in the Venue decision, justified the more
draconian remedy of a change of venue.”

The “police” witnesses, it was observed, live in Northern Ireland and

hundreds of their colleagues had died due to terrorist activity over the last
30 years. If they are not to be screened, they will be easily identified by
their names which are known. The subjective fear was genuine. The
police witnesses, no doubt, will not be seen by the family members of the
deceased or wounded persons but will be certainly visible to their lawyers,
the Tribunal and the family members can hear the replies of the police
witnesses. Screening them to this limited extent will not prejudice a fair
trial.

Thus, these various judgments lay down that the Court has inherent
power to order evidence to be recorded by video-screening protecting the
witnesses or the accused.
 311

6.2.13 In 1992, Guidelines were issued by the Attorney General in UK (see

1982(1) All ER 734) (which included non disclosure where witnesses’ life
could be endangered). For other cases, R vs. Trevor Douglas: (1993) 97
Crl. Appeal Reports 342; R vs.Davis, Johnson and Rowe: 1993(1) Weekly
Law Rep. 613 (non disclosure can be permitted in ex parte proceedings); R
vs. Rasheed: (20 May 1994, Times); R vs. Winston Brown 1995(1) crl. App.
Rep. 191; R vs. Turner : 1995(1) W.LR 264.

6.2.14 Certain other statutes in UK:

The Criminal Procedure and Investigations Act, 1996 requires

primary and secondary disclosure of evidence to accused. Consequent to
the judgment of the European Court of Human Rights in Chahel vs. UK
(15.11.96) and Tinnelly & Sons Ltd and Others & McElduff & others vs.
UK (10.7.98), the UK had introduced legislation making provision for
appointment of ‘special counsel’ in certain cases involving national
security. The provisions are contained in the Special Judgment on Appeals
Commission Act, 1997 and the Northern Ireland Act, 1998. Under this
legislation, where it is necessary on national security grounds for the
relevant Courts to sit in camera, in the absence of the affected individual
and his or her legal representatives, the Attorney – General may appoint a
special counsel to represent the interests of the individual in the
proceedings. The legislation provides that the special counsel is not
however “responsible to the persons whose interest he is appointed to
represent”, thus ensuring that the special counsel is both entitled and
obliged to keep confidential any information which cannot be disclosed.
 312

For example, in the immigration context, the relevant Rules under the
1997 Act are contained in the Supreme Immigration Appeals Act
Commission (Procedure) Rules, 1978 (Statutory Instrument No.
1998/1881). Rule 3 provides that in exercising its functions, the
Commission shall secure that information is not disclosed contrary to the
interests of national security, the international relations of the UK, the
detection and prevention of crime or in any other circumstances where
disclosure is likely to harm public interest. Rule 7 relates to the special
advocate established by sec. 6 of the 1997 Act. Rule permits that the
special advocate is to represent the interest of the appellant by
(a) making submissions to the Commission in any proceedings from
which the appellant or his representatives are excluded,
(b) cross examining witnesses at any such proceeding, and
(c) making written submissions to the Commission.

The advocate shall not communicate with the appellant except

(1) before the Secretary of State making the material available
to him;
(2) when, after such material is received, the special advocate
seeks directions from the Commission to seek information
from the appellant/representative, and
(3) after hearing the security of State and such application.

(b) 6.3 Australia:

 313

Australian Courts too have ruled in favour of the inherent power of

courts to grant ‘anonymity’ to witnesses. In a number of cases, the Courts
have laid down necessary guidelines therefor.

6.3.1 Initially, in 1993, in R vs. The Stipendiary Magistrate at Southport ex

parte Gibson: 1993(2) Qd R 687, no doubt, the Full Court of Queensland
held that the true identity of a witness must be disclosed to the defence
during committal proceedings and at trial. Williams J was of the view that
to hold otherwise would infringe the basic principle of natural justice,
namely, that a defendant should know the name of the principal prosecution
witness and not be deprived of the opportunity of testifying the
prosecution’s evidence. The Court did not have occasion to consider the
question if there could be exceptions to the rule. But, as we shall presently
show, this view has not been accepted by the State Supreme Court in
Victoria.

6.3.2 The Supreme Court of Victoria in Jarvie & Another vs. The
Magistrate’s Court of Victoria at Brunswick and others: (1995) 1. V.R. 84,
declined to follow the Queensland decision above referred to. The issue
there was whether the true identity of two undercover police officers could
be withheld from the defendant at the committal proceedings. The Court
decided that the trial Court had jurisdiction to make an ‘anonymity order’
and that the witnesses should be permitted to give evidence without
disclosing their real identity. The Court’s order was applicable to the stage
of committal as well as at the trial. The Court upheld that this principle was
not limited to undercover police officers. It applied “to other witnesses
whose personal safety may be endangered by the disclosure of their
 314

identity”. The opinion draws a parallel between witness anonymity and the
principle of exclusion of evidence based on public interest immunity. In
Australia, on grounds of executive privilege, certain documentary evidence
could be excluded if their disclosure was contrary to public interest as in the
English case of Duncan. Those broad principles were applied in criminal
cases not only in regard to receiving documentary evidence but also oral
evidence.

The relevant factors to be kept in mind are whether there is a real

threat of danger, injury, or death to the witness and to the effectiveness of
Witness Protection Programmes. If there is good reason to believe that
disclosure of the witness’s identity may be of substantial assistance to the
accused, then there should be no anonymity. However, if knowing the
witness’s identity is only of slight assistance, anonymity should be granted
subject to the rule that it will not be granted merely because of
embarrassment to the witness or invasion of his privacy or personal damage
to him as a result of media coverage.

In Jarvie, the Court further held that:

(1) at a minimum, the true name and address of a witness must always
be disclosed in confidence to the Court.
(2) the same policies which justify the protection of informers as an
aspect of public immunity also justify the protection of undercover
police officers. However, the claim to anonymity can also extend
to other witnesses whose personal safety is endangered by
disclosure of their identity.
 315

(3) in deciding whether undercover police officers should be granted

anonymity, the Court must balance the competing public interests,
namely, (i) the preservation of anonymity, (ii) the right of the
accused to a fair trial, which includes his being able to establish
those matters going to his credit, and (iii) the interest in public
proceedings, and
(4) once the defence establishes that there is good reason to think that
non-disclosure would result in substantial prejudice to the
accused, disclosure must be directed. In a strong case, the
necessary substantial prejudice to the accused could consist in his
inability to gather and use material bearing on the credibility of the
prosecution witnesses.

6.3.3 In a series of cases, Courts in Australia have treated informers as

falling under a special category usually requiring a special protection: Cain
vs. Glass (NUL)(1985) NSWLQ 230; (Mc Hugh JA said that the principle
applied even to persons other than registered informers). R vs. Smith :
(1996) 86 A Crim R 308. (The earliest English case in Marks vs. Beysus :
(1890) 25 QBD 494 was referred to.) This was so, even though in Raybos
Australia Pty vs. Jones : 1985 2NSWR 97, the principle of open
administration of justice was laid down.

6.3.4 As to other types of cases, in John Fairfax Group Pty Ltd.vs. Local
Court of New South Wales : (1991)26 NSWLR 131, the Court accepted the
need for ‘pseudonym orders’ in extortion cases. Mahoney JA said that if
such orders were not to be made:
 316

“victims would not approach or cooperate with the police

authorities… These consequences, if they flowed from the disclosure
of the victim’s identity, would, in my opinion, be analogous to those
in blackmail and similar cases and would be of sufficient seriousness
in the context of the proceedings before the Court, to make the power
to make pseudonym orders ‘necessary’”

6.3.5 The recent decision of the New South Wales Court of Appeal in
Witness vs. Marsden & Another: 2000 NSWCA 52, (a defamation action)
contains an elaborate discussion on the subject. The Court of Appeal,
speaking through Heydon JA (with whom Mason P and Priestly JA agreed)
set aside the judgment of Levine J and granted anonymity order and issued
the following important directives (4) to (6):

“(4) The witness is to be addressed and referred to in the Court only

by a pseudonym;
(5) Any matter which is likely to lead to the identification of the
witness is not to be reported by those in Court;
(6) No photograph, film or video recording is to be taken of the
witness in the Court or within its precincts, and no drawings or
other likenesses are to be made of the witness either in the
Court or within its precincts.”

The above case, as already stated, pertained to defamation of plaintiff by the

defendant, alleging homosexuality on part of plaintiff. The witness was an
inmate of a gaol in New South Wales and he had given a statement to the
police supporting the defendant. The defendant’s counsel moved an
 317

application to examine the witness by use of a pseudonym, as there was

likelihood of danger to the witness’s life. This limited issue was tried
separately and for that purpose, the witness’s answer in chief-examination
was given to the opponent and the plaintiff’s counsel gave a list of questions
to the defendant’s witness to answer. They were answered. The Judge had
put two questions. Then the defendant’s counsel re-examined the witness.
The witness stated he had sought pseudonym because he feared for his life
and the publicity of giving evidence would embarrass his family and affect
the physical health of his parents. If he sought protective custody, he would
lose wages and remissions. The trial Judge dismissed the application for
anonymity on the ground that the fear expressed by the witness was too
generalized. Added to that, the witness was already in custody.

But the New South Wales Court of Appeal disagreed. It referred to

the witness’s fear that if he should give evidence of his homosexual
relationship with plaintiff, he may get killed. The prison in which the
witness was lodged was a notorious one and there were forty murders inside
the prison in ten years, the last about a few weeks before the application.
The Court of Appeal accepted that these fears were genuine and reasonable.
The fears about violence to a person in gaol were also real. The witness’s
fear of embarrassment to family was also real though it only played a small
part in the argument. Granting a pseudonym was a minimalist interference
into the right of the opposite party for open justice. The Court observed:

“It is necessary that there be a minimalist interference with open

justice to the extent of pseudonym orders in favour of the witness.
That is because, without them the witness reasonably fears death or
 318

physical injury, or alternatively an unnecessary loss of liberty. There

are evils which it is necessary to avoid by that degree of minimalist
interference. Without the order, the witness is exposed to hurt and
the party calling him is faced with the risk of testimony proceeding
from a person who is reluctant, but in a particular sense.”

The Court referred to certain directions given by Hunt J in R vs. Savvas :

(1989) 43A Crim R 331 at 339. These were:

“(1) Each of the witnesses referred to in the two affidavits of Supdt.

Brian Harding sworn 24 Aug. 1989 is to be addressed and
referred to in the Court only by a pseudonym.
(2) Any matter which is likely to lead to the identification of those
witnesses is not to be reported by those in Court.
(3) No photographs, film or video recording is to be taken of either
of the two witnesses in the Court or within its precincts and no
drawings or other likenesses are to be made of either of the
witnesses, either in the Court or within its precincts.”

Thus, the Court of Appeal granted an order for a pseudonym in the manner
referred to above.

6.3.6 We may finally add that in Australia, there have been different
statutes on witness protection. They are:

(a) Witness Protection Act 1994 (Cwith);

(b) Witness Protection Act 1995 (NSW);
 319

(c) Witness Protection Act 1996 (S Au);

(d) Witness Protection Act 1996 (Australian Capital Territory)
(National Capital Territory Act has further amended by the Bill of
2003);
(e) Witness Protection Act 2000 (Tas);
(f) Witness Protection Act 1991 (Vic);
(g) Witness Protection (Western Australia) Act 1996 (WA);
(h) Witness Protection Regulation 2001 (Queensland).

These Acts deal with a slightly different aspect, namely, witness

protection and do not deal with anonymity or the screening aspects. But the
provisions of sec. 2A(1)(b) of the Australian Evidence Act 1989 deal with
‘special witnesses’ who are described as persons suffering from trauma or
are likely to be intimidated or to be disadvantaged as witnesses. Special
arrangements can be made by the Court in their favour including exclusion
of public or the accused from the Court. Video taped evidence can also be
allowed.

6.3.7 Summarizing the position, the Courts in Australia have agreed that in
cases where there is evidence of likelihood of danger or harm to the
witnesses, or their families, the Court has inherent power to grant orders as
to anonymity and this procedure is not confined to serious cases of terrorism
or police informers or extortion or police undercover agents. What is
material is the proof of a reasonable likelihood of danger to the witness.
Such a procedure for screening and anonymity is held to be consistent with
the right of the accused for fair trial. Video taped evidence is also
admissible.
 320

(c)6.4 New Zealand

We shall next turn to the case law from New Zealand. A survey of
the case law discloses that the Courts did not accept the inherent power of
the Court to pass anonymity orders but felt that it was for the legislature to
make adequate provision. The legislators intervened in 1986 initially to
protect “undercover” police officers and again in 1997, the legislature
widened the Court’s power to protect other types of witnesses. These
amendments are very comprehensive and provide a very clear legislative
scheme for witness anonymity and protection and will be referred to in
detail in the course of the discussion below.

6.4.1 R vs. Hughes: 1986(2) NZLR 129 (CA) was decided in 1986 by the
New Zealand Court of Appeal and the majority said that it would not
compromise the right of the accused to a fair trial and held that the question
of balancing the right of witnesses to anonymity and of the accused for a
fair trial were matters for Parliament rather than for judicial decision. The
Court was not inclined to lay down exceptions. It was held by the majority
that undercover police officers who gave evidence in Court in the case must
give their true names, at least to the defence, even though this may lead to
disclosure of their real identity and expose them to the risk of retaliation.
The Court held that the information as to the identity of the witness was
prima facie material to the defence of a criminal charge. Two of the Judges
went further and stated that otherwise, the right of the accused to cross
examine the witness would get ‘emasculated’. (The word ‘emasculated’
was used by Justice Stewart of the US Supreme Court in Smith vs. Illinois
 321

(1968) 390 US 129). The Court warned that any relaxation of the right to
open trial and cross-examination would be a ‘slippery slope’.

Richardson J speaking for the majority, stated as follows:

“We would be on a slippery slope as a society if, on a supposed

balancing of the interests of the State against those of the individual
accused, the Courts were by judicial rule to allow limitations on the
defence in raising matters properly relevant to an issue in the trial.
Today the claim is that the name of the witness need not be given;
tomorrow, and by the same logic, it will be that the risk of physical
identification of the witness must be eliminated in the interests of
justice in the detection and prosecution of crime, either by allowing
the witness to testify with anonymity, for example, from behind a
screen, in which case, his demeanour could not be observed, or by
removing the accused from the Court, or both. The right to confront
an adverse witness is basic to any civilized section of a fair trial. That
must include the right for the defence to ascertain the true identity of
an accused where question of credibility may be an issue.”

The minority (Cook P and Mc Mullen J), however, held that the Court
did have the power to grant anonymity in exercise of its inherent
jurisdiction and should do so. The identity of an undercover officer should
not be disclosed to the defence, unless the Judge was satisfied that it was of
such relevance to the facts in issue that to withhold it would be contrary to
the interests of justice. The officer could give a cover name, the question of
the officer’s true identity may be brought up in cross-examination by the
 322

defence. It would then be for the prosecution to show that there was a
legitimate reason for withholding the officer’s true identity, such as, fear of
violence. If this were shown, then it would be for the defence to justify the
need for disclosure on the basis that to withhold it would be contrary to ‘the
interests of justice’.

As to what would amount to justification, Cook P speaking for the

minority, stated that:

“the defence should have to satisfy the Judge of no more than that the
truth of the evidence of the undercover officer on a material matter of
fact is genuinely in issue on substantial grounds; and that there
accordingly arises a serious question as to the officer’s credibility
upon which it might be helpful to the defence to have his true name.
To show this, it should not be enough merely to say that the officer’s
account is not admitted or denied. An alternative account would have
to be before the Court.”

The Judge’s function, according to the minority view of Cooke P, is not to

determine whether or not the witness is truthful, but is limited to deciding
whether there is some substantial ground for questioning the undercover
officer’s credibility. In case the Judge is not satisfied about the credibility
of the witness on the question of the danger to the safety of the witness, the
Judge must direct the prosecution to disclose the witness’s identity, despite
the potential danger to the witness.
 323

6.4.2 Accepting the view of the minority in this Judgment of 1986, the New
Zealand Parliament introduced section 13A in the Evidence Act, 1908 by
section 2 of the Evidence (Amendment) Act, 1986. That section was
confined to the case of “undercover” police officers and permits undercover
police officers to merely state their cover name in the Court if the specified
procedures are complied with. They do not need to state their true name or
address, nor to give particulars likely to lead to the discovery of their true
identity, unless the Court grants the defence leave to question them on these
matters.

The classes of cases where such protection is available to undercover

officers are set out in section 13A(1) of the Evidence Act, 1908 as follows,
namely, in cases:

(1) involving certain drug offences under the Misuse of Drugs Act,
1975 (except sections 7 and 13); or
(2) involving any offence tried on indictment which attracts a
maximum penalty of at least 7 years imprisonment.

It is also available in cases of alleged conspiracy to commit or for

attempting to commit these offences (section 13A(1)(c)). According to
prescribed procedure laid down in sec. 13A(3), a certificate has to be given
to the Court by the Commissioner of Police certifying, among other things,
that the officer has not been convicted of any offence (including any
offences under the Police Act, 1958). The certificate must also give notice
of any occasion when the credibility of the officer has been subject to
adverse comment (section 13A(4)).
 324

Once such a certificate is lodged in the Court, a Judge under sec. 13A
(7), will grant leave for the witness to be questioned about his or her true
identity only if he is satisfied,

(a) that there is some evidence before the Judge that, if believed by
the Jury, could call into question the credibility of the witness; and
(b) that it is necessary in the interest of justice that the accused be
enabled to test properly the credibility of the witness; or
(c) that it would be impracticable for the accused to test properly the
credibility of the witness if the accused were not informed of the
true name or the true address of the witness.

6.4.3 The Act of 1986 was soon found insufficient as it was applicable only
to “undercover” officers, and therefore cases of other witnesses again came
up before the Courts between 1986 and 1997.

The case in R vs. Hughes 1986(2) NZLR 129, referred to above, was
not accepted in R vs. Coleman and Others (1996) 14 CRNZ 258. In this
latter case, the Court followed the spirit of the 1986 statute and was in
favour of grant of anonymity by the Court under its inherent powers even
the case of other witnesses. Baragwanath J, in a pre-trial decision, followed
the English decisions (R vs. DJX, CCY, GGZ (1990) 91 Cr. App Rep 36, R
vs. Watford Magistrates ex p Lenman 1992 (1993) Crl L R 253) and
granted orders of anonymity. The witness’s identity was to be withheld
from the defence and the witness be screened and the Court cleared of the
public. He held that:
 325

(1) the evidence was critical to whether the trial can take place at all;
(2) there is no substantial reason to doubt the credibility of the witness
(as to the fear expressed by him);
(3) justice can be done to the accused by the issue of suitable
directions; and
(4) the public interest in the case proceeding to trial outweighed the
disadvantages of that course.

An appeal against the interlocutory order before the trial was

dismissed on jurisdictional grounds under section 379A of Crimes Act,
1961. When the aforesaid case in Coleman went finally to trial, Robertson J
too followed Bargawnath J’s pre-trial judgment rather than R vs. Hughes.

6.4.4 In 1997 when another case R vs. Hines (1997) 15 CRNZ 158 came up
before the Court of Appeal, the majority, notwithstanding the liberal attitude
of the Legislature in 1986 in protecting under cover police officers,
unfortunately reaffirmed R vs. Hughes and reiterated the view against
granting anonymity to other witnesses, stating again that it was a matter for
Parliament to make a balancing act between the right of the victim and that
of the accused. But Gault J, in the minority, observed that in the interests of
the community, anonymity be granted and that the ‘absolute rule’ as in
Hughes was ‘merely an invitation for intimidation of witnesses’. Thomas J
agreed with him. These two learned Judges upheld the inherent power of
the Court to grant anonymity unless the witness’s credibility was
‘reasonably in issue’. They however observed that the witness’s fear must
also be ‘reasonable and justified’ and the Court must be satisfied that
 326

anonymity will not deprive the accused of a fair trial. This preliminary
issue, according to them, was likely to require a ‘voir dire’ proceeding..

In the meantime in 1990, the New Zealand Bill of Rights gave right
of cross examination as a basic right, and since then there have been several
applications before the Courts but there has been no consistency in the
judgments of the High Court.

R vs. L (1994)(2) NZLR 54 (CA) came up for consideration before

the Court of Appeal in 1997 and had to be tested on the anvil of sec. 25(f) of
the NZ Bill of Rights. The Court of Appeal upheld the admission at trial of
a written statement, produced as a deposition, of a rape complainant who
had committed suicide after a preliminary hearing (at which she had not
testified). The Court stated that the right of cross examination was not
absolute.

6.4.5 The legislature, therefore, felt compelled to step in again and

introduced sections 13B to 13J into the Evidence Act, 1908 by the Evidence
(Witness Anonymity) Amendment Act, 1997, making protection applicable
to all witnesses if their lives were “likely” to be endangered and laying
down a detailed procedure for the Court to follow.

As to the right of cross-examination, this was part of the right to

minimum standards as stated in sub-clauses (a) and (f) of section 25 of the
NZ Bill of Rights Act, 1990 which were based on the International
Covenant on Civil and Political Rights. Section 25(f) included the right to
 327

examine the witness for the prosecution and to obtain his attendance and
examination for the defence under the same conditions as the prosecution.

6.4.6 It is necessary to refer to the provisions of sections 13B and 13C

introduced in 1997 in the Evidence Act, 1908. Sec. 13B enables exclusion
of identification of the witness before trial, by the District Judge or a High
Court Judge or a Judge referred to in the Children, Young Persons and their
Families Act, 1989. Under sec. 13C, anonymity order can be passed by the
High Court. After committal, sec. 13C(2)permits the prosecution to apply
to the High Court for an anonymity order, which will be decided in
chambers, after hearing both sides. Under sec. 13C(3)(b), neither the party
supporting the application nor the witness need reveal any information that
might disclose the identity of the witness to any person (other than the
Judge) before the application is dealt with. The Judge may, under sec. 13C
(4) make an anonymity order, if he is satisfied that

“(a) the safety of the witness or of any other person is likely to be

endangered, or there is likely to be serious damage to the
property, if the witness’s identity is disclosed; and
(b) either
(i) there is no reason to believe that the witness has a motive
or tendency to be untruthful having regard (where
applicable) to the witness’s previous conviction or the
witness’s relationship with the accused or any associates
of the accused; or
(ii) the witness’s credibility can be tested properly without
the disclosure of the witness’s identity; and
 328

(c) the making of the order would not deprive the accused of a fair
trial.”

It is also necessary to refer to subsection (5) of sec. 13C with regard

to the factors to be taken into account and the procedure to be followed by
the Court. Subsection (6) of sec. 13C refers to the effect of the order.
These subsections read as follows:

“(5) Without limiting subsection (4), in considering the application, the

Judge must have regard to –
(a) the general right of an accused to know the identity of witness;
(b) the principle that witness anonymity orders are justified only in
exceptional circumstances;
(c) the gravity of the offence;
(d) the importance of the witness’s evidence to the case of the
party who wishes to call the witness;
(e) whether it is practical for the witness to be protected by any
means other than an anonymity order; and
(f) whether there is other evidence which corroborates the
witness’s evidence.
(6) If a witness anonymity order is made under this section,-
(a) the party who applied for the order must give the Judge the
name, address, and occupation of the witness; and
(b) the witness may not be required to state in Court his or her
name, address, or occupation; and
 329

(c) during the course of the trial, no counsel, solicitor, officer of

the Court, or other person involved in the proceeding may
disclose
(i) The name, address, or occupation of the witness; or
(ii) Except with leave of the Judge, any other particulars
likely to lead to the witness’s identification; and
(d) during the course of the trial,-
(i) no oral evidence may be given, and no question may be
put to any witness, if the evidence in question relates to
the name, address, or occupation of the witness who is
subject to the order;
(ii) except with leave of the Judge, no oral evidence may be
given, and no question may be put to any witness, if the
evidence or question relates to any other particular likely
to lead to the identification of the witness who is subject
to the order; and
(e) no person may publish, in any report or account relating to the
proceeding, the name, address or occupation of the witness, or
any particulars likely to lead to the witness’s identification.”

We may add that procedure under sec.13B for the District Court is
almost identical with procedure under sec.13C for the High Court.

Section 13G is very important as it provides for clearing the public

from the Court or to direct screening and allow the witness to give evidence
by close-circuit television or by video-link. It also deals with appointment
of an ‘independent counsel’ to assist the Court.
 330

“13G. Judge may make orders and give directions to preserve

anonymity of witness –
(1) A Judge who makes an order under section 13B or section 13C
may, for the purposes of the preliminary hearing or trial (as the
case may be), also make such orders and give such direction as
the Judge considers necessary to preserve the anonymity of the
witness, including (without limitation) one or more of the following
directions:
(a) That the Court be cleared of members of the public;
(b) That the witness be screened from the defendant;
(c) That the witness give evidence by close-circuit television
or by video-link.
(2) In considering whether to give directions concerning the mode
in which the witness is to give his or her evidence at the
preliminary hearing or trial, the Judge must have regard to the
need to protect the witness while at the same time ensuring a
fair hearing for the defendant.
(3) The section does not limit –
(a) Section 206 of the Summary Proceedings Act, 1957
(which confers powers to deal with Contempt of Court);
or
(b) Section 138 of the Criminal Justice Act, 1985 (which
confers power to clear the Court); or
(c) Any power of the Court to direct that evidence be given,
or to permit evidence to be given by a particular mode.”
 331

For purposes of section 13G above mentioned, a Judge may, under sec.13E,
appoint an independent counsel to assist the Court; or issue directions to a
Jury as may be required (sec. 13F) and orders may be varied or discharged
before the witness gives evidence (sec. 13H).

After section 13H, two places below, namely, section 13I deals with
witness in “police protection programme” and sec. 13J enables conviction
for 7 years if a person who has knowledge of a pre-trial witness anonymity
order under sec. 13C contravenes para (c) or (e) of subsection 6 of sec.
13C; may be imposed if para (b) or (d) is violated; if para (c) or (e) is
violated and not sec. 13C(1), then fine may be imposed without prejudice to
punish for contempt.

6.4.7 R vs. Atkins: 2000 (2) NZLR 46 (CA)

The Amending Act of 1997, introducing sections 13B to 13J, and in

particular, sec. 13(C)(4)(a) came up for consideration recently in R vs.
Atkins: (2000)(2) NZLR 46 (CA) before the New Zealand Court of Appeal.
The case is very important and is a landmark in this branch of the law and
we shall refer to it in some detail. We may recall that section 13(C)(4)(a)
refers to the satisfaction of Court that:

“the safety of the witness or other person is likely to be endangered or

there is likely to be serious damage to the property, if the witness
identity is disclosed.”

(This case involved video-link and distortion of voice of witnesses.)

 332

In Atkins, the High Court passed witness anonymity orders and these
were questioned by the two accused in an application for leave to appeal
before the New Zealand Court of Appeal. Four of the accused had been
committed for trial on a charge of murder arising out of an assault in the
carpark of a Hotel in the night and all were members or associates of the
Crisborne Mongel Mob, playing in a rugby team. The assault was
witnessed by 100 people at the carpark out of which 11 agreed to give
evidence but only on condition of anonymity. The police obtained pre-trial
orders under sec. 13B for all the 11 witnesses prior to the hearing of
evidence but six of them dropped out.

6.4.8 The procedures adopted in the case required use of two separate video
images in the Courtroom, one that could only be seen by the Judge and Jury
and the other that could be seen by everyone else concerned with the trial.
The witnesses were testifying from video-link from undisclosed locations
with their voices distorted for the Judge and Jury, and their voices and
images distorted for all others in the Courtroom including the accused and
his counsel. The NZ Court of Appeal interpreted the word “likely” in sec.
13C(4)(a). The Court in Atkins observed:

“In its context, the word ‘likely’ bears a common meaning – a real
risk that the event may happen – a distinct or significant possibility.
As Cook P observed in Commissioner of Police vs. Ombudsman 1988
(1) NZLR 385 (391) in construing the Official Information Act, 1982
which protected information ‘likely to prejudice a fair trial’: to
require a threat to be established as more likely to eventuate than not,
 333

would be unreal. It must be enough if there is a serious or real and

substantial risk to a protected interest, a risk that might well
eventuate. This Court has given ‘likely’ that sense in a line of
criminal cases, a recent example of which is R vs. Piri (1987) 1
NZLR 66. It is a test familiar in other branches of the law also (see
for instance the House of Lords case R vs. Secretary of State for the
Home Department, ex parte Sivakumaran 1988(1) All ER 193).

There is no cause to read the word “otherwise” in the present

context. It is the existence, in a real sense, of danger to safety (or
serious damage) which can, not will, give rise to an order. What is
being considered is a threshold, one which is directed to persons who,
as part of their civic duty, are being required to take part in the Court
process, and their personal safety, or the well-being of their property,
which may be affected by reason of their participation”.

The NZ Court of Appeal continued:

“This approach is consistent with that adopted by the English Court

of Appeal in R vs. Lord Saville of Newdigate (1999)(4) All ER 860,
which concerned an inquiry of a specially appointed tribunal into the
‘Bloody Sunday’ shootings in Londonderry, Northern Ireland in
1972. An application to the tribunal by a number of soldiers for
anonymity was in question. Lord Woolf MR, giving the judgment of
the Court, said that the issue was not to be determined by the onus of
proof and approved the dictum of Lord Diplock in Fernandez vs.
Government of Singapore 1971(2) All ER 691, a case concerning the
 334

return of a fugitive offender. Prejudice involving a risk of

inappropriate trial or punishment was there at issue. Lord Diplock
said at p. 647: “My Lord, bearing in mind, the relative gravity of the
consequences of the Court’s expectation being falsified in one way or
in the other, I do not think that the test of applicability of para (c) is
that the Court must be satisfied that it is more likely than not that the
fugitive will be detained or restricted if he is returned. A lesser
degree of likelihood is, in my view, sufficient; and I would not
quarrel with the way in which the test was stated by the magistrate or
with the alternative way in which it was expressed by the Divisional
Court “A reasonable chance”, “substantial ground for thinking”, “a
serious possibility”.”

Further, in Atkins, the New Zealand Court of Appeal continued:

“As Lord Woolf went on to observe, where what is at stake is the

safety of (there) of the former soldiers and their families, the risk is
extremely significant. So too, in the case of witnesses to a serious
crime, whether a Court is satisfied such a risk exists must be a matter
of judgment”.

Coming to the facts of the case before them, in Atkins, the Court of Appeal
then considered the affidavits supplied by the five witnesses and of the
Detective Sergeant. As to the admissibility of the affidavits of the witnesses
on the basis of which they sought anonymity, the Court of Appeal laid down
very important tests. It said:
 335

“We are mindful of the fact that the matters deposed to have not been
tested by the cross-examination and that there has been no
opportunity to present contradicting evidence in respect of the non-
disclosed assertions. But in applications of this nature, the Court will
necessarily be called upon to consider untested evidence, and to
evaluate evidence some of which could be classed as hearsay. We
accept Mr. Calver’s submission that in such an exercise, care must be
taken in making the evaluation and in drawing conclusions, and is to
be exceptional. But we do not accept the proposition that unless the
evidence was sufficient to warrant prosecution for a normal offence,
it should not be acted upon. The weight to be given to any particular
assertion will depend upon many differing factors, including source,
reliability, and the existence or absence of supporting material. This
aspect was dealt with admirably by Young J in his judgment on a sec.
13-C application in R vs. Dunnil: 1998(2) NZLR 341.” at 347
[In Dunnil, the Judge had held that screens and video-links are ‘very much
commonplace’ today in Courts].

The Court of Appeal in Atkins then recorded a finding that there was
enough material from the affidavits – though was not subjected to cross-
examination – to say that there was likelihood of the lives of the five
witnesses being endangered, requiring an anonymity order as passed by the
Court below.

Yet another important aspect of the Judgment in Atkins is that the

Court of Appeal dealt with the meaning of the words “fair hearing for the
 336

defendant” used in subsection (2) of sec. 13G, and the words ‘fair trial’ used
in sec. 24(a) of the NZ Bill of Rights Act, 1990. It explained:

“The issue is whether despite implementation of those restrictions, the

Court is satisfied, in so far as it can be at this point of time, that a fair
trial will result. The starting point must be the legislation’s
recognition that ensuring the anonymity of witness does not
necessarily negate the concept of a fair trial – and that must be so.
Sec. 13A which enables protection of the identity of undercover
police officers is an example. There have been no serious contentions
that these provisions infringe sec. 24(a) of the New Zealand Bill of
Rights Act, 1990. What is at issue in this respect is an inroad into
generally accepted trial processes, something which has occurred
from time to time over the years but without infringing the basic
concept of a fair trial. In each case, it is therefore, necessary to
examine the effect of the particular orders. It can also be noted that
the Court has power under para (7) to give leave to ask questions
which may otherwise infringe the subsec (6) order. In some
circumstances, the order may be revoked under sec. 13H in advance
of the giving evidence. That would probably require some significant
change in circumstances from those initially prescribed.”

The Court of Appeal in Atkins summarized the contentions for the

accused as to the disadvantages which an accused suffers in the case of
anonymity orders, as follows:
 337

“They concern the inability to test the credibility and reliability of the
witnesses, and relate to: (a) restrictions on ascertaining the precise
positioning of the witnesses when observing the incidents deposed to;
(b) examining the witness adequately as to possible mistake, motive
for untruthfulness or, partiality; (c) testing the witness’s physical and
mental condition at the time; and (d) the effect of the picture and
voice distortions.”

In respect of the above contention raised on behalf of the accused, the Court
further observed that this was not a case where parties invoked sec. 13E for
independent assistance by a counsel, nor was it invoked by the Court below.
It is also to be seen that the

“terms of order under subsection (6) of section 13C do not expressly

prohibit questions other than those which can properly be said are
likely to lead to identification of the witness – that there is a real or
substantial risk of that resulting (in identification). Secondly, the trial
Judge has a residual power to allow such questions, which would be
exercised having regard to all the circumstances including the relative
substantiality of the risk and the importance of the particular
question. These are very much matters of judicial control at trial.
Thirdly, as the Judge in this case observed the refusal of a witness to
give details pertinent and significant to the reliability of his or her
evidence will obviously be uppermost in the minds of the jury, and
the quality thereof probably substantially diminished. The point
however remains one which must be given the due weight in the
overall equation.”
 338

The Court of Appeal also observed that the fact that an anonymity
order has been passed accepting the fears expressed by the witnesses,
should be a matter which could go against the character of the accused in
the matter of deciding his role in the (alleged) commission of the offence.

The said Court observed that the overall discretion given to the Court
under sec. 13C(4) was subject to subsection (a), (b) and (c) and also to
subsection (5) some of which may infringe on subsection (4)(b) and (c)
considerations. Even if subsection (4) criteria are established, the Court
must still stand back and ask whether the orders should, in the overall
interest of justice, be made. But 13C orders are, it must be understood, not
to be passed as a matter of routine. They are not like gang related offences.
The power is to be used sparingly – The exceptional circumstances may
arise out of single incident or out of the cumulative result of witnesses.

On the basis of the above discussion, the Court of Appeal dismissed

the appeals of the accused.

5.4.9 Summarizing the position in New Zealand Courts, it will be seen that
initially there was the view that the Court should not exercise inherent
powers to pass anonymity orders but that the legislature alone should
provide guidelines. However, the legislature stepped in and carried out
amendments first in regard to “undercover” police officers in 1986 and later
more generally in 1997 to cover all witnesses whose life is “likely” to be
endangered. The legislation of 1997 is very comprehensive and was
interpreted in latter cases thoroughly, where the witnesses had deposed from
 339

another place through video-link, their voice not being distorted for the
Judge and Jury while their voice and images were both distorted for all
others including the accused and his counsel. The procedure was held to be
‘fair’ within the New Zealand Bill of Rights.

(d)6.5 Canada

In Canada, the broad principle laid down by the Supreme Court is that
anonymity may not be granted to the witnesses under inherent powers
unless the Court considers that, on the facts, ‘innocence would be at stake’.
Anonymity was a privilege granted under the common law unless there was
material that it would jeopardize proof of innocence of the accused.

6.5.1 It however appears that in Canada, the Courts have generally granted
more importance to the exception of ‘innocence at stake’ rather than the
needs of the ‘administration of justice’ in giving anonymity to witnesses.

6.5.2 R vs. Durette: 1994(1) SCR 469

The accused were charged with offences involving conspiracy of

trafficking in controlled drugs and narcotics. A substantial part of the
evidence against them consisted of recordings of telephone conversations
intercepted pursuant to nine authorizations by the Court. The trial Judge
edited the affidavits filed by the officers of the State to secure authorizations
for interception “in so far as (they) contain information from informants and
others which is to be protected and in so far as they contain summary or
opinions’. The issue before the Supreme Court, after the convictions, was
 340

whether the trial Judge’s editing of the affidavits prevented a proper and full
inquiry into the validity of the authorizations, thereby depriving the accused
of the right to make full answer and defence as guaranteed by sections 7 and
11(d) of the Canadian Charter of Rights and Freedoms.

The Supreme Court (by majority) allowed the appeals and ordered a
new trial, holding that to justify non-disclosure of information, the Crown
must show that disclosure will prejudice the interests of informants,
innocent persons or law enforcement authorities and that such prejudice
overbears the interests of the accused. When non-disclosure is justified, the
affidavits should only be edited to the extent necessary to protect these
overriding public interests. Here the editing by the Judge of the affidavits
was more than could be legally justified by the decisions in R vs. Parmar
(1987) 34 (CC(3d) 260 and R vs. Garfoli : 1990(2) SCR 1421; editing
should have been kept at the minimum to the extent needed to maintain
confidentiality. It was held that the screening held back information from
the affidavits which was not confidential.

6.5.3 In R vs. Khela: 1995 (4)SCR 201

In this case, the Canadian Supreme Court had to deal with the case of
disclosure of the identity of a police informer and the right of the accused
for cross-examination. The position under sec. 24(1) of the Canadian
Charter of Rights and Freedom was also in issue. The question was
whether the denial of cross-examination of a person in the position of an
‘approver’ was justified and further about the validity of his subsequent
production for limited cross-examination when he wore a ‘hood’, to ensure
 341

his safety. The Supreme Court finally held that if there was danger to the
person’s life, his name and address need not be disclosed till just before the
trial.

The facts were that in 1986, the appellants (accused) Santokh Singh
Khela and Dhillon, were charged with conspiracy to commit murder of
persons on board of an aircraft in the US by placing a bomb on the plane.
They were arrested in May 1986 and they waived their right to a preliminary
inquiry.

At the first trial in 1986, they were found guilty and sentenced to life
imprisonment. According to the accused, an amount of $ 8000 out of
agreed sum of $ 20,000 was paid by them to buy a stolen car and import it
into the US and the payment was not in connection with the conspiracy to
blow up the air-craft as alleged by the Crown. They were not permitted to
call the particular person (who was not a police officer) who was the
informant to the police, (something like an ‘approver’), for cross-
examination. The Crown had not provided them the details of the actual
name and address of the informant. The appellant’s appeal against
conviction was allowed (see (1991) 68. CCC(3d) p 81) by the Court of
Appeal and a fresh trial was ordered holding that the trial Judge erred in not
ordering, as requested by the appellant, (1) the Crown to disclose (a) the
evidence of the informer before the trial; (b) the full name and whereabouts
of the informant and (2) that the informant be produced for cross-
examination.
 342

The Crown agreed to make the person available but said that the
questioning would be restricted to specific matters, namely, payment of
$8,000 and meeting with the ‘explosives expert’ and that the interview with
the informant could neither be taped nor could a case reporter be present.
The counsel for defence met the informant and the Crown Office and the
person was wearing a ‘hood’ over his head and was flanked by two large
bodyguards. The informant refused to respond to questions in English and
was speaking French even though at the first trial, evidence showed he was
fluent in English. Defence Counsel, therefore, doubted the identity of the
person produced and the interview was aborted without any question having
been asked. The Crown did not provide the defence with the name, address
or any other identifying feature of the person.

At the opening of the second trial and before the jury were chosen,
the appellants made two applications under sec. 24(1) of the Canadian
Charter of Rights and Freedoms, contending that

(a) the Crown had failed to disclose to the defence essential and
relevant evidence as required by the judgment of the Court of
Appeal;
(b) The Crown violated the rights of the accused to be tried within a
reasonable time.

The Crown once again maintained that, notwithstanding the earlier

directions of the Court of Appeal, it was not obliged to make disclosure of
the name and whereabouts of the person or make him available because,
 343

according to it, the earlier judgment of the Court of Appeal did not contain a
specific direction to that effect.

In the Court of Appeal, Steinberg J held that the appellant’s rights

under sections 7 and 11(b) of the Charter had been infringed and granted
stay of proceedings.

When the matter reached the Supreme Court at the instance of the
Crown, it was held that, on the facts of the case, it was obligatory for the
Crown to furnish the identity and address of the informant in view of the
first order of the Court of Appeal while remanding the matter. Failure to
disclose could impair the rights of the accused under section 7 of the
Charter. But there was no power in the Court of Appeal to redirect
production of the informant who was not in the control of the Crown. The
obligation of the Crown did not extend to producing its witnesses for
furthering discovery. There was no reason for a fresh remand as directed
by the Court of Appeal, but the Crown should be given an opportunity to
comply with the direction to disclose the name and whereabouts of the
persons or to seek modification of the order if they had material to say that
the life of the informant would be endangered.

The Supreme Court, therefore, allowed the appeal, set aside the order
of the Court of Appeal and issued the following direction to the trial Court.
This direction would be subject to variation by the trial Judge on the basis
of new evidence relating to jeopardy of the person. The Crown had to
comply with the terms of the earlier Judgment of the Court of Appeal. So
far as the third direction to make the person available, there appeared to be
 344

some real difficulty because the witness was not cooperating. The Crown
had a choice: (1) if the Crown wished to avoid the problem already
encountered in trying to comply with the third requirement (of making
witness available) the Crown could meet its disclosure obligations by fully
complying with the other two requirements, namely, disclosing the evidence
of the informer before trial and disclosing the full name and whereabouts of
the person before trial, or alternatively, (2) the Crown could choose to
comply with the third requirement by producing the person by way of
ensuring that he would cooperate and answer all proper questions. The trial
Judge was directed to give time to the Crown if it sought for variation on the
ground of jeopardy to the person.

The above case, in essence indicates that where there is evidence of

jeopardy to the witness, the directions for disclosure of name, whereabouts
or enabling his production, may not be given.

6.5.4 Canadian Broadcasting Corpn. vs. New Brunswick (Att. General)

(1996(3) SCR 480)

In this case, the Canadian Supreme Court disagreed with the trial
Judge’s exclusion of media and public from Court room to avoid hardship to
‘the victims and the accused’ during the sentencing proceedings.

The Media (CBC) successfully challenged the order as infringing the

freedom of press (see 486 (1) of Criminal Code and sec. 2(b) of Canadian
Charter of Rights). Here the victims were not witnesses. The Supreme
Court set aside the exclusion, holding that public access to Courts is
 345

fundamental. It held that the Court could order exclusion to protect the
innocent and safeguard the privacy interests of witnesses in cases of sexual
offences. No doubt, the statutes permit covertness in the interests “proper
judicial administration of justice”, but, here, the exclusion of media and
public throughout was not justified. Mere fact that victims were young
females was not by itself sufficient to warrant exclusion. The victims’
privacy was already protected by a publication ban of identities and there
was no evidence that their privacy interests required more protection.

6.5.5 R vs. Leipert: (1997) (1) SCR 281

In this case, the police had received a tip off from the Crime Stoppers
Association that the accused was growing marijuana in the basement. The
police made an inspection of the locality, found smell and applied for a
search warrant. The application disclosed, among others, that there was
reliable information from the above Association. The accused was duly
charged with the offence. At the trial, the accused, relying upon the
Canadian Charter of Rights and Freedom, called upon the Crown to make
available the documents of the Association which were the subject matter of
the report to the police. The Crown refused disclosure on the ground of
“informer privilege”. The trial Judge saw the document and after trying to
edit the notice where there are references as to the identity of the informer,
ordered disclosure. Then the Crown asked that the warrant may be relied
upon without reference to the “tip sheets”. The trial judge refused this
request because the accused did not consent. The trial Court granted
acquittal as the Crown did not tender evidence and the defence did not call
any evidence.
 346

On appeal by the Crown, the judgment was reversed by the Court of

Appeal and a retrial was ordered. Upholding the appellate Court’s order of
retrial, it was held by the Supreme Court that the law recognizes informer’s
privilege to anonymity but this was subject to the principle “innocence at
stake” exception. There must be a basis in the evidence for concluding that
disclosure of the informer’s identity is necessary to demonstrate the
“innocence” of the accused. The accused’s right to full disclosure of
documents in the Crown’s possession in aid of the Charter guarantee of the
right to make full answer and defence, as interpreted in Stinchcombe (1991)
3 SCR 326, had not created a new exception to the informer privilege rule.
To the extent that rules and privileges in favour of the informant stand in the
way of an accused person establishing his innocence, they must yield to the
Charter guarantee of a fair trial, where ‘innocence is at stake’ and the
common law rule of informer privilege does not offend this exception.

When an accused seeks to establish that a search warrant is not

supported by reasonable grounds, he may be entitled to information which
may reveal the identity of an informer notwithstanding informer privilege in
circumstances where the information is “absolutely essential”. “Essential
circumstances” exist where the accused establishes the “innocence at stake’
exception to informer privilege.

Anonymous “tip sheets” should not be edited with a view to

disclosing them to the defence unless the accused can bring himself within
the “innocence at stake” exception. The Court can deprive the informer of
the privilege which belongs to him absolutely, subject only to the
 347

‘innocence at stake’ exception. Unless informer identity is protected, the

efficacy of programmes such as Crime Stoppers, which depend on guarantee
of anonymity to those who volunteer information on crimes, would be
adversely affected. In the case of an anonymous informer, where it is
impossible to determine which details of the information provided by the
informer will or will not result in that person’s identity being revealed, none
of those details should be disclosed, unless there is a basis to conclude that
the “innocence at stake” exception applies.

The Supreme Court held, on facts, that the trial judge erred in editing
the tip sheet and in ordering the edited sheet be disclosed to the accused.
The identity of the anonymous information is protected by privilege, and,
given the anonymous nature of the tip, it was impossible to conclude
whether the disclosure of details remaining after editing might be sufficient
to reveal the identity of the informer to the accused. The informer’s
privilege required nothing short of total confidentiality in this case. As it
was not established that the informer’s identity was necessary to establish
the innocence of the accused, the informer’s privilege would continue in
place.

It was further held that the trial judge also erred in declining to allow
the Crown to delete the reference to the informer from the material in
support of the search warrant. Since the accused had not brought himself
within the ‘innocence at stake’ exception, the trial judge should have
permitted the Crown to defend the warrant, by deleting therefrom, the
reference to the tip from the Association.
 348

6.5.6 R vs. Mentuck: 2001 (3) SCR 442:

In this case, the Court gave more importance to the need to see that
adequate protection is given to the witnesses to strengthen the
‘administration of justice’.

The accused was charged with second degree murder. The trial Judge
granted a one year ban as to the identity of the undercover police officers
and refused to ban disclosure of the operational matters used in
investigating the accused.

The Supreme Court upheld the one year ban as to the identity of
undercover police officers to prevent “serious risk” to the ‘proper
administration of justice’. The applicant, no doubt, had the burden to show
that anonymity of the police officers was required. It was felt that at the
same time, there should be minimal impairment of right to open justice. The
refusal to ban disclosure of the operational methods of police, was in order.

(e)6.6 South Africa:

The approach in South Africa, however, proceeds on a case by case

basis in order to balance the conflict of interests with a view to ensure
proper administration of justice. The statute permitted in camera
proceedings and adequate discretion to the Court.

6.6.1 In South Africa, section 153 of the Criminal Procedure Code permits
criminal proceedings being held in camera particularly where it is necessary
 349

to protect privacy of the victims. The offences of indecency and extortion

(and related statutory offences) may arise out of facts which do not always
demand that the privacy of the victims and/or witnesses trump the right to a
public trial. Section 153(3) grants discretion to judicial officers whether to
order that the hearing be held in camera. However, the scope of the
discretion is controlled by the nature of the offence alone.

Section 154 permits prohibition of publication of certain information

relating to criminal proceedings. While the identity of the victim should be
protected, the public may have an interest in knowing the identity of the
accused and the nature of the incident but even here, the Court will have the
discretion to refuse the publication of the name of the accused, if the
complaint is a frivolous one.

6.6.2 Chapters 3, 4 and 5 of the Discussion Paper 90 of the South African

Law Commission, project 101 (2000) deal with this aspect. Chapter 3 deals
with equality and access to Courts, Chapter 4 with Right to fair trial and
Chapter 5 with Right to a public trial. Chapter 6 deals with right to adduce
and challenge evidence and adequate facilities to prepare defence. The right
to cross-examination is basic in South Africa. But the Courts are of the
view that the right is not absolute either under common law or statute law.

The South African Courts too have preferred to permit the witness to
give evidence behind closed ‘doors’ or to give the witness ‘anonymity’ and
not reveal their addresses. The Court also prefers to prohibit the press from
reporting on identity rather than exclude the press from the Court room.
 350

6.6.3 S v. Leepile : 1986 (4) SA 187 (W)

In S vs. Leepile: 1986(4) SA 187 (W), during the trial in which the
accused faced charges, interalia, of treason arising out of their activities as
members of the African National Congress (A.N.C), the prosecution applied
for a direction that the evidence of a particular witness referred to as Miss B
be given behind closed doors and that only persons whose presence was
essential for the hearing of the case be allowed to attend. A further prayer
was that the present residential address of the witness be disclosed only to
the Court and to counsel but not to the accused. The application was made
under section 153(2) of the Criminal Procedure Act, 1977, which authorized
the hearing of evidence behind closed doors where it appears that ‘there is a
likelihood that harm might result’ to a witness. There was strong evidence
in support of the application. Miss B testified that she had left South Africa
in 1978 and had become a member of the ANC, that she received military
training from the ANC and worked for its military wing until she was
arrested on a mission in South Africa in 1983.

The evidence was sufficient to convince Ackermann J in the High

Court that if the ANC were to know that Miss B testified for the State she
would be regarded as ‘an informer’, a collaborator and as a traitor of the
ANC cause’. Thus, the Judge, on facts, placed the witness ‘in a high risk’
category as far as the likelihood of harm to her is concerned, but he was still
not inclined to grant relief in the terms prayed for. He declined to exclude
the press. So far as the address of the witness was concerned, he said that
there was no point in allowing it to be given to the defence counsel because
counsel was professionally bound to tell his client. Instead, the Judge
 351

preferred to pass an order that the witness be allowed to testify behind

closed doors and no person was allowed to be present unless such presence
was necessary in connection with the proceedings. Members of the press
who held identification documents ‘to the satisfaction of the prosecuting
counsel’ were allowed to be present subject to the condition that neither
Miss B’s identity nor that of her immediate family, nor her place of
residence, be revealed.

In the same case, the prosecution applied for an in camera order for
another person, and proposed to examine that person by a pseudonym and
sought an order that his true identity be not disclosed to anyone, not even to
the Court or defence counsel. Ackermann J refused to grant the wide
request as it had serious consequences for the accused and said that such
exclusion would ‘require the clearest language on the part of the legislature
to make such an order competent’.

6.6.4 S v. Pastoors: 1986(4) SA 222 (W)

However, in S vs. Pastoors 1986 (4) SA 222 (W) the Court allowed
the identity of a prosecution witness to be withheld ‘from the defence’. The
Court held there was ‘real risk’ that the witness would be attacked or even
killed and observed:

“In every case of this nature, the Court is confronted by a conflict of

interest. In resolving this conflict, the Court must protect those
interests which, on the facts of the particular case, weigh in favour of
proper administration of justice. Such protection, if granted, should
 352

therefore, not go further than it is required by the exigencies of the

case.”

The Court further ordered that if the defence felt, at a later stage, that it
required to know the identity of the witness, it would be able to apply to the
Court again.

(f) 6.7 United States:

6.7.1 We shall give a brief summary of the manner in which the US

Supreme Court tackled with the problem.

The Courts in US have held that the constitutional protection in

favour of the right to confrontation by way of cross examination, as
provided in the Sixth Amendment of the Constitution, was not absolute and
could be restricted for the purpose of protecting the witness identity by
using a video-link and permitting cross examination by shielding the
witness from the accused though not from his lawyers or the Court or the
Jury. Initially, between 1925 and 1968, the right to confrontation of the
witness by way of cross examination was treated as absolute. In 1968, in a
concurring judgment, White J in Smith v. Illinois: (1968) 390 US 129 said
that witness identity could still be protected where witness safety was
involved. Though the Courts of Appeal and trial Courts, in several cases,
followed the dissenting observation of White J, the Supreme Court in later
cases again reiterated its earlier view that the right to cross examination was
absolute. However, in 1990 in Maryland v. Craig 497 US 836, it accepted
 353

the video-link method to screen the witness from the accused though not
from the Court or the defence lawyer or Jury.

In the US Constitution, the Sixth Amendment mandates that

“in all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial……; and to be confronted with the witnesses
against him….”

In addition, the First Amendment ensures freedom of speech, freedom of

press and has been interpreted as granting to the public and to the press
access to any trial and to information about witnesses.

While both these provisions apply only to the federal government,

because they contain the fundamental rights, the US Supreme Court has
made them applicable to the States also through the due process clause of
the Fourteenth Amendment. (Gotlow vs. New York (1925) 268 US 152;
Pointer vs. Texas: (1965) 380 US 400)

The right of the defendant to cross examine a witness flows directly

from this constitutional right of confrontation.

(A) Right to cross-examination absolute: initial cases:

We shall first refer to some of the leading decisions of the US

Supreme Court, namely, Alford vs. United States: (1931) 282 US 687;
Pointer vs. Texas: (1965) 380 US 400; Smith vs. Illinois: (1968) 390 US
 354

129 which treated the right to cross-examination as absolute and without

any exceptions.

In Alford, decided in 1931, the Supreme Court held that the trial
Court had improperly exercised discretion by permitting a witness to give
evidence without revealing his address. The Supreme Court held that the
right to ask a witness where he lived was “an essential step in identifying
the witness with his environment” to which cross examination may always
be directed. It stated:

“…no obligation is imposed on the Court…to protect a witness from

being discredited on cross-examination, short of an attempted
invasion of his constitutional right from self-incrimination….. There
is a duty to protect him from questions which go beyond the bounds
of proper cross-examination merely to harass, annoy or humiliate
him… But no such case was presented here”.

Smith vs. Illinois (1968) 390 US 129 was a case where the witness
had refused to answer questions about his real name and address.

Stewart J for the majority stated that where the credibility of the
witness was in issue, the starting point on making inquiries about a
witness’s credibility is his name and address. He observed:

“…when the credibility of a witness is in issue, the very starting point

in ‘exposing falsehood and bringing out the truth’ through cross
 355

examination must necessarily be to ask the witness who he is and

where he lives.
The witness’s name and address open countless avenues of in-Court
examination and out of Court investigation. To forbid this most
rudimentary inquiry at the threshold is effectively to emasculate the
right of cross examination itself.”

White J’s dictum:

In the concurring but separate judgment of White and Marshall JJ, they
however pointed out that

“it may be appropriate to excuse a witness from answering questions

about his or her identity if the witness’s personal safety was
endangered.”

(B) Several circuit Courts preferred to rely on the observations of White J

in his concurring judgment, to hold that witness identity could be protected.

The exception referred to by White J in Smith, where the witness’s

safety is likely to be endangered if his identity is disclosed – has been
applied by the circuit and trial courts in US in several cases. See US vs.
Saletko : (1971) 452. F.2d. 193 (7th Circuit) (contained in (1972) 405 US
1040: and State vs. Hassberger : (1977) 350 S. 2d 1 (Flo) US vs. Cosby
(1974) 500 F. 2d 405 (9th circuit)

In United States vs. Palermo : (1969) 410 F 2d 468 (7th circuit), the
circuit Court, relying upon Justice White’s observations in Alford, held that
 356

the defendant had no absolute right to discover the names and addresses of
witnesses if a threat to their personal safety existed. However, where the
witness has shifted from his location and is not likely to go back, the Court
would disclose the place of his original residence, so that cross examination
is effective.

Other Courts have affirmed non-disclosure orders independent of

whether the threat to the witness’s safety emanated from the defendant or
from unknown third party. In Clark vs. Rickets (1991) 958. F 2d. 851 (9th
circuit) (cert denied (1993) 506 US 838) the witness was a Drug
Enforcement Agency informant. Threats against his life were made in the
city where he lived.

Even earlier, in United States vs. Rich (1958) F.2d. 415 the 2nd Circuit
held that withholding the address of a witness because of personal danger to
him/her was acceptable. In United States vs. Crovedi (1972) 467. F.2d 1032
(7th Circuit), the Court of Appeal upheld a ruling that the new identities and
location of two witnesses be kept from the defence and the public at large.
The witnesses were given immunity in exchange for their testimony against
a co-conspirator. In order to guarantee their safety, the government placed
them and their families in witness protection. The Court ruled that there
was no abuse of discretion in a determination that these witnesses had
reason to fear that disclosure of their present identities would endanger
themselves and their families.

In United States vs. Rangel 534 F.2d 147 decided by the 9th Circuit, a
similar protection was granted to witnesses who feared their safety. The
 357

Court did not establish a rigid rule of disclosure (of the true name, home
address and phone number of informants), but rather discussed disclosure
against a background of factors weighing conversely, such as personal
safety of the witness.

The 9th Circuit, in United States vs. Ellis (1972) 468. F.2d 638, upheld
the right to suppress the real name, residence and occupation of under cover
police officers.

(C) We may now refer to two cases decided by the Supreme Court where
once again the absolute right to confrontation was reiterated.

(i) In California vs. Green (1970) 399 US 149, the Supreme Court traced
the history of the confrontation clause in the Sixth Amendment to the
famous English case relating to the trial of Sir Walter Raleigh. The
Supreme Court said:

“A famous example is provided by the trial of Sir Walter Raleigh for

treason in 1603. A crucial element of the evidence against him
consisted of the statement of one Cobham, implicating Raleigh in a
plot to seize the throne. Raleigh had since received a written
retraction from Cobham and believed that Cobham would now testify
in his favour. After a lengthy dispute over Raleigh’s right to have
Cobham called as a witness, Cobham was not called, and Raleigh was
convicted… At least one author traces the Confrontation Clause to
the common law reaction against the abuses of the Raleigh trial. (See
F. Heller – the Sixth Amendment, p 104 (1951).”
 358

(ii) In Davis vs. Alaska (1974) 415 US 308 it was held that restrictions on
cross-examination were unconstitutional even if they did not cause
prejudice. In the same case, the Supreme Court referred to the importance
of confrontation and cross-examination for the purpose of knowing the bias
of crucial identification witness.

(D) Right to confrontation – not absolute:

(i) In Delaware vs. Van Arsdol (1986) 475 US 673, the Supreme Court,
however, held that the defendant’s right to full confrontation must
occasionally yield to competing government interest including the
prevention of victim harassment, jury prejudice, confusion of issues or
danger to witness.

The exception to the rule of confrontation was applicable where the

restriction on cross-examination was harmless beyond reasonable doubt in
the light of the insignificance of the witness’s testimony as viewed against
the totality of the evidence against the defendant.

(ii) Screening witnesses: Coy (1988) differed from Craig (1990)

To start with, in Coy vs. Iowa (1988) 487 US 1012, the Supreme
Court held that the Sixth Amendment right could not be allowed to be
violated by permitting witnesses to testify behind a screen which blocked
the witnesses from the defendants’ sight and which only gave a dim vision
of their presence and though their voice was audible.
 359

However, in 1990, the one way video-link or closed-circuit video

came to be accepted by the Supreme Court as a device to screen the witness
from the accused.

(iii) Maryland v. Craig (1990): close-circuit television permissible

The decision came in Maryland vs. Craig (1990) 497 US 836. In that
case, the respondent was tried on several charges related to alleged sexual
abuse of a six year old child. Before the trial began, the State sought to
invoke the state statutory procedure permitting a judge to receive, by one-
way closed circuit television, the testimony of an alleged child-abuse victim
after determining whether the child’s courtroom testimony would result in
the child suffering serious emotional stress such that he or she could not
reasonably communicate. If the procedure under Maryland Courts &
Judicial Procedure Code Ann 9-102(a)(1)(ii) of 1989 was invoked, the
child, prosecutor and defence counsel have to withdraw to another room,
where the child would be examined and cross-examined; the Judge, jury and
defendant would remain in the courtroom, where the testimony could be
displayed on video screen.

Although the child cannot see the defendant, the defendant remains in
electronic communication with counsel, and objections may be made and
ruled on as if the witness were in the courtroom. The Court rejected Craig’s
objection that the use of the above one-way closed-circuit procedure
violated the confrontation clause of the Sixth amendment, ruling that Craig
retained the essence of the right to confrontation. Based on expert
 360

testimony, the Court also found that the alleged victim and others allegedly
abused children who were witnesses, would suffer serious emotional
distress if they were required to testify in the courtroom, such that each
would be unable to communicate. Finding that the children were competent
to testify, the Court permitted testimony under the procedure, and Craig was
convicted. The State Court of Appeals reversed. Although it rejected
Craig’s argument that the clause requires, in all cases, a face-to-face
courtroom encounter between accused and accusers, it found that the State’s
showing was insufficient to reach the high threshold required by Coy vs.
Iowa 487 US 1011, before the special procedure could be invoked. In Coy,
the Court had held that the procedure could not usually be invoked unless
the child initially was questioned in the defendant’s presence, and that,
before using the one-way television procedure, the trial court must
determine whether a child would suffer emotional distress if he or she were
to testify by two-way television.

On appeal by the State, the Supreme Court in Craig held (1) that the
Confrontation Clause did not guarantee an absolute right to a face-to-face
meeting with witnesses against them at trial. The clause’s central purpose
was to ensure the reliability of the evidence against a defendant by
subjecting the witness to rigorous testing in an adversary proceeding before
the trier of fact is served by the combined effects of the elements of
confrontation, physical presence, oath, cross examination, and observation
of demeanour by the trier of fact. Although face to face confrontation forms
the core of the clause’s values, it is not an indispensable element of the
confrontation right. If it were, the Clause would abrogate virtually every
hearsay exception, a result long rejected as unintended and too extreme.
 361

(Ohio vs. Roberts (448) US 56). Accordingly, it was held that the clause
must be interpreted in a manner sensitive to its purpose and to the
necessities of trial and the adversary process. (Kirby vs. United States : 174
US 47) Nonetheless, the right to confront accusatory witnesses may be
satisfied absent a physical, face-to-face confrontation or trial only where
denial of such confrontation is necessary to further an important public
policy, and only where the testimony’s reliability is otherwise answered
(Coy vs. Iowa).

The Court in Craig further held that Maryland’s interest in protecting

child-witnesses from the trauma of testifying in a child abuse case was
sufficiently important to justify the use of its special procedure, provided
that the State makes an adequate showing of necessity in an individual case.
Maryland’s procedure, it was held, preserves the ‘other elements’ of
confrontation and ensures the reliability of the testimony, subject to rigorous
adversarial testing in a manner functionally equivalent to that accorded to
live, in-person testimony. These assurances are far greater than those
required for the admission of hearsay statements. Accepting the use of the
One-way closed circuit television procedure, where it was necessary to
further an important public interest, it was held that such acceptance does
not infringe upon the confrontation clause’s truth-seeking or symbolic
purposes.

The Court further held in Craig that a State’s interest in the physical
and psychological well-being of child-abuse victims may be sufficiently
important to outweigh, at least in some cases, a defendant’s right to face his
or her accusers in Court. The fact that most States have enacted similar
 362

statutes attests the widespread belief in such a public policy’s importance.

The US Supreme Court has previously recognized that States have a
compelling interest in protecting minor victims of sex-crimes from further
trauma and embarrassment. (Globe Newspaper Co. vs. Supreme Court: 457
US 596) The Maryland Legislators’ considered judgment regarding the
importance of its interest will not be second-guessed, given the State’s
traditional and transcendent interest in protecting the welfare of children
and growing body of academic literature, denunciating the psychological
trauma suffered by child-abuse victims who must testify in Court.

According to the Supreme Court’s observations in Craig, the

requirements are that the trial Court must hear evidence and determine
whether the procedure’s use is necessary to protect the particular child
witness’s welfare; find that the child would be traumatized, not by the
courtroom generally, but by the defendant’s presence; and find that the
emotional distresses suffered by the child in the defendant’s presence is
more than de minimis. Since the determining of the minimum showing of
emotional trauma required for the use of a special procedure in the
Maryland statute is mandatory, the statute was held to meet constitutional
standards.

Since there was no dispute, on facts, that here the children who
testified under oath, were subject to full cross examination by video-link,
and were able to be observed by the Judge, jury and defendant as they
testified, the procedure of admitting their testimony was consonant with the
confrontation clause, provided that a proper necessity finding was made.
 363

In Idaho vs. Wright (1990) 497 US 805 and in White vs. Illinois
(1992) 502 US 346, the Court dealt with hearsay evidence by a witness as to
what a child–victim of abuse stated earlier to the witness. The case did not
involve one-way video link procedure. But while dealing with admissibility
of the hearsay evidence, Maryland vs. Craig was reiterated.

Since most Courts in US routinely permit question as to a witness’s

name and address, the prosecution must make a special case for imposing a
restriction upon this information being asked, by showing that the witness is
endangered by the revelation. However, in a few Courts, the onus is put on
the accused to justify any inquiries about a witness’s place of residence. In
some Courts, the accused has to show why the place of residence should not
be concealed from him, where some evidence is provided by the prosecution
as to why it should be concealed. The procedure in federal courts is that the
Government must prove the existence of an actual threat and inform the
Judge in camera the relevant information, including the witness’s location.
The judge who evaluates the information, therefore, considers the need for
concealment of the details and its effect on the reliability of the evidence.

(E) Some more recent US judgments:

We shall finally refer to a few more recent judgments of the State

Courts. In Marx vs. State (Texas) (dated 3.2.1999) at the trial of the
appellant for aggravated assault of a child, two child witnesses testified via
two-way close-circuit television, outside appellant’s physical presence and
over his objection.
 364

The Court of Criminal Appeals, Texas granted appellant’s petition for

discretionary review to determine whether the admission of the child
witness’s testimony violated appellant’s rights under the Sixth and
Fourteenth Amendment and Art. 38.071 of the Texas Code of Criminal
Procedure and held, following Maryland vs. Craig that the right of appellant
under the Confrontation Clause was not absolute and would give way to
considerations of public policy or necessities of the case and the testimony
was otherwise reliable. The requisite reliability of the child witness’s
testimony may be assumed through the testimony under oath (or other
admonishment appropriate to the child’s age and maturity, to testify
truthfully), subject to cross-examination, and the fact finder’s ability to
observe the witness’s demeanour, even if only on a video monitor. The
Court found no violation of 6th Amendment by using a two-way close circuit
as it was intended to prevent trauma of having to testify in the appellant’s
physical presence. The required reliability was assured because the
witnesses testified after promising to do so truthfully, they were subject to
cross examination and the jury was able to observe their demeanour. (Smith
vs. Texas dt. 24.11.2001)

In State vs. Bray (31.7.2000) decided by the South Carolina Supreme

Court, a case of child abuse, the State moved to have the victim testify via
closed-circuit television, out of the presence of Mr. Bray (accused) and the
jury. The Court allowed the application for evidence being recorded
without the presence of Mr. Bray or their relatives (except the mother) being
present. The Court relied upon evidence of a social science expert in
counselling services that the child witness (then 7 years) would suffer
 365

trauma if examined in the physical presence of the accused who was the
child’s uncle.

Section 16-3-1550 (E) (SC)(Ann)(Supplement 1999) provides that:

“the circuit or family court must treat sensitively witnesses who are
very young, elderly, handicapped or who have special needs, by using
closed or taped sessions when appropriate. The prosecuting agency
or defence attorney must notify the Court when a victim or witness
deserves special consideration.”

The trial Court was however directed to go into the matter and give specific
findings to support of the closed circuit procedure.

In the case of Iowa vs. James Terrance Mosley (15.5.2002) decided

by the Court of Appeals, Iowa, the Court confirmed the use of close-circuit
TV for receiving the evidence of a eight-year victim of child abuse, on the
ground that if the witness had to face the accused, she would have suffered
trauma.

6.7.2 A summary of US law by Jurist Nora V. Demleitner: (1998)

46 Amer J of Comp. Law (Suppl) 641

In an article on ‘Witness Protection in Criminal Cases: Anonymity,

Disguise or other Options’ by Nora V. Demleitner (1998)(46 American
Journal of Comparative Law, (Suppl.) p. 641) there is a very detailed
analysis of the subject. The article refers to some of the cases referred to
 366

above and finally divides witnesses into three categories: (a) undercover-
agents; (b) informants and (c) witnesses covered by witness protection
programmes. We shall try to summarise what the author has stated in this
behalf.

(a) In the case of undercover agents, a witness’s house address serves

to allow the defence to identify her with her environment so as to
allow for a meaningful cross examination. Some Courts have held
that with respect to undercover agents, this goal can be
accomplished differently – it might be sufficient to disclose their
occupational background and circumstances (United States vs.
Alston (1972) 460 F.2d 48 (5th Circuit) Certi. Denied 409 US 871
(1972). Police agents, even if working undercover, are subject to
supervision and constant monitoring by their superiors. The
supervisors can testify as to the agent’s general truthfulness. This
exception does not necessarily extend to informants since they
tend to be subject to less supervision.
(b) Informers have ‘privilege’ for anonymity if they had started the
investigation but did not further it. This encourages witnesses to
come forward in exchange for anonymity. A police officer may
testify as to the course of investigation which was initiated by the
informant, without revealing the informant’s identity. However, in
Roviaro vs. United States: (1957) 353 U.S. 53, it was held by the
US Supreme Court that, if the evidence as to the original
informant’s identity is ‘essential’ or even ‘relevant and helpful’, it
must be produced. Any disclosure requires the ‘balancing the
public interest in protecting the flow of information against the
 367

individual’s right to prepare his defense’. The Circuit Court of

Appeals, in United States vs. Ellis (1972) 468 F. 2d. 638, affirmed
a trial Judge’s decision not to force an informant to reveal his
name and address based on his safety claims and the marginal
importance of his testimony. This ruling was relied upon in other
cases to say that even in case other than those of undercover agent,
the accused had no absolute right of access to the witness’s name
and address. In State vs. Hassberger : (1977) 350 So. 2d 1 (Fla)
the Florida Supreme Court, required the real name of the witness
to be disclosed at trial. US Courts are more likely to give
protection of anonymity without revealing name and place of
residence so far as undercover agents and victim-witnesses are
concerned while in the case of others, the views appear to be not
uniform.
(c) So far as witnesses covered by witness protection programmes are
concerned or where an undercover agent adopts a ‘work’ name,
the disclosure of the ‘current name’ of a witness would either
violate the purpose of the ‘witness protection programme’ or
unnecessarily endanger the undercover agents who testify under
their actual but not their ‘work’ name. Therefore numerous courts
in the US have permitted non-disclosure as long as sufficient other
evidence was available for effective cross-examination.

(g) 6.8 European Court of Human Rights

In the European Court of Human Rights, on account of Art. 6 of the

European Convention on Human Rights requiring a fair trial to the accused,
 368

more importance appears to have been given to the protection of the rights
of the accused. Wherever the right of cross-examination of the prosecution
witnesses has been denied to the accused by the State Courts, the European
Court set aside the convictions and awarded compensation. While the Court
recognized the need to protect anonymity of witnesses in most cases, on
facts, in most cases it held that the trial was unfair. The cases in Kostovski
(1990), Doorson (1996), Vissier (2002) and Fitt (2002) are the leading
cases. If the national Courts felt anonymity was necessary or not necessary
in public interest, the European Court, as a matter of principle, would not
interfere.

The European Court dealt with the cases arising from various
countries in Europe, as detailed below.

6.8.1 Kostovski (1989)

The leading case is the one in Kostovski vs. The Netherlands

(20.11.1989) of the European Court (1990) 12 EHRR 434. The case
concerned more than one accused. So far as Kostovski was concerned, he
was born in Yugoslav and had a long criminal history. He had escaped from
prison in the Hague and was alleged to have conducted an armed raid of a
bank and made off with currency and cheques. While so, the Amsterdam
police got a phone call from a man who said that three persons (Stanley
Hills, Paul Molhoct and a Yugoslav who had escaped from prison in the
Hague) conducted the robbery. On 26.1.82, the man gave a statement to the
police and wanted his name not to be revealed. On being shown
photographs, he identified the accused as Kostovski. He gave details of
 369

their hideout. On 23.2.1982, another person gave yet another statement and
wanted to be anonymous. On 1.4.82 the accused were arrested. The
Magistrate examined the latter person who gave statement on 23.2.82, as
above stated, in the presence of the police but in the absence of the public
prosecutor and Kostovski and his counsel. The Magistrate who did not
know the identity of the witness, considered that the apprehension of the
witness as to safety was well-founded and allowed the witness to be
anonymous. The Magistrate sent copies of the statement to the Counsel for
the various accused and asked them to submit their written questions and
informed that they would not be invited to the hearing before him.
Kostovski’s lawyer submitted 14 questions to be given to the witness. The
Magistrate’s deputy interviewed the witness, the police were present but not
the public prosecutor nor the Counsel for Kostovski nor the accused. The
witness gave answers to the questions. Similar procedure was adopted in
the matter of the other accused.

On 10.9.82, a single hearing took place before the District Court.

The Magistrate, his deputy and the police who had earlier conducted the
interview, were all examined. The Court did not, in view of Art 288 of the
Code of Criminal Procedure (Netherlands), permit questions designed to
clarify the anonymous witness’s reliability and sources of information,
which could otherwise have revealed. The Magistrate gave evidence that he
was satisfied about the genuineness of the fear of reprisal. The anonymous
witnesses were not heard at the trial. The official reports drawn up by the
police and the examining Magistrate were used as evidence. The sworn
statement of one of the anonymous witnesses to the Magistrate was read out
 370

and treated as statement of a witness at the trial under section 295. The
District Court convicted the accused.

The Court of Appeal in Netherlands heard the witnesses. They stood

by their testimony. It did not allow questions to be put by the defence
which would have revealed their identity. The Court of Appeal did not hear
the anonymous witnesses but considered the contents of the statement. It
accepted that the fear of reprisal was genuine. It confirmed the conviction.

The appeal to the Supreme Court in Netherlands was dismissed on

25.9.84 and it also held that in spite of Art. 6 of the European Convention, a
Judge was not precluded, if he deemed it necessary for the proper
administration of justice, from curtailing to some extent, the obligation to
answer questions and notably, the one relating to identity of witnesses.

The European Court observed that the case was processed under a
1926 law, namely, the Netherlands Code of Criminal Procedure, 1926. It
referred to various provisions thereof and as to how a Court, under that law,
could convict an accused on previous statement recorded or official reports
of the investigating officer. The Court referred to a 1926 judgment of the
Netherlands’ Supreme Court which permitted such statements/reports as
evidence. Since then, in majority of cases, witnesses were not being
examined at the trial. The European Court referred to a 1984 Report of a
Commission in that country which recommended that statement of
anonymous witnesses should not be treated as evidence and to the fact that a
Draft Bill was pending legislation.
 371

The European Court said that the procedure followed in the case
offended principles of a fair trial under Art. 6 of the European Convention
and that even though anonymity was given, these witnesses were not
examined at the trial and the Court could not observe their demeanour nor
test their reliability. Even before the Magistrate, neither the accused or his
counsel were present. The examining magistrates were also unaware of the
identity.

The European Court held the procedure was unfair. It held that while
at the stage of investigation, the police could get information from
anonymous informants, however, at the trial, the use of the previous
statements as evidence to form a conviction, was bad in law. The Court
allowed the appeal.

By a separate judgment dated 29.3.90, the European Court held that

under Art 50 of the Convention, Kostovski was entitled to compensation for
detention that was not valid. The amount of compensation was, however,
settled by agreement.

6.8.2 Windisch vs. Austria : (1991) 13 EHRR 281

This was a case of burglary by the accused and two witnesses were
allowed to identify the accused from a distance, while the accused was
allowed to hold a handkerchief in front of his face. The police officers
recorded the statements of the two anonymous witnesses but their identity
was not disclosed to the Court. The accused’s request to summon them for
 372

cross-examination but the request was rejected because the witnesses feared
retaliation. The conviction was appealed against.

The European Court referred to Art. 6 of the Convention and to

Kotoskovi. It held that there was no fair trial. The argument that the
accused could have put written questions was held to be not acceptable as it
was not equivalent to production of witnesses before the Court. The trial
Court too was not aware of their identity. It could not watch their
demeanour as they were never produced before the Court nor could the
Court determine their reliability. The police officer’s evidence was not
sufficient. In this case also, the Court also awarded monetary
compensation.

6.8.3 Delta vs. France: (1993) 16. EHRR 574.

The appellant was accused of snatching a chain and a crucifix from

two girls at an underground railway station. He was arrested and the two
girls immediately identified him. The appellant pleaded he was not guilty
and the snatching was done by somebody else. The police later interviewed
the girls, they reiterated their earlier version. The girls did not turn up the
trial. The accused was convicted by the trial Court in France.

On appeal, the European Court referred to the fact that subsequent to

the order of conviction under appeal, the Paris Court of Cassation had
departed from its previous view and held that evidence was necessary at the
trial unless a clear case was made out about intimidation, pressure or
reprisals.
 373

The European Commission decided that the trial was vitiated and
granted compensation.

6.8.4 Isgro vs. Italy: (1991) Yearbook of European Convention on Human

Rights, 155.

This was also a case where the person (Mr. D) (not anonymous) who
gave the statement to the police was not traceable at the trial and did not
examine himself at the trial. The trial Court held that, Kostovski was
distinguishable, that the accused had opportunity to question Mr. D before
the investigating judge but that he did not do so. Thereafter, the accused
was committed to trial. At the trial, the witness was not traceable but the
accused was convicted.

The European Court held that, on facts, there was no violation of Art.
6 but still in certain situations, the previous statements of witnesses could be
relied upon and that this case was one such. The conviction was confirmed.

6.8.5 Doorson vs. The Netherlands: (26.3.96)

The case arose from Netherlands and concerned the appellant, who
was alleged to be a drug-dealer. The police, on information received,
showed photographs of drug dealers to certain drug-addicts (along with
photographs of innocent persons) and upon identification of appellant by
several drug-addicts, started investigation. Several persons who wanted to
be anonymous did not turn up. However, three persons (one who disclosed
his name but was not a clear witness and two other anonymous witnesses)
 374

gave statements. The named witness’s evidence was not acted upon. At
the stage of appeals, - upon a finding being called for, the investigation
Judge who investigated a second time (in the presence of the counsel for
accused ) – felt that the evidence of the two persons as to their safety – one
was earlier attacked by a drug-dealer in another case – was genuine and
their anonymity was essential. The European Court referred to Kostovski
case and held that the right to disclosure of identity was not absolute. It
pointed out that though on the earlier occasion the witnesses gave evidence
when counsel for the accused was not present, the second time – when the
appeal Court called for a fresh finding – the witnesses were examined in the
presence of the counsel for accused and he was permitted to put questions.
Where the life, liberty or security of witnesses may be at stake, the rights of
the accused and of the victims/witnesses have to be balanced by the Court.
Finally, on facts, it was held that there was no violation of Art. 6 (Court here
referred to the new statutory Rules of Netherlands, 1993).

6.8.6 Van Michelen & others vs. The Netherlands: (23.4.97)

The case which again arose from Netherlands related to robbery and
murder and chase by police officers and ultimate arrest of the accused. The
police officers claimed anonymity on the ground of danger to their lives.
This was granted and they gave evidence in the presence of the
investigating Judge in a separate room from which the accused and even
their counsel were excluded. The counsel for accused was thus precluded
from watching the demeanour of witness and they could only hear the
audio-track. They were not able to test the reliability of witnesses. The
European Court observed that it had not been explained as to why it was
 375

necessary to resort to such extreme limitations on the well-known rights of

the accused to have evidence given in their presence or as to why less-far
reaching measures were not employed. It was held that the Court of Appeal
did not assess the reliability of the evidence as to reprisals. The evidence
consisted of the statements of the anonymous police officers and nothing
else. The conviction was set aside and compensation was awarded.

6.8.7 Vissier vs. The Netherlands: (14.2.2002)

This was a case of an anonymous witness from Netherlands. The

appellant Vissier and another Mr. D were the accused. The facts were that
one Mr. A told police on 30.9.87 that he had been kidnapped on 30.9.87 and
was beaten up by two unknown persons, that he suspected that they had
acted on the orders of one Mr. G. He complained this was an act of
revenge because of allegations of burglary that Mr. A was supposed to have
made earlier against Mr. G. Thereafter, preliminary judicial investigations
were made in April 1988 into the allegations. On 28.4.88, two police
officers prepared a report on the kidnapping and assault of A. The report
stated that a number of witnesses had seen Mr. G and two other persons in
bar-restaurants in a town on the previous night 29-30 Sept. 1987 and these
witnesses had overheard that the three men were making inquiries about the
whereabouts of A. A was said to know G well and to be afraid of G.
Police investigations showed that Mr. G was a person who instilled fear in
others. The witnesses who had seen the two accused on the previous night
and on the date of the alleged commission of offence, were not willing to
make written statements because of fear of G.
 376

However, police said that four witnesses were confronted through a

two-way mirror in the presence of the accused Vissier and his co-accused D
but they found that the witnesses feared Vissier and D and wanted to leave
the room as soon as possible. None of the four witnesses identified the two
accused although one said Vissier looked similar to one of the perpetrators.
Later, witnesses were interviewed separately and one of them, a lady,
recognized one of the perpetrators but she wished to be anonymous. A fifth
witness reported that he recognized D from photographs as being the person
who, after midnight 29-30 Sept. was trying to find out the whereabouts of
Mr. A, the victim who was later kidnapped and beaten up on 30th.

The police also said that one of the witnesses reportedly called the
police to say that the witness wanted to withdraw the statement, because of
fear. The police were satisfied about the danger to the witness.

The trial court acquitted Vissier and Mr. D of the charge of

kidnapping and beating but Vissier was convicted on another charge. On
appeal, by Vissier as well as State, Vissier was convicted of the charge of
kidnapping and beating Mr. A and convicted. (There was no appeal by
State against acquittal of Mr. D). On further appeal, the Supreme Court in
Netherlands set aside the conviction of Vissier because the statement of the
anonymous witness was not taken down by the Judge after being told about
the identity of the witness and the reliability of the witness was not proved.
The matter was remanded to the appellate court which directed the trial
judge to hear the witness (who had previously recognized A, the accused by
the photographs). If need be, the witness was to be heard by taking
measures to protect the anonymity of the witness.
 377

On 13.9.93, the witness was heard by the trial judge who was aware
of the identity. He directed anonymity to be maintained.

Counsel for accused attended when the complainant was interviewed

by the Judge and the Judge also put questions suggested by the said counsel.

The Counsel for accused gave questions in writing, these were put by
the Court to the witness. Counsel was allowed to read the replies of the
witness and to suggest further questions to be put by the Judge but this later
opportunity was not availed of. One of the earlier questions by Counsel
related to the photographs shown by police to the witnesses for identifying
the accused. The investigating judge also found witness reliable.

On 29.9.93, the appellate Court convicted the appellant. It relied

upon the statement by the witness now made to investigating Judge and did
not rely on the earlier statement of witness recorded by the police. It,
however, did not give any finding on the need for anonymity or on the
reliability of the witness.

On further appeal, the Supreme Court of Netherlands, by judgment

dated 7.6.94, dismissed the appellant’s appeal against his conviction.

On further appeal, the European Court allowed the accused’s appeal

holding that the trial was not fair. It held that the Court of Appeal did not
carry out an examination into the well-foundedness of the reasons for the
anonymity of the witness. The investigating Judge too did not indicate how
 378

he assessed the reasonableness of the personal fear of the witness, whom he

was hearing six years after the incident. It relied upon Kok vs. The
Netherlands dt. 4.7.2000 (2000) Vol. 6, EHRR). It also awarded damages.

6.8.8 Fitt v. UK: (16.2.2000)

The appellant was accused of conspiring with C (driver of appellant’s

car) and one S, to rob the Royal Mail Van; C pleaded guilty. The trial judge
directed summary of C’s statement to be given to the defence.

Accused gave evidence at trial. He said the bundles of currency were

given to him by one D.W from whom C was buying a car and at C’s
instance, appellant buried the bundles at a place in the cemetery. He
claimed he had been falsely implicated. He denied knowledge of the
robbery.

The trial judge gave the accused only the summary of C’s statement
omitting the references to all sources of information. Before passing an
order, the counsel for accused was not heard. The omission of details of
the confessional statement of C was by an ex parte order.

Still, the trial judge convicted him. On appeal, it was stated, that C
was now found to be a regular informer to the police in several cases – 88
such cases for reward - and the information C gave implicating the appellant
was false. The conviction was maintained in the Court of Appeal. The
accused moved the European Court.
 379

On appeal, the European Court upheld the conviction holding that the
trial was fair since the trial judge, who decided the question of disclosure of
evidence, was aware of both the contents of the withheld evidence and the
nature of the appellant’s case, and was thus able to weigh the applicant’s
interest in disclosure against the public interest in concealment. While the
trial must be fair, the “entitlement to disclosure of relevant evidence is not
an absolute right. In criminal proceedings, there may be competing interests
such as national security or the need to protect witnesses at risk of reprisals
or very secret police matters of investigation of crime, which must be
weighed against the right of the accused (Doorson vs. Netherlands:
(26.3.1996). In some cases, it may be necessary to withhold certain
evidence from the defence so as to preserve the fundamental rights of
another individuals or to safeguard an important public interest. However,
only such measures restricting the rights of the defence which are strictly
necessary are permissible under Art. 1. (Van Mechelen vs. Netherlands :
23.4.97).”

When the evidence is withheld on public grounds, it is not the role of

the (European) law to decide whether or not such disclosure was strictly
necessary since, as a general rule, it is for the national courts to assess the
evidence. It observed in Fitt:

“In any event, in many cases, such as the present one, where the
evidence in question has never been revealed, it would not be possible for
the Court to attempt to weigh the public interest in non-disclosure against
that of the accused in having sight of the material.”
 380

Here the defence were told that the information given by C which was
withheld related to the sources of information. In the absence of the
defence, no doubt, the prosecutor explained to the Judge regarding the
source of information that was not being disclosed. The material which was
not disclosed formed no part of the prosecution case whatever and was
never put to the jury.

“The position must be contrasted with the circumstances addressed by

the 1997 Act and the 1998 Act, where impugned decisions were
based on material in the hands of the executive, material which was
not seen by the supervising Court at all.”

The trial judge was fully versed in all the evidence and he did say on 23rd
March that he would have directed disclosure of sources if it might have
helped the accused. The Court’s procedure was fair. The Court made an
elaborate reference to the 1992 Attorney General guidelines and to R v.
Ward 1993 (1) WLR 619 and other UK cases, referred to by us in the
discussion under UK law.

The appeal against conviction was dismissed.

6.8.9 Rowe and Davis vs. UK: (16.2.2000)

This case arose from UK and was one relating to robbery and
infliction of injuries on various persons in two incidents. The European
Court referred to the same English domestic law and statutes referred to in
Fitt. But unlike there, here, on facts, it held there was no fair trial since the
 381

information was withheld by the prosecution without notifying such non-

disclosure to the Judge. Such a procedure, whereby the prosecution itself
attempts to assess the importance of concealed information to the defence
and weigh this against public interest, cannot be said to be within Art. 6 of
the Convention. Same principle was applied in R vs. Ward by the Court of
Appeals in UK.

It is true that the prosecution counsel notified the defence that certain
information had been withheld and this was in the Court of Appeal, and that
Court had reviewed the undisclosed evidence in ex parte proceedings with
the benefit of submissions from the Crown but in the absence of the defence
and had decided in favour of nondisclosure. Before non-disclosure was
decided, the trial court was not asked to scrutinize the withheld information.
The Court of Appeal had only perused transcripts of the Crown Court
hearings and not the basic material. It could also have been influenced in
the ex parte proceedings for non-disclosure before it, by the jury’s verdict
on the guilt. The prosecution’s failure to lay the evidence in question before
the trial judge to permit him to rule on the non-disclosure deprived the
appellant of fair trial. The conviction was set aside and compensation was
awarded.

(h) 6.9 PORTUGAL:

6.9.1 The Portugese legislation (Act No.93/99 of 14th July, 1999) deals with
the provisions governing the enforcement of measures on the “protection of
witnesses” in criminal proceedings where their lives physical or mental
 382

integrity, freedom of property are in danger due to their contribution to the

collection of evidence of the facts which are subject to investigation.

Chapters II and III deal with grounds of anonymity, video-link etc. in

Court proceedings. Chapter IV deals with Witness Protection Programme.
We shall here refer to the provisions of Chapters II and III.

Chapter II of the Act provides provisions for concealment of

witness’s image and use of teleconferences. In order to avoid witness’s
recognition, section 4 provides that the court may decide that the testimony
or the statement of a witness shall be taken by means of either concealing
the witness’s image or distorting his voice or both. In case of offer of
evidence relating to a crime is to be judged by a three judge court or by a
jury court and whenever there are serious grounds to believe that the
protection is necessary, the use of teleconference is admissible. It can
include the resort to distortion either of image or voice or both. Here
teleconference means any testimony or statement taken in the witnesses
physical absence by using technical means of transmission, at long distance
and in actual time, either of sound or animated images. The use of
teleconference is decided either upon request of the public prosecutor, or
upon the defendant’s or the witness’s demand. According to section 7, the
long distance testimony or statement is to be taken in a public building,
whenever possible in the courts, or in the police or prison premises which
offer the appropriate conditions to the installation of the necessary technical
devices. The access to such place, where the testimony is to be taken, may
be restricted. The technical staff involved in the teleconference is required
 383

to render a commitment not to disclose the location or the witness’s

identification feature. The Judge presiding to the act shall make sure the
presence of another Judge at the location where the testimony or statement
is to be taken. It shall be incumbent to such judge who is present at the
location to do following things:-
a) to identify and take the oath to the witness whose identity is to
remain unrevealed or whose recognition is to be avoided;
b) to receive the commitment from the technical staff;
c) to ensure that the witness will make a free and spontaneous
testimony or statement;
d) to provide for the clear understanding of the questions by the
witness and for the transmission of the answer in actual time;
e) to act as interlocutor of the Judge presiding to the act by calling
his attention to any incident occurring, during the testimony or
statement;
f) to guarantee the authenticity and the integrity of the video
recording to be enclosed to the proceedings; and
g) to take all preventive, disciplinary and restraining measures legally
admissible, which prove adequate to enforce the access restrictions
to the location and, in general, to guaranty the security of all
persons present.

As per section 12, if during the testimony or the statement, any

recognition of persons, documents or objects becomes necessary, the
witness shall be allowed the respective visualization.
 384

Under section 13, where the witness’s identity is to remain

unrevealed, the Judge presiding to the act shall avoid asking any question
which is likely to induce the witness to the indirect disclosure of his
identity.

Section 14 provides that where the witness’s image and voice are
concealed, the access to the undistorted sound and image shall be allowed
exclusively to the Judge presiding to the act or the court through the
technical means available. It is also provided that the autonomous and direct
communication between both the judges presiding to the act and the
escorting magistrate, as well as between the defendant and his counsel, shall
be guaranteed in any circumstances.

Section 15 states that the testimony and the statements made through
teleconference according to this Act and to any other relevant legislation,
are deemed, for all purposes, as having been made in the presence of the
Judge or of the court.

Chapter III of the Act (sections 16 to 19) deal with restriction

regarding the disclosure of the witness’s identification features.

Under section 17 the non-disclosure of the witness’s identification is

to be decided by the Examining Magistrate upon the request of the public
prosecutor. The request should contain the grounds for the non disclosure
as well as the reference to the evidence that must be offered thereto. The
Examining Magistrate’s decision on a request for non disclosure of identity
“impeaches” (i.e. precludes) him to intervene in the proceeding thereafter.
 385

The non disclosure of the witness’s identity as per section 16 may cover
one or all the phases of the proceedings. The conditions precedent for the
order of non disclosure are as follows:-
a) the testimony or the statement should relates to criminal
offences mentioned in para (a) of section 16;
b) the witness, his relatives or the persons in close contact with
him should face a serious danger or attempt against their lives,
physical integrity, freedom or property of a considerable high
value;
c) the witness’s credibility is beyond reasonable doubt;
d) the testimony or the statement constitutes a relevant probative
contribution.

As per section 18, for the purposes of decision on a request for non-
disclosure of identity, a supplementary proceeding of a confidential and
urgent nature shall be separately prepared. Only the Examining Magistrate
and whoever to whom he appoints shall have access to such proceedings.
The Examining Magistrate shall ask the Bar to appoint a lawyer with the
proper profile to represent the defence’s interests. The appointed lawyer
shall only intervene in the supplementary proceeding. The witness to whom
the measure of non-disclosure of identity has been granted, may make his
testimony or statement either by concealing his image or by distorting his
voice or through teleconference.

However, under section 19, no conviction shall be based only on the basis
of the testimony or evidence of the protected witness.
 386

(i) 6.10 Judgments of the “International Criminal Tribunal for former

Yugoslavia” (ICTY) in ‘Tadic’ and ‘Delaic’ and other cases and anonymity
to prosecution and defence witnesses, video-link etc:

6.10.1The Yugoslav Tribunal:

In 1993, the U.N. Security Council created the International Criminal

Tribunal for former Yugoslavia (ICTY) in response to large scale crimes
involving ethnic cleansing in the former Yugoslavia. With the experience
of Nuremberg trials, the UN Office of Legal Affairs drafted an enabling
statute which the Security Council adopted in May 1993, called the Statute
of the International Tribunal for Yugoslavia (available at
http://www.un.org/icty/basic/stutut/statute .hcm). The General Assembly
elected the first 11 ICTY Judges in September 1993. Between November
1993 and February 1994, the Judges drafted the ICTY Rules pursuant to
Art. 15 of the Statute.

While Art. 21 ensured a right to cross-examine and a fair trial, Art. 22

clearly stated that the right was not absolute and is subject not only to in-
camera proceedings but also to protection of witness/victim-identity.

The ICTY Rules of Procedure and Evidence, like those of the post-
World War II Tribunals, reflect a hybrid approach that combines features
that are generally associated with both common law adversarial and civil
law inquisitorial systems.

6.10.2 Prosecutor v. Tadic (1997) and anonymity to witness/victim:

 387

Tadic, an ethnic Serb from Bosnia – Herzogovina was arrested in

Germany on February 12, 1994, charged in connection with crimes
committed in the Omarska prison camp during 1992. Pursuant to a request
by ICTY, Germany transferred custody of Tadic to the Tribunal in April
1995. The ICTY indicted Tadic on 132 counts of crimes against humanity
and war crimes. The ICTY has jurisdiction over four substantive crimes: (a)
genocide, (b) crimes against humanity (c) grave breaches of the Geneva
Convention 1949 and (d) violation of laws or customs of war.

In the ICTY trial, Prosecutor vs. Tadic, an evidentiary request by the

prosecutor forced the Judges to determine whether witness anonymity is
consistent with the defendant’s right to a fair trial. This was because several
of the prosecution witnesses were unwilling to testify on account of fear of
reprisal. The prosecutor wanted the six witnesses to be identified as F, G,
H, I, J and K. By a 2:1 majority on 10.8.95, the Judges mandated for
anonymity of four witnesses as G, H, J and K (see
http://www.un.org/icty/tadic/trial 2/decision-e/100895 jm.htm). The
prosecutor had requested, in addition or in the alternative to witness
anonymity (i) delayed disclosure of witness identity, (ii) in camera hearings
and (iii) non-disclosure of identity to the media and (iv) testimony via
closed-circuit television with voice-altering technology.

The majority (Judge Gabrielle Kirk McDonald of US and Judge

Lalchane Vohrah of Malaysia) accepted that witness anonymity is an
extraordinary measure in traditional criminal trials and that it ‘could
impede’ accurate fact-finding and that the accused had a right under Art. 21
 388

of the ICTY statute to ‘examine, or have examined, the witnesses against

him’. (Art 21 (4)(e) ) and to ‘a fair and public hearing’ (Art. 21(2)). The
majority, however, noted that the latter right is expressly subject to Art. 22
which provides for witness protection and states that the right ‘shall include,
but shall not be limited to, the conduct of in-camera proceedings and the
protection of the victim’s (or witness) identity’. The Tadic majority
distinguished judgments of Courts in other countries which had treated as
absolute, the right of the accused to confront witnesses. This was because
of the Tribunal’s particular dependence on eye-witness testimony in a
climate of ‘terror and anguish among the civilian population’ and also
because of the unique legal framework of the ICTY statute which provided
specially for the protection of victims and witnesses. Moreover, the
Tribunal determined that the standards drafted for ‘ordinary criminal and ….
civil adjudication’ were not appropriate for the ‘horrific’ crimes and
ongoing conflict in the former Yugoslavia. The Tribunal’s majority view
was consistent with the fear of retaliation from the personal supporters of
the accused, the anti-Tribunal leaders and the members of the opposing
ethnic groups. The ICTY did not have a police force of its own and
otherwise had to depend on the police systems of the concerned countries
for protecting witnesses. Witnesses who knew only the local Serb-Croatian
language could not be transplanted into another country. If witnesses
refused to testify out of fear, the Tribunal would be able to try any case
effectively. Therefore, anonymity procedures became absolutely necessary.
Art. 21(3) of the ICTY statute adequately protected the accused when it said
that ‘the accused shall be presumed innocent until proved guilty according
to the provisions of the present statutes’ and Rule 87 gave substance to this
presumption by requiring that ‘a finding of guilt may be reached only when
 389

a majority of the trial chamber is satisfied that guilt has been proved beyond
reasonable doubt’.

On 7.5.1997, Tadic was convicted by the trial chamber II in respect of

crimes against humanity and violation of laws of war.

On appeal by the prosecutor, Tadic was convicted further by the

Appeals Chamber for grave breaches of the Geneva Convention of 1949 on
nine further counts of the Indictment. On 26.1.2000, by a separate judgment
as to sentence, Tadic was sentenced for 20 years imprisonment on counts 1,
29, 30, 31 to be served concurrently with various penalties.

A review filed by Tadic was dismissed by the Appeals Chamber on

30.7.2002.
(http:..www.un.org/icty/tadic/appeal/decision-e/020730 htna)

6.10.3 Prosecutor v. Delilac (1998): video-link procedure &

protective measures from media/public :

The Trial Chamber’s judgment dated 16th November, 1998 which runs
into 500 pages has been summarized in 20 pages. We shall refer with the
summary. The main judgment is one of the most classic judgments on the
subject.

The trial of Zejnil Delalic, Zdravv Mucic, Hazrim Deloc and Esado
Landzo, before the Trial Chamber of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International
 390

Humanitarian Law Committed in the Territory of the former Yugoslavia

since 1991, commenced on 10th March, 1997 and came to a close on 15th
October, 1998. The case involved applications by both prosecution and
defence for protection/anonymity of their respective witnesses.

As stated earlier, the International Tribunal is governed by its Statute

which was adopted by the UN Security Council on 25.5.1993 and by its
Rules of procedure and evidence, adopted by the Judges on 11.2.94, as
subsequently amended. Under the Statute, the Tribunal has power to
prosecute persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since
1991. Articles 2 and 5 of the Statute confer upon the Tribunal, jurisdiction
over breaches of the Geneva Conventions of 12.8.1949 (Art 2); violation of
the Laws or Customs of war (Art 3); genocide (Art 4); and crimes against
humanity (Art. 5).

The indictment against the four accused was issued on 19.3.96 and
confirmed by the Judge on 21.3.96. Four of the 49 counts were
subsequently withdrawn at trial by the prosecution. At the time of alleged
commission of offences, the accused were citizens of the former Yugoslavia
and residents of Bosnia and Herzegovina. The indictment was concerned
solely with the events alleged to have occurred at a detention facility in the
village of Celibici, in the prison camp, during 1992. The indictment
charged the four accused with grave breaches of the Geneva Convention of
1949, (under Art 2 of the Statute), and violation of the laws or customs of
war (Art. 3). Zejnil Delilac was co-ordinator of the Bosnian Muslim and
Bosnia Croat Forces and later commander of the First Tactical Group of the
 391

Bosnian Army. Esad Landzo was the guard at the prison camp and Hazim
Delic and Zdiark Mucic were working as commanders.

The summary of Trial chamber judgment contains discussion under

various headings on the following aspects (in Part 6) : Witness related
issues as follows:

(a) Protective measures (paras 49 and 50)

(b) Video-link testimony (para 51)
(c) Disclosure of witness identity (para 52)

We shall extract these paragraphs 49 to 52:

(a) Protective measures:

“49. Protective measures: A series of protective measures were
sought by both the Prosecution and the Defence, pursuant to Rule 75,
and implemented throughout the trial proceedings with respect to
both Prosecution and Defence witnesses. At the pre-trial stage, upon
an application filed jointly by both parties, the Trial Chamber issued
an order for the non-disclosure of the names or any identifying details
of potential witnesses to the public or the media, to ensure the privacy
and protection of such victims and witnesses.

50. The Trial Chamber’s first Decision on the issue during trial
granted protective measures to several prosecution witnesses,
including such measures as ordering that protective screens be erected
in the Court-room; employing image altering devices to prevent
 392

certain witnesses from being identified by the public; ensuring that no

information identifying witnesses testifying under a pseudonym be
released to the public, and requiring that transcripts of closed-session
hearings be edited so as to prevent the release of information that
could compromise a witness’s safety. Thereafter, the Prosecution
filed several additional motions seeking protective measures for its
witnesses. Similarly, members of the Defence sought and were
granted protective measures for certain of their respective witnesses.”

(b) Video-link testimony:

“51. The Prosecution additionally brought motions requesting that

certain witnesses, designated by the pseudonym K, L and M, be
permitted to give their testimony by means of a video-link mechanism
in order to relieve them from having to come to the seat of the
International Tribunal in The Hague to testify. The Trial Chamber
granted such a motion with respect to witnesses ‘K’ and ‘L’, where
the circumstances met the relevant test for permitting video-link
testimony although this was ultimately not availed of. A later,
confidential motion requesting video-linking testimony for additional
witnesses, was denied.”

(c) Disclosure of identity:

“52. Prior to trial, the Defence for Esad Landzo moved the Trial
Chamber to compel the prosecution to provide the names and
addresses of its prospective witnesses. The Trial Chamber, while
 393

acknowledging that under Art 20(1) of the Statute, the Defence was
entitled to sufficient information to permit it to identify prospective
Prosecution witnesses, denied the Defence request, holding that the
current address of a witness is not necessary for the purpose of
identification. Subsequently, the Trial Chamber, on a motion by the
Prosecution, determined that the Defence, pursuant to sub-Rule 67(A)
(ii), has an explicit obligation to disclose the names and addresses of
‘those of its witnesses who will testify to alibi and to any special
defence offered’. The Trial Chamber held that the Defence disclosure
obligation under sub Rule 67(A)(ii) is distinct from that of the
Prosecution pursuant to sub Rule 67(A)(i).”

The Trial Chamber by judgment dated 16.11.98 found that the detainees in
the camp were killed, tortured, sexually assaulted, beaten and otherwise
subjected to cruel and inhumane treatment by all the accused as
commanders, though they were held not guilty of certain other offences.

The Appeal Chamber by judgment dated 20.2.2001 confirmed certain

convictions which included Count 3 (killing), Count 18 (rape amounting to
torture) and Count 21 (repeated incidents of forcible sexual intercourse and
rape amounting to torture). It remitted 4 issues to the Trial Chamber on
11.4.2001 on the question of ‘adjustment’ of sentences. The Trial Chamber
gave its decision on 9.10.2001 and the further appeal was decided by the
Appeal Chamber on 8.4.2003 dismissing the appeals and confirming the
convictions.
 394

6.10.4 Important preliminary orders of the Tribunal laying down crucial

principles of law:

The orders of the Trial Chamber during the course of trial reveal the
interpretation of the Articles/Rules which balance the rights of the
accused and of the victims/witnesses. These preliminary orders
were passed before the framing of charges and have laid down
excellent principles for guidance of domestic Courts.

(A) 18.3.97: decision on defence motion to compel discovery of identity and

location of prosecution witnesses.
(B) 8.10.97: decision on prosecution motion for additional measures of
protection for prosecution witnesses.
(C) 25.9.97: decision on confidential motion for protective measures for
defence witnesses.
(D) 13.6.97: decision on the motion to compel the disclosure of the
addresses of the defence witnesses.
(E) 28.5.97: decision on motion to allow prosecution witnesses K, L, M to
give their testimony by means of video-link conference.
(F) 28.4.97 decision on motion by prosecution for protective measures for
prosecution witness pseudonymed ‘B’ through to ‘M’.

A: Decision dated 18.3.97 on motion of defence to compel discovery of

identity and location of prosecution witnesses:

The Trial Chamber partly allowed the application of the defence

asking the prosecution to disclose information about the ‘name, sex, date of
birth, place of origin, names of parents and place of residence at the time
relevant to charges’ but not the current address of the prosecution witnesses.
 395

The Trial Chamber referred to Arts. 20, 21 of the Statute and Rule 67,
69, 75 of the Rules. They read as follows:

Articles of Statute:

Art. 20 : Commencement and conduct of trial proceedings:

(1) The trial chamber shall ensure that a trial is fair and expeditious and
that proceedings are conducted in accordance with the rules of procedure
and evidence, with full respect for the protection of victims and witnesses.
---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ---- ----

Art. 21: Rights of the accused:

(1) ….
(2) ….
(3) …
(4) In the determination of any charge against the accused pursuant to the
present statute, the accused shall be entitled to the following minimum
guarantees, in full equality:

(a) …
(b) to have adequate time and facilities for the preparation of his defence
and to communicate with the counsel of his own choosing;
(c) ….
 396

(d) ….
(e) to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him;”

The following rules of procedure and evidence are also referred to:

“Rule 67 : (A) As early as reasonably practicable and in any event, prior

to the commencement of the trial:
(a) the Prosecutor shall notify the defence of the names of the
witnesses that he intends to call in proof of the guilt of the accused
and in rebuttal of any defence plea of which the Prosecutor has
received notice in accordance with sub rule (ii) below;
…. …. …. … …. …. … …. …. ….”

“Rule 69: Protection of victims and witnesses:

(A) …. …. …. ….
(B) …. … …. ….
(C) Subject to para 75, the identity of the victim or witness shall be
disclosed in sufficient time prior to the trial to allow adequate time
for preparation of the defence.”

“Rule 75: Measures for the protection of victims and witnesses:

(A) A Judge or a Chamber may, proprio motu or at the request of either

party, or of the victim or witness concerned, or of the victims and
 397

witnesses Unit, order appropriate measures for the privacy and

protection of victims and witnesses, provided that the measures are
consistent with the rights of the accused.”

In para 17 of the judgment, the Trial Chamber observed that in sub

Rule 69(C), the word ‘identity’ has a significance which goes beyond the
mere protection of those witnesses. A name by itself is not sufficient to
identify the person by whose testimony the charges against the accused are
sought to be proven. To identify the witnesses, therefore, it is necessary for
the Defence to know further particulars about them, which in turn will
satisfy the right of the accused to an adequate preparation of his defence

The Trial Chamber held in para 18 that Rule 75 requires that the
privacy and protection of the witnesses may be taken into account and
weighed against the rights of the accused. Whilst the Prosecution may,
under Rule 39(ii), take special measures to provide for the safety of
potential witnesses, these measures relate to the investigative stages of the
case. It is not for the Prosecution to provide assurances to witnesses once it
has decided that these witnesses will be called to give testimony before the
Tribunal. The guarantee of any necessary protective measures is solely a
matter for determination by the Trial Chamber.

It said in para 19 that there is no real opportunity to the defence

without a proper appreciation of those witnesses. The basic right of the
accused to examine witnesses, read in conjunction with the right to have
adequate time for the preparation of his defence, therefore, envisages more
than a blind confrontation in the Court room. A proper in-Court
 398

examination depends upon a prior out-of-Court investigation. Sub rule 69

(c) reflects this by referring to a ‘sufficient time prior to the trial’.

The term ‘identity’ (para 20) does not necessarily include the present
addresses of the witnesses. Substantial identification would mean the sex,
date of birth, names of parents, place of origin or town or village where the
witness resided at the time relevant to the charges.

The Trial Chamber gave the directions already referred to above,

except in relation to the present addresses of the witnesses.

(B) 8.10.97: Decision on prosecution motion for additional measures of

protection for prosecution witnesses.

This application was rejected without much discussion.

(C) 25.9.97: Decision on confidential motion for protective measures for

defence witnesses.

The Trial Chamber gave witness pseudonym protection as ‘witness

mucic/A’ in all proceedings and discussions. It said that the names,
addresses and whereabouts of and any other detail concerning ‘witness
Mucic/A’ shall not be disclosed to the public or to the media and this
information shall be sealed and not included in the public records of the
Tribunal identifying ‘witness Mucic/A’. The details shall not be disclosed
to the public, the media or any other party.
 399

The Trial Chamber left the question of ‘relocation’ of the witnesses to

be decided by the ‘Victims and Witnesses Unit’, established under Rule 34,
acting under the authority of the Registrar.

The request of the Defence was heard ex parte and in closed session
for grant of interim protection, at this stage, where the witness is a potential
witness’. It was considered that the witness could be granted interim
protection by use of pseudonym though, when the Defence decides to make
him an ‘actual witness’, the question could be decided by giving notice to
the prosecutor.

The Trial chamber referred to an earlier decision that grant of

pseudonym could be considered necessary if the fear of a witness has been
found to be real.

The Chamber held that the particular defence witness will be called
‘Witness Mucic/A’ in all proceedings before the Tribunal and discussions.
The name, address, whereabouts of and any other data including documents
concerning ‘witness Mucic/A’ shall not be disclosed to the public or to the
media and this information shall be sealed and not included in the public
records of the Tribunal, until further orders.

(D) 13.6.97: Decision on the motion to compel the disclosure of the

addresses of the defence witnesses.
 400

This was an application filed by the prosecutor for disclosure of the

addresses of the defence witnesses for Esad Landzo, on the question of the
alibi pleaded by the defence.

The provision of Rule 67 deal with ‘Reciprocal Disclosure’. They read as

follows:

“Rule 67:

(A) As early as reasonably practicable and in any event prior to the

commencement of the trial:
(i) the Prosecutor shall notify the defence of the names of the
witnesses that he intends to call in proof of the guilt of the accused
and in rebuttal of any defence plea of which the Prosecutor has
received notice in accordance with sub-rule (ii) below:
(ii) the defence shall notify the Prosecutor of its intent to offer:

(a) the defence of alibi; in which case the notification shall specify the
place or places at which the accused claims to have been present at
the time of the alleged crime and the names and addresses of
witnesses and any other evidence upon which the accused intends
to rely to establish the alibi;
(b) any special defence, including that of diminished or lack of mental
responsibility; in which case the notification shall specify the
names and addresses of witnesses and any other evidence upon
which the accused intends to rely to establish the special defence.”
 401

Rule 66: Disclosure by the Prosecutor

“Rule 66:

(A) …. …. …. …. …. …. …. …. ….
(B) The Prosecutor shall on request, subject to sub-rule
(C), permit the defence to inspect any books,
documents, photographs and tangible objects in his
custody or control, which are material to the
preparation of the defence, or are intended for use by
the Prosecutor as evidence at trial or were obtained
from or belonged to the accused.
(C) Where information is in the possession of the
Prosecutor, the disclosure of which may prejudice
further or ongoing investigation, or for any other
reasons may be contrary to the public interest or
affect the security interests of any State, the
prosecutor may apply to the Trial Chamber sitting in
camera to be relieved from the obligation to disclose
pursuant to Sub rule (B). When making such
application the Prosecutor shall provide the Trial
Chamber (but only the Trial Chamber) with the
information that is sought to be kept confidential.”

The Prosecutor requested the Defence (for accused Esad Landzo) to be

ordered to disclose the addresses of those witnesses whom they intend to
call on the defence of alibi and special defence of diminished or lack of
 402

mental capacity. It argued that Sub-Rules 67(A)(ii)(a) and (b) require such
disclosure and that the order of the Trial Chamber dated 25.1.97 also
required that there be additional disclosure of the witnesses’ curriculum
vitae and a statement on the area (areas) about which they will testify. The
names and addresses of some defence witnesses were disclosed; those of 13
others were not disclosed.

The Defence contended that in the light of the subsequent leakage

(after the Trial Chamber’s decision dated 18.3.97) to the Press concerning
many of these witnesses’ identities, it has proved rather fortuitous that the
addresses of these 13 witnesses were not furnished by the defence and the
leakage must be avoided. Those witnesses who live in Yugoslavia would be
subject to great risk if their identity/addresses were disclosed. The defence
relied on Sub-Rule 66(c).

The Trial Chamber then held that the 18.3.97 decision was not based
on Sub rule 67(A)(ii) in as much as the present issue was about alibi
witnesses and special defence of diminished or lack of mental capacity. The
argument of Defence that there was no reciprocity could not be accepted as
that issue was about alibi-witnesses (which is based on Rule 67(A)(ii) while
Rule 67(A)(1) which refers to the prosecutor witnesses) is separate. As held
by the Trial Chamber on 18.3.97, the Prosecutor must provide the Defence
with identifying information about all its witnesses, whereas the Defence
was obliged to provide information only about those witnesses who would
speak on alibi and special defence. Therefore the Defence must provide the
names and addresses as per Sub Rule 67(A)(ii). Both parties must circulate
 403

the curriculum vitae in advance to each other of their intended expert

witnesses, as well as statements about the areas to which they will testify.

However, it was open to either of the parties to apply for protective

measures to be granted to particular witnesses who may be at risk and
therefore, the Defence can also do this instead of seeking to avoid the
obligations on general pleas of potential threat to witnesses. It further
observed:

“As has been illustrated by the recent leakage of a Prosecution

witness list to the media, it is impossible to absolutely guarantee that
confidential information does not find its way into the public domain.
However, this is the exceptional case and it cannot and must not be
assumed that such a breach of security will not occur again.
Furthermore, the Prosecution, has undertaken, as its duty, to do its
utmost to ensure that the addresses which it receives remain
confidential.

Sub Rule 66(c) is also clear and unambiguous and solely

relates to the disclosure of information by the Prosecutor. Moreover,
the subjects of the sub Rule are tangible objects and not information
concerning the identity of witnesses. The Defence cannot infer any
right to apply to Trial Chamber to be relieved of its obligation to
disclose the names and addresses of witnesses who clearly fall within
Sub Rule 67(A)(ii), from a provision which concerns a separate
matter.”
 404

The Trial Chamber granted the prosecution motion and directed the defence
(for Esad Landzo) to provide the names and addresses of all defence
witnesses who are expected to depose on alibi or other special defence to
the Prosecutor.

(E) 28.5.97: Decision on motion to allow K, L, M to give testimony by

means of Video-link.

On 3.4.97, the Prosecutor filed a motion to allow witnesses K, L and

M to give their testimony by video-link conference. The defence for Hazim
Debi filed its response.

The Prosecution requested that these three witnesses be designated by

pseudonyms K, L and M and be permitted to give evidence by video-link.
The motion was confined to K, L and M only in view of the fear of
potentially serious consequences to themselves and their families. It relied
on Prosecutor vs. Dusko Tadic (25.6.96) as the two conditions stated there
were satisfied – namely,
(a) the testimony of three witnesses was sufficiently important to
make it unfair to the Prosecutor to proceed without it, and
(b) the witnesses were unable or were unwilling to come to the
Tribunal (in the present case for serious medical reasons).

The Defence relied upon Article 21(4)(e) of the Statute and Rule 89
of the Rules of Procedure and Evidence which protect the right of the
accused to confront witnesses in open Court.
 405

The Trial Chamber referred to the following provisions:

“Art. 21: Rights of the accused

………..
(a) In the determination of any charge against the accused pursuant to
the present statute, the accused shall be entitled to the following
minimum guarantees in full equality:
………
(e) to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him.”

“Rule 4: Meeting away from the seat of the Tribunal

A chamber may exercise its functions at a place other than the

seat of the Tribunal, if so authorized by the President in the interests
of justice.

Rule 54; General Rule

At the request of either party or proprio motu, a Judge or a

Trial Chamber may issue such orders, summons, subpoenas, warrants
and transfer orders as may be necessary for the purposes of an
investigation or for the preparation or conduct of the trial.

Rule 90: Testimony of Witnesses

 406

(A) Witnesses shall, in principle, be heard directly by the Chambers

unless a Chamber has ordered that the witness be heard by means of a
deposition provided for in Rule 71.”

Sub Rules 89(A) and (B) provide as follows:

Rule 89: General provisions.

(A)The rules of evidence set forth in this section shall govern

the proceedings before the Chambers. The Chambers shall
not be bound by national rules of evidence.
(B)In cases not otherwise provided for in this section, a
Chamber shall apply rules of evidence which will best
favour a fair determination of the matter before it and are
consonant with the spirit of the statute and the general
principles of law.
….. . . . .. …… …..

The Trial Chamber held that it was not bound by national rules of evidence
but could still be guided by them and that this is the spirit of sub Rule 89
(B).

Rule 71 (see sub rule 90(A)) is not the only exception allowed by the
Rules. Under sub-Rule 75(B)(iii), when the Trial Chamber grants measures
to facilitate the testimony of vulnerable victims and witnesses, such
measures may involve the use of one-way closed circuit television.
 407

Accordingly, there are exceptions to the general rule when the right of the
accused under Art 21(4)(e) is not prejudicially affected.

The Trial Chamber then stated as follows:

“15. It is important to re-emphasise the general rule requiring the

physical presence of the witness. This is intended to ensure
confrontation between the witness and the accused and to enable the
Judge to observe the demeanour of the witness when giving evidence.
It is, however, well known that video-conferences not only allow the
chambers to hear the testimony of a witness who is unable or
unwilling to present their evidence before the Trial Chamber at The
Hague, but also allows the Judges to observe the demeanour of the
witness whilst giving evidence. Furthermore, and importantly,
counsel for the accused can cross-examine the witness and the Judges
can put questions to clarify evidence given during testimony. Video-
conferencing is, in actual fact, merely an extension of the Trial
Chamber to the location of the witness. The accused is, therefore
neither denied his right to confront the witness, nor does he lose
materially from the fact of the physical absence of the witness. It
cannot, therefore, be said with any justification that testimony given
by video-link conferencing is a violation of the right of the accused to
confront the witness. Art. 21(4)(e) is in no sense violated”.

The Trial Chamber further stated:

 408

“17. Testimony by video-link conferencing is an exception to the

general rule. Accordingly, the Trial Chamber will protect against
abuse of the grant of the expedient. The Trial Chamber (composed of
Judge McDonald, Presiding, with Judges Stephen and Vohrah), has in
the Tadic decision, stated that testimony by video-link will be
allowed only if (a) the testimony of the witness is shown to be
sufficiently important to make it unfair to proceed without it, and (b)
the witness is unable or unwilling for good reasons to come to the
International Tribunal at The Hague. The present Trial Chamber
agrees with the findings of that discussion and reiterates the position
that, because of the particular circumstances of the International
Tribunal, “it is in the interest of justice for the Trial Chamber to be
flexible and endeavour to provide the parties with the opportunity to
give evidence by video-link. The Trial Chamber considers it
appropriate to add the additional condition, (c) that the accused will
not thereby be prejudiced in the exercise of his right to confront the
witness.
18. The Trial Chamber also notes that the Tadic decision sets forth
the view that the evidentiary value of testimony provided by Video-
link is not as weighty as testimony given in the Court room (para 21).
The distance of the witness from the solemnity of the Court room
proceedings and the fact that the witness is not able to see all those
present in the Court room at the same time, but only those on whom
the video-camera is focused, may detract from the reliance placed
upon his or her evidence. The Trial Chamber agrees with this general
principle, whilst also considering that it is a matter for the assessment
 409

of the Chamber when evaluating the evidence as a whole, to

determine how credible each witness is.”

As to the accused’s rights, the Trial Chamber said:

“19. It is necessary to explain in amplification that the provisions of

Art. 21(4)(e), derived from Art. 14 of the International Covenant on
Civil and Political Rights of 1966, did not envisage the giving of
evidence by video-link conference. But sub Rule 89(B), in its
wisdom, has provided for the extension of the rules of evidence to
cover new situations not contemplated.”

On facts, it held:

“20. The Trial Chamber is satisfied that the testimony of witnesses

K and L is sufficiently crucial to the Prosecution and that it will be
unfair to omit it merely because of the difficulties of bringing the
witnesses to The Hague to give evidence. Witnesses K and L are
described as former detainees of Celibici camp. They are to give
direct evidence of many of the acts alleged in the various counts of
the indictment. The Trial Chamber is satisfied with the submission of
the Prosecution that the medical conditions which are alleged to
render it impracticable for them to travel, are those of one of the
witnesses and their son. These critical conditions and circumstances
make them unwilling to travel to the International Tribunal”.
 410

Finally, the Trial Chamber in para 21 referred to the guidelines as to

video-link evidence as stated in the Tadic decision in para 22 thereof:

“22. The Trial Chamber acknowledges the need to provide for

guidelines to be followed in order to ensure the orderly conduct of the
proceedings when testimony is given by Video-link.”

And continued:

“First, the party making the application for video-link testimony

should make arrangements for an appropriate location from which to
conduct the proceedings. The venue must be conducive to the giving
of truthful and open testimony. Furthermore, the safety and solemnity
of the proceedings at the location must be guaranteed. The non-
moving party and the Registry must be informed at every stage of the
efforts of the moving party and they must be in agreement with the
proposed location. Where no agreement is reached on an appropriate
location, the Trial Chamber shall hear the parties and the Registry,
and make a final decision….. Second, the Trial Chamber will appoint
a Presiding Officer to ensure that the testimony is given freely and
voluntarily. The Presiding Officer will identify the witnesses and
explain the nature of the proceedings and the obligation to speak the
truth. He will inform the witnesses that they are liable to prosecution
for perjury in case of false testimony, will administer the taking of the
oath and will keep the Trial Chamber informed at all times of the
conditions at the location. Third, unless the Trial Chamber decides
otherwise, the testimony shall be given in the physical presence only
 411

of the Presiding Officer and, if necessary, of a member of the

Registry-technical staff. Fourth, the witnesses must, by means of a
monitor, be able to see, at various times the Judges, the accused and
the questioner, similarly, the Judges, the accused and the questioner
must each be able to observe the witness on the monitor. Fifth, a
statement made under solemn declaration by a witness shall be treated
as having been made in the courtroom and the witness shall be liable
to prosecution for perjury in exactly the same way as if he had given
evidence at the seat of the International Tribunal.”

(F) 28.4.97: Decision on the motion by prosecution for protective

measures pseudonymed ‘B’ to ‘M’.

This matter related to all the four accused Zejmit Delalic, Zdiavka
Mucia, Hazim Deliv and Esad Landzo.

The Trial Chamber quoted the relevant rules of Procedure and

Evidence. They are as follows:

“Rule 75: Measures for protection of victims and witnesses:

(A) A Judge or a Chamber may, proprio motu or at the request of
either party, or of the Victims and Witnesses Unit, order
appropriate measures for the privacy and protection of victims
or witnesses, provided that the measures are consistent with the
rights of the accused.
(B) A Chamber may hold an in camera proceeding to determine
whether to order:
 412

(i) measures to prevent disclosure to the public or the media of the

identity or whereabouts of a victim or a witness, or of persons related to
or associated with him by such means as:
(a) expunging names and identifying information from the
Chambers’ public records;
(b) non-disclosure to the public of any records identifying the
victim;
(c) giving testimony through image-or voice-altering devices or
closed circuit television; and
(d) assignment of a pseudonym.
(ii) closed sessions, in accordance with Rule 79;
(iii) appropriate measure to facilitate the testimony of vulnerable
victims and witnesses, such as one-way closed circuit television.
(C) A Chamber shall, whenever necessary, control the manner of
questioning to avoid any harassment or intimidation.”

“Rule 78: Open Sessions:

All proceedings before a Trial Chamber, other than
deliberations of the Chamber, shall be held in public.

Rule 79: Closed Sessions:

(A) The Trial Chamber may order that the press and the
public be excluded from all or part of the proceedings for
reasons of:
(i) public order or morality;
(ii) safety, security or non-disclosure of the identity of a
victim or witness as provided in Rule 75; or
(iii) the protection of the interests of justice.
 413

(B) The Trial Chamber shall make public the reasons for its
order.

Rule 90: Testimony of Witnesses

(A) Witnesses shall, in principle, be heard directly by the Chamber

unless a Chamber has ordered that the witness be heard by
means of a deposition as provided for in Rule 71.
…………………… …. …. … …”

In the case on hand, the prosecution prayed for 11 separate protective

measures for the 12 witnesses ‘B’ to ‘M’ and certain special measures to
witness ‘B’. The Chamber characterized them as falling into 3 groups:

(1) Measures, sought for all 12 witnesses are for confidentiality or

protection from the public and media.
(2) Additional protection for witness ‘B’ only in the form of partial
anonymity from the accused.
(3) Additional protection for witness ‘B’ against ‘retraumatisation’.

On these issues, the Trial Chamber, after referring to the elaborate

arguments of both sides, proceeded to state as follows. It said that Art. 15
of the Statute enables the Judges to frame rules of procedure and evidence,
including rules for protection of victims and witnesses. Art 22 provides that
the measures set out in such rules shall
 414

“include, but shall not be limited to, the conduct of in camera

proceedings and the protection of the victim’s identity.”

After referring to Art 14 of the ICCPR, the Trial Chamber referred to Art.
21(4) which prescribes minimum guarantees of fair trial and in particular to
sub. cl (e) thereof which refers to the right to witness examination by open
confrontation and to Rules 69, 75, 79, 90 and 96, and dealt with the various
issues, as follows:

(1) Confidentiality: The prayers were concerned with seeking non-

disclosure of identifying information to the public or the media. This
would, no doubt, somewhat encroach into the right of the accused for a
‘public-hearing’, a right guaranteed under Art 21(2) of the statute and a
requirement of Art 20(4), unless otherwise directed by the Trial Chamber.
Rule 78 is based on Art. 20(4). The circumstances under which the
public/media could be excluded are set out in Rule 79. (This aspect,
covered 11 out of 12 witnesses). Reasons assigned were ‘fear’ that public
knowledge of their testimony would result in danger to themselves and their
families (and in case of witness ‘C’, it was not fear but ‘privacy’). The Trial
Chamber II then referred to the ruling in Prosecutor vs. Dusko Tadic: (d.
31.7.96), construing the provisions of Rule 79(A)(ii) wherein it was stated:

“In balancing the interests of the accused, the public and witness R,
the Trial Chamber considers that the public’s right to information and
the accused’s right to a public hearing must yield in the present
circumstances to confidentiality in the light of the affirmative
obligation under the statute and the rules to afford protection to
 415

victims and witnesses. This Trial Chamber must take into account
witness R’s fear of the serious consequences to the members of his
family if information about his identity is made known to the public
or the media’.

Article 21(2) states that the accused is entitled to the exercise of the right to
a public hearing, subject to Art. 22. Art. 22 states that the Tribunal shall
provide in its rules of procedure and evidence, for the protection of victims
and witnesses. “Such protective measures shall include, but shall not be
limited to, the conduct of in camera proceedings and the protection of the
victim’s identity.”

The Trial Chamber stated that the ‘protection of the witness by in

camera proceedings does not invariably detract from the right of the
accused, nor from the duty of the Trial Chamber to give full respect to the
right of the accused (see Rule 75(B)(i)). It stated that the Trial Chamber
notes the importance of not denying the right of the accused for a public
hearing except for good reasons. Rule 75A provides that “a Judge or a
Chamber may proprio motu or at the request of either party, or of the victim
or witness concerned, or of the Victims and Witnesses Unit, order
appropriate measures for the privacy and protection of victims and
witnesses provided that the measures are consistent with the rights of the
accused.”

The Chamber quoted the principal advantage of permitting the public

and the press to a hearing, namely, that it ‘contributes to ensuring a fair
 416

trial’. In Pretts & Ors vs. Italy: (1984) 6 EHRR 182, it was stated by
European Court that:

“publicity is seen as one guarantee of fairness of trial; it offers

protection against arbitrary decision and builds confidence by
allowing the public to see justices administer.”

The Chamber stated that a public hearing is mainly for the benefit of the
accused and not necessarily for the public. It quoted Chief Justice Warren
in Estes vs. Texas (1965) 381. US 532 of US Supreme Court to the
following effect:

“There can be no blinking the fact that there is a strong societal

interest in public trials. Openness in Court proceedings may improve
the quality of testimony, induce unknown witnesses to come forward
with relevant testimony, cause all trial participants to perform their
duties more conscientiously….”

The Trial Chamber must balance both interests – that is a balance between
the accused and the victim/witness. Rule 79 enables the exclusion of the
press and public from the proceedings for various reasons including the
safety of the victim/witness.

Several Rules relate to the maintaining of a balance between the right

of the accused to a public hearing and the protection of victims and
witnesses. Rule 69 allows non-disclosure at the ‘pre-trial’ stage, of the
identity of a victim or witness who may be in danger until the witness is
 417

brought under the protection of the International Tribunal. This non-

disclosure applies to the press, public and the accused. Under Rule 75,
appropriate measures consistent with the rights of the accused may be taken,
to protect victims and witnesses. Rule 79 enables the exclusion of the press
and public from the proceedings on the ground of public order, or morality,
or the safety or non-disclosure of the identity of victim or witness or the
protection of the interests of justice. The Trial Chamber observed:

“It is clear from the construction of the provisions of the relevant

Articles of the Statute of the International Tribunal, namely Article 20
(4), 21(2) and 22 and the enabling Rules, namely, Rules 69, 75 and
79, that the Statute which is the legal framework for the application of
the rules, provides that the protection of victims and witnesses, is an
acceptable reason to limit the accused’s right to a public trial. Article
14(1) of the ICCPR and Art. 6(1) of the ECHR state that everyone is
entitled to a fair and public hearing. Nevertheless, both Articles
provide that the press and the public may be excluded in the interests
of morals, public order or national security, where the interests of
juveniles or the protection of the private life of the parties so require,
or where publicity would prejudice the interests of justice.”

The Trial Chamber refused to grant all the prayers for closed sessions
asked for in relation to the various witnesses and held that ‘a combination of
protective measures, including closed sessions, will satisfy the needs of the
witnesses and constitute adequate protective measures in these
proceedings’.
 418

As to ‘witness C’ (a male), a victim of sexual assault, the prayer for a

closed session was allowed. Public order or morality were good reasons for
excluding media and public (under Rule 79(A)(i)). In a number of
jurisdictions, both civil and common law, identity of an alleged victim of
sexual assault is kept away from the public - section 4 of the (UK) Sexual
Offences (Amendment) Act, 1976, permitting anonymity in name, address
or picture and Canadian Criminal Code (1954), sec. 442(3) permits granting
anonymity from the public, upon application to Court.

Civil law jurisdictions such as Switzerland, Denmark and Germany

have similar legislations. Swiss law prohibits the publication of identity of
a victim if it is necessary to protect the interests of the prosecution or if the
victim requests non-disclosure. The Court room may be closed during the
victim’s testimony. In Denmark, a victim in an incest or rape case, may
request a trial in camera and the request would be granted. In Germany,
publicity can be restricted or excluded, in order to protect the accused and
witnesses. Further, in Prosecutor vs. Dusko Tadic (dt. 10.8.95) the majority
cited several cases decided in the US, permitting non disclosure of identity
of sexually assault victims. (Florida vs. B.J.F (1989) 491 US 524, Waller
vs. Georgia (1984) 467 US 39; for partial closure see Douglas vs. Wainright
(1984) 739 F.2d. 531 (11th Cir); for total closure see Press-Enterprise Co. vs.
Superior Court: (1984) 464 US 501.

In regard to witnesses ‘D’ through to ‘M’, the fears were held not to
be fully substantiated and therefore, instead of total confidentiality, the
Chamber directed that the witnesses be shielded from visual recognition by
 419

the public and media, but evidence will be in open session but through
image altering devices.

(2) Partial Anonymity:

For witness B, the prosecution sought non-disclosure to the public

and media and also protection from face-to-face confrontation with accused
as it could increase danger to safety. The witness did not object to his name
being disclosed. The Trial Chamber, on facts, held that the accused’s rights
must be respected, as stated in Kostovski vs. The Netherlands (1990) 12
EHRR 434, Art. 6 of the ECHR, Art. 14 of the ICCPR and Art. 21(4)(e) of
the Statute of the Tribunal. The exceptions were public interest and public
policy. In Unterpertinger vs. Austria (1991) 13 EHRR 175, the European
Court of Human Rights held that non-confrontation of the accused with his
accuser could amount to violation of Art. 6(1) of the ECHR. In Delaware
vs. Fensterer (1985) 474 US 15, the US Supreme Court said that
confrontation was necessary to expose the infirmities of forgetfulness,
confusion, or evasion, by subjecting the witness to cross-examination. The
Trial Chamber held by reference to Tadic case that the Judges must be able
to observe the demeanour of the witnesses, must be aware of the identity of
the witness in order to test his reliability; the accused must be enabled to
question the witness on issues unrelated to his or her identity or current
whereabouts – such as, how the incriminating material was obtained,
(excluding information enabling tracing the name). Finally, the identity of
the witness must be released when the reasons for requiring such security of
the witness, are over.
 420

The Trial Chamber held (as in Tadic) that before anonymity is

granted, the following conditions must be satisfied:

(a) there must be real fear of the safety of the

witness or his or her family;
(b) the testimony of the witness must be
important to the case of the Prosecution;
(c) the Trial Chamber must be satisfied that
there is no prima facie evidence that the
witnesses are untrustworthy;
(d) the ineffectiveness or non-existence of a
witness-protection-programme by the
Tribunal and
(e) the protective measures taken, should be
necessary.

The Prosecution admitted that accused would not know ‘B’ merely by his
name. But, if that be so, unless there is face to face confrontation, there
could not be effective cross-examination. This would violate accused’s
right to fair trial.

It is further observed by the Trial Chamber that it may conceive of a

situation where the rights of the accused can be neutralized by protective
measures. This was not such a case. The allegation of danger to safety was
not substantiated. It was not made out that the witness was very important
for the prosecution. The credibility of the witness had not been
investigated. There was no proof that the physical assaults allegedly
 421

suffered by witness ‘B’ were traceable to any of the accused persons. The
request for testifying from a remote room was accordingly rejected. ‘B’
would testify from the court-room, where his demeanour could be observed
by the Judges and the defence counsel. In addition, the accused could see B
in the court-room and might communicate freely with their counsel, during
the course of his direct testimony and cross-examination.

(3) Retraumatisation:

The Prosecution suggested that B should neither see the accused

persons nor should they see him when giving testimony, otherwise, there
would be ‘retraumatisation’.

The Trial Chamber observed that face to face confrontation allowed

observation of the facial and bodily expressions of the witness. (Coy vs.
Iowa (1988) 487 US 1012), though “it is not an indispensable ingredient of
a fair trial. Where there is conflict between the protection of a vulnerable
witness and the requirement of a face to face confrontation, the latter must
yield to greater public interest in the protection of the witness”. This is
exemplified by Rule 75(B)(iii) which enables the Trial Chamber to order
“appropriate measures to facilitate the testimony of vulnerable victims and
witnesses.”

On facts, it was held that there was no proof of ‘vulnerability’ of

witness B on the possibility of traumatisation, except the ipsi dixit of the
prosecutor. Retraumatisation is essentially a medical, psychological
 422

condition which required better proof than the evidence before the Trial
Chamber. This submission was, therefore, rejected.

At the same time, the Trial Chamber also rejected the accused’s plea
that Rule 90(A) implied that a witness could only be heard in the Court-
room.

An extract of the observations and directions of the Trial Chamber

may give some idea as to what should be the nature and content of
directions in similar circumstances:

“Direct evidence is evidence presented directly before the Trial

Chamber either from the court room or, in appropriate circumstances
as determined and directed by the Trial Chamber, from the remote
witness room. The mandate of the Trial Chamber is to ensure a fair
trial and maintain a balance between the rights of the accused and the
protection of the witness.”

The Trial Chamber did not prescribe a remote room, but directed a screen to
be placed in the court room to prevent witness B from seeing the accused
and therefore, negate the possibility of the witness being traumatised, as he
had claimed he would be.

The Court then gave a number of significant directions. It said:

Special measures:
(1) Testimony of witness ‘C’ will be heard in
closed session during which neither
 423

members of the public nor of the media

shall be present. Edited recordings and
transcripts of the closed sessions during
which the testimony of witness ‘C’ is given,
shall be released to the public and to the
media after review by the office of the
Prosecutor and the Victims and Witnesses
Unit, to ensure that no information leading
to the possible identification of the witness
‘C’ is disclosed. (Witness ‘C’, a male, was
victim of sexual assault).
(2) Witness ‘B’ shall testify from the court
room in open sessions during which the
Trial Chamber and Defence counsel shall be
able to observe his demeanour. A protective
screen shall be placed between witness B
and the accused persons to prevent the
witness from seeing the accused. The
accused persons shall be able to see witness
‘B’ on the electronic monitors assigned to
them in the court room. Image altering
devices shall be employed to ensure that the
visual image of witness B is protected from
the public and the media. The protective
screen placed between the accused persons
and B shall not impede the conduct of cross-
examination in any manner and special
 424

measures may be requested of the Trial

Chamber in this regard.
(3) The testimony of witnesses ‘D’ to ‘M’ shall
be given in open sessions using image
altering devices in order to conceal their
visual images from the public and the
media.
(4) Unless the Trial Chamber determines that
any part of the testimony of witnesses ‘B’ as
also witnesses ‘D’ to ‘M’ should be heard in
private sessions, every part of their
testimonies will be heard in open sessions in
the manner mentioned above.
(5) If, pursuant to a determination of the Trial
Chamber, the testimony of any of the
witnesses ‘B’ and ‘D’ to ‘M’ is heard in
private sessions, recordings of the private
sessions shall be released to the public and
the media, after review by the Prosecutors
and the Victims and Witnesses Unit, to
ensure that no information leading to the
possible identification of the witnesses is
disclosed.
(6) Defence Counsel shall not cross-examine
any of the pseudonymed witnesses (i.e. B to
M), on any matters relating to their
identities or by which their identification
 425

may become known to the public or the

media.

General Measures:
(7) The pseudonyms by which these witnesses have been designated shall
be used whenever the witnesses are referred to in the present proceedings
and in the discussion among the parties.

(8) The names, addresses, whereabouts and other identifying dates

concerning the pseudonymed witnesses shall not be disclosed to the public
or to the media.

(9) The names, addresses, whereabouts of, or other identifying

information concerning the pseudonymed witnesses, shall be sealed and not
included in any of the public records of the International Tribunal.

(10) To the extent the names, addresses, whereabouts of, or other

identifying information concerning the pseudonymed witnesses are
contained in existing public documents of the Tribunal, that information
shall be expunged from those documents.

(11) Documents of the International Tribunal identifying the pseudonymed

witnesses shall not be disclosed to the public or to the media.

(12) The above listed general measures shall apply to witnesses ‘D’, ‘E’,
‘H’ and ‘M’ only so far as the identifying information contained in any
public documents or records of the International Tribunal reveals the fact
that they are witnesses in this case. The general measures shall not apply to
any documents or records containing the identifying information of
witnesses ‘D’, ‘E’, ‘H’ or ‘M’ which does not reveal, either directly or by
implication, that they are witnesses in this case.

(13) Defence Counsel and their representatives who are acting pursuant to
their instructions or requests shall not disclose the names of pseudonymed
witnesses or other identifying dates concerning these witnesses to the public
or to the media, except to the limited extent such disclosure to members of
the public is necessary to investigate the witnesses adequately. Any such
 426

disclosure shall be made in such a way as to minimize the risk of the

witnesses’ names being divulged to the public at large or to the media.

(14) Edited recordings or transcripts of the closed session hearing on these

motions held on 14.3.97 shall be released to the public and the media only
after review by the office of the Prosecutor and the Victims and Witnesses
Unit, to ensure that no information leading to the possible identification of
the witnesses, is disclosed.

(15) The public and the media shall not photograph, video-record or
sketch the pseudonymed witnesses while they are within the precincts of the
International Chamber.

(j) 6.11 The International Criminal Tribunal for Rwanda (1994)

The Security Council of the United Nations, under Chapter VII of the
Charter of UN, constituted the International Criminal Tribunal for the
Prosecution of Persons Responsible for Genocide and other Serious
Violations of International Humanitarian Law Committed in the Territory of
Rwanda and Rwandan Citizens responsible for genocide and other such
violations committed in the territory of neighbouring States, between 1st
January, 1994 and 31st December, 1994. (see
http://www.ictr.org/english/basccdocs/statute.html)

6.11.1 The Statute (as amended) consists of 32 Articles. There are again
Rules of Procedure and Evidence. There are three Trial Chambers. The
office is divided into the Investigation Section and the Prosecution Section.
There is an Appeal Chamber which is shared with the International Criminal
Tribunal for the former Yugoslavia. (see
http://www.retr.org/english/geninfo/structure.htm) . There is a Witness and
Victims Support Section for Prosecution as well as Defence witnesses, in
order to:

a) Provide impartial support and protection services to all witnesses

and victims who are called to testify before the Tribunal;
b) Recommend the adoption of protective measures for victims and
witnesses;
c) Ensure that they receive relevant support, including physical and
psychological rehabilitation, especially counselling in case of rape
and sexual assaults;
 427

d) Develop short and long term plans for the protection of witnesses
who have testified before the Tribunal and who fear a threat to
their life, property or family;
e) Respond to the Trial Chambers upon consultation, in the
determination of protective measures for victims and witnesses;
and
f) Request a Judge or a Chamber to order appropriate measures for
the privacy and protection of victims and witnesses, provided that
the measures are consistent with the rights of the accused.

This section is responsible for protecting the privacy and ensuring the
security and safety of all witnesses who are called by both the Defence and
the Prosecution. It is also responsible for the movement of the witnesses
from the place of residence to the headquarters of the Tribunal where they
are called to testify. It provides the witnesses with all required assistance to
enable them to travel safely and to testify in a secure and conducive
environment. Under (f) above, the Judge or Chamber may grant measures if
a case is made out for concealment of name or identity from the public and
media. Post-trial witness programme ensures relocation of witnesses
(thought to be particularly at risk), in other countries or within Rwanda.
The Section also organizes, accumulates, provides, multifaceted support and
the physical and international protection of witnesses. The Section ensures
easy immigration to other countries by negotiations through UN. The
Section maintains anonymity of witnesses and following up on them after
their testimony.

6.11.2 Art. 14 of the Statute refers to the Rules of Procedure and Evidence,
Art. 20 to the Rights of the accused and Art. 21 to the Rights of Victims and
Witnesses.

“Article 20: Rights of the Accused

(1) All persons shall be equal before the International Tribunal for
Rwanda.
(2) In the determination of charges against him or her, the accused
shall be entitled to a fair and public hearing, subject to Art. 21
of the Statute.
(3) The accused shall be presumed innocent until proven guilty
according to the provisions of the present Statute.
 428

(4) In the determination of any charge against the accused pursuant

to the present Statute, the accused shall be entitled to the
following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language
which he or she understands of the nature and cause of
the charge against him or her;
(b) To have adequate time and facilities for the preparation
of his or her defence and to communicate with Counsel
of his or her own choosing;
(c) To be tried without undue delay;
(d) To be tried in his or her presence, and to defend himself
or herself in person or through legal assistance of his or
her own choosing; to be informed, if he or she does not
have legal assistance, of his right; and to have legal
assistance assigned to him or her, in any case where the
interests of justice so require, and without payment by
him or her in any such case if he or she does not have
sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against
him or her and to obtain the attendance and examination
of witnesses on his or her behalf under the same
conditions as witnesses against him or her;
(f) To have the free assistance of an interpreter if he or she
cannot understand or speak the language used in the
International Tribunal for Rwanda;
(g) Not to be compelled to testify against himself or herself
or to confess guilt.”

Article 21: Protection of Victims and Witnesses.

“The International Tribunal for Rwanda shall provide in its Rules of

Procedure and Evidence for the protection of victims and witnesses. Such
protective measures shall include, but shall not be limited to, the conduct of,
in camera proceeding and the protection of the victim’s identity.”

6.11.3 Rules of the Tribunal (1995) :

(i) Rule 89A states that the Tribunal is not bound by national rules of
evidence.
 429

(ii) Rule 89C states that any relevant evidence is admissible if it is in

accordance with the requisites of a fair trial.

(iii) Rule 96(i) states that in cases of victims of sexual assault, no

corroborative evidence is necessary.

(iv) Rule 34 deals with Victims and Witnesses Support Unit.

(v) Rule 69 deals with Protection of Victims and Witnesses:

“Rule 69:
(A)In exceptional circumstances, either of the parties may apply to a
Trial Chamber to order the non-disclosure of the identity of a
victim or witness who may be in danger or at risk, until the
Chamber decides otherwise.
(B)In the determination of protective measures for victims and
witnesses, the Trial Chamber may consult the Victims and
Witnesses Support Unit.
(C)Subject to Rule 75, the identity of the victim or witness shall be
disclosed in sufficient time prior to the trial to allow adequate time
for preparation of the prosecution and the defence.”

(vi) “Rule 70: Matters not subject to Disclosure:

(A) Notwithstanding the provisions of Rules 66 and 67, reports,
memoranda, or other internal documents prepared by a party,
its assistants or representatives in connection with the
investigation or preparation of the case, are not subject to
disclosure or notification under the aforementioned provisions.
(B) If the Prosecutor is in possession of information which has
been provided to him on a confidential basis and which has
been used solely for the purpose of generating new evidence,
that initial information and its origin shall not be disclosed by
the Prosecutor without the consent of the person or the entity
providing the initial information and shall, in any event, not be
given in evidence without prior disclosure to the accused.
(C) If, after obtaining the consent to the person or entity providing
information under this Rule, the Prosecutor elects to present as
evidence any testimony, document or other material so
provided, the Trial Chamber, notwithstanding Rule 98, may not
order either party to produce additional evidence received from
 430

the persons or entity providing the initial information, nor may

the Trial Chamber, for the purpose of obtaining such additional
evidence, itself summon that person or a representative of that
entity as a witness or order their attendance.
(D) If the Prosecutor calls as a witness the person providing or a
representative of the entity providing information under this
Rule, the Trial Chamber may not compel the witness to answer
any question the witness declines to answer on grounds of
confidentiality.
(E) The right of the accused to challenge the evidence presented by
the Prosecution shall remain unaffected subject only to
limitations contained in Sub Rules (C) and (D).
(F) Nothing in Sub-Rule (C) or (D) above shall affect a Trial
Chamber’s power under Rule 89(C) to exclude evidence if its
protective value is substantially outweighed by the need to
ensure a fair trial.

(vii) Rule 71: Deposition (i.e. to be taken elsewhere or by video-

conference)
(A) At the request of either party, a Trial Chamber may, in
exceptional circumstances and in the interests of justice, order
that a deposition be taken for use at trial, and appoint, for that
purpose, a Presiding Officer.
(B) The motion for the taking of a deposition shall be in writing
and shall indicate the name and whereabouts of the witness
whose deposition is sought, the date and place at which the
deposition is to be taken, a statement of the matters on which
the person is to be examined, and of the exceptional
circumstances justifying the taking of the deposition.
(C) If the motion is granted, the party at whose request the
deposition is to be taken, shall give reasonable notice to the
other party, who shall have the right to attend the taking of the
deposition and cross examine the witness.
(D) The deposition may also be given by means of a video-
conference.
(E) The presiding Officer shall ensure that the deposition is taken
in accordance with the Rules and that a record is made of the
deposition, including cross examination and objections raised
by either party for decision by the Trial Chamber. He shall
transmit the record to the Trial Chamber.”
 431

(viii) “Rule 73 (bis): Pre-trial Conference:

(A) ……………. …. …. ….
(B) At the Pre-trial conference, the Trial Chamber or a Judge
designated from amongst its Members may order the Prosecutor,
within a time limit set by the Trial Chamber 1st Judge and before the
date set for trial, to file the following:
(i) A pre trial brief ….
(ii) Admissions by the parties….
(iii) …. …. ….
(iv) A list of witnesses the Prosecutor intends to call with
(a)the name or pseudonym of each witness
(b)a summary of the facts on which each witness will
testify
(c)the points in the indictment on which each witness
will testify; and
(d)the estimated length of time required for each witness.
(v) A list of exhibits ……
(C) ….
(D) ….
(F) ….

(ix) Rule 73 ter: Pre-Defence Conference

(A) ….
(B) ….
(C) ….
(D) ….
(E) ….
(F) ….

(x) Rule 74: Amicus Curiae

A Chamber may, if it considers it desirable for the proper

determination of the case, invite or grant leave to any State, organization or
person to appear before it and make submissions on any issue specified by
the Chamber.

(xi) Rule 74 bis: Medical examination of the Accused

…. …. …. ….
 432

(xii) Rule 75: Measures for the Protection of Victims and Witnesses

(A) A Judge or a Chamber may, proprio motu or at the request of

either party, or of the victim or witness concerned, or of the
Victims and Witnesses Support Unit, order appropriate measures
to safeguard the privacy and security of victims and witnesses,
provided that the measures are consistent with the rights of the
accused.
(B) A Chamber may hold an in camera proceeding to determine
whether to order notably:
(i) Measures to prevent disclosure to the public or the media
of the identity or whereabouts of a victim or a witness, or of
persons related to or associated with him by such means as:
(a) Expunging names and identifying information from the
Tribunal’s public records;
(b) Non-disclosure to the public of any records identifying the
victim;
(c) Giving of testimony through image-or-voice altering
devices or closed circuit television; and
(d) Assignment of a pseudonym.
(ii)Closed session, in accordance with Rule 79;
(iii)Appropriate measures to facilitate the testimony of vulnerable
victims and witnesses, such as one way closed circuit television.
(C) A Chamber shall control the manner of questioning to avoid any
harassment or intimidation.

(xiii) Rule 76: Solemn Declaration by Interpreters and Translators

…. ….

(xiv) Rule 77: Contempt of the Tribunal:

6.12 Judgments:

There are a number of judgments of the Tribunal under the Rwanda

statute and they have been following the precedents of the Yugoslav
Tribunal.

We shall, however, refer to one judgment of the Trial Chamber-I.

 433

6.12.1 The Prosecutor vs. Jean-Paul Akayesu (2.9.1998)

The charges involved genocide and other violations of human rights

where 2000 Tutsis were killed in 1994. There were contradictions in the
evidence but the Trial Chamber attributed it to the trauma of the witnesses.
It said that “Many of the eye-witnesses who testified before the Chamber in
this case have seen the atrocities against their family members or close
friends, and/or have themselves been victims of such atrocities. The
possible traumatision of these witnesses caused by their painful experience
of violence during the conflict in Rwanda is a matter of particular concern
for the Chamber. The recounting of this traumatic experience is likely to
evoke memories of the fear and pain once inflicted on the witnesses and
thereby affects his or her ability fully or adequately to recount the sequence
of events in a judicial context”.

The Chamber did not exclude the possibility of trauma and stress, it
believed the evidence, in spite of discrepancies, and order non-disclosure of
the identity of witnesses to the media or public. The accused were
convicted.
 434

CHAPTER VII

Witness Protection Programmes – A Comparative Study of

Programmes in various countries

7.0 In the previous Chapter, we have dealt with protection of Witness

Identity in various countries. In the present Chapter, we propose to refer to

Witness Protection Programmes in various countries.

Statutes dealing with Witness Identity and Anonymity, as noted in the

previous Chapter, mainly deal with the protection of witnesses’ identity
during investigation and trial of criminal cases. However, there are also
specialized Witness Protection Programmes which deal with a slightly
different kind of protection to witnesses and this refers to their protection
outside Court. We shall now proceed to refer to the schemes in various
countries.

To start with, it will be useful to refer to the UN Convention in

regard to Witness Protection.

There is a ‘United Nations Convention Against Transnational

Organised Crime’. The purpose of this Convention is to promote
cooperation to prevent and combat transnational organised crime
more effectively. Article 24 of the Convention deals with protection
of witness. It reads as follows:-
‘Article 24 – Protection of witness’
1). Each state party shall take appropriate measures within it
means to provide effective protection from potential retaliation or
intimidation for witnesses in criminal proceedings who give
testimony concerning offences covered by this Convention and,
as appropriate for their relations and other persons close to them.
 435

2). The measures envisaged in paragraph of this article may

include, inter-alia, without prejudice to the rights of the defendant
including the right to due process:
a) Establishing procedures for the physical protection of
such persons, such as to the extent necessary and
feasible, relocating them and permitting, where
appropriate, non-disclosure or limitations on the
disclosure of information concerning the identity and
whereabouts of such persons;
b) Providing evidentiary rules to permit witness testimony
to be given in a manner that ensures the safety of the
witness, such as permitting testimony to be given
through the use of communication technology such as
video links or other adequate means;
3). State parties shall consider entering into agreement
or arrangements with other States for the relocation of
persons referred to in paragraph 1 of this article.
4) The provisions of this article shall also apply to
victims in so far as they are witnesses.”

7.1 Australia

7.1.1. Victoria

In Australia, the Parliament of Victoria has enacted ‘Witness Protection Act,

1991’ (Act 15 of 1991), for the purposes of facilitating the security of

persons who are, or have been, witnesses in criminal proceedings. The Act

was amended in 1994 (No. 28/1994) and in 1996( NO. 58/1996). The word

‘witness’ is defined in section 3.

Section 3A refers to Victorian Witness Protection Programme. As

per sub section (1) of section 3A, the Chief Commissioner of Police,
 436

may take such action as he thinks necessary and reasonable to

protect the safety and welfare of a witness or a member of the family

of a witness. Actions which can be taken by the Chief Commissioner

are mentioned in sub-section (2), which reads as follows:-

“(2) that action may include-

(a) applying for any document necessary;

(i) to allow the witness or family member to establish a new

identity; or

(ii) otherwise to protect the witness or family member;

(b) relocating the witness or family member;

(c) providing accommodation for the witness or family member;

(d) providing transport for the property of witness or family

member;

(e) doing any other things that the Chief Commissioner of Police

considers necessary to ensure the safety of the witness or

family member.”

The Chief Commissioner of Police has the sole responsibility of

deciding whether to include or not to include a witness in the Victorian

Witness Protection Programme. A witness may be included in such

Protection Programme only if the Chief Commissioner has decided that the

witness be included and if such witness agrees to be included.

 437

Under Section 3B, the Chief Commissioner must also enter into a

memorandum of understanding (MOU) with the witness. The memorandum

of understanding must set out the basis on which the witness is included in

the Victorian Witness Protection Programme and details of the protection

and assistance that are to be provided and should also contain a provision

that protection and assistance may be terminated if the witness commits

breach of a term of the memorandum of understanding (MOU). An MOU

must be signed by the witness or by a parent or guardian or other legal

personal representative of the witness if the witness is under the age of 18 or

otherwise lacks legal capacity to sign.

After the signing of the MOU, the Chief Commissioner may apply to

the Supreme Court for a court order authorising a nominated member of the

police force to make a new entry in the Register of Births or Register of

Marriages in respect of the witness and specified members of the family of

the witness. As per section 7, the Supreme Court may make an authorising

court order if it is satisfied that:

(a) the person named in the application as a witness, was a

witness to or has knowledge of an indictable offence and

 438

is or has been a witness in criminal proceedings relating

to the indictable offence; and

(b) the life or safety of the person or of a member of his or

her family may be endangered as a result of the person

being a witness; and

(c) a memorandum of understanding in accordance with

section 5 has been entered into between the witness and

the Chief Commissioner of Police; and

(d) the person is likely to comply with the memorandum of

understanding.

The effect of the order of the court is provided in section 8. On the

making of an court order, the member or members of the police force

nominated in the court order may make any type of entries in the Register of

Births and Register of Marriages that are necessary to give effect to the

order. An entry made in these registers under this Act can be cancelled by

the Registrar, if the Supreme Court has made a court order on the

application of the Chief Commissioner of Police directing that the entry be

cancelled. Proceedings of the Supreme Court for authorising any court

order under this Act have to be in a closed proceeding.

 439

Any information relating to the making of an entry in the Register of

Births and Register of Marriages under this Act should not be disclosed or

communicated to another person unless it is necessary to do so for the

purpose of the Act or to comply with an order of the Supreme Court. Any

person who violates this provision may be punished for imprisonment for

ten years.

Section 16 provides for cessation of protection and assistance. Sub

section (1) states that protection and assistance provided to a person under

the Victorian Protection Programme shall be terminated by the Chief

Commissioner on the request made by that person in writing that it be

terminated. The protection and assistance may also be terminated by the

Chief Commissioner if-

(a) the person deliberately breaches a term of MOU or a

requirement or undertaking relating to the programme; or

(b) the person’s conduct or threatened conduct is, in the opinion

of the Chief Commissioner, likely to threaten the security or

compromise the integrity of the programme; or

(c) the circumstances that gave rise for the need for protection

and assistance for the person ceased to exist.

 440

The Chief Commissioner shall notify his decision to terminate

protection and assistance to the concerned person. After receiving the

notification, the concerned person may, within 28 days, apply in writing to

the Chief Commissioner for a review of the decision. If the Chief

Commissioner after the review confirms the decision, the concerned person

may within 3 days, appeal to the deputy Ombudsman.

If under the Victorian Witness Programme, a person has been

provided with a new identity and, thereafter, protection and assistance to the

person under the programme are terminated, then the Chief Commissioner,

may take such action as is necessary to restore the person’s former identity.

7.1.2 National Capital Territory:

For the Australian Capital Territory, a separate legislation to protect

the safety and welfare of witnesses, namely Witness Protection Act, 1996 is

in force. It is almost on the same lines as the Victorian Witness Protection

Act, 1991. The powers and functions of Chief Police Commissioner

provided under the Victorian Protection of Witness Act, 1991 are here given

to the Chief Police Officer, in the Witness Protection Act, 1996. Witness

Protection Programme is provided in section 4 of the Act of 1996. As per

sub section (1) of sec. 4, the Chief Police Officer may make arrangements

with the Commissioner of Police for providing service under the Witness
 441

Protection Programme. The Chief Police Officer shall also take actions

which are necessary and reasonable to protect the safety and welfare of a

witness. Actions which can be taken by the Chief Police Officer are

mentioned in sub section (2) of sec. 4, which reads as follows:-

“2) The action that may be taken under sub section (1) includes –

(a) making arrangements necessary –

(i) to allow the witness to establish a new identity; or

(ii) otherwise to protect the witness; or

(b) relocating the witness; or

(c) providing accommodation for the witness; or

(d) providing transport for the property of the witness; or

(e) providing reasonable financial assistance to the witness; or

(f) permitting persons involved in the administration of the

Witness Protection Programme to use assumed names in

carrying out their duties and to have documentation supporting

those assumed names; or

(g) doing any other thing permitted under the Witness Protection

Programme to ensure the safety of the witness; or

(h) doing things as a result of functions given to the Chief Police

Officer under a complementary Witness Protection law”

 442

As per section 5, the assessment and inclusion in the Witness

Protection Programme shall be done in accordance with the similar

provisions contained in the Commonwealth’s Witness Protection Act, 1994.

The Chief Police Officer, under section 6, may apply for any

document which is necessary to allow a witness to establish a new identity;

or otherwise to protect the witness. The Chief Police Officer under section

7, may apply to the Supreme Court for a court order authorising a specified

person or a person of a specified class or description of persons-

(a) to make a new entry in the register in relation to a

witness; or

(b) to issue in the witness’s new identity, a document of a

kind previously issued to the witness.

The Supreme Court may make a witness protection order under

section 8, if the conditions laid down in clause (a) to (d) thereof – which are

on the same lines as sec. 7 of the Victorian Statute, 1991 – are satisfied.

If the witness protection order relates to making a new entry in the

Register, then the person authorised to do so by the order may make any

type of entries in the Register that are necessary to give effect to that order.

An entry made in the Register under the Act of 1996 has the same effect as
 443

if it were an entry made under the Births, Deaths and Marriages Registration

Act, 1997. An entry made in the register may also be cancelled by the

Registrar General if the Supreme Court has made an order on the

application of the Chief Police Officer directing that the entry be cancelled.

(see Sections 10 and 11). The hearing in the Supreme Court under this Act

shall not be open to public. As per section 13, no person shall directly or

indirectly, make a record of, or disclose, or communicate to another person

any information relating to the making of an entry under the Act in the

Register, unless it is necessary to do so for the purpose of or for

investigation by the ombudsman or to comply with an order of the Supreme

Court. Imprisonment upto 10 years may be awarded in case a person is

found guilty of this provision. Provisions as to non-disclosure of former

identity of participant are contained in section 14.

Sub section (1) of sec. 14 reads as follows:

“(1) If –

(a) a participant who has been provided with a new identity

under the Witness Protection Programme would, apart

from this section, be required by or under a Territory law

 444

to disclose his or her former identity for a particular

purpose, and

(b) the Chief Police Officer has given the particular

permission, in writing, not to disclose his or her former

identity for that purpose;

the participant is not required to disclose his or her former

identity to any person for that purpose.”

It will be seen that as per sub-section (1) of sec. 14, when a

participant has been provided with a new identity under the Witness

Protection Programme, he would, apart from this section, be required to

disclose his or her identity if required by or under a Territory law and, if the

Chief Police Officer has given to him the permission in writing not to

disclose his or her former identity for that purpose; the participant is not

required to disclose his former identity to any person for that purpose. Sub

section (2) provides that if a participant has been given permission under

section (1) not to disclose his former identity for a particular purpose, it will

be lawful for the participant, in any proceedings or for any purpose, under

or in relation to the relevant Territory law to claim that his new identity is

his only identity. According to section 15, when a person is provided with a

new identity and that person is to be a witness in a criminal proceeding

 445

under that identity, ‘but that person has a criminal record under his former

identity’, then such person should notify the Chief Police Officer that the

person is to be a witness in the proceeding. After being notified, the Chief

Police Officer may take any action which is appropriate in the

circumstances. That action may include disclosing to the court, the

prosecutor and the accused person or the accused’s lawyer the criminal

record of the participant.

It is provided in section 16 that when the identity of a participant is in

issue or may be disclosed in any proceeding in a court, tribunal, royal

commission or board of inquiry, such court, tribunal etc. shall conduct that

part of the proceedings that relates to the identity of the participant, in

private. The court, tribunal etc. as the case may be, shall also make the

order that the evidence given in such court or other body shall not be

published so that the identity of the participant may not be disclosed.

Similarly when a participant who has been provided with a new identity is

giving evidence in any proceeding in a court or tribunal, such court or

tribunal may also direct that that part of the proceedings shall be in the

absence of the public.

In the Witness Protection Act, 1996 there are provisions which deal

with rights and obligations of the participants. If a participant has any

 446

outstanding rights or obligations or is subject to any restriction, Section 19

(1) provides that the Chief Police Officer is required to take steps that are

reasonably practicable to ensure that those rights or obligations are dealt

with according to law; or the concerned person complies with those

according to law; or the concerned person complies with those restrictions.

When a participant who has been provided a new identity uses the new

identity either to avoid obligations that were incurred before the new

identity was established or to avoid complying with restrictions that were

imposed on the person before the new identity was established, then as per

section 20 the Chief Police Officer, shall give written notice to the

participant stating that he is satisfied that participant is avoiding obligations

or complying with restrictions.

Any disclosure made by any person about the identity or location of

any participant or any disclosure which compromises the security of such

participant, are made offences under section 21. Imprisonment upto 10

years may be imposed if any person found guilty of committing such

offence. Disclosure made by the participant or former participant is also an

offence under section 22.

7.1.3 Australian Crime Commission Bill, 2003

 447

The Bill contemplates the appointment of a Commission to

investigate into criminal activities of various persons.
There are provisions proposed in the Australian Crime
Commission Bill, 2003 which protect the witness who
appears before the Commission. Clause 29 of the Bill
which is relevant is reproduced here:

“29. Protection of witnesses from harm or intimidation.

If it appears to an examiner that, because a person -

(a) is to appear, is appearing or has appeared at an examination before

the examiner to give evidence or to produce a document or thing;

or

(b) proposes to give or has given information, or proposes to produce

or has produced a document or thing, to the Australian Crime

Commission (ACC), otherwise than at an examination before the

examiner;

the safety of the person may be prejudiced or the person may be

subjected to intimidation or harassment, the examiner may make the

arrangements (including arrangements with the Territory Minister or

with members of the police force) that are necessary to avoid

prejudice to the safety of the person, or to protect the person from

intimidation or harassment”.
 448

7.1.4 Queensland

In Queensland, the Crime and Misconduct Commission (CMC)

administers the Witness Protection Programme. This programme provides

protection to persons eligible under the Witness Protection Act, 2000. In

fact the Witness Protection Programme commenced in August, 1987 during

the Fitzgerald Commission of Inquiry into police corruption, when it

became necessary to protect several important witnesses who were able to

give direct evidence of crime and corruption. At the end of Fitzgerald

Inquiry, the Witness Protection Division was established as a separate

organisational unit within the newly created Criminal Justice Commission.

The Criminal Justice Commission merged with the Queensland Crime

Commission to become the CMC on January 1st, 2002.

Evidence (Witness Anonymity) Amendment Act, 2000: (Queensland)

The Parliament of Queensland has enacted, ‘Evidence (Witness

Anonymity) Amendment Act, 2000, by which Evidence Act, 1977 has been

amended and Division 5 regarding ‘witness anonymity’ has been inserted.

Section 21C refers to the scope of applicability of this newly inserted

 449

Division. According to this section, this Division is applicable to a

proceeding in which a witness, who is or was a covert operative is or may

be required to give evidence that was obtained when the operative was

engaged in activities for a ‘controlled operation’. Here ‘Controlled

Operation’ means an operation approved under the Police Powers and

Responsibilities Act, 2000 for the purpose of an investigation being

conducted by a law enforcement agency. ‘Covert Operative’ means a police

officer or other person named as a covert operative in an approved operation

under the Police Powers and Responsibilities Act, 2000. As per section

21D (1), a witness anonymity certificate may be given by the Chief

Executive Officer of a law enforcement agency, if the officer considers that

it is necessary to protect a person who is, or was, a covert operative for the

agency and he is or may be required to give evidence in the proceeding. A

witness anonymity certificate may also be given by a senior police officer

for police service, under sub-section (2). The power under these sub

sections(1) and (2) may not be delegated. A decision to give a witness

anonymity certificate is final and conclusive and cannot be impeached for

informality or want of form and also cannot be appealed against, reviewed,

quashed or invalidated in any court. Effect of witness anonymity certificate

is provided in section 21F which reads as follows-

 450

“21F Effect of witness anonymity certificate

On the filing of witness anonymity certificate –

(a) the witness (“protected witness”) may give evidence in the

relevant proceeding under the name the witness used in the

relevant controlled operation; and,

(b) subject to section 21I-

(i) a question may not be asked that may lead to the

disclosure of the actual identity of the protected witness or

where the protected witness lives; and

(ii) a witness, including the protected witness, cannot be

required to answer a question, give any evidence, or provide

any information, that may lead to the disclosure of the actual

identity of the protected witness or where the protected witness

lives: and

(iii) a person involved in a relevant proceeding must not

make a statement that discloses or could disclose the actual

identity of the protected witness or where the witness lives”.

 451

Under sec. 21G, the relevant law enforcement agency is required to give a

copy of the witness anonymity certificate to the following-

(a) for criminal proceeding – each accused person or the person’s

lawyer.

(b) for civil proceeding – each party to the proceeding or the party’s

lawyer.

(c) for any other proceeding – each person who has been given leave

to appear in the proceeding or the person’s lawyer.

Under sec. 21H, the relevant entity (which means the entity before

whom the relevant proceeding is being heard or conducted) may make any

order which it considers necessary to protect the identity of the protected

witness. For example, an order prohibiting sketching of the witness or an

order that the witness shall give evidence in the absence of the public, can

be passed. Any contravention of such an order is a punishable offence.

However, under section 21I, the relevant entity may, on application to it,

give leave to ask questions of a witness including a protected witness, in

respect of his identity or place of residence. But, the leave shall not be

granted unless the relevant entity is satisfied that -

(a) there is some evidence that, if believed, it would call into question

the credibility of the protected witness; and

 452

(b) it is in the interests of justice for the relevant party to be able to

test the credibility of the protected witness; and

(c) it would be impracticable to test properly the credibility of the

protected witness without knowing the actual identity of the

witness.

7.2 SOUTH AFRICA

In South Africa, ‘Witness Protection Act, 1998’ is applicable for the

purpose of protection of witnesses. An office known as Office for Witness

Protection is established. The head of the office is called Director. Powers,

functions and duties of the Director are prescribed in section 4. Branch

offices may also be established and Witness Protection Officer can be

appointed as head of such branch offices.

Under sec. 7, an application for witness protection may be given.

Any witness who has reason to believe that his safety or the safety of any

related person may be threatened by any person or group of persons by

reason of his being a witness, may report accordingly and apply that he or
 453

any related person be placed under protection. Such report may be made (i)

to the investigating officer; (ii) to any person in charge of a police station;

(iii) to the in-charge of the prison if he is in prison; (iv) to any person

registered as a social worker under the Social Works Act, 1978, if he is in

prison; (v) to the public prosecutor; (vi) to any member of the office of the

witness protection.

Under sec. 7(2), if such witness is unable to make a report or make an

application for protection, any interested person or investigation officer may

make such report or application on behalf of the witness.

Any person to whom such report or application is made, shall

forthwith inform the Director and submit the application to the Director or a

Witness Protection Officer. The Director may refer an application to a

Witness Protection Officer for evaluation and the submission of a report.

Under sec. 9, the Witness Protection Officer shall consider the merits

of an application and, as soon as possible, report thereon to the Director.

The report shall be in writing and should include particulars as to (a)

whether a person concerned is a witness or not; (b) recommendations as to

whether the person concerned qualifies for protection; (c) the factors taken

into consideration and (d) any other matter. Witness Protection Officer

may also recommend with regard to the nature and expected duration of the
 454

protection. If the Witness Protection Officer recommends that the

application for protection be refused, he shall inform the Director, of the

reasons for such recommendation.

Section 8 deals with interim protection, pending disposal of the

application filed under sec. 7. The Director or a Witness Protection Officer,

may, pending the finalisation of an application for protection of a witness,

place the witness or related person under temporary protection for a period

not exceeding 14 days for the safety of such witness or related persons.

Section 10(1) provides that the Director, while considering an

application for protection, should take into account-

“(a) the nature and extent of the risk to the safety of the witness or any

related person;

(b) any danger that the interests of the community might be affected

if the witness or any related person is not placed under protection;

(c) the nature of the proceedings, in which the witness has given

evidence or is or may be required to give evidence;

(d) the importance, relevance and the nature of the evidence given or

to be given by the witness in the proceeding;

(e) the probability that the witness or any related person will be able

to adjust the protection;

 455

(f) the cost likely to be involved in the protection of the witness or

any related person;

(g) the availability of any other means of protecting the witness

without involving the provision of the Act;

(h) any other factor that the Director deems relevant.

Section 10(3) refers to an agreement between the witness and the

Director in regard to the protection of the witness, which may be entered

into under sec. 11. Sec. 10(3) states that after having considered the

application for protection, the Director may, (i) either approve the

application and thereupon, the witness or related person under protection, in

accordance with the agreement entered into by or on behalf of the witness or

related person and the Director) or (ii) refuse the application.

Section 11 provides that the Director must, before he places any witness

or related person under protection, enter into a witness protection agreement

with such witness or related person setting out the obligations of the

Director and the witness or related person in respect of such placement

under protection. Obligations of the Director and the witness or related

person are provided in sub section (4) of section 11. They include:
 456

“(a) An obligation on the Director –

(i) to take such reasonable steps as are necessary to provide the

protected person with the protection and related services, as

referred to in the protection agreement concerned; and

(ii) not to keep a protected person under protection in any

prison or police cell, unless otherwise agreed upon;

(b) an obligation on the witness or the related person -

(i) where applicable, to give the evidence as required in the

proceedings to which the protection relates;

(ii) to meet all financial obligations incurred by him or her that are

not payable by the Director in terms of the protection agreement;

(iii) to meet all legal obligations incurred by him or her, including

any obligations regarding the custody and maintenance of children

and taxation obligations;

(iv) to refrain from activities that constitute a criminal offence;

(v) to refrain from activities that might endanger his or her safety

or that of any other protected person;

(vi) to accept and give effect to all reasonable requests and

directions made or given by any members of the Office in relation

to the protection provided to him or her and his or her obligations;

 457

(vii) to inform the Director of any civil proceedings which have or

may be instituted by or against him or her or in which he or she is

otherwise involved;

(viii) to inform the Director of any civil proceedings which have

or may be instituted by or against him or her or in which he or she

is involved, either as a witness or as accused or otherwise; and

(ix) not to endanger the security or any other aspect of the

protection of witnesses and related persons or related services or

any other matter relating to a witness protection programme

provided for in this Act;

(c) any other prescribed terms and conditions or obligations agreed

upon; and

(d) a procedure in accordance with which the protection agreement

may, if necessary, be amended.”

Section 12 deals with ‘protection to minors’.

Under sec. 13(10), the Director may, on his own accord, or upon

receipt of a report from the Witness Protection Officer and after considering

any representation of the protected person, by written notice, discharge any

protected person.
 458

However, under sec. 14, the Minister of Justice may review the

decision of the Director to discharge any person from protection. Any

person who feels aggrieved by any decision of or steps taken by the

Director, may apply to the Minister to review the decision of the Director.

Section 15 deals with civil proceedings to which a protected person is a

party or in which he is a witness. According to this section, if it appears to a

judge of a High Court in an ex-parte application made to him by the

Director, that the safety of any protected person might be endangered by the

institution or prosecution of any civil proceedings in which a protected

person is a party or a witness, the judge may make any appropriate order

with regard to the institution or prosecution or postponement of those

proceedings. The purpose of the order shall be to prevent the disclosure of

the identity or whereabouts of the said protected person or to achieve the

objects of the Act.

Section 16 refers to ‘access to minor under protection’.

Section 17 provides that no person shall disclose any information which

he has acquired in exercise of powers, functions etc. under the Act, except

for the purpose of giving effect to the provisions of the Act or when

required to do so by any court. Sub sections (5) to (7) provide the manner

and condition in which the Director may disclose any information.

 459

Section 18 prohibits publication of information concerning a protected

person. The Presiding Officer shall make an order prohibiting the

publication of any information, including any drawing, picture, illustration,

painting, photograph (including photographs produced through or by means

of computer software on a screen or a computer print out), pamphlet, poster

or other printed matter, which may disclose-

i) the place of safety or location of any protected

person or where he has been relocated;

ii) the circumstances relating to his protection;

iii) the identity of any other protected person and the

place of safety or location when such person is

being protected; or

iv) the relocation or change of identity of a protected

person.

The protected person is, however, not obliged to disclose the

information mentioned above.

Section 19 contains a non-obstante clause and provides that no

protected person when giving evidence or producing any book, document

etc. in any proceedings or in any civil proceeding before a court, shall be

obliged to disclose such information.

 460

Under Section 20, the Director may receive any donation, bequest or

contribution in money or otherwise from any source for the purpose of

giving effect to the provisions of the Act.

Under section 21, the Minister of Justice may enter into an agreement

with any international body, institution, organisation or foreign country in

order to -

(a) place a person who is being protected under a witness

protection programme administered by that body,

institution, organisation or country under protection in

terms of the Act;

(b) admit protected person to a Witness Protection Programme

in terms of any law applicable to that body, institution,

organisation or in that country.

7.3 HONG KONG

In Hong Kong, the Witness Protection Programme is established

under Witness Protection Ordinance (67 of 2000). As per the Ordinance, the

approving authority is required to establish and maintain the Witness

Protection Programme. The approving authority arranges or provides

 461

protection and other assistance for witness’s personal safety or well being

that may be at risk as a result of being a witness. ‘Approving Authority’

means a person designated in writing by the Commissioner of Police or the

Commissioner of the Independent Commission against Corruption. The

approving authority, as per section 4, has the sole responsibility of deciding

whether or not to include a witness in the Witness Protection Programme.

A witness may be included in the Witness Protection Programme only if (a)

the authority has decided that the witness be included; (b) the witness agrees

to be included; and (c) the witness signs a memorandum of understanding.

Apart from the nature of the perceived danger to the witness, the approving

authority should, in deciding whether or not to include a witness in the

Witness Protection Programme, have regard to the factors mentioned in sub

section (3) of section 4. The approving authority may also require a

witness to undergo psychological, psychiatrist, or other medical tests or

examination and make the results available to the authority for the purpose

of assessing whether the witness shall be included in the programme or not.

The authority may also make other inquires and investigations. The witness

is required to provide the authority with all necessary information as per

section 5. The contents of the memorandum of understanding are set out in

section 6. When a witness is included in the Witness Protection

 462

Programme, the approving authority shall take all necessary and reasonable

actions which are required to protect the witness’s safety and welfare. The

approving authority as per section 8 may establish a new identity for a

participant in Witness Protection Programme. Necessary documents shall

be issued for the purpose of establishing the new identity. If a participant

has legal rights or obligations which are outstanding or is subjected to legal

restrictions, the authority shall take reasonable and practicable steps to

ensure that those rights and obligations are dealt with according to law and

that those restrictions are complied with. Section 10 permits non-disclosure

of original identity. Where a participant who has been provided with a new

identity, would be required by or under a law of Hong Kong to disclose his

original identity for a particular purpose, and the approving authority has

given him written permission not to disclose his original identity for that

purpose, the participant is not required to disclose his original identity to

any person for that purpose. He may claim that his new identity is his only

identity.

Under section 11, the approving authority may terminate the

protection of a participant. Where a new identity is issued under the

protection programme and if that protection is terminated as per section 11,

the original identity of the participant shall be restored.

 463

A Board is established to review certain decisions of approving

authority. The Board is to consist of (i) an officer who is more senior than

the approving authority designated by the Commissioner of Police, and (ii)

two persons who are not public officers. The Board may also consist of

additional members who may or may not be public officers (section 14).

A person who is aggrieved by a decision of the approving authority

(a) not to include him; (b) to terminate his protection as a participant; or (c)

not to establish a new identity for him as a participant, in the Witness

Protection Programme, may request in writing that the approving authority’s

decision be reviewed by the Board.

If a participant has been with a new identify or has been relocated

under the Witness Protection Programme and is notified to the appropriate

authority that the participant has been arrested or is liable to arrest for an

arrestable offence, then the approving authority may-

i) release the new identity or new location of the participant;

ii) provide the criminal record and the finger prints of the

participant;

iii) release other information; and

iv) allow officers of the law enforcement agency to interview him.

 464

Section 17 prescribes offences. A person is not allowed to disclose

information about the identity or location of a participant or such

information that compromises the security of such a person. Similarly, a

person who is or has been a participant shall not disclose:-

a) the fact that he is or has been a participant;

b) information as to the way in which the witness protection

programme operates;

c) information about any officer who is or has been involved in

the witness protection programme

d) the fact that he has signed memorandum of understanding;

e) any details of such a memorandum of understanding.

Contravention of these conditions are punishable offences. As per

section 18, the approving authority, officers working with such authority or

other public officers performing functions in relation to the Witness

Protection Programme, shall not be required:-

a) to produce in a court, tribunal, commission or inquiry any

document that has come into the custody or control in the course

of his duties in relation to the Witness Protection Programme;

 465

b) to disclose or communicate to such body any matter or thing that

has come to his notice;

Where a participant has to give evidence for the HKSAR in legal

proceedings, the Judge or Magistrate may, upon an ex-parte application by

the prosecution, authorise a police officer to require all members of the

public wishing to enter the court room to-

a) identify themselves to the satisfaction of the officer; and

b) undergo such search as the officer may require to ensure that they are

not carrying into the court room anything which would pose a threat

to the security or well being of the participant.

7.4 CANADA

In Canada ‘Witness Protection Programme Act, 1996’ (C.15) has

been enacted. The Act is enacted to provide for the establishment and

operation of a programme to enable certain persons to receive protection.

As per sec. 2, ‘protection’ is defined as including relocation,

accommodation and change of identity as well as counselling and financial

support. As per section 3, the purpose of the Act is to promote law-

enforcement by facilitating the protection of persons who are involved in

 466

providing assistance in law enforcement matters. In order to facilitate the

protection of a witness, a programme known as the Witness Protection

Programme is established under section 4. The programme is being

administered by the Commissioner of the Force. The Commissioner may

determine whether a witness should be admitted to the programme and the

type of protection to be provided to any protectee.

Under sec. 6(1) a witness can be admitted to the programme only if-

a) the law enforcement agency or an international criminal court or

tribunal has made a recommendation for the purpose of

admission.

b) the witness has provided the Commissioner of the Force, such

information concerning the personal history of the witness which

enables the Commissioner to consider the factors referred to in

section 7.

c) the agreement has been entered into by or on behalf of the witness

with the Commissioner setting out the obligations of both parties.

However, under sec. 6(2) in case of emergency, the Commissioner may

provide protection upto 90 days to a person who has not entered into a

protection agreement referred above. The factors which have to be

 467

considered by the Commissioner while determining whether a witness

should be admitted to the programme are set out in section 7 as follows:

(a) the nature of the risk to the security of the witness;

(b) the danger to the community if the witness is admitted to the

Programme;

(c) the nature of the inquiry, investigation or prosecution involving

the witness and the importance of the witness in the matter;

(d) the value of the information or evidence given or agreed to be

given or of the participation by the witness;

(e) the likelihood of the witness being able to adjust to the

Program, having regard to the witness’s maturity, judgment and

other personal characteristics and the family relationships of

the witness;

(f) the cost of maintaining the witness in the Program;

(g) alternative methods of protecting the witness without admitting

the witness to the Program; and

(h) such other factors as the Commissioner deems relevant.

The obligations under the protection agreement are narrated in section

8. The obligations are as follows:

 468

(a) on the part of the Commissioner, to take such reasonable steps as are

necessary to provide the protection referred to in the agreement to the

protectee; and

(b)on the part of the protectee,

(i) to give the information or evidence or participate as required in

relation to the inquiry, investigation or prosecution to which

the protection provided under the agreement relates,

(ii) to meet all financial obligations incurred by the protectee at

law that are not by the terms of the agreement payable by the

Commissioner,

(iii) to meet all legal obligations incurred by the protectee,

including any obligations regarding the custody and maintenance

of children,

(iv) to refrain from activities that constitute an offence against an

Act of Parliament or that might compromise the security of the

protectee, another protectee or the Program, and

(v) to accept and give effect to reasonable requests and directions

made by the Commissioner in relation to the protection provided

to the protectee and the obligations of the protectee.

 469

As per section 11(1), any information about the location or change of

identity of a protectee or former protectee cannot be disclosed by any

person. However, under sec. 11(2) a protectee or former protectee may

disclose such information which does not endanger the safety of another

protectee or former protectee and does not compromise the integrity of the

programme. Further, under sec. 11(3) the Commissioner of Force may

disclose information of the kind mentioned above, in certain circumstances

as stated below:

a) with the consent of the protectee,

b) when the protectee has previously disclosed such

information; or

c) when the disclosure is essential in the public

interest; or

d) where the disclosure is essential to establish the

innocence of a person, in a criminal proceeding.

Under sec. 13, a person whose identity has been changed as a

consequence of the protection, shall not be held liable or punished for

making a claim that the new identity is and has been the person’s only

identity.
 470

Under sec. 14, the Commissioner may enter into an agreement with a

law enforcement agency or with the Attorney General of Province to enable

a witness, who is involved in activities of such law enforcement agency or

the Force of such province, to be admitted for the Witness Protection

Programme. Apart from this, the Commissioner may also enter into an

agreement with any provincial authority in order to obtain documents and

other information that may be required for the protection of a protectee. As

per sub sections (2) and (3) of the section 14, the Minister (Solicitor General

of Canada) may enter into a reciprocal agreement with the Government of a

foreign jurisdiction or with an International Court or tribunal to enable a

witness who is involved in activities of a law enforcement agency in that

jurisdiction of a foreign country or in activities of that court or tribunal, as

the case may be, to be admitted to the Witness Protection Programme.

The protection of witness provided under this Act, may be terminated

by the Commissioner of Force.

7.5 PORTUGAL:
 471

The Portuguese legislation (Act No. 93/99 of 14th July, 1999) deals

with the provisions governing the enforcement of measures on the

“protection of witnesses” in criminal proceedings where their lives or

physical or mental integrity, freedom or property are in danger due to their

contribution to the collection of evidence of the facts which are subject to

investigation. These measures may also cover the witness’s relatives and

other persons in close contact with them. The Act also provides for

measures for collection of testimonies or statements of persons who, by

reason of age or otherwise, are vulnerable persons even if the dangers

mentioned above do not apply. As per section 1, as the measures laid down

in the Act are extraordinary in nature, they do not apply unless deemed

necessary and adequate in the case. The cross examination allowing a fair

balance between the needs for combating crime and right to defence is

guaranteed under the Act.

Chapters II and III deal with grant of anonymity, video-link etc. in

Court proceedings, already referred to in Chapter VI of this Consultation

Paper, Chapter IV deals with Witness Protection Programme.

 472

Chapter IV of the Portuguese Act (sections 20 to 25) makes

provisions for security and special measures and programmes. Section 20

provides that where significant grounds for security so justify and where the

criminal offences requires the intervention of a three judge court or of a jury

court, the witness may also get benefit from sporadic measures of security,

namely-

a) mention in the proceeding of an address different from the one

he uses or which does not coincide with the domicile location

provided by the civil law;

b) being granted a transportation in a State vehicle for purposes

of intervention in the procedural act;

c) being granted a room, eventually put under surveillance and

security located in the court or the police premises;

d) benefiting from police protection extended to his relatives or

other persons in close contact with him;

e) benefiting from inmate regimen which allow him to remain

isolated from others and to be transported in a separate vehicle.

As per section 21, any witness or his wife or her husband, ancestors,

descendants, brothers and sisters or any other person in close contact

 473

with him, may also get benefit from a special programme of security

during the running of the proceeding or even after its closure. The

conditions precedents for getting benefit of this programme are:-

(a) the testimony or statement concern the criminal offences

which are laid down in section 16.

(b) There is serious danger of their lives, physical integrity or

freedom; and

(c) The testimony or the statement constitutes a contribution which

is deemed, or has proved to be, essential to the ascertainment of

the truth.

The content of such special programme of security may contain

following measures:-

a) delivery of documents officially issued;

b) changes in the physiognomy or the body of the beneficiary;

c) granting of a new place to live in the country or abroad, for a

period to be determined;

d) free transportation of the beneficiary, his close relatives and the

respective property, to the new place of living;

e) implementation of conditions for the obtaining of means of

maintenance;
 474

f) granting of a survival allowance for a specific period of time.

For the purpose of implementation of such a special programme of

security, a Commission under the direct supervision of the Minister of

Justice has been established.

In chapter V of the Act, provisions are made for specially “vulnerable

witnesses”. The witness’s special vulnerability may be caused by his being

too young or too old, because of his health condition or by the fact that he

has to make a testimony or a statement against a person of his own family,

or against a restricted social group to which he belongs in a condition of

subordination or dependence. Where a specially vulnerable witness is to

take part in a specific procedural act, the relevant judicial authority is

required to make all efforts to ensure that, such procedural act be held in the

best conditions possible in order to seek the spontaneity and the sincerity of

the answers. As per section 27, the judicial authority shall appoint a social

welfare officer or any other person to accompany the vulnerable witness,

and, if necessary, it shall designate an expert to give the witness

psychological support to the witness. The judicial authority presiding to the

procedural act may authorise the social welfare officer to stand by the

witness during the said procedural act.

 475

7.6 PHILIPPINES

In Philippines, an Act (which came into force from 24.4.1991),

namely ‘Witness Protection, Security and Benefit Act’ (Republic Act NO.

6981) is applicable. It provides witness protection, security and benefit

under a programme. This programme is formulated and implemented by the

Department of Justice through its Secretary. Any person who has witnessed

or has knowledge or information regarding the commission of a crime and

has testified or is testifying or is about to testify before any judicial or quasi

judicial body, or before any investigating authority, may be admitted into

the programme if, (a) the offence in which his testimony will be used is a

grave felony or its equivalent; (b) his testimony can be substantially

corroborated in its material points; (c) he or any member of his family or

affinity is subjected to threats to his life or bodily injury or there is

likelihood that he will be killed, forced, intimidated, harassed or corrupted

to prevent him from testifying, or to testify falsely, or evasively, because of

or on account of his testimony; and (d) he is not a law enforcement officer.

If the Department of Justice, after examination of the applicant and

taking into consideration other relevant facts, is convinced that the

requirements of the Act or other rules and regulations have been complied
 476

with, it shall admit the said applicant to the programme. Thereafter, the

witness shall be required to execute a sworn statement. In case of

legislative investigation in aid of legislation, a witness with his express

consent may be admitted into the programme upon the recommendations of

the legislative committee.

As per section 5, before a person is provided protection under the

Act, he shall be required to execute a memorandum of agreement which

shall set forth his responsibilities including those referred to in this section.

Any substantial breach of the memorandum of agreement shall be a ground

for the termination of the protection. All proceedings involving application

for admission into the programme and actions taken thereon, shall be

confidential in nature. No information or documents given or submitted in

support thereof shall be released except upon written order of the

Department or the proper court. Any person who violates the

confidentiality of the said proceedings shall be punished.

According to section 8, a person who is admitted into the programme (i.e.

the witness) shall have the following rights and benefits-

(a) To have a secure housing facility until he has testified or until the

threats, etc. disappear or are reduced to a manageable or tolerable level.

When the circumstances warrant, the witness shall also be entitled to

 477

relocation and/or change of personal identity at the expense of the

programme. This right may be extended to any member of the family of

the witness or affinity.

(b) The Justice Department shall, wherever practicable, assist the witness

in obtaining a means of livelihood. The witness relocated shall be

entitled to financial assistance from the programme for his support and

that of his family.

(c) In no case the witness shall be removed from or demoted in work

because of or on account of his absence due to his attendance before any

judicial, quasi judicial or investigating authority including legislative

investigation. But in case of prolonged transfer or permanent relocation,

the employer shall have the option to remove the witness from

employment after securing clearance from the Department. Any witness

who has failed to report for work because of witness duty shall be paid

his equivalent salaries or wages.

(d) To be provided with reasonable travelling expenses and subsistence

allowance by the Programme for his attendance in the court, body or

authority, as well as conferences and interviews with prosecutors or

investigating officers.
 478

(e) To be provided with free medical treatment, hospitalisation and

medicines for any injury or illness incurred or suffered by him because of

witness duty, in any private or public hospital, clinic or at any such

institution at the expense of the programme.

(f) If a witness is killed, because of his participation in the

programme, his heirs shall be entitled to a burial benefit of not less than

Ten thousand Pesos (P, 10,000/-) from the programme.

(g) In case of death or permanent incapacity, his minor or dependant

children shall be entitled to free education from primary school to

college level in any state, or private school, college or university.

Section 9 provides that in cases where a witness who has been

admitted into the programme has to testify, the judicial, quasi judicial or

investigating authority shall ensure a speedy hearing or trial and shall

endeavour to finish the said proceedings within three months from the

filing of the case. According to section 10, any person who has

participated in the commission of a crime and desires to be a witness for

the State, can also apply for admitting him into the programme. The

Department of Justice shall admit him into the programme, wherever the

following circumstances are present:-

 479

a) the offence in which his testimony will be used is a grave

felony;

b) there is absolute necessity for his testimony;

c) there is no direct evidence available for the proper prosecution

of the offence committed;

d) his testimony can be substantially corroborated on its material

points;

e) he does not appear to be most guilty; and

f) he has not at any time been convicted of any crime involving

moral turpitude.

Any witness registered in the programme who fails or has refused to

testify or to continue without just cause when lawfully obliged to do so,

shall be prosecuted for contempt. If he testifies falsely or evasively, he shall

be liable for perjury.

Section 14 provides that no witness admitted into the programme can

refuse to testify or give evidence or produce documents etc., necessary for

the prosecution of the offence on the ground of the constitutional right

against self-incrimination. However, he shall enjoy immunity from criminal

prosecution and cannot be subjected to any penalty or forfeiture for any

 480

transaction, matter or thing concerning his compelled testimony or

production of documents etc.

Under section 17, any person who harasses a witness and thereby

hinders, delays, prevents or dissuades a witness from:-

a) attending or testifying before any judicial or quasi judicial body or

investigating authority;

b) reporting to a law enforcement officer or judge about the commission

or possible commission of an offence, or a violation of conditions of

probation, parole, or release pending judicial proceedings;

c) seeking the arrest of another person in connection with the offence;

d) causing a criminal prosecution, or a proceeding for the revocation of

a parole or probation; or

e) performing and enjoying the rights and benefits under this Act or

attempting to do so,

shall be punished.

7.7 U.S.A.

7.7.1 In United States Code, Title 18, Crimes and Criminal

Procedure, at part I crimes, in chapter 73 (obstruction of justice),
there is provision for issuing a temporary restraining order
prohibiting harassment of victim or witness in Federal Criminal
cases.
 481

As per sec. 1514(a) when a US District Court, upon application of the

attorney for the Government, finds that there are reasonable grounds
to believe that harassment of a victim or witness in a Federal
criminal case exists, it shall issue a temporary restricting order
prohibiting harassment of such victim or witness, as the case may
be. This temporary order may be issued without written or oral
notice to the adverse party. When the temporary order is issued
without notice, the motion for a protective order shall be set down
for hearing at the earliest possible time, and after the hearing the
District court may issue a protective order.

Apart from this provision, there are other provisions in the United

States Code, Title 18 – Crimes and Criminal Procedure, in part II – Criminal

Procedure. Chapter 224 thereof deals with protection of witnesses or

potential witnesses for Federal Government or for a State Government in

any official proceeding in connection with organised criminal activity or

other serious offences.

Section 3521 makes provision for witness relocation and protection.

According to this section, the Attorney General may provide for the

relocation and other protection for a witness. The Attorney General may

also provide for the relocation and other protection of the immediate family

of, or a person otherwise closely associated with such witness or the

potential witness if the family or person may also be endangered on account

of the participation of the witness in the judicial proceeding. The Attorney

General shall take necessary action to protect the person involved from

bodily injury and otherwise to assure the health, safety and welfare of that
 482

person including the psychological well being and social adjustment of that

person. The Attorney General may, by regulation;

a) provide suitable documents to enable the person to establish a

new identity or otherwise protect the person;

b) provide housing for the person;

c) provide for the transportation of household furniture and other

personal property to a new residence of the person;

d) provide to the person a payment to meet basic living expense;

e) assist the person in obtaining employment;

f) provide other services necessary to assist the person in becoming

self sustaining;

g) disclose or refuse to disclose the identity or location of the person

relocated or protected or any other matter concerning the

programme;

h) protect the confidentiality of the identity and location of person

subject to registration requirements as convicted offenders under

the Federal or State law;

i) exempt procurement for service, materials and supplies and the

renovation and construction of safe sites within existing buildings

from other provisions of law, as may be required to maintain the

 483

security of the protective witness and integrity of the witness

security programme.

Any person who, without the authorisation of the Attorney General,

knowingly discloses any information received from the Attorney General, is

liable to be punished.

Before providing protection to any person, the Attorney General shall

enter into a memorandum of understanding with that person setting out the

responsibilities of such person. The MOU shall also set forth the protection

which will be provided to that person.

If the Attorney General determines that harm to a person for whom

protection may be provided, is imminent or that failure to provide

immediate protection would otherwise seriously jeopardise any ongoing

investigation, he (Attorney General) may provide temporary protection to

such person.

The Attorney General may terminate the protection provided to any

person who substantially breaches the memorandum of understanding, or

who provides false information concerning the MOU or the circumstances

pursuant to which the person was provided protection. However, before

terminating such protection, the Attorney General shall send notice to the
 484

person involved, of the termination of the protection and the reasons for the

termination. The decision of the Attorney General to terminate such

protection shall not be subject to judicial review.

According to section 3522, a probation officer may, upon the request

of the Attorney General, supervise any person provided protection who is

on probation or parole under State law, if the State consents to such

supervision.

The failure by any person provided protection, who is supervised as

mentioned above, to comply with the MOU, shall be ground for revocation

of probation or parole.

Section 3523 obliges the Attorney General to serve civil notice issued

by a court on a protected person. The Attorney General shall urge the

protected person to comply with a court judgment.

Section 3525 requires the Attorney General to pay compensation to

the victim of a crime where such crime causes or threatens death or causes

serious bodily injury and where the offence is committed by the protected

person during the period of protection.

The Attorney General, as per section 3526 may provide protection to

a person on the request of a State Government also but the
expenses involved are reimbursable by the requesting State
Government.
 485

7.7.2 Victim Witness Protection Programme at Western District, New York

(at the US Attorney’s Office): In the United States of America, the
‘Department of Justice Victim Witness Program’ was established. It was a
result of the Victim and Witness Protection Act, 1982, the victims of Crime
Act, 1984, the Violent Crime Control Act, 1996, the Anti-Terrorism and
Effective Death Penalty Act, 1996 and the Victims Rights Clarification Act,
1997. Also are relevant, the Crime Control Act, 1990, Violent Crime
Control and Law Enforcement Act, 1994, Mandatory Victims Restitution
Act, 1996. The Acts guarantee federal victims and witnesses, certain rights
and they impose significant duties and responsibilities on the US Attorney’s
Office.

The Victim and Witness Protection Act, 1982, referred to above, contains
several provisions to aid victims and witnesses of federal crimes. It is
applicable to all victims of serious crime, personal violence, attempted or
threatened personal violence or significant property loss. The basic
provisions of the Act relate to (1) notification (2) consultation and (3)
referral services for victims and witnesses of serious crime.
 486

The UN Attorney’s office for the Western District of New York,

which covers 17 counties, has several items in the programme. Under the
programme a ‘victim’ is defined as one who suffers direct or threatened
physical, emotional or financial harm as a result of the commission of a
crime. The definition includes ‘spouse, legal guardian, parent, child, sibling
or another family member for any victim below 18 years age, incompetent,
incapacitated or deceased. Institutional entities can also be termed as
‘victims’. Any person who is culpable for the crime being investigated is
not a ‘victim’.

A ‘witness’ is defined as someone who has information or evidence

concerning a crime, and provides information regarding his knowledge to a
law enforcement agency. Where the ‘witness’ is a minor, the term includes
an appropriate family member. The term ‘witness’ does not include defence
witnesses or those individuals involved in the crime as a perpetrator or
accomplice.

The ‘Victim-Witness Staff’ is available to provide supportive services to

innocent victims and witnesses of a crime. Victims of crime often
experience physical, emotional and financial trauma as a result of their
actions of the accused. As a victim, one has certain rights and the Victim-
Witness-Staff is there to help them understand these rights, and ensure that
they are complied with.
 487

‘Victims’ Rights’: The victims have the right to be treated with dignity and
respect. They have the right to be protected from intimidation and harm.
Victims have the right to be present at all Court proceedings, the right to
confer with government attorney presenting the case, the right to
compensation subject to their meeting the criteria and the right to be
informed concerning the criminal justice process.

Services Provided: The New York State Crime Victims’ Board provides
services to N.Y. State residents through a network of agencies, as well as,
financial aid, such as payment of medical expenses, counselling expenses,
lost earnings, burial expenses etc. to victims of crimes.

Notification: The Staff provides notification to victims and witnesses

regarding the case status and court proceedings.

Consultation: Victims are allowed to provide inputs at various stages of the

case, including the dismissal of charges, release of accused pending trial,
plea agreement terms, victim views on sentencing and restitution. The staff
is available to ensure that the views expressed are communicated to the
Assistant (US) Attorney, assigned to the case.

Court Assistances: The Staff is available to accompany the victim/witness

to the court proceedings.
 488

Criminal Justice Process: The judicial system can be very confusing to

those who are involved in a criminal case. Therefore, the staff is there to
help explain each step of the process and to notify the provisions, about all
the court dates, times and locations and confirms the presence of the
victim/witness, if needed. The Staff will explain the persons what he or she
can expect when they are in the court.

Transportation to Court: The Staff can arrange transportation of the

victim/witness, if necessary, from the place of the residence to the Court.

Referral services: In cases where victims require medical or counselling

referrals, the staff will provide victims with a list of applicable services
located in the victim’s area. Services include counselling, shelters, housing
and many emergency referrals.

Other services: Impact Assessments: A victim’s written or verbal statement

is submitted to the Judge to review, before sentencing the defendant. It
personalizes to the Judge regarding the emotional, physical and financial
impact the victim or witness has suffered as a direct result of the crime. The
Staff will provide a Forum to the victim/witness prior to the sentencing.

Verbal-Victim Impact Statement: Violent crime victims and victims of

sexual abuse have the right to make a victim impact statement at sentencing.

Resources for Protection by Staff: The Staff has certain resources available
to assist victims and witnesses who feel threatened or who have threats.
 489

Victim’s privacy: The US Attorney’s office takes every precaution to

ensure that the victim’s and witness’s privacy is maintained.

Separate Waiting Area: Witnesses waiting to testify can wait in a separate

area and away from the defendant. The Staff is available to ensure the
witness’s comfort while waiting to testify.

Safekeeping and Prompt Return of Property: Every effort is made to return

the personal property to victims as soon as the circumstances of the case
permit.

Notification to Employer/Creditor: The Staff can write a letter, where a

victim or witness requests it, to the employer certifying that the person’s
presence is required in Court, or to the creditor, as to the trouble the person
is experiencing in repayment,- because of the trauma of the crime.

7.7.3 Victim-Witness Programme of District of Maryland (at the US

Attrorney’s Office):

The victim’s rights enumerated under this programme are:

i) the right to be treated with fairness and with

respect for the victim’s dignity and privacy;
ii) the right to be reasonably protected from the
accused offender;
iii) the right to be notified of Court proceedings;
 490

iv) the right to be present at all public Court

proceedings related to the offence, unless the
Court determines that the testimony by the
victim would be materially affected if the victim
heard other testimony at trial;
v) right to confer with an attorney for the
Government in the case;
vi) right to restitution;
vii) right to information about conviction,
sentencing, imprisonment and release of
offender.

The programme deals with (a) testifying in federal Court, (b) witness travel
information, (c) victim-witness safety through US Marshall’s Service,
referral resources.

The victim-witness can seek a Protective Order from the Judge giving
information about the abuser and recent incidents as well as past incidents.
The Court can pass an order against the abuser to:

(2) refrain from abuse;

(3) stop harassment or cut off contact;
(4) stay away from the residence of the victim/witness;
(5) move out of the house.

The Criminal Injuries Compensation Board (CICB) of Maryland provides

financial assistance to innocent victims of crime who suffered physical
 491

injury – for their medical expenses and loss of earnings, and in case of
homicide, for funeral expenses and loss of support on the part of victim’s
dependants.

7.7.4 Victim Witness Protection Programme in Michigan (East District)(at

US Attorney’s Office): The programme ensures that crime victims are
informed of their rights and to assist the victims/witnesses throughout the
criminal court process. The Unit remains committed to expanding efforts to
assist victims in need of justice and healing after the crime.

7.7.5 Witness Security and US Marshall’s Service: The service provides

for the security, health and safety of government witnesses and their
immediate dependants – whose lives are in danger as a result of their
testimony against drug traffickers, terrorists, organized crime-member and
other major criminals.

The Witness Security Programme was authorized by the Organised

Crime Control Act, 1970 and amended by the Comprehensive Crime
Control Act, 1984. (See also Witness Security Reform Act 1984). Since its
inception, more than 7500 witnesses and over 9500 family members have
entered the Programme and have been protected, relocated and given new
identities by the Marshal’s service.

The successful operation of this programme is widely recognized as

providing a unique and valuable tool in the government’s war against major
criminal conspirators and organized crime. Since the programme’s
 492

inception, it has obtained an overall conviction rate of 89% as a result of

protected witness’s testimony.

Witnesses and their families get typically new identities with

authentic documentation or by relocation. Housing, medical care, job
training and employment can also be provided. Subsistence funding to
cover basic living expenses is also provided to the witnesses until they
become self-sufficient in the relocation area.

The Service provides 24-hour protection to all witnesses while they

are in a high threat environment, including pre-trial conferences, trial
testimony and other Court appearances.

In both criminal and civil matters involving protected witnesses, the

Marshall’s service cooperates fully with local enforcement and civil
authorities in bringing witnesses to justice or in having them fulfill their
legal responsibilities. A recidivism study found that less than 17% of
protected witnesses with criminal histories are arrested and charged after
joining the programme.
 493

7.8 France

In France, Article 706-57 to 706-63 of Penal Procedures Code

contains provision for protection of witnesses. In regard to the
procedure relating to a crime or an offence punishable with
imprisonment upto five years, if it is found that there is danger to the
life or the physical integrity of the witness, or any member of his
family or of a close relative, then the examining-magistrate-public-
prosecutor will be justified in authorising declaration of such
witness as protected without his identity appearing in the file of the
procedure. In no circumstances can the identity or the address of
such a witness be disclosed. The revelation of the identity or the
address of such witness is a punishable offence. The above
mentioned protections are not available where the knowledge of the
identity of such person is essential to the exercise of the right of
defence.

7.9 Czechoslovakia

Czechoslovakia is having a law on the special protection of

witnesses and other persons. In this regard amendment to the Penal
Programme Code was adopted by Act NO. 141/2001 which came into
force on 1.5.2001. The fundamental goal of this Act is to secure
adequate legal regulations for the special protection of witnesses
against all forms of direct or indirect threat, pressure or blackmail in
connection with the penal action. The Act includes an all-embracing
protection of witnesses in the most serious cases of criminal
activity, especially organised crime.
A special programme of protection has been prescribed for
witnesses who are threatened under that programme. They will be
provided with personal protection, protection of dwelling, movement
within the Czech Republic and abroad, help in finding work, social
help, and in the more serious cases, disguised identity.

7.10 Republic of Korea

The Republic of Korea enacted its Witness and Victim Protection

Law on 31st August, 1999 which came into force in June, 2000. The
law covers not only the victim or the witness, but also extends
protection to their families. If there is a possibility that a witness
may be the target of retaliatory action, his name may be kept
confidential and he may be given police protection. When the
witness or victim sustains financial loss as a result of the crime or
the investigation, he may be granted relief money for the loss
suffered. And in the event there is a need for such witness to
transfer his residence or secure new employment, he may be
furnished some assistance at government expense.
 494

7.11 Japan

Japan has evolved a comprehensive Witness Protection

Programme under its Code of Criminal Procedure (CCP) which was
amended on 18th August, 1999 and 19th May, 2000.

Under section 96.1(4) in relation to section 89(5) of the CCP, an

accused may be denied bail if there is reasonable ground to believe
that he may threaten or may actually injure the body or damage the
property of a victim or of a witness or relative of the victim/witness.

With the recent amendment of Japan’s CCP, an attendant of the

witness may be allowed to remain with the witness in the course of
examination, and a screen may be set up between the witness and
accused. One of the innovations introduced is the allowance of
video link examination (w.e.f. November, 2001) where the witness,
being out of the court room, answers the questions of the public
prosecutor or the defence counsel who are in the court room (CCP
157-2-157-4).

According to CCP, in order to maintain order in the court, or

when the judge believes that a witness will be unable to fully testify
due to the presence of the accused or of spectators, the court may
order such accused or spectators to withdraw from the court room
during the examination of the witness.

Under certain circumstances, CCP also permits the court, to

order the examination of the witness at any place other than the
court, or on dates other than those fixed for public trial even before
the first date fixed for trial. In the latter case, the accused/suspect
and the defence counsel may attend the examination only when the
judge believes their presence will not interfere with the criminal
investigation, and the statement obtained thereby may, as an
exception to the hearsay rule, be admitted in evidence during the
trial even without presenting the declarant.

If there is danger that the witness might be injured or his property

damaged, the court may limit the questions by which the domicile or
other personal circumstances of the witness may come to the
knowledge of the defendant.

Section 105.2 of the Penal Code of Japan provides punishment to

any person who intimidates a witness in connection with such
person’s or another person’s case.

7.12 Netherlands
 495

An Act known as ‘Witness Protection Act’ (Act of 1 of 1994) was

enacted by the Parliament. Prior to this Act, the Supreme Court
formulated the conditions under which anonymous witness
statement could be used in evidence in criminal cases. Many of
these conditions can be found in this Witness Protection Act. The
legislature broadly distinguished three different categories of
anonymous witnesses.

The first category comprises of witnesses with respect to whom

there is well founded assumption that they will incur problems in
connection with their testimony or that they will be hindered in the
further exercise of their profession. These are mainly police officers
who have met the accused while working undercover. These
witnesses are granted limited anonymity and are heard either by the
examining Magistrate or by the trial court. In these cases, the Judge
does not disclose the witness’s identity and, takes measures to
prevent his identity from being disclosed. These measures do not
prevent direct questioning of the witness on appearance at the trial.

The second category of anonymous witnesses are those who fear

for their lives, health or safety, or the disruption of their family life or
socio economic existence. In such cases, the Examining Magistrate
may grant him complete anonymity. The Examining Magistrate takes
the witness statement in such a way that the identity of the witness
is concealed. The defendant, his counsel or both may be denied
access to the hearing. It is also stipulated that the Public Prosecutor
may also not be present when the defence is denied access.
However, the Examining Magistrate gives the absent defendant, his
counsel and public prosecutor the opportunity to present questions
they wish to ask by telecommunication or alternatively in writing.
The examination is conducted by the Examining Magistrate in the
privacy of his office. The witness does not have to appear during the
investigation at the trial and his statement taken by the Examining
Magistrate can be used in evidence.

The third category of anonymous witnesses is of those persons

whose names appear in police reports, and who are examined
without listing their identity.

There are three cumulative requirements for the use of

statements in evidence in the case of completely anonymous
witnesses. First, the witness must be recognised by the Examining
Magistrate as a threatened witness. Second, the case must involve a
serious crime for which detention or remand is permitted. Third, the
 496

judge cannot decide that the defendant as guilty solely on the basis
of the statements of completely anonymous witnesses.

It is the Examining Magistrate who determines whether or not a

witness will be granted complete anonymity. A court order to
conceal the identity of the witness during the examination may be
elicited by the public prosecutor, the defence, or by the witness
himself. The Examining Magistrate may also give such an order ex
officio. The trial judge may order the Examining Magistrate to
conduct an enquiry into the need for anonymity. But before taking
any decision with respect to granting anonymity to witness, an
opportunity of hearing is given to the defendant, his counsel and the
witness. A decision of granting complete anonymity to the witness
concerned can be appealed against. A panel of three judges sitting
in chambers, decide an appeal.

In order to safeguard the anonymity of the witness, in practice he

is usually separated and sometimes also acoustically, from the
defence and the public prosecutor. Examination of the witness may
take place at a secret location and at a time that is kept secret from
the defence until the last minute. During the examination, the
Examining Magistrate, the witness and the court clerk, are separated
from the defence and the public prosecutor. Communication takes
place by an audio link, whereby a voice destruction device is
generally used.

7.13 Germany and Italy: These countries have witness protection

programmes. They also use certain procedures in order to prevent witnesses
from being endangered. It is possible, in these countries, to use statement of
anonymous witnesses as evidence in the Court, although convictions may
not be based on anonymous testimony alone. The witness does not have to
state his name/address though the Judge is informed. In Germany,
anonymous witnesses are not accepted in cases of offences that cause
damage to individuals, but is accepted only in cases of serious organized
crime.
 497

The fact that independent witnesses as well co-accused are willing to

cooperate in providing evidence against their comrades makes witness
programme a must.

MOU: Witness protection services in the above two countries also make

use of MOUs. It is not a formal contract, which refers to the witness’s

conduct. To maintain complete secrecy, the person is not given a copy of

the MOU.

The conditions for admission to the programme are that the person is
involved, as victim or witness, in a case of serious crime, there is danger to
the person or family or to close relatives, and the individual voluntarily
enters the programme and is suited to participate in the programme.

In an urgent case, protection measures can be taken in those countries

by providing the individual or his relatives a secret place located in another
part of the country – say a hotel or a police office or tenement or other
public building. If the person is himself a suspect in several crimes, he is
placed in a prison. It is stressful for the candidate and his family to seek to
enter a programme. In some countries the protection extends during trial,
may go upon 2 years to 5 years. Change in identity is also involved.
Witness protection is expensive because of salaries of staff, removal of
persons to another location, economic subsistence, housing and medical
costs.
 498

In the above two countries, the programmes have been very effective.
They have resulted in conviction of numerous leaders and also members of
organized crime.
 499

CHAPTER VIII

QUESTIONNAIRE

The preceding chapters in this Consultation Paper have dealt with the
various aspects of witness anonymity and witness protection. They noted
that witness anonymity is necessitated by several factors – intimidation and
threat to the personal safety of the witnesses or the peculiar vulnerability of
the witness on account of age or other disadvantage. The responses of the
courts and the legislatures in our country and several other countries have
been discussed. While our courts have recognized the need for and granted
witness anonymity on a case by case basis, and that too to a limited extent,
they have reiterated the need for a comprehensive legislation covering all
aspects of witness anonymity. Apart from witness anonymity, our Courts
have stated that there is a need for devising witness protection programmes
on the lines of similar programmes in other countries. Such programmes are
essential in order to bring into being a statutory right to a witness, who is in
danger, to seek protection – either physically or through other measures,
apart from being granted anonymity.

With a view to initiating public discussion on what should be the

legislative scheme on witness anonymity and the structure of the witness
protection programmes, the Law Commission elicits responses to the
following questionnaire which is divided into two parts: Part A deals with
witness anonymity and Part B with witness protection programmes. After
receiving responses to various questions, the Commission will come
forward with its final report. The Appendix carries the statutes in New
Zealand and Portugal, which contain significant provisions.

(A) WITNESS ANONYMITY

 500

8(1) Should witness anonymity be maintained in all the three stages of

investigation, inquiry, trial and even at stage of appeal in a criminal
case?
(2) Do you think witness anonymity should be confined to criminal cases
or should anonymity be provided in civil cases as well? Should it be
extended to defence witnesses also, as done under some statutes in
other countries?
(3) Can the provisions of sub-section (3) of section 16 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987 or section 30 of the
Prevention of Terrorism Act, 2002, which permit the Court to pass an
order:
(a) avoiding the mentioning of the names and addresses of the
witnesses in its orders or judgments or in any records of the
cases accessible to public,
(b) issuing directions for securing that the identity and addresses of
the witnesses are not disclosed, or
(c) direct that, in public interest, the proceedings pending before
the Court be not published in any manner,
be made applicable to cases involving other grave offences where the
Court is satisfied that there is material which prima facie shows
danger to the life of the witness or to his relations or to their
property?
(4) Do you agree that the existing safeguards for protection of victims of
sexual offences and child abuse such as in camera proceedings and
ban on publishing of any material relating to such proceeding under
sec. 327 of the Code of Criminal Procedure, 1973 are not sufficient
and do you suggest any other methods for their protection?
 501

(5) Would it be sufficient if the Commissioner of Police or

Superintendent of Police seeks anonymity for the witness by
certifying the danger to the life or property of the witness or his
relations or should it be for the Judge to decide, on the basis of
evidence placed before him, that the life or property of the witness or
relations is in danger?
(6) Should there be a preliminary inquiry by the Judge on the question
whether the case of the witness is a fit one where anonymity should
be granted or not? In such a preliminary inquiry, should the identity
and address of the witness be kept secret? Should the accused or his
lawyer be heard at that stage on the question of danger to life or
property of the witness or relatives or, should it be an ex parte inquiry
in camera? Will it serve any useful purpose in giving opportunity
to the accused/defence lawyer, particularly where the identity and
address cannot be revealed in such preliminary inquiry?
(7) Should the witness satisfy the Judge, in the said preliminary inquiry,
that his life or that of his relations or their property is in serious
danger or is it sufficient for him to show that there is ‘likelihood’ of
such danger? Is his mere ipse dixit on the question of danger
sufficient to deny the accused the right for an open trial in the
physical presence of the witness?
(8) Should the complainant or the prosecution be required to file an
application before the trial Judge for non-disclosure of identity and
address of the witness prior to the stage when copies/the documents
are supplied to the accused under sections 207, 208 of the Code of
Criminal Procedure, 1973?
 502

(9) Should the Court, if it accepts the request for anonymity, direct that
the identity and address of the witness be not reflected in the
documents to be given to the accused and should it direct that the
original documents containing the identity and address be kept in its
safe custody and further direct that the Court proceedings should not
reflect the identity and address of the witness?
(10) At the trial, if the Judge is satisfied about the danger to the witness,
should the recording of statement of the witness be made in such a
manner that the witness and the accused do not see each other and the
Judge, the prosecutor and the defence counsel alone see him (using
two cameras)? Should the witness who is shown on the video-screen
be visible only to the Judge, prosecutor and the defence counsel?
Should the taking of photographs in Court by others be banned?
(11) In the above context, should the witness depose from a different room
or different place, and should there be another judicial officer in that
room to ensure that the witness is free while giving his evidence?
(12) Should the public and media be allowed at such trials subject to a
prohibition against publication? What should be the quantum of
punishment for breach of this condition?
(13) Should the Court appoint an amicus curiae in every such case, where
witness protection is to be or is likely to be granted, to assist the
Court independently both at the preliminary hearing referred to above
and at the trial?
(14) Should the method of distorting the facial image and voice of the
witness be followed while recording evidence through video-link, in
such cases?
 503

(15) Should the identity and address of the witness be kept confidential
throughout the inquiry and trial (or after trial too) and in all the Court
proceedings upto the stage of judgment or should they be disclosed
just at the commencement of the examination of the witness? If it is
to be just at the commencement of evidence then, in case the evidence
is not completed in one hearing, is there not the chance of the witness
being threatened by the date of the next or subsequent hearing?
(16) Instead of examining the witness through the video-link procedure,
will it be sufficient if a list of questions is handed over to the Court
with a request to the Court to put those questions to the witness?
Will it preclude fair and effective cross-examination, if the accused or
his counsel is thus confined to a set list of questions and without the
normal advantage of putting questions arising out of the answers of
the witness to particular questions?
(17) Merely because the Court has refused to grant anonymity at
preliminary hearing referred to above, is the witness to be precluded
subsequently from seeking anonymity or protection at the trial, even
if there are fresh circumstances warranting an order in his favour?
(18) Can the defence be allowed to contend that the prosecution witness
who is given anonymity is a stock witness?

(19) Should the tele-link and display on video be conducted only by a

technical officer of the judicial branch and not by a police officer or
other public servant and not by outsourcing to a private contractor?
(20) Should these technical staff be located at one place in each State and
move to the concerned Court whenever there is a request, as it is not
 504

possible to provide such facilities for each Court or group of Courts

in the districts?

(21) Should the order as to witness anonymity, for the purpose of

preliminary inquiry, be passed only by the Sessions Court and not by
any other Court subordinate thereto?
(22) Against the order granting anonymity to a witness, should the law
provide a right of appeal to the High Court fixing a time frame of one
month from the date of service, for disposal of the appeal?
(23) Are there any other suggestions not covered by the above?

(B) WITNESS PROTECTION PROGRAMME

(1) Do you support the view that a Witness Protection Programme should
be established to protect the safety, welfare and the interests of the
witnesses? Such Programmes are already in existence in various
countries like Australia, Canada, South Africa, Portugal, Netherlands,
Philippines, New Zealand.
(2) Apart from the change of identity, should other measures for the
protection of witnesses be also provided. For example,
(a) mention in the proceeding of an address different from the one
he uses or which does not coincide with the domicile location
provided by the civil law;
(b) being granted a transportation in a State vehicle for purposes
of intervention in the procedural act;
(c) being granted a room, eventually put under surveillance and
security located in the court or the police premises;
(d) benefiting from police protection extended to his relatives or
other persons in close contact with him;
 505

(e) benefiting from inmate regimen which allow him to remain

isolated from others and to be transported in a separate vehicle;
(f) delivery of documents officially issued;
(g) changes in the physiognomy or the body of the beneficiary;
(h) granting of a new place to live in the country or abroad, for a
period to be determined;
(i) free transportation of the beneficiary, his close relatives and the
respective property, to the new place of living;
(j) implementation of conditions for the obtaining of means of
maintenance;
(k) granting of a survival allowance for a specific period of time.
(3) Who among the following should be made in-charge of the
implementation of the entire Witness Protection Programme:
(a) Judicial Officer (b) Police Officer
(c) Government Department (d) Autonomous body
(4) Should apart from prosecution witness, a defence witness be also
eligible to be admitted into the Witness Protection Programme, if
danger to his life or property exists due to his being a witness?
(5) Should the Superintendent of Police/Commissioner of Police be
empowered to certify whether a particular person or victim or witness
is in danger and entitled to be admitted to the Witness Protection
Programme? Should such certificate be further reviewed by the trial
Judge before making an order of witness protection? Should such
proceedings in the court be held in camera?
(6) Whether protection under the Programme should also be extended to
the family members, close relatives and friends of the threatened
witness. If so, who should be included in the list of such persons?
(7) Should necessary funds be provided by both the Central and State
Governments for implementation of the Witness Protection
Programme?
(8) Should a witness who is being admitted into the Programme be
required to enter into a memorandum of understanding with the in-
charge of the Programme setting out his rights, obligations,
 506

restrictions as well as of the person in-charge of the Programme?

What are the means of enforcing such rights and obligations?
(9) When the identity of a person is changed, and he later becomes a
party as plaintiff or defendant or a witness in any other civil
proceedings, then should such proceeding be allowed to be suspected
temporarily and be subject to the order of the Court regarding
institution, trial or judgment in such proceedings?
(10) When the identity of a person is changed, and he is an accused or a
witness in any other criminal proceeding under his former identity,
should the person in-charge of Protection Programme be authorized
to disclose his identity to the prosecutor, judge of magistrate and or to
defence lawyer in such cases?
(11) Should a person be held liable to punishment if he discloses the
identity of any protected person without the authorization of the
Court that granted the protection? If so, what punishment should be
prescribed?
(12) Do you support the view that where a witness who is admitted to the
Programme fails or refuses to testify without any just cause, he should
be prosecuted for contempt of Court and the protection order be
cancelled?
(13) Should the decision either admitting or refusing to admit a person to
the Witness Protection Programme, be made appealable? To avoid
delays, should such appeal lie directly to the High Court?
(14) Do you have any other suggestions in respect of Witness Protection
Programme?
 507

(Dr. K.N. Chaturvedi) (Justice M. Jagannadha

Rao)
Member-Secretary Chairman

Dated: 13th August, 2004