Case Summary
| Citation | Mrs. Neelam Katara v. Union of IndiaILR (2003) II Del 377 |
| Keywords | police protection, threat by political clouts, sec 161 crpc |
| Facts | In the month of February, 2002 Mr. Nitish Katara son of the petitioner, Mrs. Neelam Katara went to Ghaziabad, Uttar Pradesh to attend a friend’s marriage. In this time, he was found to be lost and later a body was recovered. The incident was reported and was found that Mr. Vishal and Vikas Yadav had abducted Mr. Nitish Katara due to alleged affair with their sister Bharati Yadav. The accused was son of a sitting member of the Rajya Sabha. Later in the month of April, 2002 the U.P. Police had filed four-page charge sheet in the case and accordingly both accused were arrested in the same month from Madhya Pradesh. It was based on the idea that witnesses must feel safe from threats or pressure to tell the truth in court and ensure justice is served. Previous law commissions had also looked into problems with witnesses turning hostile and had suggested guidelines. The petitioner wanted guidelines to ensure that justice could be served quickly and fairly, and to make sure witnesses didn’t face uncertainty. |
| Issues | Whether the witness protection become an urgent necessity as per the current scenario as the witness turn hostile and it cause the unnecessary delay? |
| Contentions | |
| Law Points | The court delineated several key considerations to be weighed in determining whether a witness should receive police protection. The competent authority, tasked with this evaluation, must take into account various factors, including:The nature of the risk to the witness’s security, particularly originating from the accused or their affiliates. The nature of the ongoing investigation in the case. The significance of the witness’s testimony in the case and the importance of the information or evidence they provide or have agreed to provide. The financial implications associated with providing police protection to the witness. In its deliberations, the court referenced the seminal case of Vishaka v. State of Rajasthan 1997, which established a precedent for considering international conventions in the absence of domestic legislation, provided they do not infringe upon fundamental rights or societal harmony. In accordance with these principles, the “Witness Protection Guidelines” were formulated and were to be adhered to until formal legislation was enacted. The court further outlined the obligations incumbent upon law enforcement agencies:When recording a witness’s statement under Section 161 of the Criminal Procedure Code, 1973 (CrPC), it is imperative for the investigating officer to apprise the witness of the Witness Protection Guidelines and inform them of their right to seek assistance from the competent authority. The responsibility for providing protection to the witness rests with the Commissioner of Police, subject to an order from the competent authority directing police protection. |
| Judgement | The court orders the implementation of witness protection guidelines in India and directs the respondent, state to give due publicity to the guidelines framed. |
| Ratio Decidendi & Case Authority |
Full Case Details
PRADEEP NANDRAJOG. J. 1. The unfortunate mother Ms.Neelam Katara filed the present
petition pertaining to the tragic homocidal death of her son, Nitish who had gone to attend the
marriage of his friend at Diamond Palace, Industrial Area New Kavi Nagar. Ghaziabad U.P. on
the night intervening 16/17 February 2002.
Respondent No.6, the son of a sitting Member of the Rajva Sabha came to be a suspect in the
homocidal death of Nitish Katara. The petitioner sought various reliefs. From time to time
various directions and orders were passed in the present petition resulting in the petition, as far
as the petition was concerned as having become infructuous. However, one aspect of the matter
of genera public importance survives and counsel for the parties stated that in public interest
certain directions pertaining to witness protection need to be issued.
2. The edifice of administration of justice is based upon witness coming forward and deposing
without fear or favour, without intimidation or allurement in Courts of Law. If witnesses are
deposing under fear or intimidation or for favour or allurement, the foundation of administration
of justice not only gets weakened, but in cases it may even gets obliterated. The dockets in
Courts today are overflowing to the brim and especially in criminal delivery system no
shorthand essay is possible; the accused must get a fair, proper and just hearing in the
adversarial system of Administration of Justice which we have adopted. Delay results. This
leads to the possibility of the witness being harassed or intimidated at the hands of the accused
or his accomplices.
3. Has the time ripened to provide for safeguards for the witnesses that they come forwards and
depose without fear, without intimidation, without favour or allurement of the accused? Has
prevention of accused person from suborning witnesses and turning them hostile to the case of
the prosecution become an urgent necessity?
4. Counsel for the petitioner Shri Arvind Nigam contended that there are a large number of
reports and in particular the report of the Vohra Committee which have come to a finding that
criminalisation has struck at the very foundation of the Indian polity and there is urgent need to
deal with this criminalisation on a war footing to prevent the polity from further degenerating.
Counsel commended us to take judicial notice that case after case of the prosecution was
collapsing, owing to the material witnesses turning hostile to the case of the prosecution. Why
was this happening in case after case questioned the counsel? He volunteered the answer
himself, ”fear of the accused person”.
5. Counsel for the petitioner drew our attention to the various Reports of the Law Commission
of India and in particular the 154th and 178th Reports which dealt with the menace of prosecution
witnesses turning hostile.
6. Counsel for the State submitted that these Reports are being processed in consultation with
the State Government as Criminal Law and Criminal Procedure are on the concurrent list of 7th
Schedule to the Constitution. Counsel for the State informed us that the Government is aware
of the plight of the witnesses appearing as prosecution witnesses and the Government intends
189
189
to frame a Scheme for protection of witnesses as the Government was awake to the reality that
in the administration of justice, witness deposition forms an important bedrock. Ms. Mukta
Gupta stated that the Government had set up a Committee under the Chairmanship of Justice
V.S. Malimath, Former Chief Justice of Karnataka and Kerala High Courts to consider and
recommends measures for revamping the Criminal Justice System in the country. She however,
fairly conceded that it was uncertain as to when the suggestions would be incorporated
legislatively on the statute book. We are, therefore, of the opinion that since this area is an
unoccupied field, till the legislature legislates thereon, it would be appropriate for the Court to
lay down guidelines in respect of protection to be granted to the witnesses.
7. The Hon’ble Supreme Court in its judgment reported as 1998(1) SCC 226 Vineet Narain Vs.
Union of India in para 58 had directed that steps should be taken immediately for the
constitution of an able and impartial agency comprising persons of unimpeachable integrity to
form functions akin to those of the Director of Prosecutions in United Kingdom.
8. In the United Kingdom, the Director of Prosecutions was created in 1879. He is appointed
by the Attorney General from amongst the Members of the Bar. He discharges the functions
under the Superintendence of Attorney Generals. The Director of Prosecutions plays a direct
role in the prosecution system. He even administers “Witness Protection Programmes”.
Legislations have been enacted in Australia, Canada and the United States of America.
9. In the United States of America the Witness Protection and Reallocation Programme is
regulated by the Attorney-General for Protection of Witnesses in the Federal Government or
State Government in official proceedings concerning an organised criminal activities or other
serious offences. The Attorney General under the Programme is entitled to:
(a) provide suitable documents to enable the witness to establish a new identify;
(b) provide housing for the witness:
(c) provide transportation to the witness.
(d) provide payment to meet basic living expenses;
(e) provide help in obtaining employment;
(f) provide services necessary to assist the person becoming self-sustaining:
(g) regulate the disclosure of the identity of the person having regard to the danger such a
disclosure would pose to the person;
(h) protect the confidentiality and identity of the person.
In Canada, the Witness Protection Act, 1996 lays down the factors which the Attorney
General has to consider while deciding whether a witness should be admitted to the Program.
They are as under:
(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 Program:
(c) the nature of the inquiry, investigation or prosecution involving the witness and the
importance of the witness in the matter;
190
(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) alternate methods of protecting the witness without admitting the witness to the Program,
and
(h) such other factors as the Commissioner deems relevant.”
10. In Australia, the Witness Protection Act, 1994 was enacted. A Commissioner was
designated to monitor the National Witness Protection Program. The legislative guideline to
determine as to which witness should be included in the National Witness Protection Program,
is as under:-
Selection for inclusion in the NWPP
(1) The Commissioner has the sole responsibility of deciding whether to include a
witness in the NWPP. including cases where an approved authority has requested that
a witness be included m the NWPP.
(2) A witness may be included in the NWPP only if:
(a) the Commissioner has decided that the witness be included;
(b) the witness agrees to be included; and
(c) the witness signs a memorandum of understanding in accordance .with
section 9 or;
(i) if the witness is under 18 years – a parent or guardian of the witness
signs such a memorandum; or
(ii)if the witness otherwise lacks legal capacity to sign the
memorandum – a guardian or other person who is usually responsible
for the care and control of the witness signs such a memorandum.
(2) The Commissioner must, in deciding whether to include a witness in the NWPP
have regard to:
(a) whether the witness has a criminal record particularly in respect of crimes
of violence, and whether that record indicates a risk to the public if the witness
is included in the NWPP;
(b) if a psychological or psychiatric examination of the witness has been
conducted to determine the witness’s suitability for inclusion in the NWPP–
that examination or evaluation; and
(c) the seriousness of the offence to which any relevant evidence or statement
relates; and
(d) the nature and importance of any relevant evidence or statement; and
191
191
(e) the nature of the perceived danger to the witness; and
(f) the nature of the witness s relationship to other witnesses being assessed for
inclusion in the NWPP;
(3) may have regard to such other matters as the Commissioner considers relevant.
(a) a parent or guardian of a witness signs a memorandum of understanding
because the witness was under 18 years;
(b) the witness is included in the NWPP and remains a participant until after
he or she turns 18; the Commissioner may require the participant to sign
another memorandum of understanding.
11. The Hon’ble Supreme Court in the judgment Vishaka Vs. State of Rajasthan reported as
1997(6) SCC 241 observed that in the absence of domestic law occupying the field, an
International Convention not inconsistent with the fundamental rights and the harmony with its
spirit may be read into the municipal law.
12. In the judgment reported as 2002(5) SCC 294 it was observed that if need be, Courts have
the necessary power, by issuing directions to fill the vacuum till such time the legislature steps
in to cover the gap or the executive discharges its role.
13. Given the financial constraints which we have in this country, it may not be possible to have
a Witness Protection Program on the extended scale at which it is being implemented in the
United States of America, Canada, Australia or for that matter in the United Kingdom. But a
beginning has to be made.
14 Society has an interest in the administration of justice and it may be true that let a 100
accused escape but let not an innocent be punished, but this cannot be stretched to mean an
escape route should be provided to the accused to hijack administration of justice and secure
his innocence, not as a result of a fair adversarial litigation but as a result of ‘might being right.’
At least, in two categories of cases, namely, organised crime and a crime punishable with the
capital sentence or imprisonment for life, witness protection is required. It has been coming to
the notice of this court that in heinous crimes the witnesses and sometimes the victim turn
hostile. There is strong material from which it can be guessed that cause is fear and compulsion.
15. Till a suitable Legislation is brought on the Statute book, we direct that following guidelines
shall operate for protection of the witnesses.
16. These guidelines shall be known as ‘”‘Witness Protection Guidelines”:
“Witness” means a person whose statement has been recorded by the Investigating Officer
under Section 161 Cr.P.C. pertaining to a crime punishable with death or life imprisonment.
“Accused” means a person charged with or suspected with the commission of a crime
punishable with death or life imprisonment.
“Competent Authority” means the Member Secretary, Delhi legal Services Authority.
ADMISSION TO PROTECTION:
192
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.
FACTORS TO BE CONSIDERED:
In determining whether or not a witness should be provided police protection, 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 or 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.
OBLIGATION OF THE POLICE:
(1) While recording statement of the witness under Section 161 Cr.P.C., 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.
(2) 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.
17. We further direct that the respondent State shall give due publicity to the guidelines framed.
We make it clear that the guidelines framed by us would not be in derogation of the powers of
the concerned criminal court, if it forms an opinion that a witness requires police protection to
so direct.
