IN THE SUPREME COURT OF INDIA

2018 SCC Online SC 2678

Petitioner
Mahender Chawla
Respondent
Union of India
Date of Judgement
5th December, 2018
Bench
Justice S A Nazeer; Justice A Sikri

Introduction:

The term “Witness” refers to a  person who possesses information or document

about any crime considered by the competent authority as material for any
criminal proceeding and who has made a statement, or who has given or
accepted or is required to give evidence in relation to such procedures.

A witness is one of the vital parts of the criminal justice system.[1] No nation
can afford to expose its fair and morally euphoric citizens to the danger of being
persecuted or harassed by anti-social elements, for the simple reason that they
testified the truth in a court of law. The Supreme Court approved the first
Witness Protection Plan of India and noted that one of the main reasons for
witnesses to become hostile is that the State does not grant them adequate
protection.[2]

In this backdrop, the present case analysis deals with the landmark judgment
of Mahender Chawla v. Union of India[3].

Background:

The Witness Protection Scheme, 2018 has been approved by the Supreme Court
in its historic ruling by Mahendra Chawla v. Union of India[4], which makes it
the first attempt to bring witness protection under the scope of the law and hold
the State responsible for implementing it effectively. This ruling occurs in the
context of several cases of fatal attacks suffered by witnesses in the past. In
cases involving influential people, witnesses become hostile due to the threat to
life and property, as they discover that there is no legal obligation on the part of
the state to extend any security.
International Background:
There is no definition of who constitutes a witness even in international law,
although the need to establish separate units for the protection of victims and
witnesses in the trial of mass crimes has been recognized in many international
courts.

Rules were formulated by the International Criminal Court for Rwanda for the
protection of victims and witnesses. There are similar provisions in the Statute
for the creation of an International Criminal Court.[5]

Article 14 of the International Covenant on Civil and Political Rights, which

India has ratified, recognizes the right to a fair trial as a human right.[6]

Judicial background:
Witnesses are important actors in the judicial system, which help judges to
reach correct factual conclusions. Witnesses play the sacred role of the sun that
eliminates the darkness of ignorance and illuminates the face of justice. In the
case of Swaran Singh v. State of Punjab[7], the Supreme Court noted that
“witnesses are harassed a lot. They come from distant places and see that the
case is postponed. They have to go to court many times alone. It has become
routine for the case to be suspended until the witness is tried and stops going to
court. In this process, lawyers also play an important role. Sometimes the
witness is threatened, mutilated or even bribed. ”

In recent years, the criminal justice system in this country has witnessed a
traumatic experience in which witnesses become hostile. The Supreme Court in
the case of Ramesh and Others v. State of Haryana[8] had indicated some of
the reasons that make witnesses hostile. The Supreme Court observed that one
of the reasons may be that they do not have the courage to depose the accused
for threats to their lives, especially when the criminals are habitual criminals or
high positions in the Government or are close to the powers, which they can be
political, economic or other powers, including muscular power.[9]

Likewise, in Sakshi v. Union of India[10], the threat of witnesses who become

hostile was again described. The court noted that “the mere sight of the accused
may induce an element of extreme fear in the mind of the victim or witnesses or
may put them in shock. In such a situation, he or she may not be able to give all
the details of the incident that may result in a judicial error. ”The Court also
emphasized that there is a great need to develop legislation for the protection of
witnesses.
The Supreme court in State of U.P. v. Ramesh Prasad Misra[11], held that it is
equally settled law that the evidence of a hostile witness cannot be totally
rejected if it is pronounced in favor of the prosecution or the accused, but it can
be subjected to the closest scrutiny and that part of the Accept evidence that is
consistent with the case of the prosecution or defense.

The Supreme Court in Manu Sharma v. State (NCT of Delhi)[12],  had

highlighted the obvious flaws in the system such as the failure to record the
statements by the police and the retraction of the statements by the witness of
the accusation due to intimidation, incentive and other methods of manipulation
The Courts, however, cannot close their eyes to reality. If a witness becomes
hostile to subvert the judicial process, the Court will not present itself as a silent
spectator and every effort should be made to bring the truth home. The criminal
justice system cannot be revoked by those credulous witnesses who act under
pressure, incentive or intimidation. In addition, Section 193 Indian Penal Code
(IPC) imposes a penalty for giving false evidence, but is rarely invoked.”

Issues of identity protection of witnesses and witness protection program have

been raised in a number of judgments like NHRC v. State of Gujarat[13], PUCL
v. Union of India[14], Sakshi v. Union of India[15] and Zahira Habibulla
Sheikh v. Gujarat[16].

Constitutional and Statutory Provisions Discussed:

 Article 21, 32, 141 and 142 of the Constitution of India.

 Section 327, 340 of Code of Criminal Procedure (CrPC).
 Sections 193, 354 and 377 of Indian Penal Coe (IPC).

Facts:

The instant writ petition filed by Petitioners under Article 32 of the Constitution
of India raised important issues touching upon the efficacy of the criminal
justice system in this country. In an adversarial system, which was prevalent by
India, Court was supposed to decide cases on the basis of evidence produced
before it. This evidence could be in the form of documents. It could be oral
evidence as well, i.e., deposition of witnesses. Witnesses, thus, play a vital role
in facilitating Court to arrive at correct findings on disputed questions of facts
and to find out where the truth lies. They were, therefore, backbone in the
decision-making process.
Whenever, in a dispute, two parties come out with a conflicting version,
witnesses become an important tool to reach correct conclusions, thus
advancing justice in an issue. This principle was applied with more vigor and
force in criminal cases to the extent that most of these cases were decided based
on testimony from witnesses, in particular, eyewitnesses, who may have seen
actual facts/crimes. It is not necessary to emphasize that one of the main reasons
for witnesses to become hostile is that the State did not grant them adequate
protection. It was a harsh reality, particularly in those cases in which the
accused / criminal persons were tried for heinous crimes, or where the accused
persons were influential persons or in a dominant position that attempted to
terrorize or intimidate the witnesses because these witnesses avoided go to court
or refrain from deposing the truth.

In the present case the petitioners had approached this Court with allegations
that in trials that were going on against Asaram, who was charged with the
offense of committing rapes in numerous cases, witnesses had been frightened
with serious consequences in case deposed against Asaram. It was alleged that
as many as 10 witnesses had already been attacked and three witnesses had been
killed. Petitioners had prayed for a Court-monitored SIT or a CBI probe.

Issue:

 The issue pertains to the protection and security of witnesses during

the proceedings.

Arguments:

Arguments of the Petitioners:

 The petitioners alleged that up to 10 witnesses have already been

attacked and three witnesses have been killed.
 Petitioner number 1, Mahender Chawla, miraculously survived an
assassination attempt in his life for daring to testify against the alleged
god, Asaram Bapu and his son Narayan Sai in horrible cases of rape of
a child and two sisters. Petitioner no. 1 also witnessed Narayan Sai
doing Tantrik Practice on the body of a child in an Asaram in Madhya
Pradesh, in which to date there has been no investigation due to
Asaram’s influence.
 It was also brought to the notice of the Court that Petitioner no. 3
Karamvir Singh is the father of a child, who was raped by Asaram.
  The petitioners also alleged that despite being threatened, the Uttar
Pradesh police surprisingly withdrew half of their security. Petitioner
no. 4, Narendra Yadav is a journalist who survived an assassination
attempt in his life because he dared to write articles to the dismay of
Asaram Bapu and Narayan Sai. He now lives in constant fear of being
killed, since the Uttar Pradesh police have given him a solitary security
guard for only eight hours a day, leaving him to fend for himself for
the remaining 16 hours. It is also claimed that Asaram’s shooter,
Narayan Pandey, who is in jail for murdering a witness Kripal Singh,
writes threatening letters from inside the jail.

Arguments of the Respondents:

 Venugopal learned Attorney General appeared on behalf of the Union

of India, along with Ms. Pinky Anand, Additional Attorney General. It
was noted that, since this Court was primarily concerned with the issue
related to the witness protection program, it would be appropriate for
other States to also be implemented to the extent that the issue was of
significant importance to India and the protection program of
witnesses should be available in all states. 
 Venugopal learned Attorney General for India was also requested to
give suggestions in the form of a draft scheme.
 The wise Attorney General informed that after receiving the
contributions of several States and Territories of the Union, the Central
Government had finalized the scheme and presented it in this Court on
November 6, 2018, backed by its affidavit. The wise Attorney General
also affirmed that this Court can approve the appropriate orders that
indicate to all the States that adopt this scheme and provide protection
to the witnesses in accordance with the same until such time as the
appropriate legislation in this name is approved.

Judgment:

Ratio Decidendi:

 If one cannot testify in Court due to threats or other pressures, it is a

clear violation of Article 21 of the Constitution. The right to life
guaranteed to the people of this country also includes within them the
right to live in a society free of crimes and fears and the right of
witnesses to testify in court without fear or pressure.
  The considerations that have influenced this Court to have a holistic
witness protection regime should be considered as a law under Article
141 and Article 142 of the Constitution until an adequate law is
framed.

Obiter Dicta:

 The Court observed that the scheme has been finalized in consultation
with the National Legal Services Authority (NALSA). The Court
mentioned that the objective of the plan is to ensure that the
investigation, prosecution, and prosecution of criminal offenses are not
harmed because witnesses feel intimidated or scared to give
unprotected evidence against violent or other criminal recrimination.
Its objective is to promote the application of the law by facilitating the
protection of people who participate directly or indirectly in the
provision of assistance to the agencies of criminal law enforcement
and the general administration of justice.
 The Court observed that Witnesses are the eyes and ears of justice and
in the cases involving influential people, witnesses turn hostile because
of the threat to life and property.
 The Court observed that by giving evidence relating to the commission
of an offense, a witness performs a sacred duty of assisting the court to
discover the truth according to the Malimath Committee on Reforms of
Criminal Justice System report of 2003.
 The court also took note of the 4th National Police Commission
Report, 1980 and observed that ‘prosecution witnesses are turning
hostile because of the pressure of accused and there is need of
regulation to check manipulation of witnesses.”
 The court observed that the essential characteristics of the Witness
Protection Program, 2018 include the identification of threat
perception categories, the preparation of a “Threat Analysis Report”
by the Chief of Police, the types of protection measures such as
ensuring that the witness and defendant are not face to face during the
investigation. etc. Identity protection, change of identity, relocation of
witnesses, witnesses to be informed of the scheme, confidentiality, and
preservation of records, recovery of expenses, etc..
 As pointed out above, in Sakshi’s[17] case, the Court had insisted on
the need to come up with legislation for the protection of witnesses.
However, the court rejected the suggestion of the Law Commission
regarding the examination of vulnerable witnesses in the absence of
 the accused. The court took into consideration the provision of Section
273 of the Code of Criminal Procedure, which is based on the tenets of
the principle of natural justice, that the witness must be examined in
the presence of the accused, such a principle cannot be sacrificed in
trials and inquiries regarding sexual offenses.
 The directions of Delhi High Court and setting up special centers for
vulnerable witnesses are consistent with the decision of the Supreme
Court in the case of State of Maharashtra v. Bandu alias Daulat[18].

Directions Issued:

 The Court directed the Union of India, as well as States and Union
Territories, shall enforce the Witness Protection Scheme, 2018.
 The Court directed that it shall be the ‘law’ under Article 141/142 of
the Constitution until a suitable legislation is enacted on the subject.
 In line with the aforesaid provisions contained in the Scheme, in all the
district courts in India, vulnerable witness deposition complexes shall
be set up by the States and Union Territories.

Conclusion:

The Witness Protection Scheme, 2018 (Draft) is the first attempt at the national
level to provide comprehensive witness protection, which will greatly contribute
to eliminating secondary victimization. Witnesses are the eyes and ears of
justice, and they play an important role in bringing the perpetrators of crimes to
justice. This scheme attempts to ensure that witnesses receive adequate and
adequate protection. This will contribute greatly to the strengthening of the
criminal justice system in the country and, consequently, will improve the
national security scenario.