What rights do witnesses of crime have?

“Witnesses are the eyes and ears of Justice”
Jeremy Bentham

At a trial or other judicial processes, witnesses who know the crime or are the victims are frequently called to the stand. Without victims or witnesses, the criminal justice system at the federal level would be unable to function. The victim or witness must provide sincere and cooperative testimony to ascertain the accused's guilt or innocence.

The Code of Criminal Procedure, 1973 (Cr.P.C.) is a thorough and exhaustive procedural law for carrying out a criminal trial in India, covering the methods for evidence gathering, witness examination, interrogation of the accused, arrests, safeguards and procedures to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and rights to a fair trial for the accused. Therefore, the Cr.P.C. governs the legal process in criminal proceedings. The testimony of witnesses is the foundation of any criminal case or complaint, and these witnesses determine whether the case will be successful or not.

The State ensures that witnesses have rights because they are crucial to criminal prosecution and because the person accused of the crime frequently intimidates and bribes them to prevent them from testifying against them.

Who are Witnesses?

Witnesses are those called by authorities involved in criminal proceedings to testify on issues crucial to the case's conclusion based on information gleaned from their senses, such as what they heard or saw. They are different from the accused person or persons. India uses an adversarial system in which the court decides criminal matters based on the evidence presented, which may include documents or oral testimony from witnesses.

Therefore, the witnesses are critical in helping the court distinguish between the facts and the accusations and claims made by both parties in a criminal trial. Eyewitnesses, character witnesses, and expert witnesses are the three categories of witnesses.

• Eyewitnesses are witnesses who base their testimony on what they observed during the incident. Their testimony is limited to the incident's facts rather than conclusions drawn from what they kept.
• Character witnesses are called to testify to a person's excellent or evil character in a criminal trial to attest to their guilt or innocence or to a civil trial to a person whose character is crucial to the proceedings.
• Expert witnesses are called when the judge cannot fully understand the facts or issues in a case. Since the judges lack the knowledge to form an informed opinion, the court will accept the expert witness's testimony.

Rights of a Witness

The courts and police authorities must treat witnesses appropriately and safeguard their rights. They are crucial to the court's decision-making process when determining a person's guilt or innocence in a criminal offence and their role in bringing offenders to justice. These are the rights that every witness has:

• A secure waiting area during court proceedings is a legal right.
• Right to information on the current State of the inquiry and criminal prosecution.
• Right to compassion and respect from others.
• Right to defend against damage and coercion.
• Right to offer proof while maintaining anonymity.
• Right to transportation and a place to remain, that is secure.
• Right to decline to give a statement if the accused is a family member of the witness.
• Right to testify in a language of their comfort.
• Right to the presence of an interpreter.
• Right to legal support.
• Right to reimbursement for any costs incurred by witnesses.

Protection of a Witness

Any witness may make a complaint with the police or the court if they feel threatened by giving false testimony or withdrawing their case against the accused.

According to Section 195A of the Indian Penal Code, anyone who threatens another with harm to their person, reputation, or property, or to the person or reputation of anyone in whose life they have an interest, with the intent to get them to give false evidence, will be punished with either type of imprisonment for a term that can last up to seven years, or with a fine, or both. 

Since it is a criminal offense, the police are immediately responsible for filing an FIR. The court may also direct the witness's complaint to be submitted as an FIR.

Witness Protection Scheme, 2018

The central government started the Witness Protection Scheme to protect witnesses who might be threatened with giving false testimony. In Mahender Chawla v. Union of India Writ Petition (Criminal) (No. 156 of 2016), the Supreme Court upheld this. Its key characteristics are:

• As per this scheme, a request for a protection order can be made in the appropriate format before the District Court where the crime was committed. 
• As soon as a request is made, the ACP or DSP in charge of the relevant Police Sub-Division is contacted for a Threat Analysis Report.
• Depending on the situation's urgency, the court may provide orders for temporary protection of the witness or family members while the application is pending.
• After receiving the order, the Threat Analysis Report must be quickly developed and submitted within five working days.
• The Threat Analysis Report will classify perceived threats and offer protective measures that could be taken to protect the witness or his family adequately.
• The court will hold all sessions on witness protection applications behind closed doors and in strict confidence.
• A request for identity protection may be made in the proper form and submitted to the court at any time during an investigation or prosecution for any crime.
• In appropriate situations, the court may decide to provide the witness with a new identity or order their relocation after receiving a request from them for either action. This decision will be based on the Threat Analysis Report.
• The Competent Authority may decide to relocate the witness in appropriate circumstances when there is a request from the witness based on the Threat Analysis Report.

Several Law Commissions have discussed the need for a scheme to protect the rights of witnesses in their reports. The 14th Law Commission and the 154th Law Commission Report stated the need to improve the situation of witnesses, particularly concerning the threats they have faced.

The 172nd and 178th Law Commission Reports recommended that the witnesses be protected at all costs. And the 198th Law Commission Report stressed that witness protection should be available in situations involving all serious offences, not just cases involving terrorism or sexual crimes.

Vulnerable Witness Scheme

1. According to Section 327 (1) of the Criminal Procedure Code, the investigation into and rape trial must take place on camera or behind closed doors to protect the identity of the rape victim or witness.
2. Any specific person may be permitted entry into, in, or continued occupancy of the room or building by the court.
3. Furthermore, a woman judge or magistrate shall, to the extent practical, preside over the in-camera trial.
4. Any information about such hearings or trials should not be printed or released without the court's prior approval.
5. After careful analysis, the Supreme Court in Sakshi v. Union of India and Ors (2004) 5 SCC 518 gave the following instructions:

• In addition to the offences listed in subsection (2), the provisions of subsection (2) shall also apply during the investigation or prosecution of crimes under Sections 354 IPC (outraging a woman's modesty) and 377 IPC ( unnatural Sex).
• When a child sex abuse or rape case is being prosecuted, a screen or other similar measures may be utilized to prevent the victim or witnesses—who may be just as vulnerable as the victim—from seeing the body of the accused.
• The accused's cross-examination questions should be delivered to the child abuse or rape victim in writing if they are directly related to the incident. The victim should also be given enough breaks in court when testifying about the incident.

Conclusion

The proposed Witness Protection Scheme, 2018, is India's first national-level effort to protect witnesses holistically. This will help to reduce secondary victimization significantly, and the scheme aims to ensure that witnesses receive sufficient and necessary protection.

The scheme has some flaws, though, like failing to consider the inadequate funding for witness protection that some states may have and the pressure that the chief of police may experience when putting together the Threat Analysis Report in cases involving influential people like politicians or business people. With the Scheme, NALSA and the Supreme Court have still significantly contributed to improving the criminal justice system in the nation and, as a result, national security. 

As a result, our legal system has advanced significantly in protecting witnesses and ensuring a fair trial. This would undoubtedly inspire public members to offer their testimony and aid in bringing justice.

About The Author:

Adv. Narender Singh, is a dedicated legal professional with 4 years of experience, practicing across all district courts and the High Court of Delhi. Specializing in Criminal Law and NDPS cases, he handles a wide array of both criminal and civil matters for a diverse clientele. His passion for advocacy and client-focused solutions has earned him a strong reputation in the legal community.