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Witness Protection a Comparative Analysis the Road Ahead for Indian Jurisprudence

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Witness Protection a Comparative Analysis the Road Ahead for Indian Jurisprudence A STUDY PROJECT Witness Protection A Comparative Analysis The Road Ahead For Indian Jurisprudence AUGUST 9, 2020 Criminal Law Review Editor A Research Organisation Ashwani Kumar Singh EDITOR ASHWANI KUMAR SINGH Founder & MD, Criminal Law Review AUTHORS MEGHANA KUDLIGI 2017-22, O.P. Jindal Global University. MILIND MALHAR SHARMA 2018-23, O.P. Jindal Global University. URVASHI SINGH 2017-22, O.P. Jindal Global University. RIYA BHARDWAJ 2018-23, National University of Study and Research in Law ASHUTOSH AGARWAL 2019-24, National Law University, Delhi DHVANI SHAH 2019-24, Gujarat National Law University 3 ABOUT CRIMINAL LAW REVIEW Criminal Law Review (the ‘CrLR ’’), is a research organization founded by Ashwani Kumar Singh. Though the CrLR started as a criminal law blog in Jan 2018, later on (in the beginning of 2020) the team started working to establish the CrLR as a research organization. The CrLR is incubated by the GNLU Legal Incubation Centre (GLIC). The CrLR takes up several research projects, runs a blog and conducts various events with an aim to promote legal writing and research and to assist legal fraternity in the field of criminal law. As a research organization, the CrLR provides an effective platform to credible and comprehensive research work that deals with the intricacies and nuances of criminal law. Last year, we published our first e-book titled 'Eight Landmark Criminal Law Judgments of 2018' – available here . The CrLR publishes its flagship newsletter ‘Ratio Obiter’ on a fortnightly basis, accessible here. To know more about us and our work, visit https://crlreview.in. © 2020 Criminal Law Review (CrLR). All rights reserved. 4 CONTENTS About Criminal Law Review ..................................................................................................... 3 1. Introduction ........................................................................................................................ 7 1.1. Definition ..................................................................................................................... 7 1.2. Role of Witness ............................................................................................................ 8 1.3. Types of Witness ....................................................................................................... 10 1.3.1. Eye Witness ........................................................................................................ 10 1.3.2. Child Witness...................................................................................................... 10 1.3.3. Hostile Witness .................................................................................................. 11 1.3.4. Accomplice Witness ........................................................................................... 12 1.4. Difference between a Whistleblower & A Witness ................................................... 13 2. Historical Background ..................................................................................................... 14 2.1. Origin of Witness Protection ..................................................................................... 14 2.2. Contemporary Understanding of Witness Protection ............................................... 16 2.3. Hostile Witness ......................................................................................................... 17 2.4. Why do Witnesses turn hostile?................................................................................. 18 2.4.1. Fear of Threats, Intimidation and Manipulation ............................................... 18 2.4.2. Inordinate Delay in Disposal of Cases ............................................................... 19 2.4.3. Use of Stock Witness by Investigating Authorities ............................................ 19 3. Why is Witness Protection required? ............................................................................... 20 3.1. Judicial Pronouncement ............................................................................................ 20 3.1.1. Indian Courts ...................................................................................................... 20 3.1.2. Foreign Courts .................................................................................................... 21 3.2. Law Commission Reports & Other Relevant Reports .............................................. 21 3.2.1. Law Commission Report 14th ............................................................................ 21 3.2.2. Law Commission Report 154th .......................................................................... 22 © 2020 Criminal Law Review (CrLR). All rights reserved. 5 3.2.3. Law Commission Report 172nd ......................................................................... 23 3.2.4. Law Commission Report 198th .......................................................................... 24 3.2.5. National Police Commission Report 4th ........................................................... 25 3.2.6. Malimath Committee on Reforms of Criminal Justice System ......................... 25 4. India- Witness Protection ................................................................................................. 26 4.1. Statutory Provisions ................................................................................................... 26 4.2. Indian Courts ............................................................................................................. 27 4.2.1. Delhi HC guidelines ........................................................................................... 28 4.2.2. Bombay HC guidelines ...................................................................................... 28 4.3. Witness Protection Scheme 2018 ............................................................................... 29 4.3.1. Aim & Objective ................................................................................................. 30 4.3.2. Categories of Witnesses based on the amount of threat .................................... 30 4.3.3. Witness Protection Fund .................................................................................... 30 4.3.4. Procedure ............................................................................................................ 30 4.3.5. Protection measures ........................................................................................... 31 5. A Global Perspective......................................................................................................... 31 5.1. United States of America ........................................................................................... 31 5.2. United Kingdom ........................................................................................................ 32 5.3. Italy ............................................................................................................................ 34 5.4. Canada ....................................................................................................................... 35 5.4.1. Section 486 of Criminal Code ............................................................................. 35 5.4.2. Witness Protection Program Act (WPPA).......................................................... 36 5.4.3. Provincial Programs - Ontario ........................................................................... 37 5.5. China .......................................................................................................................... 38 5.6. Hong Kong ................................................................................................................ 39 © 2020 Criminal Law Review (CrLR). All rights reserved. 6 5.6.1. Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power ……………………………………………………………………………………..39 5.6.2. Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime: ……………………………………………………………………………………..40 6. Conclusion ........................................................................................................................ 41 © 2020 Criminal Law Review (CrLR). All rights reserved. 7 1. INTRODUCTION By Dhvani Shah1 1.1. Definition According to Black's Law Dictionary, "Witness is one who sees, knows or vouches for something or one who gives testimony, under oath or affirmation in person or by oral or written deposition, or by affidavit.” According to Bentham, "Witnesses are the eyes and ears of justice". “According to him, the word witness is employed to mark two different individuals or the same individual in two different situations; the one that of perceiving witness, that is of one who has seen or heard or learned by his senses the fact concurring which he can give information when examined and the other that of a deposing witness, who states in a court of justice the information which he has acquired. The term witness then may be applied to the parties themselves who have an interest in the case as well as to all those whom it is commonly employed to designate....”2 The Witness Protection scheme of 2018 describes “witness” as , ““Witness” means any person, who possess information or document about any offence.”3 The Indian Evidence Act, 1872 (hereinafter IEA) does not define a witness per se but mentions about competency of a witness. According to Section 118 of Indian Evidence Act, 1872,4 All persons shall be competent to testify unless the court
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