MUMBAI: The Bombay High Court has asked the Maharashtra government to frame a fresh policy by November 30 to provide protection to witnesses in the light of its observations and recommendations made by the Law Commission of India.
"Until the new policy is formulated, we direct the State Government to provide immediate protection to the witnesses even at the stage of investigation on a written or an oral prayer made by them or the Investigating Officer," a division bench headed by Justice Abhay Oka said, in its order yesterday.
The bench was acting suo motu on a public interest litigation (PIL).
Picking loopholes in existing policy, the court observed that the term 'witness' should include not only those who are going to depose in court but also those who possess information and documents related to any crime.
The court noted that the new policy should have a provision for wider protection measures including protection to family members of witnesses.
The bench observed that the scheme under the State Government Resolution of April 11, 2014, does not deal with witness identity protection. As in the case of the Delhi Scheme, protective measures should include witness identity protection.
Judges noted that as per recommendations of the Law Commission of India, witness protection measures must be taken up right from the stage of investigation even before actual recording of statements under Section 162 of the said Code, until conclusion of trial and even thereafter.
Protecting witnesses even at the investigation stage is of vital importance to ensure that witnesses feel secure when they actually come to court to record their evidence, the court said.
The bench opined that the investigating officer should apply his mind before summoning a witness to record a statement on the question if the witness needed protection. If the witness does not need protection, according to him, the officer should record it in the case diary, the bench said.
The court also suggested that a provision should be made to ensure that in a given case, the protection should continue even after disposal of trial or the appeal. Besides, the state should consider creating a separate dedicated fund to finance adoption of various protection measures.
The bench said that 'Delhi Witness Protection Scheme' includes provisions which defines protection as a wider concept than granting mere protection to witnesses. The definition of witness under the Delhi Scheme includes persons in possession of information or documents about any crime.
The 198th Report of Law Commission of India on Witness Identity Protection and Witness Protection Programmes clearly records that witness protection is necessary even at the stage of investigation. The report says that witness identity protection is a matter of necessity, the bench noted.
In some cases, police officers disclose to the media what witnesses revealed, even during the process of investigations. Though the police may not disclose the names of witnesses, identities of witnesses or the identities of complainants or victims, these details could be easily ascertained, from whatever is disclosed to the media, the bench observed.
"In fact, we find that while framing the policy under the said Government Resolution dated April 11, 2014, the state government has completely glossed over the 198th Report of the Law Commission of India on the Witness Identity Protection and Witness Protection Programmes," the bench said.
Courts have come across cases where due to threat perception or after considering the antecedents of the accused and the gravity of the offence, witnesses fail to co-operate with investigating officers while recording their statements during the investigation, which adversely affects the investigation itself.
Even if they cooperated, in some cases, they remain under enormous stress until the trial ends and even thereafter.
Therefore, there should be a provision to provide protection to witnesses from the time they are called upon to be present to record their statements under Sections 161 and 162 of the Code.