{"id":239994,"date":"2020-12-01T21:13:31","date_gmt":"2020-12-01T15:43:31","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=239994"},"modified":"2020-12-01T21:13:31","modified_gmt":"2020-12-01T15:43:31","slug":"dsnlu-can-webinar-scholarly-perspectives-and-conceptuals-of-witness-protection-regimes-justice-p-s-bhati","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2020\/12\/01\/dsnlu-can-webinar-scholarly-perspectives-and-conceptuals-of-witness-protection-regimes-justice-p-s-bhati\/","title":{"rendered":"DSNLU-CAN Webinar | Scholarly Perspectives And Conceptuals of Witness Protection Regimes : Justice P.S. Bhati"},"content":{"rendered":"

This Sunday witnessed an astounding beginning when some of the esteemed members of the Legal Fraternity gathered for yet another thought provoking Online Sessions on one of the most significant topics of the present time. The Session was organized by Damodaram Sanjivayya National Law University (DSNLU), Visakhapatnam<\/strong> and CAN Foundation.<\/p>\n

The erudite panel for the Session comprised Justice A. K. J. Nambiar<\/em><\/strong>, Judge, Kerala High Court, Justice P. S. Bhati<\/em><\/strong>, Judge, Rajasthan High Court & Mr. Siddharth Bhatnagar<\/em><\/strong>, Senior Advocate, Supreme Court of India. They elaborated on the Topic of \u201cProtection of Witnesses & Whistle Blowers: Strengthening the Frameworks\u201d<\/strong>. The Session brought numerous perspectives and issues into the picture. These were carefully picked and presented by Hon\u2019ble Justice P.S. Bhati.<\/p>\n

Discussing the affordability of witness protection, Justice Bhati remarked \u201cAs the member of the Legal Fraternity or as a lawyer or even as a Judge, we find people who are often injured physically come up to the Courts andmenion to have settled into a compromise. Though in heinous crimes the Hon\u2019ble Supreme Court has specifically said that compromises are not the way to go. However, these things do touch the conscience of the Legal Fraternity when the rape victim alleges serious rape assault and when renders her statement she says \u2018no, it was under a mistake and we have compromised. <\/em><\/p>\n

Stressing on the above problems, Justice Bhati appreciated the efforts of CAN Foundation members towards the session on a topic of extreme significance. Congratulating the Foundation he also asserted that \u201cWhile it is not that in this one session we can give a solution for it, we have to stand up for it<\/em>. The problem is not only to the witness. It is a larger problem and the CAN Foundation has really touched it well<\/em>.\u201d After which he vehemently points out the need to contemplate in order to find a solution.<\/p>\n

Continuing his argument, he talked about the need to increase the number of Magistrates and aligns the same with the concept of Rule of Law. In his opinion, \u201cIf the number of magistrates are increased, it will not be a costly affair as the sanctity of \u2018Rule of Law\u2019 has to be maintained and unless the witnesses and the trials are protected the whole system falls down. The quicker justice is given, the risk will be lesser and one one phase of protection will be met with<\/em>.\u201d<\/p>\n

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Later, Justice Bhati delved into another important facet of the topic being the hostile witnesses and how their statements at different stages rendered them hostile at the trial. He elaborates on how Sections 161, 162 and 164 of the CrPC talked about witnesses\u2019 statements, which is later contradicted in Court as a result of which the witness is subsequently declared hostile. Another issue, which in Justice Bhati\u2019s opinion gains importance, is the relevance of these statements until trial testimony. As he puts, \u201cWhether the witness can be penalised or reprimanded for turning hostile? An interesting simultaneous Jurisprudence says that No, you cannot do so, else the system is likely to turn into a police regime<\/em>.\u201d<\/p>\n

He further explained, \u201cA number of solutions are offered such as videotaping the statement under Section 161 of the CrPC. In some tribal areas of Rajasthan, the government offers compensation to rape victims. Some people lodge an FIR, take compensation from the State and then turn hostile at the trial. Coercion is not physical alone, it can be financial or psychological as well<\/em>.\u201d<\/p>\n

Putting forth his concerns for the Hostile witnesses, Justice Bhati asserted \u201cHostile witnesses have always troubled the justice system. The conviction rate is low and the Judiciary is blamed for low conviction rates as low as 4-5 %. This less conviction is not the failure of the judiciary alone but of the entire legal system. At the same time, we cannot put witnesses in the spot either or be hard on them since witness independence is paramount. Therefore, we still allow cross-examination of hostile witnesses to retrieve some relevant part out of the version being given at the trial and some testimony can be restored.<\/em>\u201d Thus, the need to protect the witnesses and prevent them from turning hostile has become crucial.<\/p>\n

He further points out how there are different versions in FIR, in Section. 161, CrPC and the Statement under Section 164 CrPC.\u00a0 The witnesses, however, cannot be prosecuted for differing versions at different stages. Concluding his stance he remarked \u201cIt is very important that the witness be made more comfortable in courts and the police system. The question is whether the Judges and lawyers are able to keep him in the right state of mind to give a clearer version of events<\/em>.\u201d<\/p>\n

These issues along with several new ones were introduced and elucidated upon by Mr. Siddharth Bhatnagar. Agreeing with his copanellists, he reiterated the desirability and the necessity of a witness protection program. He commenced his address by mentioning the need to focus on how India had developed on two particular\u00a0 aspects. \u201dWhile it is the right of an accused to have an open trial, we must also balance the rights of the victim in the prosecution of witnesses who must be able to depose freely and fairly. Secondly, you need wider consultation with the states. After all, all the states must be on board largely when it comes to these issues. Police and police order are state subjects, criminal law and criminal procedure are concurrent subjects under the constitution. States being on Board is extremely importan<\/em>t.\u201d<\/p>\n

Explaining the Law Commission\u2019s reports, Mr. Bhatnagar stated how the Commission had looked at witness protection in three stages:<\/p>\n