Tuesday, November 26, 2013

Plight of witness

Witnesses tremble on getting summons from Courts, in India, not because they fear examination or cross examination in Courts but because of the fear that they might not be examined at all for several days and on all such days they would be nailed to the precincts of the Courts awaiting their chance of being examined  Justice K T Thomas INTRODUCTION

Witnesses are the eyes and ears of justice[1]A criminal case is build upon the edifice of the evidence admissible in law. A witness plays an indispensable part in the criminal justice system. The whole criminal case depends on the statement of the witness. Their each and every statement has the force to change the course of the whole case. He/she performs a sacred duty of assisting the court to discover truth. He/she sacrifices his/her time and takes the trouble to travel to the court regularly to give the evidence. He takes all this trouble and pain to advance the cause of justice. The witness is only person who has no personal interest other than to serve the justice. He/she is the pivot around which whole criminal justice system revolves but he is alone who has been forgotten by the system.  If the witness fails, the whole system fails.

The aim of this article is to depict plight of helpless witness in criminal justice delivery system, as I am perceiving the same since 1977 , when I entered as Lawyer in the  justice delivery system as a helpless component  but not been able to do substantially .Witness is the soul of justice delivery system, whose testimony decides the fate of a trial. Witness are known to revert form their testimonies, due to innumerable factors from the complacent attitude of the government, threat and pressure from the accused. It is the physical and mental vulnerability of the witness and to the taking care of his or her welfare in various respects which call for physical protection of the witness at all stages of the criminal justice process till the conclusion of the case, by the introduction of witness protection program. The Best Bakery trial is the glaring example of miscarriage of justice where the witnesses turned hostile due to external pressures by the rich and powerful accused.

Examination or cross examination in Courts but because of the fear that they might not be examined at all for several days and on all such days they would be nailed to the precincts of the Courts awaiting their chance of being examined.[2]The witnesses, perforce, keep aside their avocation and go to the Courts and wait and wait for hours to be told at the end of the day to come again and wait and wait like that. This is the infelicitous scenario in many of the Courts in India so far as witnesses are concerned and frequent adjournments further increase the agony of witnesses judges will be fined for frequent adjournment[3] is one of the ways of reducing agony of witness which government is considering implementation  by way of amendment in laws.
People believe that “law is like spider web: if some powerless thing falls into them, it is caught, but bigger one can break through and get away.[4]”if witness will not give evidence ,influential criminal  will not prosecute or if prosecuted will not be convicted  and the administration of justice will suffer. The intimidation of witness is an age-old and world wide problem. When Cicero was intent on prosecuting Verres for his reign of terror in Sicily, highly placed henchmen of verres threatened “the fearful and oppressed Sicilian witnesses” with dire consequences if they gave evidence against him. This type of intimidation that often overlooked in India.[5]Various recommendations suggested by law commission of India and 4th national police commission has said that as in 2011, as per Delhi police53,353 cases registered under IPC,1860[6]. this high level of crime rate is threat to criminal justice system. It is ,therefore, imperative that for justice to be done , the protection, facilities  to witnesses and victim becomes essential, as it is on the basis of evidence of witnesses alone the actual perpetrator of crime can be brought to book.

Role of witness in criminal justice system

The Supreme Court has examined the role of witnesses in the criminal justice system. The Court has, inter alia, observed that the witnesses play an integral role in the dispensation of justice and protection of witnesses, through legislative measures, can go a long way in conducting a fair trial. The court observed  that the accused belong to powerful gang operating in U.P. from which State of Uttarakhand is carved out. The petitioner has been able to show the circumstances from which it can be reasonably inferred that it has become difficult for the witnesses to safely depose truth because of fear of being haunted by those against whom they have to depose. The reluctance of the witnesses to go to the court at Haridwar in spite of receipt of repeated summons is bound to hamper the course of justice. If such a situation is permitted to continue, it will pave way for anarchy, oppression, etc., resulting in breakdown of criminal justice system. In order to see that the incapacitation of the eye-witnesses is removed and justice triumphs, it has become necessary to grant the relief claimed in the instant petition. On the facts and in the circumstances of the case this Court is of the opinion that interest of justice would be served if transfer of the case from Haridwar to Delhi is ordered.[7]

Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralyzed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution.
Legislative measures to emphasize prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this courts have a vital role to play."[8]

Present position of witness in India

In present scenario, the criminal justice system of India is facing the crisis of lack of witnesses in the court proceedings. Intimidation and manipulation of the witnesses has lead to increase number of acquittal in the criminal cases. Most of the time, the persons who have witnessed the crime do not come forward to help in the investigation. They do not want to be dragged into cumbersome court proceedings. Even if some public spirited citizens come forward to record their statement before an investigating officer, in many cases, the witnesses are threatened, coerced or bribed. Methods of intimidation or monetary inducements are used by the politically or economically well-connected accused. Further, the delay in disposal of the case increases the ordeal of the witness. Therefore, witnesses do not come to testify in the court or retract their statement in the court. The witnesses play very crucial role in the case, as a result of their absence or turning hostile, the prosecution fails to prove the charges and thus the accused is acquitted.[9]     

We all had seen this situation happening in Jessica Lal murder case where 32 of the prosecution witness had turned hostile due to threats and monetary inducements, resulting into the acquittal of the accused during the first trial. In the Priyadarshini Mattoo rape and murder case, the Judge while recording his judgment said, “Though I know he is the man who committed the crime, I acquit him, giving him the benefit of doubt.” This scenario is repeated in the Best Bakery case where prime witness Zahira Sheikh repeatedly retracted the statements in the court. Nitish Katara murder case is another example. There are many instances of the witness turning hostile due to threats in our country that the Supreme Court in 2000 said, “It has become a way of life in the law courts.” Therefore, the need arises for the effective witness protection program. An effective witness protection program would safeguard the witness from harassment by the relatives and henchmen of the accused. It relieves the physical as well as mental vulnerability of the witness. He can fearlessly testify against the accused in the court without the fear of the retribution of the accused. Speedy trial can also help in reducing witnesses’ ordeal.                             

This is especially true in cases involving heinous crimes or high-profile personalities. In the JessicaLal murder case, many prosecution witnesses had turned hostile reportedly for various reasons, resulting in the acquittal of the accused during the first trial; it was later overturned by the High Court which awarded Manu Sharma a life sentence. In many cases, intimidation, coercion or monetary inducements are often used by the politically well-connected or the economically sound accused to win over key witnesses. While the unsympathetic attitude of the police and the legal machinery in general are some other reasons which deter a person from becoming a witness, the one reason that has largely contributed to witnesses shying from the police and the courts, or turning hostile, is the lack of a protection programme.  

The present judicial system has taken the witnesses completely for granted. Witnesses are summoned to the court regardless of the fact that they have no money, or that they cannot leave their family, children, business etc. and appear before the Court. But that’s not all. On reaching the Court, some are told that the case has been adjourned (for reasons that may turn into infinity) and the respective lawyer politely gives them a further date for their next appearance. The plight of a witness, who comes forward to depose before a court with full sense of conviction, can be seen by the criticism from the Supreme Court “Witnesses tremble on getting summons from Courts, in India, not because they fear examination or cross examination in Courts but because of the fear that they might not be examined at all for several days and on all such days they would be nailed to the precincts of the Courts awaiting their chance of being examined.[10]

The witnesses, perforce, keep aside their avocation and go to the Courts and wait and wait for hours to be told at the end of the day to come again and wait and wait like that. This is the infelicitous scenario in many of the Courts in India so far as witnesses are concerned.  It is high time that trial Courts should regard witnesses as guests invited (through summons) for helping such Courts with their testimony for reaching judicial findings. But the malady is that the predicament of the witnesses is worse than the litigants themselves…. The only casualty in the aforesaid process is criminal justice.

This criticism from the Supreme Court of India pithily sums up the problem facing witnesses that  “the witnesses …are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the Court many times and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till  a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done a way withs; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation .or all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all.. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery[11].Each trial should be properly monitored. Time has come that all the Courts, district Courts, subordinate Courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. The Bar Council of India and the State Bar Councils must play their part and lend their support to put  the criminal system back on its trail

According a recent survey by the found unlike today when adjournments are granted for the asking and at the drop of a hat. Earlier, the rule of practice was that an eye witness used to be summoned only once, and he/she would be examined on the date for which summoned. These days, in spite of several attendances by the witnesses, their examination-in–chief is not started at all largely due to delaying tactics of the lawyer of the accused.Very often the cross-examination of a witness is not completed in a day and several dates are fixed for cross-examination of the witness. The witness also feels disgusted over having been summoned time and again and having appeared uselessly on number of dates, only to be told to appear again without fail at the risk and cost of being issued arrest warrant in case of his failure to appear or late coming. The witness  then realizes the folly of his having volunteered or consented to become a prosecution witness to help the cause of justice and falls in line with the defense to get rid of the harassment. It is difficult to quantify the extent of retraction accurately; but some survey results are revealing. It will be pertinent to mention some of cases in which cross-examination of witness could not be completed even after his presence for years even when accused was in jail, in a famous  Patta -trap case of Rajasthan which was investigated by CBI is pending trial  in Spl judge court  CBI no 1, Jaipur , State v/s Raghuvar singh& others , in this case complainant shri Ramesh  chand’s examination started on 2nd feb. 2011 and till date his cross examination could not be completed. Another aspect of the matter is that decreasing working days in courts in 2012 out of 273 days only 188 days courts function in a year,  about 69 % of total working days and in other words courts do not work on 39% working days. Similarly in the first  six months of 2013 out of 138 working days on 65 days court did not worked and this comes about 50% of total working days as shown in chart below.  It can be well imagined how the mounting arrears of cases will be decided when courts work only with 50% capacity. In brief if I say that  in Rajasthan in 2012 courts worked only in 69% of working days and in half year of 2013 only on 50% working days courts functioned.

Chart of lower court working days in Jaipur,Rajasthan

No of working days in a year
By advocates
Leave period of judges

No of days
Court functioned in a year
Up to june

Some time ago a study group in the National Police Academy conducted a survey and found that 60 to 70 per cent witnesses retract their statements during trial. The Malimath committee has made a cautious assessment that above 55 per cent witnesses retract. In a study commissioned by the Bureau of Police Research and Development, Government of India and undertaken by the National University of Juridical Sciences, Kolkata, the retraction rate hascometo60percent.Way back in 1958 the Law Commission in its 14th report dwelt on the “growing unreliability of human witnesses”, and in its 154th report recommended that witnesses should be protected from the wrath of the accused. While the Only recently the CrPC Amendment Act (2005) has been passed making some additions and alterations in some of the existing provisions which do not, however, add much to the efficiency of the system. Presently the government’s haste in bringing about legislation gives the erroneous impression that witness protection is the panacea of all the ills of the criminal justice system. It is still not clear what kind of protection will be provided to the witnesses. Selective protection may not always contribute to the cause of justice. If it is physical protection by deputing policemen for all witnesses, then evidently an enormous number of policemen will be required and, on the face of it, the proposition appears to be an untenable one.

Problems of witnesses in criminal justice system

The witnesses, who are considered to play a vital role in the proceedings, have to face a lot of hurdles during the administration of the criminal justice system. Some of them are mentioned below:-

(a). First of all, when a witness is called to a court, to give statements  they sometimes have to come all the way from their remote town or village where they reside. He is not at all paid for his traveling expenditure. If a witness is from the poor strata of society or say of the lab our class, then he has to sacrifice his one day work and has to come to the court just to answer a few questions. Even in this case he is neither compensated nor does the court reimburses his travel expenditure.

(b)When he somehow reaches the court, he is not at all treated in a proper manner. The Mallimath Committee has expressed its opinion about such witnesses by saying, “The witness should be treated with great respects and should be considered as a guest of honour.” when witness goes to court for giving evidence, there is hardly any officer of court, to receive him, provide a seat and tell him where the court , he is to give evidence is located or to give such other assistance as he may need. In most of the court there is no designated place for seating and resting while waiting for his turn to be examined as witness in the court. He is not even asked for glass of water. Similarly , toilet facility and other amenities like food , refreshment are not provided.

(c) All these things are quite enough to frustrate a witness. But this frustration is at its zenith when he comes to know that the case, in which he has to appear, has been adjourned. It is quite a common scene. In fact, it is a fashion in India to adjourn a case. This is also perhaps the main reason for the huge backlog of cases in India. This adjournment demoralizes the witness to such an extent, that when he is called for appearance next time, he has to think several times before deciding whether to go or not. A few more adjournments like these, and he voluntarily gives up and refuses to come to the court to give statements, evidences or for the cross – examination. Now this act of the witness has many a times proved to be a blessing for the When a witness goes to the court for giving evidence or statements, 

(d) Now if he somehow comes forward to for cross-examination by the defendant, then he is subjected to a lot of harassment. He is being cross-examined in such a way that he is under an immense mental pressure while answering the questions asked to him. Not only this, in order to get rid of this cross examination as early as possible, either he will give false statements or to make the matter worse, he will turn hostile i.e. he will retract from his previous statement.

REMEDIAL MEASURES: Solution to the problems of witnesses  have many facets, first regarding their protection and facilities, secondly regarding role of different concerned agencies and thirdly to  deal hostility of witness.  

(a) Basic Facilities to witnesses Apex court, Law commission and Mallimath committee has suggested that Witness should be regarded with great respect and should be considered as a guest of honour, therefore –

1. Witness should be provided free Bus/Train pass along with summons to travel  and that is not possible TA, DA and accommodation facility equivalent to class I officers of State/ centre for which concerned High court should make necessary amendments in General rules criminal.

2. Reception centre with a separate counter for witness assistant  in each District court building , where witness must get all information relating to his examination.

3. Witness assistance centre within district court building where witness is briefed  by concerned public prosecutor regarding his examination. This centre must have drinking water facility, toilet facility, food, refreshment  and entertainment facilities also and here he should be  reimbursed all his expenses which are admissible to him before leaving this centre.

4. There are serious complaints that  lawyers harass the witness during cross examination so Presiding Judge should  not remain as spectator  during trial rater actively participate in the trial  and try to restrict counsel in asking  un necessary, un reasonable ,scandalous ,indecent questions so as to demoralize witness  under section 149 to152 of Evidence Act.

5. The court should not grant un necessary adjournment when witness is present in court. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meager amount of allowance is a poor solace for financial loss incurred by him. It is a sad plight in the trial court that witnesses stand at the doorstep from morning till evening only to be told at the end of the day that case is adjourned to another day. This primitive practice must be reformed by presiding officers of trial courts.[12]Courts have been provided ample power to tackle the problem under section 309 of code. No sadistic pleasure in seeing how other persons summoned by them as witness are stranded on account of the dimension of his judicial power can be a persuading factor for granting such adjournments lavishly, that too in casual manner.

6. Witnesses go un examined due to non presence of judges may be for any reason and for that it can be done that witness summoned on that day may be intimated as to non availability of judge so that precious human resources can be saved, as presently courts have been equipped with all such facilities and such procedure can also be adopted in other situation such as declaration of holiday, strike of advocates/ boycott which become common now a days.

(b)Witness protection- The reluctant on the part of people to give evidence in present time need to enact witness protection legislation. Despite the direction of Apex court no general law has yet been enacted, not even a scheme has been framed by union or any state for protection of witness.[13]Whereas in the second half of 20th century there was a shift of emphasis on witness protection in whole world. Witness protection first came in USA ,in  1970 and now the United States enacted ‘ The witness Security reforms Act 1984” , Australia enacted “ The Australia Witness protection Act, 1994” United Kingdom enacted “ Criminal justice and Public Order Act 1994” and Canada “ witness Protection Act ,1996.  All these legislation adopted suitable mechanism through courts proceeding as well as provide protection to witness for the extent of security that based on nature of risk.  Except some of the provisions of the National Investigation Agency Act, 2009 6, Terrorist and Disruptive Activities (Prevention) Act, 19877and Prevention of Terrorism Act 2002,8Unlawful Activities Prevention Act, 2005,there is no law relating to the protection of witness in India.

Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.

(c) Role of Judiciary -There is a need that judges should take more proactive role in the administration of justice. They can use their discretion in the process of examination of witness to protect them from unscrupulous lawyers to get adjournments for one excuse or the other till  a witness is won over or is tired in the interest of justice under the various provisions of Evidence Act. There are some judges who disqualify themselves from advancing the criminal justice system because they have old fashioned attitude. The old fashioned judges looked to the letter of the statute and their belief that justice can be done according to strict procedure laid down by law. Procedure is only means to achieve justice and procedure can not itself the end of justice. That is why judges should look out through the window in order to see the effects of their judgment on the ordinary citizen of country. Justice does not reside in the judge’s intellect only; it also resides in his heart. It is the blending of heart and intellect that result in the justice.[14]therefore  now a days criminal justice reforms is matter of serious concern, and for effective enforcement of it activeness and sensitization of  judges is vary much required.

(d) Role of Legislative to control hostility of witness: Nothing shakes public confidence in the criminal justice delivery system more than the collapse of the prosecution owing to witnesses turning hostile.[15]. While action against those who willfully lie and change their stance in court, are heartening news for many who have doggedly been rallying for justice, the moot question is: Why do perfectly conscientious and public-spirited citizens who've taken the brave step to come forward to file complaints and testify in court, later do a U-turn? Instances of witnesses turning hostile for various reasons are bad enough, but the fact that this should be happening with predictable regularity, is a sure cause of worry.[16]  Hostile witnesses are the blot on the criminal justice system. Though the witnesses assume a pivotal role in the criminal justice system still the present criminal justice system needs some changes in relation to the hostility of witnesses. The burden of proof lies on the prosecution; the entire merit of a criminal case depends on the witness. By giving evidence relating to the commission of an offence, The increase in the number of instances of witnesses turning    hostile is one of the main reasons for the low conviction rate in India..

The criminal justice system is based on the rules of evidence. False and fabricated evidence in the court leads to poor rate of conviction in criminal cases and it will cause large scale acquittal. Giving false and fabricated evidence is called perjury. Conviction rate in criminal cases is as low as ten percent due to perjury. Perjury is committed by the witness on his /her own volition or under threat/ allurement/ inducement of third party. witness may give false statement at the initial stage of investigation or may make false statement at subsequent hearing under threat/inducement. Punishment exist for the witness who makes false statement, under sections 193 to 196 IPC, but punishment for the person who threatens /induces the witness is not provided in the IPC. Punishment to the witness making false statement is imprisonment of seven years or more with/without fine. Under Section 195A of the Indian Penal Code it is prescribed that the person who threats/induces the witness to make false evidence shall be punished for a term up to seven years with fine or both.   ACB Rajasthan has registered a case under this provision, when accused public servant nabbed while influencing the witness by paying bribe of fifty thousand.[17] 

Perjury has also become a way of life in the law Courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the Court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure...”[18]

(e) Role of prosecution Fair trial obviously would means a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm and it will not be correct to say that it is only the accused who must be fairly dealt with. That   would be turning a Nelson’s eye to the need of society at large and the victim. Thus to ensure fair trial to victim or society at large  strengthened and independent prosecution is Sin qua non. A public prosecutor can not be equated with a person who is holding office under the state. he can not be treated as a government employee. The independence of public prosecutor from any governmental control is the hall mark of this high office.[19]

Apex court stressed its desirability on separation of prosecution agency from police [20]Law commission in 1996 in its 154th  report identified the independent prosecution agency as one of the core  with in the code which require amendment to ensure independent prosecution agency in India.  A major step was taken in this area when the S. 25A was inserted in the Cr,P. C., 1973 by criminal amendment Act of 2005 which provides for the establishment of Directorate of Prosecution in every state. Law commission in its 197th report has stated that public prosecutor has to be independent of executive and all external influences. He has duties to the state, to court . he has to discharge his duties objectively. He is in the position of minister of justice assisting the court.[21]Public prosecutor must observe a wider set of duties than to merely ensure that accused is punished, his job is to ensure fair play in all proceedings.[22]  Public prosecutor is not representative of any ordinary party to a controversy but of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.[23]Therefore, to ensure fair trial and protect the interest of witnesses in criminal trial all states should implement law enacted by parliament, decisions of Supreme Court and recommendation of law commission, in letter and sprit

(f) Role of investigating agencies

To ensure statutorily independence , efficiency of the state-level investigating agencies, without which investigation cannot be carried on impartially and fearlessly. Investigation being a quasi-judicial function, investigating officers should have the freedom to function in accordance with the law only. Efficiency and continuity in investigating can be ensured, to a great extent, by separating this responsibility of the police from the public order duties. Permanent separation may be problematic, but periodic interchangeability of officers between the two wings can be worked out. More important and urgent is to sanities the investigation from pernicious influence of various extraneous groups. This can be done by suitably amending the Police Act of 1961 and placing the investigation wing of the police under a statutorily constituted body, which may be designated as Police Functions Review Committee or any other suitable nomenclature. The committee consisting of judges, Prosecutors, professors and police officers of integrity, may be tasked to protect the investigation from interference, threats and inducement.

The law commission has suggested that to obviate the possibility of retraction, the magistrate may record the statements of the crucial witnesses, and to minimize the chance of retraction, the witnesses may sign the statements made before the police. The existing law for perjury needs amendment as it is seldom invoked. In the adversarial system that we have in India, the guiding principle is to let hundred criminals go scot-free but let not one innocent person be punished. While it will be a mockery of justice if an innocent person is convicted, the system will not cover itself with glory if hundred criminals are let off. Besides such a situation is disastrous for the society.

In view of human evidence becoming increasingly fragile, almost all the committees and commissions set up or toning up various components of the criminal justice system during the last 25 years have recommended that more reliance should be placed on circumstantial and scientific evidence. But the government has remained largely insensitive to them. Almost total dependence placed on eyewitness evidence by the Indian courts has created a mindset in the investigators and prosecutors that other evidence may be neglected without jeopardizing the prosecution case. The hassles associated with collection and dispatch of forensic material and delay in obtaining reports from the FSLs are some of the discouraging factors.

To give importance weight age to forensic evidence its collection should be made mandatory by suitably amending the law on investigation (Section 257 CrPC) and the procedure for collection and dispatch may be simplified by amending some ancillary laws like Identification of Prisoners Act, 1920. In the 2005 amendment of CrPC, DNA typing has been included in the list of expert evidence (Section 293 CrPC); but laboratory tests in a few other relevant scientific areas produce universally accurate results and as such they should also be included in the list. More importantly, the Indian judiciary may set certain guidelines in this regard, as the US Supreme Court has done by enunciating the Daubert principles for testing reliability and admissibility of scientific evidence.


From commencement of the trial and till the end of trial the‘Witness‘is under the physical as well as mental pressure of the accused. Hence, to check the witness turning hostile protection to the witness should be provided, the primary remedy to this problem is devising sufficient witness protection measures, which can be implemented, mainly through the enactment of separate witness protection legislation, but as the Apex court has made it clear that it is not physical possible to provide security to the thousands of witnesses appearing daily in courts to depose in criminal cases.[24] The contents of this legislation should be formulated after a careful study of similar legislations, operating in other countries. So that the present criminal justice system can be made more strengthened and aims and objective of dispensation of criminal justice can be achieved. Section 309 of code  may be amended “ if a witness is present in court but a party or his pleader is not present or present but not ready for examination or cross examination the witness, the court may if think fit record the examination of witness or close his cross examination” so as to ensure that witness are not un necessarily harassed  and which also help in expeditious trial and it is learnt that in this direction  in order to minimize the problem of witnesses government is working on proposal to fine judge  for frequent adjournments.[25]

Section 311 of the Code and Section 165 of the Evidence Act confers vast and wide powers on Court to elicit all necessary materials by playing an active role in the evidence collecting process. However, the record does not indicate that the learned Judge presiding the trial had exercised powers under Section 149 to 152 of the Evidence Act which is in a way complimentary to his other powers to safeguard the witness from unscrupulous lawyers. In order to improve the trial in criminal cases and to prevent the problem of hostile witness there is a need about witness assistance, facilities and protection programme should be carried out and simultaneously the offence of perjury should be made severely penalized otherwise no person will come before courts for his grievances but take law into own hands.

Let’s hope that sincere efforts of government / judges may reduce the agony of witnesses and save the criminal justice delivery system becoming Deaf &Blind, otherwise the criminal justice delivery system will collapse.

J S Rajawat, Advocate
Spl. P P CBI

[1] Jeremy Bentham, Jurist
[2] UP v/s shambunath(2001) SCC 667
[3] TOI Dt. 29th  june 2013 Page 1 Jaipur edition
[4] Salmond in laertious in lives of philosophy
[5] Its legal crisis that witness are not safeSee, Jessic lala, Nitish Katra, BMW hit and run, cases
[6] The Hindu  8th Jan 2012 Delhi edition Page 2s      
[7] Justice Panchal in Vikas kumar v/s Utrakhand
[8] Himansu singhv/s M P 2008 SCR 783
[9] I hate
[10] UP v/s shambunath(2001) SCC 667
[11] Stress mine
[12] State of U P v/s Shambunath singh page1403
[13] NHRC v/s state 2008 SCC 497
[14] Justice Enoch Dumbutshen in in role of judges in advancing human rights
[15] Delhi high court in Jessica lala murder case
[16] Pioneer 24th may 2013
[17] TOI Dt July 6, 2013
[18] Sawaran singh(Supra)
[19] Center for PIL v/s UOI 2012 Cr.L.J. 1153
[20] S B Shahane AIR 1995 Sc 1628
[21] Law commission  197 report
[22] Manu sharma AIR 2010 Sc 2352
[23] Sheonandan paswan AIR 1987 Sc 877
[24] Apex court on 22nd jan 2207
[25]TOI Dated 29th june 2013 Jaipur edition page 1

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3 Comments for this Article

prof s c pratihar

prof s c pratihar

Wrote on 09 November 2013 
Thanks for an elaborate encyclopedia on the subject .two yrs back jJayanti natarajan committee of Rajya Sabha wanted suggestions on improvements of lower judiciary where I had to submit a very big check list covering wide range of problems.till date no solution and or improvement seen.what you have written known to all the lawyers and all these need will take time.we are neither British or Not loose faith and grab what we have achieved by such true that lulu prasad is in jail who was ex chief minister .so we sl wait till "The rising of the sun"



Wrote on 09 November 2013 
And I agree with the comments on the treatments the witnesses are given. Compare this with the treatment the criminals cum politicians receive in the courts, lock ups and jails. Jails have become five-star hotels in many places. It is a conspiracy to undermine the rule of law.

 Shri P.  Venu

Shri P. Venu

Wrote on 09 November 2013 
The scenario applies equally in case of civil proceedings as well. The witness has to wait endlessly in the court room or its premises till the court calls him to the witness box. Most often the judge is ready to hear, but the parties' advocates play a game of hide and seek. This attitude is certainly unprofessional. More than the substantial aspects ably narrated by the author, there are some mundane matters that could be addressed so that the witness in the box is at ease during deposition. He could be provided seat to sit and also offered water to drink esp. when examination lengthy lasting hours. There is law which prohibits such basic human comforts, but we have allowed such protocols to prevail that appearing as a witness has been made tortuous.
(Source-Lawyers club of india)

Sunday, November 24, 2013

Lok Adalats dispose of 35L cases in 8 hrs-Struggling With Pendency,SC Takes Lead

At a time when 16,000-odd trial courts, 21 High Courts and the Supreme Court are battling with over 3 crore pendency, a nationwide simultaneous holding of Lok Adalats opened on Saturday by Chief Justice P Sathasivam achieved a world record by disposing of 35.1 lakh cases within eight hours. What is important is that these cases will be settled and reach a finality without litigants going back home with a sense of rancour that drives them to file appeal in higher courts. Settlement of the cases leaves both parties happy both in heart as well as in the pocket, said Justice G S Singhvi,executive chairman of National Legal Services Authority (NALSA).

The simultaneous functioning of Lok Adalats in a people-friendly atmosphere was televised live through web casting,a facility provided by the apex courts e-committee headed by Justice Madan B Lokur. A whopping 39 lakh cases were put up for settlement in a friendly atmosphere of Lok Adalat without the overbearing presence of court staff or the incomprehensible legalese. The litigants discussed among themselves and when they agreed for a settlement, in 35.1 lakh cases, it was recorded by a judicial officer bringing an end to disputes. Appeals are not against settlements recorded under Lok Adalats.

How are Lok Adalats different from the courts Answering the self-posed question,Justice A K Patnaik, who also heads the Supreme Court Legal Services Committee, said an accident victim after moving at a snails pace through a clogged pathway in three-tier justice delivery system gets compensation years later. But the Lok Adalats would provide immediate relief,which is more useful to a victim than the money he receives years later and realizes that inflation has significantly devalued the quantum of compensation,he said.

CJI Sathasivam said the Lok Adalats, like courts, would strictly adhere to principles of natural justice and record a just settlement without diluting the cardinal adage justice should not only be done but seen to have been done .He said in Delhi alone, Lok Adalats on Saturday would try settle nearly three lakh cases,of which 2.73 pertained to traffic violations. Justice Singhvi said he hoped that as many as 20 lakh cases would end in settlement bringing cheers to litigants. But, actual disposal exceeded expectations when it touched 35 lakh. This would give a fillip to Lok Adalats as a people-driven concept. This should be popularized to make justice affordable, he said.

However, the Supreme Courts Lok Adalat referral and disposals were a miniscule. On Saturday, three Lok Adalats in apex court will hear 107 cases. In the six editions of Lok Adalats held in Supreme Court between 2008 and 2010, 451 cases were referred and only 180 had been settled. Justices Singhvi and Patnaik explained why litigants were unwilling to settle the case after it had reached the Supreme Court. They said once the litigant spends a lot of money and time fighting his case in the trial court and the High Court,he felt that he would endure a little more time in the apex court to get a favourable verdict.

R S Gujaral,secretary in Department of expenditure in finance ministry, said we need to ascertain more areas for settlement than the accident claims, cheque bouncing cases, traffic challans and family disputes. He said, it appears the government and its agencies were little reluctant to avail of Lok Adalats.

Saturday, November 23, 2013


Friday, November 15, 2013



Author: Beina Xu, Online Writer/Editor
November 8, 2013

With a booming economy throughout the 2000s, India was touted as one of the most promising major emerging markets. But that breakneck growth sputtered to a decade low in 2012, with many observers pointing to the corrosive effect of endemic corruption—including a spate of scandals under Prime Minister Manmohan Singh—as a culprit. Perhaps more than India's weak currency and rising inflation, the graft problem has undermined institutions and thwarted efforts to reduce poverty and catalyze sustainable growth in the world's largest democracy. Public revelations of corruption, including major scandals in the telecommunications and coal industry, have galvanized a rising middle class with increased demands for better governance. The tide has spurred new political movements, and forced Prime Minister Singh's Congress Party to address transparency and marshal reforms. As the country enters a busy political season, culminating in the 2014 general elections, corruption is expected be a cornerstone issue—and one with big implications for India's development.
The Roots of Corruption
Corruption in India can be traced back the country's colonial past, analysts say. The "British Raj" period, beginning in 1858, excluded Indian citizens from political participation by dividing the country into districts with provincial governments controlled by a commissioner. The 1923 Official Secrets Act made it an offense for officials to reveal information to citizens, ostensibly to protect military and government intelligence.
Anna Hazare

An anti-corruption protester hoists a portrait of activist Anna Hazare during a demonstration in New Delhi in 2011. (Photo: Adnan Abidi/Courtesy Reuters)'

After India gained independence in 1947, the new regime implemented heavy economic regulations intended to develop domestic markets; the 1951 Industries Act, for instance, required all new industrial operations to obtain a license from the central government. The policy limited foreign investment and stifled competition, and bribery became part and parcel to doing business. The period up to 1991 was dubbed the "License Raj" as a result of the government's excessive oversight of the economy. The poor often suffered most from the widespread corruption, which diverted large amounts of public revenue intended for public works, aid, and social welfare programs.

"Historically, the roots of India's corruption came from the proliferation of licenses," says CFR Senior Fellow for International Economics Jagdish Bhagwati. "The idea was to ensure economical use of resources, so you would not waste foreign exchanges. To this day, this is what Indians have been very aware of: that the institution of licenses and permits was responsible for creating corruption on a massive scale."
The first major law to combat government malfeasance was the Prevention of Corruption Act (PCA) of 1947, enacted to prevent officials from cashing in on post-war reconstruction funding. Parliament also established the Anticorruption Bureau in 1961 to investigate violations of the PCA, which has since been amended twice (last in 1988). The latest revision was a direct response to the late-1980s Bofors scandal, in which then prime minister Rajiv Gandhi and other politicians were accused of receiving large kickbacks in a weapons bid from Swedish arms company Bofors. Many observers considered the scandal to be a main reason the Gandhi-led Congress Party was voted out of power in 1989.

Under the PCA, bribery is punishable by a fine and up to five years imprisonment. But many analysts believe India's sprawling bureaucracy and weak institutionsthe police and judiciary were ranked as the second and third most corrupt institutions in India, respectively, after political parties—have thwarted convictions, and arguably increased incentives for bribery. In recent years, graft pervaded society from small-scale "harassment bribes" (payments for essential social services) to scandals on a national level. At least 42 percent of young Indians have paid a bribe, according to a 2012 Hindustan survey.
"There's been corruption in India for thousands of years—it's endemic—but what you see is the kind of corruption changing," says Milan Vaishnav, a South Asia associate at the Carnegie Endowment for International Peace. "In the past two decades, there's been a shift toward grand corruption: the recent scandals are just qualitatively and quantitatively bigger than anything we've seen. And a big reason for that is India's rapid growth. Growth has expanded the possibilities for rent-seeking."

A 2011 report from KPMG stated that 68 percent of India's total illicit capital loss happened after the country's economic liberalization in 1991, indicating that the reform and rise of India's economy has contributed to the transfer of "black money" abroad.
A Spiraling Problem
"The recent scandals are just qualitatively and quantitatively bigger than anything we've seen. And a big reason for that is India's growth."Milan Vaishnav
In 2013, India ranked ninety-fourth out of 176 countries in Transparency International's Corruption Perception Index, alongside Mongolia and Colombia and below neighbors like China and Sri Lanka. The country has steadily slipped since ranking seventy-second of 179 in 2007, when the report debuted. Several recent high-profile scandals have underscored the extent of the problem. In 2010, allegations emerged surrounding the gross misallocation of funds at the Commonwealth Games, which cost almost eighteen times its budget estimate. Reports surfaced of shoddy infrastructure and financial irregularities regarding contracts, and the scandal led to the resignation of two senior Congress Party members and other government officials. The Central Vigilance Commission cited the total misappropriation of funds to be around $1.8 billion.
Soon after, controversy mired the government again when an auditor's report uncovered a massive telecom scam estimated to have cost the government some $39 billion, making it one of the largest cases of state corruption in Indian history. Telecom minister Andimuthu Raja, accused of orchestrating the sale of licenses below market value, resigned in 2010. (He was arrested in 2011, and was out on bail as of late 2013.) During the affair, outraged opposition parties shut down parliament for three weeks and prompted massive protests in Delhi. Public anger escalated when the 2012 "Coalgate" scandal, in which an estimated $34 billion was lost, implicated the prime minister himself. The breadth of corruption has even touched the U.S. government, as cables released in 2011 by Wikileaks revealed that a Congress Party aide allegedly showed a U.S. diplomat chests of cash intended as a payoff to secure Parliament's endorsement of a controversial 2008 U.S.-India nuclear deal
The Fallout From Corruption
Public outrage peaked by the spring of 2011. A social activist named Anna Hazare emerged as a prominent organizer of the anticorruption movement, vowing a "fast unto death" unless the government established a new anticorruption agency (Lokpal) to review complaints at the highest level. Thousands of citizens took to his cause, and the United Progressive Alliance (UPA)–led government announced in August that it would form a committee to draft the law. (The bill remained stalled in Parliament as of late 2013.)

"In the end, the corruption in India is of a form that undermines growth in our institutions. It's a very expensive way to be corrupt."    —Jagdish Bhagwati
Mounting graft has stirred not only domestic worries, but has also tarnished the country's image among international investors. Since 1947, India has lost hundreds of billions in illegal capital flows (tax evasion, corruption, bribery, kickbacks, etc.), and was ranked 134th of 189 countries in the World Bank's 2014 Doing Business Report. At Davos in 2013, NGOs warned that the hefty investment needed for India's infrastructure development could breed more corruption.
Some experts note that while there isn't necessarily a
direct correlation between corruption levels and India's economic health, the nature of the graft has been corrosive to its growth. "The way corruption has been practiced in India has been particularly harmful," says Bhagwati, who contrasts India's rent-creating corruption, which carves out monopolies for cronies, with China's profit-sharing system, which takes an interest in growth. "In the end, the corruption in India is of a form that undermines growth in our institutions. It's a very expensive way to be corrupt." 
Campaigning for Reform
As India's economy slows, successive revelations of graft have exacerbated public outrage at the inability of the Congress-led government to mitigate corruption. In turn, the country has seen an uptick of anticorruption rhetoric as it approaches important state elections in November and December 2013. The Aam Aadmi Party, led by activist Arvin Kejriwal, emerged as a new political party that got its start on an anticorruption platform, while the opposition Bharatiya Janata Party (BJP) has also taken on the issue of good governance. The party has championed the clean track record of its leader Narendra Modi, whose reform efforts as chief minister of Gujarat have made his home state a key driver of national economic growth. Meanwhile, Chief Minister Nitish Kumar, who leads one of India's poorest states, Bihar, has also won accolades for his success in emphasizing good governance.

"What is new and politically relevant has been, in response to citizen outrage, the rise of parties explicitly focusing on governance," says CFR's Alyssa Ayres. "And most importantly, the transformation of campaigning from a mode that focused on a language of empowerment with an appeal to caste, to one focusing on good governance and delivering services to citizens."

Yet corruption remains rife in India's political landscape. In 2012, criminal cases were pending against 31 percent of members of parliament and the legislative assembly. Campaign spending limits are low, driving expenditure underground and fostering reliance on "black money." Many experts also point to Indian voters' complex relationship with corruption; research from a wide range of states finds that political candidates often promote their criminality as an indication of their ability to defend the interests of their communities.

So while the scandals have put corruption on the public agenda, experts say it won't be enough to shape Congress's fate in state elections. "Corruption is an interesting subject because there's a feeling on the part of the Indian voter that everyone is corrupt: as an issue, it's not necessarily a defining feature in this election," says Vaishnav, who adds that of the surveys he's seen, the top issues have been growth, jobs, and India's inflation woes.
Prospects for Progress
India's government has made a few attempts at the federal level to combat corruption. The 2005 Right to Information Act allows citizens to request access to any public record and, if approved, receive it within thirty days. The law, which can penalize noncompliance and requires authorities to digitize records, has been hailed as a pivotal achievement in the fight against corruption. The government is also considering moves to strengthen the national antigraft law, potentially introducing changes that would punish corporate failure to prevent bribery.
"What is new and politically relevant has been, in response to citizen outrage, the rise of parties explicitly focusing on governance." Alyssa Ayres.

An increasingly activist judiciary has also taken a stronger stance against corruption; in early 2011, the Supreme Court asked all trial courts in the country to fast-track corruption cases. The next year, it limited the amount of time the government had to decide whether or not to prosecute a public official for corruption. And in July 2013, the top court ruled that it was illegal for politicians convicted of crimes to continue holding office, although, in a highly controversial move, Singh's cabinet withdrew the decree in October.

Technology has also helped. Some states like Gujarat have implemented online systems for state contract bids, allowing for greater transparency. Others have also put land records and death certificates online, while websites like expose graft associated with common public services. The government is also devising an electronic ID system, which would allow poor citizens to avoid intermediaries and receive aid directly through a bank account.

But technology can only do so much, says Jennifer Bussell, assistant professor of public policy at the University of Califonia Berkeley. Bussell notes that technology's most important contribution has been granting citizens greater access to information. "Some combination of administrative reforms and local-level technology initiatives to help bring corruption to light—in addition to efforts by organizations like the Comptroller and Auditor General, which is exposing corruption at the highest levels of government—would help. You need all of these things."