warrant trial instituted otherwise than on police report

The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 Cr.P.C. on one side and Sections 244 and 245 Cr.P.C., on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-Section (3) of Section 161 Cr.P.C. of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 Cr.P.C. that the Magistrate has to consider the police report and the documents sent with it under Section 173 Cr.P.C. and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240 Cr.P.C. and the trial proceeds for recording the evidence. Thus, in such trial prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr.P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr.P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless. Essentially, the applicable Sections are Section 244 and 245 Cr.P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr.P.C. or to summon its witnesses under Section 244(2) Cr.P.C. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led. However, for discharging an accused under Section 245 (2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly bring out this position. It will be better to see what is that "previous stage". The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244 Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. The previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge. (reliance is placed upon Ajoy Kumar v. State of Jharkhand ) The question is as to whether, even before any evidence is led under Section 244 Cr.P.C. can the Magistrate straightaway proceed to frame a charge? Ajoy Kumar Ghose vs State Of Jharkhand & Anr on 18 March, 2009 Supreme court categorically held that trial court cannot proceed to frame a charge before any evidence is given under Section 244. Merely because magistrate is empowered to discharge under section 245 (2) at any previous stage , it would not be correct to hold that he can frame a charge even without any evidence being lead by the prosecution under 244. The words "or at any previous stage of the case" appearing in Section 246 Cr.P.C. would include Section 245 also, where the accused has not been discharged under Section 245 Cr.P.C., while the similar term in Section 246(1) can include the stage even before any evidence is recorded. It cannot, therefore, be held that the words "at any previous stage of the case" as appearing in Section 245 Cr.P.C., would have to be given the same meaning when those words appear in Section 246 Cr.P.C. Section 245 Mere expiry of limitation ipso facto is not a ground to seek discharge Supreme Court of India

Rakesh Kumar Jain vs State Through Cbi on 8 August, 2000 The mere fact that the complaint was filed 25 days after the expiry of the period of limitation, did not entitle the accused to seek his discharge under Section 245 Cr.P.C. because the complainant has, under law, a right to seek for extension of time under Section 473 Cr.P.C. The complainant could satisfy the Magistrate on the facts and circumstances of the case that the delay was explainable which was occasioned on account of their bonafide belief to obtain the sanction for the purpose of filing the complaint. Supreme Court of India

Sayeeda Farhana Shamim vs State Of Bihar & Anr on 16 May, 2008 The expression used as, ` the evidence of any remaining witnesses for the prosecution shall next be taken,'. Therefore, the Magistrate has discretion, before he closes the trial, to summon the witnesses if it advances the cause of justice. The discretion which has been conferred on the Magistrate under Section 244(2) and Section 246(6), Cr.P.C. should be used in appropriate cases for reasons to be recorded. The discretion should not be used fancifully and for a mala fide purpose to harass the accused. It is quite possible that sometimes when the complainant fails to substantiate the allegation, he may resort to dilatory tactics and thereby harass the accused by giving supplementary list to prolong the continuance of the case. This should be checked but in case it is found that in fact the application for summoning the additional witnesses is made for bona fide purpose and to substantiate the allegations made in the complaint, then the Magistrate may exercise such power in appropriate case.

Section 244 is wide enough to give power to a Court to accept a supplemental or additional list of witnesses given by a complainant and to issue summons to them and record their evidence. Nowhere the section lays down that the complainant will not be entitled to file a supplemental list of witnesses nor the Court empowered to entertain such a list and examine one or more of the witnesses cited therein. Though Section 204(2) of the new Code prescribes that no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed, that cannot be taken to mean that a complainant is irretrievably chained to the first list of witnesses filed by him and he cannot seek the permission of the court to examine additional witnesses even where circumstances or interests of justice warrant such examination. To hold otherwise would actually lead to grave injustice and hardships to complainants. The Court should not, however, give permission to add names to the list if it is going to prejudice the case of the accused or if it is not in the interests of justice."

Section 256 Supreme Court of India

S. Rama Krishna vs S. Rami Reddy (D) By His Lrs. & Ors on 29 April, 2008 The provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out the discretion conferred upon the learned Magistrate, however, it must be exercised with great care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. Appellant had been attending the court for a long time, except on some dates where when remained absent or was otherwise represented by his Advocate. Section 257 Provident Fund Inspector, Tirupati Vs. Madhusudana Chaudhury (2000) 9 SCC 509 It was held that before passing an order u s 257 of Cr P C, there should exist a request explaining grounds for withdrawal of the complaint by the complainant and the Magistrate should be satisfied that there existed good grounds for the same. However, in the order of the Magistrate it was not visible whether such a request was placed before the court and whether there was any good cause for passing an order u s 257 of Cr P C. The order of the Magistrate was set aside with a direction to proceed with the trial of the case. Section 293 Delhi High Court

Mela Singh vs State on 14 February, 1995 In this appeal before Delhi High Court the main submission was that the report of the C.F.S.L. is not admissible in evidence under Section 293 Cr. P.C. as the same has not been made by an authority specified therein. Learned counsel for the appellant also submitted that there is no clinching evidence that the appellant was found in possession of the contraband when a relevant document is tendered and admitted in evidence without objection to its admissibility or modes of proof, the appellant cannot be allowed to challenge its admissibility in appeal. Their view is based upon the well established principle of law that the rules as regards the production of a document and strict proof thereof, as contained in the Evidence Act, can be dispensed with by consent of the parties and once a relevant document is admitted in evidence without any objection to its mode of proof, its admissibility can't be challenged in appeal. ( judgment primarily relied upon the decision rendered by the Division Bench of Delhi High Court in Amarjit Singh & Another v. State - Crl. Appeal No. 91/92 decided on 2-12-1994. ) Punjab-Haryana High Court

Sunil Kumar vs State Of Punjab on 13 February, 2013

The material available on record was perused. During the course of the arguments in appeal, the learned Appellate Court came to the conclusion that the report issued by the handwriting expert was not per se admissible under Section 293, Cr.P.C, therefore, the statement of the handwriting expert was necessary. The learned trial court had not summoned the handwriting expert by taking the view that the report of the handwriting expert was admissible under Section 293, Cr.P.C, but this view of the learned trial court was erroneous one and has resulted into the miscarriage of justice, because to prove the report of the handwriting expert, it was essential to get the handwriting expert examined. There was no filling up of the lacuna in such circumstance. The report issued by the expert was already available on record, therefore, there is no substance in the first submission of the learned counsel for the petitioner.The person, who had prepared and issued the report, can very well prove the said report and once it is proved then it would become admissible. Supreme Court of India

State Of Himachal Pradesh vs Mast Ram on 10 September, 2004 The ground on which the High Court had thrown out the prosecution story is the report of ballistic expert. The report of ballistic expert was signed by one junior scientific officer. According to the High Court, a junior scientific officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in SC's view, is fallacious. Firstly, the Forensic Science Laboratory Report has been submitted under the signatures of a junior scientific officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a Government scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a Government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court had completely over-looked the provision of sub- section (1) of Section 293 and arrived at a fallacious conclusion that a junior scientific officer is not an officer enumerated under sub-section 4 of Section 293. What sub-section 4 of Section 293 envisages is that the court to accept the documents issued by any of six officers enumerated therein as valid evidence without examining the author of the documents.

followed by Delhi High Court in

N. Muralidharan Nair vs State decided on 1 April, 2009 Section 293 Cr.P.C. contains a sub rule of evidence making any document purporting to be a report under the hand of Government Scientific expert upon any mater or thing duly submitted to him for examination and report admissible in evidence without calling such expert as a witness if the report is made by one of the officers of Government, who has conducted chemical examination of the sample in due discharge of his duty as Chemical Examiner by whatever designation he might be known.. The report of Scientific Expert mentioned in sub-section 4 of Section 293 are admissible without examining the expert as witnesses.

Section 296 Supreme Court of India

State Of Punjab vs Naib Din on 28 September, 2001 What is meant by an evidence of a formal character? It depends upon the facts of the case. Quite often different steps adopted by police officers during the investigation might relate to formalities prescribed by law. Evidence, if necessary on those formalities, should normally be tendered by affidavits and not by examining all such policemen in court. If any party to a lis wishes to examine the deponent of the affidavit it is open to him to make an application before the Court that he requires the deponent to be examined or cross-examined in Court. This is provided in sub-section (2) of Section 296 of the Code. When any such application is made it is the duty of the Court to call such person to the court for the purpose of being examined. The normal mode of giving evidence is by examining the witness in Court. But that course involves, quite often, spending of time of the witness, the trouble to reach the court and wait till he is called by the Court, besides all the strain in answering questions and cross-questions in open court. It also involves costs which on many occasions are not small. Should a person be troubled by compelling him to go to the court and depose if the evidence which he is to give is purely of a formal nature? The enabling provision of Section 296 is thus a departure from the usual mode of giving evidence. The object of providing such an exception is to help the court to gain the time and cost, besides relieving the witness of his troubles, when all that the said witness has to say in court relates only to some formal points. Section 310 Supreme Court of India

State Of M.P vs Mishrilal (Dead) & Ors. @ on 2 April, 2003 (judges ought to record reasons for inspection) The Trial Judge did not choose to record the memo of inspection. The judgment was delivered on 16.3.1991. What had prompted the Trial Judge to have recourse to spot inspection was not spelled out because no memorandum of inspection was prepared. But it was clearly suggestive of deficiency of evidence with regard to place of occurrence. In such a situation, it was incumbent on the part of the learned Trial Judge, to have recorded the memo of inspection for proper appreciation of the inspection. Supreme court held that mandatory provision has not been followed by the Trial Court. Supreme Court of India

State Of Himachal Pradesh vs Mast Ram on 10 September, 2004

That apart, the local inspection envisaged under Section 310 Cr.P.C. is for the purpose of properly appreciating the evidence already recorded during the trial. Memorandum of spot inspection recorded by the trial Judge has to be appreciated in conjunction with the evidence already recorded. Any omission and/or commission in the memorandum recorded by the trial Judge by itself would not constitute material irregularity, which would vitiate the prosecution case. Below is the for practice purpose and only for enhancement of knowledge , not exam purpose . Read only if interested to know . Directions For Streamlining The Recording of Victims/Witnesses Testimonies Of Foreign Nationals HIGH COURT OF DELHI CRL. REF. 2/2019

COURT ON ITS OWN MOTION v. STATE 1.At the time of issuance of summons on a person residing abroad, the order of the Trial Court should also indicate whether evidence is to be recorded through video-conferencing.

2.Trial Courts should separately fix an intermediate date between the date of issuance of summons and the date of recording of evidence, to seek confirmation from the prosecuting agency about the service of summons, and to additionally seek details/information regarding the technical coordinator in the Requested Country, along with the details of the technical link for conducting video-conferencing on the date(s) fixed.

3.Based on the information received on the intermediate date, the Trial Court should direct its own Coordinator to forthwith establish contact with its counterpart in the Requested Country, conduct a mock test of the video-conferencing link prior to the date of recording of evidence, and submit a report in this regard at least three days prior to the date fixed for recording of evidence.

4.On the receipt of the report from Court Coordinator, the documents relied upon by the prosecution and the Defence should be identified, scanned, and numbered, and sent to the Coordinator in the Requested Country, under strict instructions of confidentiality. An identical set of the above documents should be made a part of the Court record.

5.Trial Courts should ensure that the date(s) fixed for recording of evidence through video-conferencing are utilised productively. If for some reason the Presiding Judge is unable to hold Court on the date(s) fixed, s/he should ensure, as far as possible, that the evidence is recorded by the Link Judge. Special Direction for Delhi police in this case :- Investigating Officer of the case must ensure that information regarding service of summons and details pertaining to video-conferencing links are provided to the Trial Court after obtaining the same from the MHA.

In furtherance of the given priority, the court has also recommended training sessions for judicial officers, technical staff, and police officials must be conducted to familiarize them with the procedures contained in the MHA Guidelines, 2019, the Video-Conferencing Guidelines issued by the High Court of Delhi, and the Delhi Criminal Courts (Payment of Expenses to Complainant and Witnesses) Rules, 2015. Delhi High court rules for pay of expenses to complainant can be accessed by clicking this link. Read it with section 312 of Cr.PC. Supreme Court approved the content of the Witness Protection scheme in

WRIT PETITION (CRIMINAL) NO. 156 OF 2016

MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS.

By holding it to be the ‘law’ under Article 141/142 of the Constitution (by the force of its judgment),

till the enactment of suitable Parliamentary and/or State Legislations on the subject.

Witness protection Scheme , 2018 (only important points are quoted not the entirety of it) following reasons can be discerned which make witnesses retracting their

statements before the court and turning hostile:

(i) Threat/Intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of stock witnesses.

(v) Protracted trials.

(vi) Hassles faced by the witnesses during investigation

and trial.

(vii) Non-existence of any clear-cut legislation to check

hostility of witness. According to witness protection scheme : - "Offence" included within it means those offences which are punishable

with death or life imprisonment or an imprisonment up to

seven years and above and also offences punishable

punishable under Section 354, 354A, 354B, 354C, 354D

and 509 of IPC. "Threat Analysis Report" means a detailed report

prepared and submitted by the Head of the Police in the

District Investigating the case with regard to the

seriousness and credibility of the threat perception to the

witness or his family members. It shall contain specific

details about the nature of threats by the witness or his

family to their life, reputation or property apart from

analyzing the extent, the or persons making the threat,

have the intent, motive and resources to implement the

theats. It shall also categorize the threat perception apart from

suggesting the specific witness protection measures which

deserves to be taken in the matter “Witness Protection Application” means an application

moved by the witness in the prescribed form before a

Competent Authority for seeking Witness Protection Order.

It can be moved by the witness, his family member, his

duly engaged counsel or IO/SHO/SDPO/Prison SP

concerned and the same shall preferably be got forwarded

through the Prosecutor concerned. Section 3 .CATEGORIES OF WITNESS AS PER THREAT

PERCEPTION:

Category ‘A’ : Where the threat extends to life of witness or

his family members, during investigation/trial or thereafter.

Category ‘B’ : Where the threat extends to safety,

reputation or property of the witness or his family

members, during the investigation/trial or thereafter.

Category ‘C’ : Where the threat is moderate and extends

to harassment or intimidation of the witness or his family

member's, reputation or property, during the

investigation/trial or thereafter. The application for seeking protection order under this

scheme can be filed in the prescribed form before the

Competent Authority of the concerned District where the

offence is committed, through its Member Secretary along

with supporting documents, if any. 6. PROCEDURE FOR PROCESSING THE

APPLICATION:

(a) As and when an application is received by the Member

Secretary of the Competent Authority, in the prescribed

form, it shall forthwith pass an order for calling for the

Threat Analysis Report from the ACP/DSP in charge of the

concerned Police Sub-Division.

(b) Depending upon the urgency in the matter owing to

imminent threat, the Competent Authority can pass orders

for interim protection of the witness or his family members

during the pendency of the application.

(c) The Threat Analysis Report shall be prepared

expeditiously while maintaining full confidentiality and it

shall reach the Competent Authority within five working

days of receipt of the order.

(d) The Threat Analysis Report shall categorize the threat

perception and also include suggestive protection

measures for providing adequate protection to the witness

or his family.

(e) While processing the application for witness protection,

the Competent Authority shall also interact preferably in

person and if not possible through electronic means with

the witness and/or his family members/employers or any

other person deemed fit so as to ascertain the witness

protection needs of the witness.

(f) All the hearings on Witness Protection Application shall

be held in-camera by the Competent Authority while

maintaining full confidentiality.

(g) An application shall be disposed of within five working

days of receipt of Threat Analysis Report from the Police

authorities.

(h) The Witness Protection Order passed by the

Competent Authority shall be implemented by the Witness

Protection Cell of the State/UT or the Trial Court, as the

case may be. Overall responsibility of implementation of

all witness protection orders passed by the Competent

Authority shall lie on the Head of the Police in the

State/UT.

However the Witness Protection Order passed by the

Competent Authority for change of identity and/or

relocation shall be implemented by the Department of

Home of the concerned State/UT.

(i) Upon passing of a Witness Protection Order, the

Witness Protection Cell shall file a monthly follow-up report

before the Competent Authority.

(j) In case, the Competent Authority finds that there is a

need to revise the Witness Protection Order or an

application is moved in this regard, and upon completion of

trial, a fresh Threat Analysis Report shall be called from

the ACP/DSP in charge of the concerned Police Sub-

Division. Section 7 - TYPES OF PROTECTION MEASURES:

The witness protection measures ordered shall be

proportionate to the threat and shall be for a specific

duration not exceeding three months at a time. They may

include:

(a) Ensuring that witness and accused do not come face to

face during investigation or trial;

(b) Monitoring of mail and telephone calls;

(c) Arrangement with the telephone company to change

the witness’s telephone number or assign him or her an

unlisted telephone number;

(d) Installation of security devices in the witness’s home

such as security doors, CCTV, alarms, fencing etc;

(e) Concealment of identity of the witness by referring to

him/her with the changed name or alphabet;

(f) Emergency contact persons for the witness; (g) Close protection, regular patrolling around the

witness’s house;

(h) Temporary change of residence to a relative’s house or

a nearby town;

(i) Escort to and from the court and provision of

Government vehicle or a State funded conveyance for the

date of hearing;

(j) Holding of in-camera trials;

(k) Allowing a support person to remain present during

recording of statement and deposition;

(l) Usage of specially designed vulnerable witness court

rooms which have special arrangements like live video

links, one way mirrors and screens apart from separate

passages for witnesses and accused, with option to modify

the image of face of the witness and to modify the audio

feed of the witness’ voice, so that he/she is not identifiable;

(m) Ensuring expeditious recording of deposition during

trial on day to day basis without adjournments;

(n) Awarding time to time periodical financial aids/grants to

the witness from Witness Protection Fund for the purpose

of re-location, sustenance or starting a new

vocation/profession, if desired;

(o) Any other form of protection measures considered

necessary. Section 4 - It establishes a Witness Protection Fund:-

There shall be a Witness Protection Fund operated by the Ministry or Department of Home Affairs under the State or Union Territory, from which the expenses of implementation of the Witness Protection Order have to be met. The fund is to be maintained by the States and Union Territories and shall comprise of:

(i) budgetary allocation made by the Annual Budget presented by the State Government;

(ii) receipts of fines imposed under Section 357 of Code of Criminal Procedure ordered to be deposited by the courts;

(iii) donations and contributions from various charitable trust, philanthropist and individual permitted by the Government;

(iv) funds contributed under Corporate Social Responsibility. Section 9 - Protection of Identity

If the witness desires to protect his identity he may file an application in the prescribed form as per the Scheme before a Competent Authority. The competent authority there looks out for the Threat Analysis Report for ascertaining the quantum of threat possessed by the witness or his family members and whether it meets the requirements to be eligible for an identity protection order. However, during the course of examining the application, the identity of the witness should not be revealed to any person and after the aforesaid examination the competent authority to dispose off the application basis the material available on record.

Once an order of concealment of identity is passed by the Competent Authority it shall be the responsibility of Department/Ministry of Home of State/UT/Witness Protection Cell to ensure that identity of the witness or his family members be fully protected.

Section 10 provides for Change of Identity

The witness also has the option to change his identity in appropriate cases, the request for change in identity by the witness is to be entertained by the Commissioner of Police or Competent authority designated , on the parameters of threat perception. The witness can be conferred with new identities including new name, profession and parentage and providing supporting documents acceptable by the Government agencies. However, such change in identity shall have no bearing over the educational, professional or property rights of the witness.

Section 11 - Relocation of Witness

In the similar manner as above by following the procedural formalities and eligibility, the witness has to option to be relocated to a different place within the limits of State/Union Territory or territory of Union of India keeping in view the safety, well-being and welfare of the witness.The expenses shall be borne by the Witness Protection Fund.

Section 13. CONFIDENTIALITY AND PRESERVATION OF

RECORDS:

All stakeholders including the Police, the Prosecution

Department, Court Staff, Lawyers from both sides shall

maintain full confidentiality and shall ensure that under no

circumstance, any record, document or information in

relation to the proceedings under this scheme shall be

shared with any person in any manner except with the

Trial Court/Appellate Court and that too, on a written

order.

All the records pertaining to proceedings under this

scheme shall be preserved till such time the related trial or

appeal thereof is pending before a Court of Law. After one

year of disposal of the last Court proceedings, the hard

copy of the records can be weeded out by the Competent

Authority after preserving the scanned soft copies of the

same. Section 15 REVIEW:

In case the witness or the police authorities are aggrieved

by the decisions of the Competent Authority, a review

application may be filed within 15 days of passing of the

orders by the Competent Authority. (Delhi High Court already established a witness protection policy long before Supreme court mandated it in Mahesh Chawla (Supra) judgment in W.P.(Crl.)No.247/2002 Nilam Katara v. UOI High Court directed & Ors. decided on 14th October, 2003) At present Delhi Judiciary has already

established four Vulnerable Witness Deposition Complexes in the

National Capital Territory, the latest one being at the Dwarka

District Court, which was established in February, 2017. This

complex provides facilities like separate witness room, separate

accused room, play area for the child witnesses, pantry, separate

toilet and an exclusive & comfortable waiting area and is

equipped with all facilities of audio-visual exchange for a free

interface between the presiding Judge, the witness and the

accused without witness facing the accused. The complex has a

separate entry for vulnerable witnesses, so that they do not come

in direct contact with accused at any point of time. There are

provisions for support persons, pre-trial court visit and facilities for

pick and drop of the witnesses from their residence. In this way,

all possible efforts have been made for providing comfortable

environment to vulnerable witnesses at this complex in order to

enable them to give their best evidence in criminal proceedings.)