Karnataka High Court
Mr Azmeera Raju vs The State Of Karnataka on 17 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 10.03.2025
Pronounced on : 17.03.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.17931 OF 2024 (GM-POLICE)
BETWEEN:
MR.AZMEERA RAJU
S/O THUKARAM,
AGED ABOUT 28 YEARS,
NO. 08, HOTEL DBR
ASHLEY PARK, M.G.ROAD,
HALASURU,
BENGALURU CITY,
KARNATAKA - 560 001.
... PETITIONER
(BY SRI A.VELAN, ADVOCATE A/W
SRI DHEERAJ S.J., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
HOME DEPARTMENT
VIDHANA SOUDHA,
BY ITS SECRETARY,
BENGALURU, KARNATAKA.
2
2. DIRECTOR GENERAL AND
INSEPCTOR GENERAL OF POLICE
BENGALURU POLICE HEAD QUARTERS,
NRUPATHUNGA ROAD, BESIDE RBI,
NUNEGUNDLAPALLI,
AMBEKDAR VEEDHI,
BENGALURU
KARNATAKA - 560 001.
3. DCP CENTRAL BANGALORE, 8
CENTRAL DIVISION, KASTURBA ROAD,
NEAR YES BANK, SHANTHALA NAGAR,
ASHOK NAGAR, BENGALURU
KARNATAKA - 560 001.
4. POLICE INSPECTOR
HALSUR POLICE STATION,
OPPOSITE BRUHAT BENGALURU
MAHANAGARA PALIKE OFFICE
KEMPEGOWDA CIVIC HALL,
CUBBONPETE, NAGARATHPETE,
BENGALURU, KARNATAKA - 560 002.
... RESPONDENTS
(BY SRI MOHAMMED JAFFAR SHAH, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECTION TO THE
RESPONDENTS TO PROVIDE IMMEDIATE POLICE PROTECTION
TO THE PETITIONER IN THE FORM OF A DEDICATED GUNMAN
AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.03.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court seeking a direction by
issuance of a writ in the nature of mandamus to the respondents to
provide him police protection in the form of a dedicated gunman
and also direct the respondents/Police to conduct a thorough threat
assessment for appropriate protection free of cost.
2. Heard Sri A.Velan, learned counsel appearing for the
petitioner and Sri Mohammed Jaffar Shah, learned Additional
Government Advocate appearing for the respondents.
3. Facts, in brief, germane are as follows:
The petitioner is said to be a permanent resident of United
Arab Emirates/Dubai and is employed as an Operational Manager in
IMS-EXXON. The petitioner claims to be an investor in various
places and the operations of the petitioner from Bangalore
necessitates his stay in Bangalore on several occasions. On
16-06-2024 he was abducted by a group of 25 individuals when he
4
was on Mahatma Gandhi Road, Bengaluru. The abductors are said
to have taken the petitioner to a secluded location in Telangana. A
crime then comes to be registered in Crime No.211 of 2024 and the
State Police rescued the petitioner from the hands of two
accused/A8 and A9. The accused were remanded to Police custody
and after 7 days they are now in judicial custody. In the light of the
said abduction, the petitioner prefers a representation seeking
Police protection on the score that he is the sole witness and victim
in Crime No.211 of 2024. This is not granted as is sought by the
petitioner. Therefore, he is before this Court.
4. A coordinate Bench of this Court, on the submissions made
by the petitioner and the State, passed the following order on
13-02-2025:
"Matter is called out. There is no representation for the
petitioner.
Learned AGA submits that the petitioner is a serial
defaulter and abusing process of this Court and the interim
protection given by this Court. It is also submitted that the
petitioner has not deposited any money towards the police
protection granted to the petitioner by virtue of the interim
orders passed by this Court.
Re-list this matter on 17.02.2025 for preliminary
hearing."
5
The order supra was passed on the score that the petitioner has not
deposited the money towards Police protection. The matter was
again heard by the coordinate Bench and the coordinate Bench
passed the following order on 20-02-2025.
"ORAL ORDER
Learned Additional Government Advocate has today filed a memo along with several information and documents including a Communication dated 09.01.2025 made by the Police Inspector/Investigating Officer, Halasuru Police Station to the learned Advocate General bringing to his notice various cases and crimes registered against the petitioner in the State of Telangana.
The learned Additional Government Advocate submits that in the writ petition, the petitioner has shown the address of a Hotel situated at M.G.Road, Bengaluru and says he is a law abiding citizen currently residing in the Hotel. No information is given by the petitioner regarding his native place and the permanent address. It is stated that the petitioner has misused the interim orders passed by this Court and has evaded service of notice and summons issued by various Courts seeking the custody of the petitioner. It is further submitted that the petitioner had undertaken before this Court in the writ petition itself that if police protection is provided in the form of a dedicated gunman, pending final disposal of the writ petition, the cost will be borne by the petitioner willingly.
Learned Additional Government Advocate has also furnished information annexed a Communication dated 14.02.2025 issued by the Deputy Commissioner of Police CAR centre, Bangalore, calculating the costs to be incurred by the petitioner and it is in a sum of Rs.9,06,522/-. Moreover, the petitioner is summoning the gunman at odd hours. Learned Additional Government Advocate would therefore, submit there is a dire need to reconsider the interim orders passed by this Court.
6Learned counsel for the petitioner contends that submission made by the learned Additional Government Advocate regarding the conduct of the petitioner is not accepted. Nevertheless, learned Additional Government Advocate has served a copy of the information placed before this Court to the learned counsel for the petitioner.
During the course of the proceedings, the learned counsel for the petitioner submitted that general directions have been issued by the Hon'ble Supreme Court in the case of Mahendra Chawla and Others versus Union of India and others reported in (2019) 14 SCC 615, having regard to the witness protection scheme, 2018. It is submitted that the petitioner falls within the definition of 'witness' as provided in the scheme and free police protection is required to be given in terms of the scheme.
Re-list this matter on 04.03.2025 to enable the learned counsel for petitioner to make submissions regarding the contentions raised by the learned Additional Government Advocate today."
5. The learned counsel appearing for the petitioner submits that no money can be demanded by the State and the protection should be free of cost under the Witness Protection Scheme, 2018 ('the Scheme' for short). He would seek to place reliance upon several judgments of the Apex Court, which would bear consideration in the course of the order, to buttress that the petitioner comes within the definition of 'witness' under the Scheme and, therefore, he is to be given free protection.
76. Per contra, the learned Additional Government Advocate would refute the submissions in contending that the petitioner is an accused in several crimes. It is, therefore, he was abducted and he is misusing the Police protection by way of dedicated gunman calling him to Starbucks Coffee and to other places. Above all, the contention is that he does not have a permanent residence here. He is staying in a hotel.
7. The learned counsel for the petitioner would join issue in submitting that it is not a hotel but a service apartment, as he has no house in Bengaluru. He is forced to stay there and he has never misused the gunman.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts and link in the chain of events are a matter of record. The claim of the petitioner is that he falls within the definition of 'witness' in terms of the Scheme. The Apex Court 8 considers this issue in the case of MAHENDER CHAWLA v. UNION OF INDIA1 wherein the Apex Court holds as follows:
".... .... ....
26. At this stage, we reproduce Witness Protection Scheme, 2018 as filed, in its entirety:
"WITNESS PROTECTION SCHEME, 2018 PREFACE Aims & Objective:
The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement agencies and investigating officers without fear of intimidation or reprisal is essential in maintaining the rule of law. The objective of this Scheme is to ensure that the investigation, prosecution and trial of criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. It aims to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of justice. Witnesses need to be given the confidence to come forward to assist law enforcement and judicial authorities with full assurance of safety. It is aimed to identify series of measures that may be adopted to safeguard witnesses and their family members from intimidation and threats against their lives, reputation and property.
Need and justification for the scheme:
Jeremy Bentham has said that "Witnesses are the eyes and ears of justice". In cases involving influential people, witnesses turn hostile because of threat to life and property. Witnesses find that there is no legal obligation by the State for extending any security.1
(2019) 14 SCC 615 9 The Hon'ble Supreme Court of India also held in State of Gujarat v. Anirudhsing [State of Gujarat v.Anirudhsing, (1997) 6 SCC 514: 1997 SCC (Cri) 946] that: "It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence." Malimath Committee on Reforms of Criminal Justice System, 2003 said in its report that 'By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth'. In Zahira Habibulla H. Sheikh v. State of Gujarat [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] while defining fair trial Hon'ble Supreme Court of India observed 'If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial'.
First ever reference to witness protection in India came in 14th Report of the Law Commission of India in 1958. Further reference on the subject is found in 154th and 178th Report of the Law Commission of India. 198th Report of the Law Commission of India titled as "Witness Identity Protection and Witness Protection Programmes, 2006" is dedicated to the subject.
The Hon'ble Supreme Court observed in Zahira case [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] , "no country can afford to expose its morally correct citizens to the peril of being harassed by anti-social elements like rapists and murderers". The 4th National Police Commission Report, 1980 noted "prosecution witnesses are turning hostile because of pressure of accused and there is need of regulation to check manipulation of witnesses".
The legislature has introduced Section 195-A IPC in 2006 making criminal intimidation of witnesses a criminal offence punishable with seven years of imprisonment. Likewise, in statues, namely, the Juvenile Justice (Care and Protection of Children) Act, 2015; the Whistle Blowers Protection Act, 2011; the Protection of Children from Sexual Offences Act (POCSO Act), 2012; and National Investigation Agency Act, 2008 and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also provides for safeguarding witnesses against the threats. However, no formal structured programme 10 has been introduced as on date for addressing the issue of witness protection in a holistic manner.
In recent years extremism, terrorism and organised crimes have grown and are becoming stronger and more diverse. In the investigation and prosecution of such crimes, it is essential that witnesses have trust in criminal justice system. Witnesses need to have the confidence to come forward to assist law enforcement and prosecuting agencies. They need to be assured that they will receive support and protection from intimidation and the harm that criminal groups might seek to inflict upon them in order to discourage them from cooperating with the law enforcement agencies and deposing before the court of law. Hence, it is high time that a scheme is put in place for addressing the issues of witness protection uniformly in the country.
Scope of the Scheme:
Witness protection may be as simple as providing a police escort to the witness up to the courtroom or using modern communication technology (such as audio video means) for recording of testimony. In other more complex cases, involving organised criminal group, extraordinary measures are required to ensure the witness's safety viz. anonymity, offering temporary residence in a safe house, giving a new identity, and relocation of the witness at an undisclosed place. However, witness protection needs of a witness may have to be viewed on case-to-case basis depending upon their vulnerability and threat perception.
1. Short Title and Commencement.--(a) The Scheme shall be called "Witness Protection Scheme, 2018".
(b) It shall come into force from the date of Notification.
Part I
2. Definitions.--
(a) "Code" means the Code of Criminal Procedure, 1973 (2 of 1974);
(b) "Concealment of Identity of Witness" means and includes any condition prohibiting publication or revealing, in 11 any manner, directly or indirectly, of the name, address and other particulars which may lead to the identification of the witness during investigation, trial and post-trial stage;
(c) "Competent Authority" means a Standing Committee in each District chaired by District and Sessions Judge with Head of the Police in the District as Member and Head of the Prosecution in the District as its Member Secretary;
(d) "Family Member" includes parents/guardian, spouse, live-in partner, siblings, children, grandchildren of the witness;
(e) "Form" means "Witness Protection Application Form"
appended to this Scheme; ...
(f) "In Camera Proceedings" means proceedings wherein the Competent Authority/Court allows only those persons who are necessary to be present while hearing and deciding the witness protection application or deposing in the court;
(g) "Live Link" means and include a live video link or other such arrangement whereby a witness, while not being physically present in the courtroom for deposing in the matter or interacting with the competent authority;
(h) "Witness Protection Measures" means measures spelt out in Clause 7, Part III, Part IV and Part V of the Scheme;
(i) "Offence" means those offences which are punishable with death or life imprisonment or an imprisonment up to seven years and above and also offences punishable under Sections 354, 354-A, 354-B, 354-C, 354-D and 509 IPC;
(j) "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 faced by the witness or his family to their life, reputation or property apart from analysing the extent, the person or persons making the threat, have the intent, motive and resources to implement the threats.12
It shall also categorize the threat perception apart from suggesting the specific witness protection measures which deserves to be taken in the matter;
(k) "Witness" means any person, who possess information or document about any offence;
(l) "Witness Protection Application" means an application moved by the witness in the prescribed form before a competent authority through its Member Secretary for seeking Witness Protection Order. It can be moved by the witness, his family member, his duly engaged counsel or IO/SHO/SDPO/Jail Superintendent concerned and the same shall preferably be got forwarded through the Prosecutor concerned;
(m) "Witness Protection Fund" means the fund created for bearing the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority under this scheme;
(n) "Witness Protection Order" means an order passed by the Competent Authority detailing the witness protection measures to be taken;
(o) "Witness Protection Cell" means a dedicated Cell of State/UT Police or Central Police Agencies assigned the duty to implement the witness protection order.
Part II
3. Categories of witness as per threat perception.--
Category 'A': Where the threat extends to life of witness or his family members and their normal way of living is affected for a substantial period, 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 13 member's, reputation or property, during the investigation/trial or thereafter.
4.State Witness Protection Fund.-- (a) There shall be a Fund, namely, the Witness Protection Fund from which the expenses incurred during the implementation of Witness Protection Order passed by the Competent Authority and other related expenditure, shall be met.
(b) The Witness Protection Fund shall comprise the following:--
(i) Budgetary allocation made in the Annual Budget by the State Government;
(ii) Receipt of amount of costs imposed/ordered to be deposited by the courts/tribunals in the Witness Protection Fund;
(iii) Donations/contributions from Philanthropist/Charitable Institutions/Organisations and individuals permitted by Central/State Governments.
(iv) Funds contributed under Corporate Social Responsibility.
(c) The said Fund shall be operated by the
Department/Ministry of Home under State/UT
Government.
5.Filing of application before competent authority.--
The application for seeking protection order under this scheme can be filed in the prescribed form before the Competent Authority of the district concerned 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, he shall forthwith pass an order for calling for the Threat Analysis Report 14 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 State/UT concerned.
15(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 police sub-division concerned.
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. These 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;16
(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 a 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 relocation, sustenance or starting a new vocation/profession, as may be considered necessary;
(o) Any other form of protection measures considered necessary.
8. Monitoring and review.-- Once the protection order is passed, the Competent Authority would monitor its implementation and can review the same in terms of follow-up reports received in the matter. However, the Competent Authority shall review the Witness Protection Order on a quarterly basis based on the monthly follow-up report submitted by the Witness Protection Cell.
Part III
9. Protection of identity.-- During the course of investigation or trial of any serious offence, an application for seeking identity protection can be filed in the prescribed form before the Competent Authority through its Member Secretary.
Upon receipt of the application, the Member Secretary of the Competent Authority shall call for the Threat Analysis Report. The Competent Authority shall examine the witness or 17 his family members or any other person it deem fit to ascertain whether there is necessity to pass an identity protection order.
During the course of hearing of the application, the identity of the witness shall not be revealed to any other person, which is likely to lead to the witness identification. The Competent Authority can thereafter dispose of the application as per material available on record.
Once, an order for protection of identity of witness is passed by the Competent Authority, it shall be the responsibility of the Witness Protection Cell to ensure that identity of such witness/his or her family members including name/parentage/occupation/address/digital footprints are fully protected.
As long as identity of any witness is protected under an order of the Competent Authority, the Witness Protection Cell shall provide details of persons who can be contacted by the witness in case of emergency.
Part IV
10. Change of identity.-- In appropriate cases, where there is a request from the witness for change of identity and based on the Threat Analysis Report, a decision can be taken for conferring a new identity to the witness by the Competent Authority.
Conferring new identities includes new name/profession/parentage and providing supporting
documents acceptable by the government agencies. The new identities should not deprive the witness from existing educational/professional/property rights.
Part V
11. Relocation of witness.-- In appropriate cases, where there is a request from the witness for relocation and based on the Threat Analysis Report, a decision can be taken for relocation of the witness by the Competent Authority.
The Competent Authority may pass an order for witness relocation to a safer place within the State/UT or territory of the 18 Indian Union keeping in view the safety, welfare and wellbeing of the witness. The expenses shall be borne from the Witness Protection Fund.
Part VI
12. Witnesses to be apprised of the Scheme.-- Every State shall give wide publicity to this Scheme. The IO and the Court shall inform witnesses about the existence of "Witness Protection Scheme" and its salient features.
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.
14. Recovery of expenses.-- In case the witness has lodged a false complaint, the Home Department of the concerned Government can initiate proceedings for recovery of the expenditure incurred from the Witness Protection Fund.
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 30 days of passing of the orders by the Competent Authority.
Witness Protection Application
under
Witness Protection Scheme, 2018
Before, (To be filed in duplicate)
19
The Competent Authority,
District..................
Application for:
1. Witness Protection
2. Witness Identity Protection
3. New Identity
4. Witness Relocation
1. Particulars of the Witness
(Fill in Capital):
(1) Name
(2) Age
(3) Gender (Male/Female/Other)
(4) Father's/Mother's Name
(5) Residential Address
(6) Name and other details of family
members of the witness who
are receiving or perceiving threats
(7) Contact details (Mobile/e-mail)
2. Particulars of criminal matter:
(1) FIR No.
(2) Under Section
(3) Police Station
(4) District
(5) D.D. No. (in case FIR not yet
registered)
(6) Cr. Case No. (in case of
private complaint)
3. Particulars of the accused
(if available/known):
(1) Name
(2) Address
(3) Phone No.
(4) Email id
4. Name & other particulars of the person
giving/suspected of giving threats
5. Nature of threat perception. Please give brief details of threat received in the matter with specific date, place, mode and words used
6. Type of witness protection measures prayed by/for the witness
7. Details of interim/Urgent Witness Protection needs, if required 20 Applicant/witness can use extra sheets for giving additional information.
______________________ (Full Name with signature) Date: ..................
Place: ..................
UNDERTAKING
1. I undertake that I shall fully cooperate with the competent authority and the Department of Home of the State and Witness Protection Cell.
2. I certify that the information provided by me in this application is true and correct to my best knowledge and belief.
3. I understand that in case, information given by me in this application is found to be false, the competent authority under the scheme reserves the right to recover the expenses incurred on me from out of the Witness Protection Fund.
______________________ (Full Name with signature) Date: ..................
Place: .................."
27. As is clear from its reading, the essential features of the Witness Protection Scheme, 2018 include identifying categories of threat perceptions, preparation of a "Threat Analysis Report" by the Head of the Police, types of protection measures like ensuring that the witness and accused do not come face to face during investigation, etc. protection of identity, change of identity, relocation of witness, witnesses to be apprised of the scheme, confidentiality and preservation of records, recovery of expenses, etc.
28. Since it is beneficial and benevolent scheme which is aimed at strengthening the criminal justice system in this country, which shall in turn ensure not only access to justice but also advance the cause of justice itself, all the States and Union Territories also accepted that suitable directions can be passed by the Court to enforce the said scheme as a mandate of the Court till the enactment of a statute by the legislatures.
29. It is clear from the aforesaid events that the Scheme is the outcome of the efforts put in by the Central Government with due assistance not only from the State Governments as 21 well as Union Territories but other stakeholders including police personnel, NALSA and State Legal Services Authorities, High Courts and even civil society. There is no reason not to accede to the aforesaid submission of the learned Attorney General and other respondents.
... ... ...
36. We, accordingly, direct that:
36.1. This Court has given its imprimatur to the Scheme prepared by Respondent 1 which is approved hereby. It comes into effect forthwith.
36.2. The Union of India as well as the States and the Union Territories shall enforce the Witness Protection Scheme, 2018 in letter and spirit.
36.3. It shall be the "law" under Articles 141/142 of the Constitution, till the enactment of suitable parliamentary and/or State legislations on the subject.
36.4. In line with the aforesaid provisions contained in the Scheme, in all the district courts in India, Vulnerable Witness Deposition Complexes shall be set up by the States and Union Territories. This should be achieved within a period of one year i.e. by the end of the year 2019. The Central Government should also support this endeavour of the States/Union Territories by helping them financially and otherwise."
The Apex Court notices that the Scheme requires identification of categories of threat perceptions by preparation of a threat analysis report and then grant protection to those witnesses. The Apex Court further directed that till a law is made by the Union of India as well as the States, the Scheme should be enforced in letter and spirit. The Scheme defines who is the witness. Clause (k) of Section 22 2 defines who is a witness. The witness would mean any person who possesses information or document about any offence.
Therefore, the contention of the State that the petitioner is not a witness is not acceptable, as he is the victim in the aforesaid crime and is the only witness to the crime. He would fit in to the definition of 'witness'.
10. The Punjab and Haryana High Court in OM PRAKASH SONI v. STATE OF PUNJAB2 has, while considering the Scheme, held as follows:
".... .... ....
18. The norms and guidelines for granting security cover to individuals have been Lald down in State Security Policy which has been notified by the respondent-State of Punjab on 02.09.2013 in view of directions issued by the Hon'ble Apex Court in SLP No. 25237 of 2010 titled 'Abhay Singh v. State of U.P.'. As per State Security Policy, the police officers are recruited, trained and maintained at a huge cost to be borne by the taxpayers. These trained police officers/officials are to be deployed for the protection of the community. Provision for granting security covers of police officers to individuals for their protection at the cost of taxpayers has to be viewed as an exception and not as a rule. While exercising jurisdiction under Article 226 of the Constitution of India, this Court cannot substitute itself in place of the competent authority and cannot substitute its decision for that of competent authority in respect of threat perception entertained by a protectee or individual. The threat perception has to be real, based on intelligence reports from different quarters. The 2 2022 SCC OnLine P&H 2028 23 demand of security cannot be on the basis of displaying an authority of symbol or to flaunt the status as a very important person. No privileged class can be created on the State's expense by using money of taxpayers. Personal security cover cannot be claimed as a matter of right and in perpetuity. The security threat has to be assessed on the basis of intelligence inputs from different agencies and if the protectee has a real threat, his threat perception in the form of inputs can also be considered by the competent authority in order to rule out any such real threat if at all exists as per perception of the protectee. The view point of the protectee has also to be analyzed on the basis of defined parameters as per State Security Policy. The reference can be made to the Division Bench judgment of this Court in LPA No. 2165 of 2017 titled 'Jaskirat Singh Chahal v. State of Punjab' decided on 28.03.2022.
19. The gravity of threat in view of prospective apprehension of an individual(s)/protectees has to be analyzed periodically by the competent authority in order to rule out any such unfounded apprehension or otherwise. The competent authority has also to analyze the material to be supplied by the protectee or individual, claiming security cover, enhancement in the security cover already provided in addition to the security cover already provided.
20. In the present bunch of cases, it is true that security is a State subject and the competent authority has to evaluate the threat, if any, faced or perceived by an individual/individuals and protectee(s). This exercise has to be left to the competent authority for making lawful assessment of threat on the basis of inputs to be provided by the State/Central agencies. The impugned action in withdrawing the security cover of the protectees in lots can be viewed from the view points of both the parties. One thing is common that after withdrawal of security cover by the State Security Review Committee on different occasions, the same has come under public domain and that fact has aggravated the perceived threat of the protectees. The issue of analysis may give rise to a very subjective notion. The protectee having a security cover on being subjected to withdrawal of security cover may suffer at the hands of his enemies promptly or with the passage of time. This Court cannot loose sight of the fact that in a given case, 24 de-categorization of security may sometime prompt the inimical anti-social elements to take drastic step to over come the de- categorized security in order to attack the protectee. All these events are subjective in nature and no general opinion can be formed at this stage as the same is the State subject for which the competent authority is to form an opinion on the basis of different inputs.
21. In order to ward off the continued apprehension of the protectees in view of bringing the issue of withdrawal of security under public domain, this Court is of the opinion that the competent authority should make fresh assessment in respect of security threats of protectees after considering the available inputs from different agencies including State and Central agencies. The competent authority should also consider the inputs to be provided by the individuals/protectees by giving them adequate notice. The impression which has been given by bringing the impunged action under public domain can only be cured by undertaking fresh security review in accordance with law and that too by appreciating and considering various inputs of the State and Central agencies as well as the inputs to be provided by the individuals/protectees at the time of such assessment."
Therefore, the witnesses are to be protected if they were to come within the Scheme. But, it would not be ipso facto granted. Threat analysis report is what is required in terms of the Scheme by the Police. The said threat analysis report is to be taken by the State Police. Therefore, while accepting the fact that the petitioner would come within the definition of witness, he should be granted free police protection only on a threat analysis report.
2511. In the case at hand if the threat analysis report would go against the petitioner, he will have to bear the expenses of Police protection and on the other hand, if it goes in favour of the petitioner, then the respondents will have to be give him Police protection free of cost. If the Police would encounter its misuse by the petitioner, it shall be considered to be withdrawn after due process of law.
With these observations, the petition stands disposed.
Consequently, I.A.No.1 of 2025 also stands disposed.
SD/-
(M.NAGAPRASANNA) JUDGE bkp CT:MJ