Calcutta High Court (Appellete Side)
Item No. Sl - 57 vs Snandy on 17 September, 2018
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
17.09.2018 WP 11328 (W) of 2018
Court No. 14 Chadera @ Chandera Bibi Sk.
Item No. SL - 57 Vs.
snandy
The State of West Bengal & Ors.
(DISPOSED OF)
Mr. Uday Shankar Chattopadhyay, Advocate
Mr. Santanu Maji, Advocate
Ms. Snigdha Saha, Advocate
Ms. Payel Shome, Advocate
......for the Petitioner
Mr. Lalit Mohan Mahato, Advocate
Ms. Jhuma Chakraborty, Advocate
......for the State
The writ-petitioner is a de facto complainant in a case
registered inter alia under Section 302 of the Indian Penal
Code in respect of her brother-in-law who is stated to have
been murdered by the private respondents. The writ-
petitioner has two-fold grievances.
Firstly, by reason of threat by the private respondents and also the other accused persons in the aforesaid case under Section 302 IPC, she and her family members are presently residing under Bolpur Police Station after leaving their original residence at Rajipur. Secondly, the writ-petitioner is entitled to have police protection.
In those circumstances, the Officer-in-charge, Bhatar Police Station is directed to escort the writ-petitioner and her family members to her residence at Rajipur and shall ensure that she is able to reside in her own premises at Rajipur. A police picket shall be maintained in front of the house of the writ-petitioner for a period of one week to ensure that there is no threat to her life and her family members. Once the writ- petitioner reaches her residence, a proceeding under Section 107 of the Code of Criminal Procedure shall be initiated against the private respondents to ensure that no breach of peace takes place and that the writ-petitioner is able to reside in her home peacefully.
The above order is being passed in view of the averments made in paragraph 14 of the writ-petition.
The learned Counsel for the State, however, submits that by way of a report in writing dated July 12, 2018 that the writ-petitioner with his family are, in fact, safely residing in their premises at Rajipur.
2The writ-petitioner has further prayed for a direction upon the State to ensure due protection to all the witnesses.
The Hon'ble Supreme Court in the case of NHRC Vs. State of Gujarat reported in (2009) 6 SCC 767 has explained the need for witness protection after analyzing the laws in this regards in the United Stated, Australia, England and other Common Wealth jurisdiction. At Para 18, 21, 22, 37, 40 (ix-i) and 40 (ix-v).
"18. Similar provisions exist in the stature for the creation of an International Criminal Court ( in short "ICC"). In most of the cases, witnesses are the victims of the crime. Most vulnerable amongst them are women and children. Under the existing system they are mere pawns in a criminal trial and there is very little concern for protecting their real interests. The protection is necessary so that there is no miscarriage of justice; but protection is also necessary to restore in them, a sense of human dignity.
21. It needs to be emphasized that the rights of the accused have to be protected. At the same time the rights of the victims have to be protected and the rights of the victims cannot be marginalized. Accused persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims' perception the perpetrator of a crime should be punished. They stand poised equally in the scales of justice.
22. In order to ensure that the trials are conducted in a fair manner and within the realm of protecting the rights of the victim s it is important that the decorum of the court is maintained at all times. In order to balance the need for a public trial with the need to ensure that victims/witnesses are not intimidated within the courtrooms, it is necessary for the court to impose reasonable restrictions on the entry of persons into the courtroom.
37. Since the protection of a witness is of paramount importance it is imperative that if and when any witness seeks protection so that he or she can depose freely in court, the same has to be provided. It is therefore directed that if a person who is examined as a witness needs protection to ensure his or her safety to depose freely in a court he or she shall make an application to SIT and SIT shall pass necessary orders in the matter and shall take into account all the relevant aspects and direct such police official/officials as it considers proper to provide the protection to the person concerned. It shall be the duty of the State to abide by the direction of SIT in this regard. It is essential that in riot cases and cases involving communal factors the trials should be held expeditiously. Therefore, we request the Hon'ble Chief Justice of Gujarat High Court to designate court(s) in each district where the trial of the cases concerned are to be held. The 3 Designated Courts shall take up the cases in question.
40.(ix-i) For ensuring of a sense of confidence in the mind of the victims and their relatives, and to ensure that witnesses depose freely and fearlessly before the court, in case of witnesses following steps shall be taken:
(a) Ensuring safe passage for the witnesses to and from the court precincts.
(b) Providing security to the witnesses in their place of residence wherever considered necessary, and
(c) Relocation of witnesses to another State wherever such a step is necessary.
40 (ix-v) All the aforesaid directions are to be considered by SIT by looking into the threat perception, if any."
It was noted in the said judgment that despite successive Law Commissions recommending the need for passing laws as witness protection suitable laws do not exist. The Court also however noted the practical difficulties in this regard.
Learned Counsel for the petitioner relies upon a DB decision of the Delhi High Court in the case of Neelam Katara Vs. UOI reported in ILR (2003) II Delhi 377.
In the instant case the petitioners and her family members are named witnesses in the chargesheet filed by the State. They are being constantly threatened by the private respondents from deposing evidence in the P.S. Case No. 400 of 2014. There is threat to their life and limb.
In those circumstances, the Superintendent of Police, Burdwan, shall ensure appropriate protection to the witnesses named in Bhatar Police Station case No. 400 of 2014. Let the trial before the concerned Sessions Court be completed expeditiously.
Let the copy of this order be sent to the Home Secretary of the Government of West Bengal to consider the introduction of an appropriate Witness Protection Programme on the lines indicated in the NHRC Vs. Gujarat judgment (supra).
With the aforesaid directions, the writ-petition being WP 11328 (W) of 2018 is hereby disposed of. No order as to costs.
(Rajasekhar Mantha, J.) 4