Karnataka High Court
Ningappa And Anr vs The State Of Karnataka on 29 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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CRL.P No. 201407 of 2023
R
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.201407 OF 2023 (439)
BETWEEN:
1. NINGAPPA
S/O HANAMANTH SURPUR
AGED ABOUT 32 YEARS,
OCC. AGRICULTURE,
R/AT: SHETTIKERA VILLAGE,
TQ: SHAHAPUR,
DIST: YADGIRI - 585 201.
2. JATTEPPA
S/O SAIBANNA UDNOOR,
AGED ABOUT 55 YEARS, OCC. AGRICULTURE,
R/O SHETTIKERA VILLAGE,
TQ: SHAHAPUR,
DIST.YADGIRI - 585 201.
...PETITIONERS
Digitally signed
(BY SRI. BHEEMARAYA M N, ADVOCATE (THROUGH V/C))
by SACHIN
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE STATE OF KARNATAKA
THROUGH GOGI POLICE STATION,
TQ.SHAHAPUR,
DIST.YADGIRI-585201
NOW REPRESENTED BY ADDL.SPP
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585107.
...RESPONDENT
(BY SMT. ANITA.M. REDDY, HCGP FOR R1(THROUGH V/C);
SRI. ASHOK.MULAGE, ADVOCATE FOR R2(THROUGH V/C))
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CRL.P No. 201407 of 2023
THIS CRL.P. IS FILED U/S. 439 OF CR. P. C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO ALLOW THE BAIL
PETITION AND ENLARGE THE PETITIONERS ON BAIL, IN
S.C.NO.35/2020, PENDING BEFORE THE SESSIONS JUDGE, AT
YADGIRI, ARISING OUT OF THE CHARGE SHEET FILED IN
CRIME NO. 32/2020, REGISTERED BY GOGI POLICE STATION
DIST. YADGIR AND FILED CHARGE SHEET AGAINST THE
PETITIONERS FOR THE OFFENCES PUNISHABLE U/SEC.302,
201, 120(B) R/W 149 OF IPC, IN THE INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ORDER, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This bail petition is filed by the petitioners/accused Nos.3 and 4 under Section 439 of Cr.P.C. seeking to release them on bail.
2. This is successive bail petition filed by the petitioners/accused Nos.3 and 4 on the file of the Court of Sessions Judge, Yadgiri, praying for enlarging them on bail in Crime No.32/2020 (S.C.No.35/2020) of Gogi Police Station for the offences punishable under Sections 302, 201, 120(B) r/w Section 149 of IPC.
3. The brief facts of the case are:
-3-NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 The complainant is the wife of deceased Nagappa, who is having three brothers viz., petitioner Nos.1 to 3. It is stated that the deceased and petitioner Nos.1 to 3 have purchased agricultural land in Sy.No.88, measuring to the extent of 14 acres 34 guntas in the year 2009, thereafter family partition took place in between them wherein the deceased was given a share to the extent of 03 acres 29 guntas in Sy.No.88/05. Thereafter, the land was allotted to deceased, but the name of petitioner No.1 was continued in the revenue records. Thereafter, KIADB had proposed to acquire the land by fixing a sum of Rs.17,43,030/- as compensation per acre and petitioner No.1 stated that all brothers shall take equal distribution of the amount by once again repartitioning the properties, which proposal was rejected by the deceased. Inspite of continuous efforts made by the elders and also advice made by petitioner Nos.1 to 3, the deceased stated that his land is acquired by KIADB and therefore, he is alone entitled for compensation amount and he would not give any compensation to any of his brothers.-4-
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4. Therefore, being upset with the same, petitioner Nos.1 to 4 have made a conspiracy to eliminate the deceased in that event they would also receive the compensation amount. Therefore, in order to eliminate the deceased, they hatched a plan and conspiracy upon knowing the fact that the deceased is having illicit relationship with petitioner No.5 and the deceased was often coming to the house of petitioner No.5 and all the petitioners have committed murder of deceased in the house of petitioner No.5 on 12.03.2020, thereafter, in order to destroy the evidence, the petitioners have thrown the dead body of the deceased in a canal by taking the body in a motorcycle bearing Reg.No.KA.33-U-8697 and in this way committed the offence of murder. Further, the dead body was found in the canal on 18.03.2020. Thus, based upon the complaint a case came to be registered in Crime No.32/2020 for the offences punishable under Sections 302, 201, 120(B) r/w Section 149 of IPC.
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5. Learned Counsel for the petitioners vehemently submitted that the entire case is based on circumstantial evidence and there are no eyewitnesses to the incident.
He further submitted that the petitioners/accused Nos.1 to 4 are in incarceration in jail for period of more than three years, without there being any progress in the trial.
Therefore, keeping the petitioners in custody is nothing but punishment without trial. Hence, prays to enlarge the petitioners on bail. He further submitted that with no fault of petitioners, the petitioners are in incarceration for which the petitioners are not responsible. Further submitted that there may be various circumstances for delay in the trial, but that cannot be a ground to detain the petitioners in jail. He further submitted that now the case is still pending for trial and there is no progress at all and under this circumstance, conclusion of trial may take some time.
Therefore, prays for enlargement of the petitioners on bail.
6. Learned Counsel for the petitioners further submitted that life and liberty of the petitioners is the -6- NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 fundamental right under Article 21 of the Constitution of India and for more than three years without trial, the petitioners are in custody which is nothing but violation of Article 21 of the Constitution. Under the circumstances, as per the judgments of Hon'ble Supreme Court, it is obligatory on the part of Court to release the petitioners on bail. In support of his contentions, he places reliance on the judgments of the Hon'ble Supreme Court, which are as follows:
i. PARAS RAM VISHNOI VS. THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION [Crl.A.No.693/2021 arising out of Sl.A.No.3610/2020 DD 27.07.2021] ii. HUSSAINARA KHATOON & ORS. VS. HOME SECRETARY, STATE OF BIHAR [AIR 1979 SC 1369] iii. UNION OF INDIA VS. K.A.NAJEEB [Crl.A.No.98/2021 DD 01.02.2021] iv. BABU SINGH & ORS. VS. THE STATE OF U.P. [AIR 1978 SC 527] -7- NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 v. GUDIKANTI NARASIMHULU AND ORS. VS.
PUBLIC PROSECUTOR [AIR 1978 SC 429] vi. SATENDER KUMAR ANTIL VS. CENTRAL BUREAU OF INVESTIGATION [Miscellaneous Application No.1849/2021 DD 11.07.2022]
7. On the other hand, learned HCGP would submit that there are evidence to show that the petitioners have committed brutal murder of the deceased, which is for gaining compensation amount. Therefore, submitted that pre-plan and conspiracy was made among the petitioners to eliminate the deceased in order to receive the compensation and the deceased was coming in the way to receive the compensation. Therefore, in this way a motive was developed and have made conspiracy and shared common intention to eliminate the deceased, accordingly they committed the murder.
8. Learned HCGP further submitted that accused No.5 has also given aid to other petitioners in commission of the offence. Further submitted that C.Ws.15 and 16 are the eyewitnesses to the incident and they have witnessed -8- NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 the incident and therefore, if the petitioners are released on bail, there are every chances of fleeing from justice, absconding and also threatening the prosecution witnesses, which cannot be ruled out. With these all reasons, prayed to reject the bail petition.
9. Learned HCGP further submitted that the delay caused in progress of the trial is beyond circumstances as there was prevailing Covid-19 pandemic. Hence, the Courts were constrained to adjourn the matters and also the Investigating Officers of the concerned police station have not produced the petitioners before the Court for trial, which are beyond control. Hence, under these circumstances, there might have been some delay in the trial, but that alone cannot be a ground to enlarge the petitioners on bail. Therefore, prayed for rejection of the bail application.
10. This Court on earlier occasions i.e., on 25.08.2020 and 14.07.2022 had dismissed the bail applications filed by accused Nos.3 and 4.
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11. Learned counsel for the petitioners/accused Nos.3 and 4 has argued that accused Nos.1 and 2 have been released on bail and the accusation against these petitioners are also same as that of the accused Nos.1 and 2 and therefore, on the ground of parity prays for granting bail to these petitioners.
12. The complainant, who is wife of deceased has engaged services of an Advocate by filing an application under Section 301 of Cr.P.C. to assist the Public Prosecutor in Sessions case and SPP in this case. Based on the instruction of the complainant, it is submitted that there is threat to life of CW-1, who is wife of deceased to give evidence in the Court. When it is alleged that there is threat to CW-1 to give evidence before the Sessions Court, then this Court had ordered to give necessary police protection to CW-1 for making her comfortable to give evidence without any fear. Accordingly, the evidence of CW-1 was posted on 27.01.2024, but it is submitted to the Court that the Presiding Officer of the Sessions Court was
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 on leave. Therefore, further trial was fixed on 07.02.2024.
The CW-1 - complainant was present in the office of the SPP and appeared through video conference and stated that there is threat to her life for giving evidence before the Sessions Court. Considering the submission made by the learned SPP and learned counsel for the respondent No.2, necessary orders are passed for giving full protection to CW-1. It is contended that the trial is not conducted in free and fair manner.
13. Accused Nos.1 and 4 have been released on bail by this Court, but CW-1 complained that there is threat to her life. Therefore, under these circumstances, the petitioners herein (Accused Nos.3 and 4) are to be given benefit of bail or not, is to be considered in the background of whether accusations against the petitioners and accused Nos.1 and 2 are with motive to commit murder of the deceased in engulfing the amount of land acquisition compensation is to be considered. The five accused have conspired to each other and each of the
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 accused have played their role in committing murder of the deceased.
14. It is revealed from the charge sheet materials regarding the role of each petitioners that accused No.3 had held the hands of deceased, accused No.2 had held legs of the deceased and the accused No.1 had assaulted with Bamboo stick on the head of deceased forcibly, then the accused Nos.2 and 3 have kicked the deceased, then the accused No.4 had strangulated the deceased with gunny rope and in this way the death of the deceased was committed in the house of accused No.5.
15. It is the case of prosecution that since the accused have conspired with each other with a motive to murder the deceased, there could not be an eye witness to the incident. Therefore, case is based on the circumstantial evidence. The prosecution is contending that the accused persons have strong motive to kill the deceased. It is further submitted that if accused Nos.3 and 4/petitioners are released on bail, then they may give
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 threat to CW-1 - complainant, who is wife of the deceased.
Under such circumstances, there could not be free and fail trial. The offences alleged in the present case is heinous in nature and for the offence punishable under Section 302 of IPC, the maximum punishment to be imposed is imprisonment for life. Therefore, it is worthwhile to refer the judgment of Hon'ble Supreme Court in the case of GUDIKANTI NARASIMHULU AND ORS. vs. PUBLIC PROSECUTOR1 [GUDIKANTI NARASIMHULU's case (supra)] while considering the bail applications filed under accusation of heinous offences.
16. The prosecution case is that all the accused have hatched conspiracy with a motive why the accused be murdered for getting land acquisition compensation amount and accordingly, prepared themselves with rods, gunny rope and sticks with an intention how to commit murder. The accused have successful in planning the murder and commission of offence of murder. The 1 AIR 1978 SC 429
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 prosecution has established prima facie case as above discussed.
17. Learned HCGP has also referred the judgment of Supreme Court in the case of SATENDER KUMAR ANTIL vs. CENTRAL BUREAU OF INVESTIGATION2 [SATENDER KUMAR ANTIL's case (supra)] and the Court is of the opinion that there is potential threat to CW1
- complainant while giving evidence before the Sessions Court. Though accused Nos.1 and 2 are released on bail and when the complainant has alleged there is threat to life, the prosecution has not preferred any application requesting to cancel the bail application granted to accused Nos.1 and 2. Therefore, considering this, during the trial, the Court is of the opinion that if accused Nos.3 and 4/petitioners herein are released on bail, then the threat would be aggravated. When the Court sees prima facie that there would be aggravation of threat to life of CW1, then there would not be free and fair trial.
2(2021) 10 SCC 773
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18. Therefore, considering these circumstances above stated, the Court is of the opinion not to release accused Nos.3 and 4 on bail. Therefore, the bail application filed by the petitioners/accused Nos.3 and 4 is hereby rejected.
OBSERVATIONS ON DELAY IN TRIAL, PRODUCTION OF ACCUSED BEFORE THE COURT AND WITNESS PROTECTION:-
19. Upon considering the chronological events in this case from the date of filing charge sheet before the learned Magistrate Court, till today there is enormous delay stage by stage prolonging the trial for more than four years. The delay in trial would frustrate the witnesses thereby defeating the meaning of free and fair trial itself.
In this regard, the Court has directed the learned HCGP to file synopsis in detail by mentioning every dates of trial to ascertain whether the accused who are in custody are being produced before the Court regularly; whether the witnesses are present before the Court for the evidence and who is responsible in causing delay.
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20. For all these ascertainment of events, learned HCGP has filed a written synopsis along with certified copy of order sheet in the trial. Learned counsel for the petitioners has also furnished all the documents pertaining to trial. Upon perusal of the records and order sheet meticulously maintained in the trial with the help of synopsis submitted by the learned HCGP, it is found out that there is a flagrant insensitiveness on the part of the concerned police in producing the accused before the Court for trial. Majority of times in the trial the accused who are in custody are not produced before the Court rendering Sessions Judge unable to proceed with the trial. Upon perusal of the dates of events in the trial, unfortunate situation is developed that the witnesses have lost confidence in giving evidence even appearing before the Court for evidence, because the accused are not produced before the Court, thus trial is not proceeded with.
Therefore, the witnesses are bound over to next date without any progress. The order sheet in the Sessions trial
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 reveals that most of the date of hearings the concerned police of the police stations have not produced the accused before the Court who have been in custody and on that date the witnesses were present, but trial could not be conducted for want of accused. Thus, witnesses are bound over and returned to their home with empty hands. A situation is created in the mind of witnesses that even they are present before the Court to give their evidence, there is no certainty that the trial would be taken up since uncertain situation whether accused are produced or not.
Therefore, they were absent before the Court. Therefore, these developments are occurred resulting in mockery of justice as there would not be any progress in the trial. In this way, the prosecution witnesses are harassed.
21. Speedy trial is fundamental right as per Article 21 of the Constitution of India for the accused. Same holds good for the complainant/victim as well as witnesses, but this is flouted in this case. The Hon'ble Supreme Court time and again was pleased to issue
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 guidelines to speed up the trial and conclude trial within a reasonable period as per mandatory provision under Section 309 of Cr.P.C. The Hon'ble Supreme Court in the case of AKHIL @ JAVED v. STATE OF NCT OF DELHI3 [AKHIL @ JAVED's case] by following the judgment in the case of STATE OF UP vs. SHAMBHU NATH SINGH AND OTHERS4 were pleased to issue guidelines, which are mandatorily be followed by the trial courts. The Hon'ble Supreme Court in Shambu Nath Singh's case has observed at paragraph Nos.11, 12, 13, 14, 15 and 16 which are as follows:
"11. The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words "as expeditiously as possible" have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses begin. The legislature which diluted the vigour of the mandate contained in the initial limb of the sub- section by using the words "as expeditiously as possible"
has chosen to make the requirement for the next stage (when examination of witnesses has started) to be quite stern. Once the case reaches that stage the statutory command is that such examination "shall be continued from day to day until all the witnesses in attendance have been examined". The solitary exception to the said stringent rule is, if the court finds that adjournment "beyond the following day to be necessary" the same can 3 (2013) 7 SCC 125 4 (2001) 4 SCC 667
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the Court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the second proviso to sub-section (2) has imposed another condition, "provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing".
(emphasis supplied)
12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with immunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of Section 309 of the Code.
14. If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses,
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case.)
15. The time-frame suggested by a three- Judge Bench of this court in Rajdeo Sharma vs. State of Bihar (1998) 7 SCC 507 : 1998 SCC (Cri) 1692 is partly in consideration of the legislative mandate contained in Section 309(1) of the Code. This is what the Bench said on that score:
"16. The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) Cr.P.C. supports the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day."
16. In Raj Deo Sharma (II) vs. State of Bihar reported in (1999) 7 SCC 604 : 1999 SCC (Cri) 1324 this Court pointed out that the trial court cannot be permitted to flout the mandate of Parliament unless the court has very cogent and strong reasons and no court has permission to adjourn examination of witnesses who are in attendance beyond the next working day. A request has been made by this Court to all the High Courts to remind all the trial judges of the need to comply with Section 309 of the Code. The request is in the following terms:
"14. We request every High Court to remind the trial judges through a circular, of the need to comply with Section 309 of the Code in letter and spirit. We also request the High Court concerned to take note of the conduct of any particular trial judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits."
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22. Further the Hon'ble Supreme Court in the case of AKIL ALIAS JAVED vs. STATE (NCT OF DELHI)5 by following various previous judgments of Hon'ble Supreme Court and other High Courts in similar set of facts and circumstances where delay in trial is caused has observed and laid down law at Paragraph Nos.42 and 43 which are as follows:
"42. Keeping the various principles, set out in the above decisions, in mind when we examine the situation that had occurred in the case on hand where PW.20 was examined-in-chief on 18.09.2000 and was cross-examined after two months i.e. on 18.11.2000 solely at the instance of the appellant's counsel on the simple ground that the counsel was engaged in some other matter in the High Court on the day when PW.20 was examined-in-chief, the adjournment granted by the trial Court at the relevant point of time only disclose that the court was oblivious of the specific stipulation contained in Section 309 of Cr.P.C. which mandate the requirement of sessions trial to be carried on a day- to-day basis. The trial Court has not given any reason much less to state any special circumstance in order to grant such a long adjournment of two months for the cross-examination of PW.20. Everyone of the caution indicated in the decision of this Court reported in Raj Deo Sharma V. State of Bihar (1998) 7 SCC 507 : 1998 SCC (Cri) 1692 :
1998 Cri LJ 4596 was flouted with impunity. In the said decision a request was made to all the High Courts to remind all the trial Judges of the need to comply with Section 309 of the Code in letter and spirit. In fact, the High Courts were directed to take note of the conduct of any particular trial Judge who violates the above legislative mandate and to adopt 5 (2013) 7 SCC 125
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 such administrative action against the delinquent judicial officer as per the law.
43. It is unfortunate that in spite of the specific directions issued by this Court and reminded once again in Shambhu Nath (Supra) such recalcitrant approach was being made by the trial Court unmindful of the adverse serious consequences flowing therefrom affecting the society at large. Therefore, even while disposing of this appeal by confirming the conviction and sentence imposed on the appellant by the learned trial Judge, as confirmed by the impugned judgment of the High Court, we direct the Registry to forward a copy of this decision to all the High Courts to specifically follow the instructions issued by this Court in the decision reported in Raj Deo Sharma (supra) and reiterated in Shambhu Nath (supra) by issuing appropriate circular, if already not issued. If such circular has already been issued, as directed, ensure that such directions are scrupulously followed by the trial Courts without providing scope for any deviation in following the procedure prescribed in the matter of a trial of sessions cases as well as other cases as provided under Section 309 of Cr.P.C. In this respect, the High Courts will also be well advised to use their machinery in the respective State Judicial Academy to achieve the desired result. We hope and trust that the respective High Courts would take serious note of the above directions issued in the decisions reported in Raj Deo Sharma (supra) which has been extensively quoted and reiterated in the subsequent decision of this Court reported in Shambhu Nath (supra) and comply with the directions at least in the future years."
23. Inspite of all the directions issued by the Hon'ble Supreme Court, however, the trial courts are not sensitive in following the guidelines issued by the Hon'ble Supreme Court also the legislative mandate of Section 309 of Cr.P.C. This Court is of the apprehension that when
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 these guidelines are issued on procedural aspect to achieve the Constitutional object and if they are not followed, then whether it may amount to Contempt of Court on the part of the stake holders, is a question, otherwise, if these guidelines are not followed then what would be the purpose and effect to issue such guidelines by the Hon'ble Supreme Court. Therefore, when a law is declared by the Supreme Court then as per Article 141 of the Constitution of India that shall be followed by the every Judge, Advocate, Police Officials, Witnesses, Litigants and public at large, but, it is unfortunate to observe that the trial court Judges and police officials are not following these guidelines. An unfortunate development is being happening flouting directions of the Hon'ble Supreme Court in this regard virtually rendering dispensation of justice as a mockery of justice. The justice seekers are waiting for decades. There may be so many constraints which are beyond reach of the system, but that cannot be made excuse by the trial courts as far as possible that all its intensity, vigourousness having
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 proactive approach shall follow the guidelines issued in this regard. The Court does not mean Judge/Presiding Officer alone, but also the Court is component consisting of Judge, Advocates, Police Officials, Witnesses, Litigants.
Therefore, in what way such guidelines are binding on the trial courts, which mean also binding on the Advocates, Police Officials, Litigants, Witnesses, etc. In making dispensation of justice, all are having their own role and responsibility. The Judge is one among them. Therefore, if there is no coordination between each stake holders, as above stated, then it certainly hamper smooth functioning of justice.
24. In SHAMBU NATH SINGH's case (supra) at para 18 (stated supra) it is observed that no blame should be of lack of infrastructure. The objectives to be achieved that shall be achieved. Here, I quote Sanskrit Shloka in Ramayana while there was a battle between Bhagwan Ram and Ravana.
"Kriya siddhihi sathve bhavathi Mahathaam nopakarane"
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CRL.P No. 201407 of 2023
"ि यािस े भवित महतां नोपकरणे ।"
" QæAiÀiÁ¹¢Þ¸ÀìvÉÃé ¨sÀªÀw ªÀĺÀvÁªÀiï £ÉÆÃ¥ÀPÀgÀuÉÃ"
25. Those one who is achiever cannot take excuses of instruments/infrastructure. Therefore, the Hon'ble Supreme Court has observed at para 18 as above stated in SHAMBU NATH SINGH's case (supra), "A determined Judicial Officer, who is supposed to be a committed judicial soldier in his work could manage with the existing infrastructure without taking excuse on lack of some other infrastructure". But where the Judge is committed to his work cannot blame lack of infrastructure and shall work with focus in achieving legislative mandate under Section 309 of Cr.P.C. and guidelines issued by the Hon'ble Supreme Court. Therefore, it is imperative for this Court to issue certain guidelines which are necessarily to be followed during the course of trial from the date of filing charge sheet till pronouncement of judgment of conviction
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 or acquittal and if conviction is made till the order on sentence. The said guidelines are issued as follows:
Soon after filing the charge sheet before the Court of Magistrate, the same shall be scrutinized within a period of 3 days and if any one of the offence is exclusively triable by the Sessions Court, then the Court of Magistrate shall commit the case to the Sessions Court immediately. More so without any delay in the case the accused are in custody.
Soon after receipt of charge sheet by the Office of the Court of Principal Sessions Judge, the Office is to scrutinize the charge sheet materials along with the property and place before the Principal District and Sessions Judge to make over the case to any Additional Sessions Judge or to himself for trial.
It shall be ensured that before commencement of trial of the case, properties shall be with the concerned Sessions Court in whom the case is made over for trial.
The Magistrate Court and in the case of Sessions Court and Special Court, if found charge sheet papers are in order, shall post
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 the matter for Hearing Before Charge (HBC) by fixing a date within 7 days.
The Sessions Court/ the Special Court/ the Magistrate Court shall take appropriate decision to frame charge or not and post the matter for trial within 15 days from passing order on charge, and if decides to frame charge, fix a date for reading over and explaining charge to accused within 15 days from the order on charge. In case an application is filed for discharge under Sections 227 of Cr.P.C., then after receipt of the objections by the prosecution, the said application for discharge shall be decided within 15 days from the date of receiving objection and thereafter within 15 days charge shall be framed, if decides to frame charge and read over and explain to the accused.
After reading over charges and explaining to the accused, and if accused pleads not guilty, then within 30 days the dates for trial shall be fixed by making suitable arrangement as per calendar of events of the trial considering date fixed in other cases. The dates of trial shall be fixed for examination of all the witnesses on day today basis till completion of examination
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 of witnesses. The dates for trial shall be fixed by taking confidence of the public prosecutor/the assistant public prosecutor and the advocate for accused by taking confidence of them according to the calendar of dates for trial fixed and convenient so as not to jumble up examination of the witnesses in a single day. The Sessions judge/ Special judge/ Magistrate are master of their own Court shall fix the date for trial scientifically and in realistic manner.
The Special Court, Sessions Court and Magistrate Court shall adhere to Section 309 of Cr.P.C. and guidelines issued by the Hon'ble Supreme Court in the cases cited supra.
The trial shall be completed within a period of 9 months from the date of commencement of trial including defence evidence if any. If trial is not completed within a period of 9 months, the extension of time for completion of trial shall be with reasons in writing.
Soon after completion of evidence on the prosecution side, the accused shall be examined under Section 313 of Cr.P.C. within a period of seven days.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 After recording defence evidence, if any, by the accused the arguments shall be heard within 15 days and after completion of arguments within 14 days, the judgment shall be pronounced.
In case the accused are in custody, it is mandatory on the part of the Station House Officer/police sub- Inspector/concerned police station to produce the accused before the Court on every date of trial without fail. It is not the duty of the jail authorities to produce the accused before the Court, it is the responsibility of the concerned police station in whose jurisdiction crime is registered and charge sheet is filed to produce the accused before the Court on every date of trial.
If the Court is of the opinion which is proper and feasible to produce the accused through video conferencing, then the presiding officer of the Court/prosecution and police concerned and jail authorities shall make joint effort to conduct the trial by producing the accused through video conferencing."
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 ESCORTING OF ACCUSED IN CUSTODY TO PRODUCE BEFORE THE COURT:-
26. Upon perusing the order sheet recorded and maintained by the Sessions Court, in the instant case, the accused who are in judicial custody have not been produced regularly before the Court by the police of the concerned police station in whose station the crime is registered. The jail authorities and the police are blaming each other and shirking the responsibility to produce the accused before the Court. It is primary duty and obligation on part of the police in whose police station the crime is registered, the Investigating Officer conducted investigated and charge sheet is filed, shall produce the accused before the Court, but not by jail authorities. As per Section 3 of the Prisoners (Attendance in Courts) Act, 1955, stipulates regarding to make appearance of prisoners to give evidence or answer charges and in this regard, the Court makes an order to the Officer incharge of Prison to make arrangement to produce the accused before the Court. Section 3 reads as follows:
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 "3. Power of courts to require appearance of prisoners to give evidence or answer a charge.
1) Any civil or criminal court may, if it thinks that the evidence of any person confined in any prison is material in any matter pending before it, make an order in the form set forth in the First Schedule, directed to the officer in charge of the prison:
Provided that no civil court shall make an order under this sub-section in respect of a person confined in a prison situated outside the state in which the court is held.
(2) Any criminal court may, if a charge of an offence against a person confined in any prison is made or pending before it, make an order in the forms et forth in the Second Schedule, directed to the officer in charge of the prison.
(3) No order made under this section by a civil court which is subordinate to a district judge sjall have effect unless it is countersigned by the district judge:
and no order made under this section by a criminal court which is inferior to the court of a magistrate of the first class shall have effect unless it is countersigned by the district magistrate to whom that court is subordinate or within the local limits of whose jurisdiction that court is situate."
27. Chapter 29 of the Karnataka Prison Manual 1978 and Clause 548 is regarding the attendance of the prisoners before the Court. There is a procedure to produce the prisoners before the Courts as witness or accused. Clause 548 of the Karnataka Prison Manual 1978 stipulates as follows:
"Procedure to obtain Prisoners before Courts as witness or Accused
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023
548. Any Criminal Court may, if it thinks that evidence of any person confined in the Jail is material in any matter pending before it or if a charge of an offence against such person is made or pending, make an order in the form prescribed, direct to the officer incharge of a Prison provided that if such a criminal court is inferior to the court of Magistrate of the First Class, the order shall be submitted to and countersigned by the District Magistrate to whose court such Criminal Court is subordinate.
Similarly a Civil Court may if it thinks that the evidence of any person confined in any prison is material in any matter pending before it, make an order in the prescribed form direct to the officer in charge of the Prison, provided that such an order shall have effect only if it is countersigned by the District Judge to which the court is subordinate.
Note:- For the purpose of the rules in this chapter the officer in charge of Prison whatever designation he may be styled, shall be referred to as "The Superintendent".
28. Further, Clause 561 of the Prison Manual stipulates as follows:
"561. (i) The duty of escorting Prisoners rests with the Police.
(ii) When Prisoners are to be transferred the Superintendent shall apply to the Superintendent of Police for the requisite guard intimating the number of Prisoners and the date and hour of their intended despatch."
29. Chapter 16 of the Karnataka Police Manual, 1998, stipulates regarding escorts and orderlies:
"ESCORT OF PRISONERS:
735. The duty of escorting under trial prisoners from jails and lock-ups to courts for trial
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 necessarily devolves on the police. The prison officer should give timely intimation to the police of the date and the number of prisoners to be escorted to allow of the necessary being made.
(a). While yardsticks regarding the strength of police escorts parties/ guards for escorting prisoners have been prescribed in various orders of the Police manual, the arrangements need to be reviewed and strengthened in the context of escorting terrorists, extremists, dangerous criminal and other high security/escape risk prisoners. Prisoners are required to be escorted in various types of situations including escorting from the point of apprehension to police lock-up, from there to courts and prisoners, from prisons to courts and hospitals vice versa and also from one prison to courts/prisons both within and outside the State. While in each case, the strength and composition of the escort party would require to be fixed after considering various relevant factors including number of prisoners, their antecedents, mode of travel and duration of journey, etc. the under mentioned points may be kept in mind:-
(i) BRIEFING TO ESCORT PARTY The Police party should be thoroughly briefed by the jail authorities and senior police officials with regard to antecedents of prisoners, their habits, past modus operandi and whether they are high security/escape risks before handing them over.
ii) SEARCH OF PRISONERS Thorough physical search of prisoners should be conducted by both the jail staff and escort party before taking them over. They should not be allowed to carry any articles which can be used for offensive/escape purposes.
UNDERTRIAL PRISONERS TO BE SEARCHED BEFORE TAKEN TO THE COURT
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023
736. An under trial prisoner besides being searched before leaving the jail, should be searched each time before he is produced in court and articles, if any found, taken away from him. It should be the joint duty of the prosecuting officer and the officer-in-charge of the escort to make a thorough search and satisfy himself that no offensive weapons are being carried to court by the accused. Similar precautions should be taken regarding prisoners surrendering themselves in court."
30. The combined reading of Clauses in the Karnataka Prison Manual, 1978 and Karnataka Police Manual, 1998, it is the duty cast on the police concerned is responsible to escort the accused, who is in custody to the Court in coordination with the Superintendent of Prison of the concerned prison. As per Section 3 of the Karnataka Prison Manual, 1978, the Court will give order to the Officer in-charge of Prisons to produce the accused before the Court. Upon receiving the said order, the Superintendent of Prison shall give timely intimation to the police of the dates and number of prisoners to be escorted to make necessary arrangements and preparations in this regard. Therefore, it is the duty cast on the Station House Officer (SHO) of the concerned police station, who shall make arrangement to escort the accused to the Court in
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 coordination with the jail authorities. The prison is a provision for housing the Under Trial Prisoners (UTP) and convicted prisoners. But it is the primary responsibility and functioning of the police to escort the accused who are in custody to the Court. For these, the SHO of the police station concerned shall make coordination with the Superintendent of Police of the concerned District for making necessary arrangements to escort the accused to the Court. The Superintendent of Police of the concerned District in coordination with the Commandant of the State Reserve Police shall make arrangement of providing Reserve Police personnel to escort the accused before the Court by making necessary arrangement of vehicle, weapons, police personnel, etc. according to the number of accused to be produced before the Court.
31. Chapter 16 of the Karnataka Police Manual, 1998, in detail describes the procedure for escorts and orderlies. Therefore, it is primary responsibility of the Superintendent of Police to make necessary arrangement
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 and streamline the process of escorting the accused to the Courts in coordination with the Authorities of the State Reserve Police and jail authorities. What are the procedures are to be taken while escorting the accused to the Court, are in detail described in Chapter 16 of the Karnataka Police Manual. When this being the legal position, it cannot be expected the jail authorities alone to make arrangements for escorting the accused to the Court, but it is collective work of all above described.
Therefore, it is hereby directed the Superintendent of Police in each District shall coordinate with the Authorities of the State Reserve Police and jail authorities to make necessary and mandatory arrangements as per the provisions in the Karnataka Police Manual, 1998, to produce the accused before the Court. In this regard, the Station House Officer under the guidance of the Superintendent of Police of the concerned District shall make arrangement to escort the accused before the Court.
It is hereby directed the Superintendent of Police to monitor, supervise and control escorting the accused to
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 the Courts from the prison and maintain ledger/record in this regard.
32. Chapter 29 of the Karnataka Prisons and Correctional Services Manual, 2021, provides for attendance of prisoners before the Court. Clause 521 reads as follows:
"521. Production before Court;
i. Prisoners shall be produced before the Courts, on the due date of hearing, in person or through video conference;
ii. These entries should be made daily by the officials concerned and should be supervised daily by the Officer-in-charge of the section;
iii. The duty of ascertaining the time at which a prisoner committed to the Sessions is to be produced before the Sessions Court and of providing the necessary escort for this purpose rests with police, if in case of physical production;
iv. The Head of Prison should be make arrangements for the production of prisoners in Court at the appointed date who is committed to Sessions or is remanded pending a Magisterial inquiry or trial, he shall make suitable arrangements with the police for providing the necessary escort in case of physical production;
v. For this purpose, Court diary shall be maintained in which all relevant entries of production before various Court shall be made. These entries should be made daily by the concerned officials and should be daily supervised by the in-charge officers where such posts are in existence;
vi. On the basis of the Court diary requisition for police escort should be sent sufficiently in advance, in a case of physical production.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 Information about women adolescent, young offenders, under trial prisoners, and as far as possible about violent, dangerous and notorious under trial prisoners, should be sent to the police authorities while requisitioning the escort. The acknowledgement shall be obtained in a register from the senior police officer of the escort;
vii. Whenever a release order of the prisoner is received from a Court directing the release on bail of an under trial prisoner, he shall at once be released and his property shall made over to him."
33. It is common experience that the accused are not produced before the Court regularly. Thus, it causes hindrance to the smooth functioning of criminal justice system. Unless the accused in custody are produced before the Court, the trial would not be proceeded with.
Therefore, it is hereby directed the Superintendent of Police of each District shall maintain a regular register of monitoring, controlling and supervising escorting the accused to the Courts in each case before the Courts in concerned District and in this regard, the Superintendent of Police of the District shall issue Circulars to all the Station House Officers of the police station situated in each Districts.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023
34. It is worthwhile to refer the Circular No. PÁªÀÄvÀÄÛ¸ÀÄ(7)/92/2013-14 dated 28.01.2014 issued by the Director General and Inspector General of Police, Karnataka State, regarding production of prisoners to the Court and to the hospitals. The extract is reproduced as follows:
"qÉÊgÉPÀÖgï d£ÀgÀ¯ï ªÀÄvÀÄÛ E£ÀߥÉPÀÖgï d£ÀgÀ¯ï D¥sï ¥ÉưøïgÀªÀgÀ PÁAiÀiÁð®AiÀÄ, PÀ£ÁðlPÀ gÁdå, £ÀÈ¥v À ÀÄAUÀ gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ - 560 001.
¸ÀASÉå : PÁªÀÄvÀÄÛ¸ÀÄ(7)/92/2013-14 ¨ÉAUÀ¼ÀÆgÀÄ ¢£ÁAPÀ: 28.01.2014 eÁÕ ¥À £À «µÀAiÀÄ: §A¢üUÀ¼À£ÀÄß UË|| £ÁåAiÀiÁ®AiÀÄ ªÀÄvÀÄÛ D¸ÀàvÉæU½ À UÉ ºÁdgÀÄ¥Àr¸À®Ä ¥ÀÆtð ¥ÀæªÀiÁtzÀ ¥ÉÆ°Ã¸ï §A¢ ¨ÉAUÁªÀ®Ä ¹§âA¢UÀ¼À£ÀÄß ¤UÀ¢vÀ ¤AiÉÆÃf¸ÀĪÀ §UÉÎ. ¢£ÁAPÀzÀAzÀÄ ¤AiÉÆÃf¸ÀĪÀ §UÉÎ.
G¯ÉèÃR: 1) ¸ÀPÁðgÀzÀ ¥ÀvÀæ ¸ÀASÉå: ºÉZïr/21/¦DgïJ/2013 ¢£ÁAPÀ 29-10- 2013
2) ºÉZÀÄѪÀj ¥ÉÆ°Ã¸ï ªÀĺÁ¤zÉÃð±ÀPÀgÀÄ ªÀÄvÀÄÛ PÀ£ÁðlPÀzÀ -
PÁgÁUÀȺÀUÀ¼À ªÀĺÁ¤jÃPÀëgÀªÀgÀ ¥ÀvæÀ ¸ÀASÉå: eÉ2/¹Dgï-47/ 2012-13 ¢£ÁAPÀ: 05-11-2013 ªÉÄîÝAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, gÁdåzÀ PÁgÁUÀȺÀUÀ¼À '¨sÀzÀævÉAiÀÄ£ÀÄß G£ÀßwÃPÀj¸ÀĪÀ ¸À®ÄªÁV ¸ÀPÁðgÀªÀÅ ²æà ©¦£ï UÉÆÃ¥Á®PÀȵÀÚ, L¦J¸ï, ¥ÉÆ°Ã¸ï ªÀĺÁ¤zÉÃð±ÀPÀgÀÄ, ¹.L.r, EªÀgÀ CzsÀåPÀëvÉAiÀÄ°è gÀa¹zÀ ¸À«ÄwAiÀÄÄ ¤ÃrzÀ ªÀgÀ¢AiÀÄ£ÀÄß C£ÀĵÁ×£U À Éƽ¸À®Ä DzÉò¹gÀÄvÀÛzÉ.
gÁdåzÀ PÁgÁUÀȺÀUÀ¼À°ègÀĪÀ §A¢üUÀ¼À£ÀÄß ««zsÀ £ÁåAiÀiÁ®AiÀÄUÀ½UÉ ªÀÄvÀÄÛ D¸ÀàvÉæUÀ½UÉ ¨ÉAUÁªÀ®£ÀÄß Prisoners (Attendance in Courts) Act 1955 ) Act 32 of 1955 gÀ£ÀéAiÀÄ PÀ£ÁðlPÀ PÁgÁUÀȺÀUÀ¼À ¤AiÀĪÀÄ 1974gÀ CzÁåAiÀÄ XXI ªÀÄvÀÄÛ PÀ£ÁðlPÀ ¥Éưøï - PÉʦr 1998gÀ CzsÁåAiÀÄ XVI gÀAvÉ
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 ¥Éưøï E¯ÁSÁ ªÀw¬ÄAzÀ MzÀV¸À¨ÉÃPÁVgÀÄvÀÛzÉ." DzÀgÉ EwÛÃa£À ¢ªÀ¸ÀUÀ¼À°è ¥Éưøï E¯ÁSÁ ªÀw¬ÄAzÀ §AzÉÆç¸ïÛ, UÀ¯ÁmÉ, zÉÆA©, ZÀÄ£ÁªÀuÉ §AzÉÆç¸ïÛ, ªÀÄwÛvg À À PÁgÀtUÀ¼À£ÀÄß ¤Ãr C®à ¥ÀæªÀiÁtzÀ°è ¨ÉAUÁªÀ®£ÀÄß MUÀ¢¸ÀÄwÛgÀĪÀÅzÀjAzÀ §A¢UÀ¼À£ÀÄß ¤UÀ¢üvÀ ¢£ÁAPÀUÀ¼ÀAzÀÄ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¸À®Ä ¸ÁzsÀåªÁUÀÄwÛ®è. - EzÀjAzÁV, £ÁåAiÀiÁ®AiÀÄUÀ¼ÀÄ- PÁgÁUÀȺÀUÀ¼À ªÀÄÄRå¸ÀÜgÀÄUÀ½UÉ ªÀĪÉÆÃ, µÉÆÃPÁ¸ï £ÉÆÃnøï, RÄzÁÝV ºÁdgÁV «ªÀgÀuÉ ¸À°è¸ÀĪÀAvÉ ¤zÉÃð±À£À ¤ÃqÀÄwÛzÉ. C®èzÀ «ZÁgÀuÁ §A¢UÀ¼À£ÄÀ ß ¤UÀ¢üvÀ ¢£ÁAPÀUÀ¼ÀAzÀÄ £ÁåAiÀiÁ®AiÀÄUÀ¼À ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¸À¢gÀĪÀÅzÀPÉÌ §A¢UÀ¼À ¥ÀæPÀgÀtUÀ¼À vÀÄvÀÄ𠫯ÉêÁjAiÀÄ°è «¼ÀA§ªÁUÀÄwÛgÀĪÀÅzÀ®èzÉ, PÁgÁUÀȺÀUÀ¼À°è §A¢UÀ¼À ¸ÀASÉå ºÉZÁÑV C£ÉÃPÀ DqÀ½vÁvÀäPÀ vÉÆAzÀgÉAiÀÄ£ÀÄß JzÀÄj¸À¨ÉÃPÁzÀAvÀºÀ ¥Àj¹Üw §AzÉÆzÀVgÀÄvÀÛzÉ.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 (rf ªÀÄvÀÄÛ LeɦgÀªÀjAzÀ C£ÀĪÉÆâ¸À®ànÖzÉ).
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1. ¥Éưøï DAiÀÄÄPÀÛgÀÄ.
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2) J¯Áè ªÀ®AiÀÄ E£ïì¥PÉ ÀÖgï d£ÀgÀ¯ï D¥sï ¥ÉưøïgÀªÀgÀÄUÀ½UÉ
3) J¯Áè f¯Áè ¥Éưøï C¢üÃPÀëPÀgÀÄUÀ½UÉ, PÉ.f.J¥sï ªÀÄvÀÄÛ gÉʯÉÃé¸ï ¸ÉÃjzÀAvÉ ¥ÀæwAiÀÄ£ÀÄß C©ü£ÀAzÀ£ÉUÀ¼ÉÆA¢UÉ:
ºÉZÀÄѪÀj ¥ÉÆ°Ã¸ï ªÀĺÁ¤zÉðñÀPÀgÀÄ ªÀÄvÀÄÛ PÀ£ÁðlPÀzÀ PÁgÁUÀȺÀUÀ¼À ªÀĺÁ¤jÃPÀëPÀgÀªÀgÀ PÀbÉÃj, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀjUÉ ªÀiÁ»wUÁV."
35. Therefore, it is hereby directed the Director General and Inspector General of Police of the Karnataka State to issue necessary comprehensive Circular of escorting accused to the Courts and if necessary to the hospitals making responsible all the four stake holders, the Superintendent of Police, Jail Authorities of the concerned Prison, Station House Officer of concerned Police Station and the Authorities of the Karnataka State Reserve Police to make effective production of accused before the Courts.
36. The primary responsibility is on part of the Superintendent of Police of the District and Station House Officer of the concerned Police Station to make all
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 necessary arrangements in coordination with the Jail Authorities and State Reserve Police to escort the accused to Courts. The State Reserve Police and Jail Authorities are aiding agencies in this regard. Therefore, the Superintendent of Police, Jail Authorities of the concerned Prison, Station House Officer of concerned Police Station and the Authorities of the Karnataka Reserve Police collectively to make effective production of accused before the Courts.
37. Now due to advancement in technology there is a facility provided for production of accused through Video Conference. The Station House Officer of the Police Station of the concerned police station and the Superintendent of Police of the District in coordination with the jail authorities shall make arrangement to produce the accused through Video Conference during all stages of trial. Production of accused from the jail authorities through Video Conference to the Court is also equally amounting to having effectiveness as if producing accused
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 physically before the Court. When such facilities are available, non production of accused before the Court either through physical appearance or through Video Conference, cannot be pardoned. In this regard, the High Court of Karnataka, Bengaluru, in its notification HCC NO.18/2020 dated 09.06.2020 framed Rules for video conferencing for Courts with the approval of the Government of Karnataka. Therefore, the Station House Officer shall make arrangement of production of accused to the court through video conferencing as per these Rules in coordination with the other stake holders. There are various provisions made for production of accused through video conference to the Courts and all the stake holders concerned shall adhere to the Rules for video conferencing for Courts in Notification No.HCC No.18/2020 dated 09.06.2020.
38. The Principal District and Sessions Judge in the District shall make necessary arrangement to all the Courts in the district to make effective use of video
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 conferencing for examination of witnesses and production of accused through video conference. The software technicians of the concerned District shall equip with the video conference facility to all the Courts at Taluka and District levels. The Station House Officer in coordination with the Administrative Officials of the Courts in Taluka and District level and with the jail authorities shall make arrangement for production of accused through video conference by strictly adhering to the Video Conference Rules (Supra) framed therein. The Advocates shall extend necessary cooperation in this regard for effective utilization of video conference facility during the trial/enquiry.
39. Therefore, the Presiding Officer of the Court shall not make any excuse in adjourning the trial just for want of accused to be produced before the Court. If for any reason the Station House Officer of the police station is not able to produce the accused before the Court physically, then necessary arrangement shall be made to
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 produce the accused before the Court through video conference. Therefore, it is hereby directed the Station House Officer of the police station in coordination with the other stake holders, as above discussed, shall make every arrangement to produce the accused before the Court either physically or through video conference. The Superintendent of Police of District shall monitor and supervise effective production of accused as above directed through Video Conference/Physically and report in bimonthly meeting of under Trial Prisoners (UTPs) to be held along with Principal District Judge.
40. If there is any dereliction of duty in producing the accused physically/through video conferencing, then the Station House Officer is made responsible entailing disciplinary action against him with intimation to Superintendent of Police.
WITNESS PROTECTION:-
41. In the present case, CW1, who is the wife of deceased is the complainant, has expressed before this
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 Court that she is facing threat to her life if she goes to the Court to give evidence as witness. The witnesses are eyes and ears of justice. In this regard, the Hon'ble Supreme Court has issued guidelines regarding witness protection.
It is a common experience that in some cases the witnesses are receiving threats from the goons compelling the witness not to give evidence or coercion, influencing the mind illegally, which affects free and fair trial.
Ultimately, this threat to the witnesses is affecting administration of justice. Unless protection is given to the witnesses there cannot be fair trial. The fair trial is a fundamental right as enshrined in Article 21 of the Constitution of India.
"WITNESSES IN MODERN TIMES In the most universal connotation, the term "witness" represents someone, who happens to be in attendance at some happening, i.e. locus delicti, and possesses vital information, respectively, being an eye witness ab initio. In other words, a witness is that dramatis personae whose attendance in re is indispensable to establish the happening. Jeremy Bentham defines a witness as;
"those who are accustomed to reflect on ideas, know well how much idea depend on words. According to him, the word witness is employed to mark two different individuals or the same individual in two different situations;
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 the one that of perceiving witness, that is of one who has seen or heard or learned by his senses the fact concurring which he can give information when examined and the other that of a deposing witness, who states in a court of justice the information which he has acquired. The term witness then may be applied to the parties themselves who have an interest in the case as well as to all those whom it is commonly employed to designate."
DEFINITION OF PROTECTION The term "protection", in common parlance, implies either an attempt of guarding or an effort to provide security. In law, the protection refers to the safeguarding of the interests of the vulnerable. As far as witnesses are concerned, there is no definition of the word protection in India. But the Indian legal system, as it appears, hitherto does not pay attention to the vulnerability of witnesses. In few statutes like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), Prevention of Terrorism Act (POTA) and Juvenile Justice Act, there are provisions inserted for witness identity protection. The Act empowered the concerned judicial officer to take in- camera proceedings and to protect the identity and address of the witnesses. The Central Government may transfer any case pending before a designated court in that state to any other state if it thinks that conducting such a trial may result in breach of peace in that area or a grave risk to the safety of the accused, witnesses, the public prosecutor and the judge of the designated court or any of them. This decision of the Central Government, however, must be taken in concurrence of the Chief Justice of India on a motion moved on that behalf by the Attorney General. These provisions aside, there is a dearth of protective measures that could be used for the benefit of the witnesses in criminal trials.
SIGNIFICANCE OF WITNESSES In criminal justice structure of any state, the witnesses perform the role of pillars of justice, their presence being the most vital save for plaintiff and accused. By taking pledge in the name of god and deposing fearlessly, he represents the sacrosanct and divine supremacy of truth over evil and justice over misdemeanour. The witness performs an important public duty of assisting the court in deciding on the guilt
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 or otherwise of the accused in the case. He submits himself to cross-examination and cannot refuse to answer questions on the ground of that the answer will incriminate him.
When a witness agrees to testify in the court of law, he undertakes a huge moral and public responsibility on his shoulders. He assists the court in reaching to the appropriate conclusion by undertaking to give the true and correct information about his knowledge in the case. If he does not disclose the full information or the correct information, he is deemed to be a perjurer. If it is proved that he has given false evidence in the court he will have to face a trial under Section 191 of Indian Penal Code, 1860, and, thereafter, may be imprisoned for a term which may extend to seven years and fine under section 193.
Universally, witnesses perform the critical and fundamental duty of making path to push offenders into the realm of justice. The successful conclusion of each stage in criminal proceedings depends on the co- operation and support of the witnesses. In an adversarial system, the role of witness becomes important particularly at the trial stage, in which the witnesses are subjected to cross examination particularly oral, in public hearing, by the prosecution lawyers to prove the guilt absolutely without any uncertainty and ambiguity. There is no dearth of reasons assigned to valuable role performed by the witness in crime investigations and criminal trials, the most prominent ones being the growth of awareness in victims in respect of criminal procedures and the steep escalation in global terrorism & well thought-out controlled pre-planned crime.
The witnesses play a pivotal role particularly in offences pertaining security of state, drug trafficking, serious offences like murder, rape, robbery, dacoity wherein the imprisonment may extend to death sentence.
The witnesses, most prominently sexual victims/witnesses are genuinely feeble and most vulnerable, especially those who have been targeted by close family members or acquaintances.
The prosecution largely depends upon oral testimony of its witnesses for proving the charges beyond reasonable doubt. It is for this reason that witnesses need special protection in many cases.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 WITNESSES IN INDIAN CRIMINAL JUSTICE The Indian Constitution, which bestows upon us a wide range of fundamental rights, surprisingly overlooked witness protection. India does not have any witness protection programme so far, even when many countries, not only developed but also developing (e.g.. Albania), have the same. The necessity of this law is very grave as this would provide courage, safety and authenticity to witnesses as well as restore faith in criminal justice system in India.
The present judicial system has taken witnesses completely for granted. Witnesses are summoned to the court regardless their financial situation and familial and professional constraints. Nowadays, the witnesses are so exposed to threats and have become so helpless that the situation has put the entire criminal justice system in an alarming mode, to press on the urgent requirement of witness protection laws.
In Swaran Singh v. State of Punjab (Swaran Singh, supra note 12 at 678), Justice Wadhwa articulated his concern regarding pathetic status of witnesses in India as follows: "A witness in a criminal trial may comefrom 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 the adjournments for one excuse or the other till a witness is threatened; he is abducted; he is maimed, he is done away with; 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 is adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in the court, he is subjected to unchecked and prolonged examination and cross- examination and finds himself in a hopeless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 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. High Courts have to be vigilant in these matters. 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 paper pedestal, the lawyers and the sluggish state machinery. Each trial should be properly monitored. Time has come that all the courts, districts courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournment 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 trial. 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".
Some of the problems faced by the witnesses are elaborated as follows:
1. Witnesses residing in remote towns and villages find it extremely difficult to appear in courts as their expenses are not reimbursed. Many a times, they may be sole bread winners of their families and might incur losses in wages for days together, depending upon adjournments.
2. The treatment which is given to witnesses is not proper and dignified when they come to the court to give evidence. The Malimath Committee opined that the witnesses should be treated with great respect and should be considered as a guest of honour.
When a witness comes to the court, there is no one to guide him as to where the court is, where to wait for his turn to come or to give him any other
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 assistance that is required. Similarly, other basic amenities and facilities like drinking water, food and toilet are non-existent in most courts.
3. Generally, ambience in court and other conditions are not supportive and encouraging for the witnesses who are willing to help the courts in finding the truth based on their oral testimony. In India, there is lot of pressure on courts to dispose of the day-to-day cases. There are lakhs of cases pending in the court and disposal has become very slow. Lack of infrastructural and other facilities, less number of judges, absence of parties in the court on the date of hearing, adjournments sought by the advocates have resulted in frequent postponement of adjudication. This adjournment is demoralizing and frustrating for a witness to such an extent that they prompt them to think several times whether to appear in the court or not when called by the court through summons. Because of these adjournments a witness is most likely to give up the idea of taking initiative and helping the court or administrative machinery. This tendency of the witness proves as a blessing for the accused, which might get acquitted either due to lack of evidence or benefit of doubt.
4. In order to get rid of cross-examination as early as possible witness may either give false evidence or turn hostile, that is, retracting from his previous statements. The former attorney general of India, Mr. Soli Sorabjee, apologetically commented:
"Nothing shakes public confidence in the criminal justice delivery system more than the collapse of the prosecution owing to witnesses turning hostile and retracting their previous statements. Hostility of witnesses resulting in failure of the prosecution has surfaced as a prominent excuse for the high rise in acquittals in criminal proceedings CONCLUSION:
The role of witnesses in India throughout various time frames has regained its importance and inevitability in the criminal trials. Indian culture has assigned a place of prestige and stature to witnesses in ancient and medieval periods and the witnesses were treated with great respect and hence, it was taken up by them to be a sacrosanct duty to depose hence there was no requirement of specific protection for them. In the modern period, the
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 importance of witnesses has been retained, however, the respect and dignity is lost in the process of the lengthy and tedious process of the trials. Hence, the Indian Legal system needs to reinstate that respect and dignity to the witnesses to ensure fair trials and victims being brought to justice in true sense."
(emphasis supplied by me) **6"
42. The Hon'ble Supreme Court in the case of RAMESH vs. STATE OF HARYANA7 had on occasion to deal on the aspect that how menace the witnesses are turning hostile and it is observed by the Hon'ble Apex Court as follows:
"40. In some of the judgments in past few years, this Court has commented upon such peculiar behavior of witnesses turning hostile and we would like to quote from few such judgments. In Krishna Mochi v. State of Bihar, this Court observed as under: (SCC pp. 104, para31) "31. It is matter of common experience that in recent times there has been sharp decline of ethical values in public life even in developed countries much less developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power."6
** Courtesy: Witness Protection In Criminal Trials In India Author by: Girish Abhyankar Asawari Abhyankar, Published by: Thomson Reuters, First Edition in 2018 7 (2017) 1 SCC 529
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41. Likewise, in Zahira Habibullah (5) v. State of Gujarat, this Court highlighted the problem with following observations: ( SCC PP. 396-98, paras 40-
41) "40. "Witnesses", as Bentham 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 the court 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 ingeniously adopted to smother and stifle truth and realities coming out to surface. Broader public and social interest require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State representing by their presenting agencies do not suffer... there comes the need for protecting the witnesses. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth presented before the Court and justice triumphs and that the trial is not reduced to mockery."
41. 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 had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like, caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements and this needs no retaliation (sic repetition). We can only say this with regard to the criticism levelled against the State of Gujarat. 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 people with muscle power, money power or political power which 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."
42. Likewise, in Sakshi v. Union of India11 , the menace of witnesses turning hostile was again described in the following words: (SCC pp.544-45, para 32) .
"32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub-section (2) of section 327 Cr.P.C. should also apply in inquiry or trial of offences under Section 354 and 377 IPC."
43. In State v. Sanjeev Nanda 12, the Court felt constrained in reiterating the growing disturbing trend:
(SCC pp. 486-87, paras 99-101) "99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India.
Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people's faith in the system.
100. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v.
Superintendent of Police and Anr., (AIR 2004 SC 524), this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Manu
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 Sharma v. State (NCT of Delhi)6, and in Zahira Habibullah Shaikh (5) v. State of Gujarat 10 had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked."
44. On the analysis of various cases, 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."
45. Threat and intimidation has been one of the major causes for the hostility of witnesses. Bentham said:
"witnesses are the eyes and ears of justice". When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is for this reason there has been a lot of discussion on witness
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 protection and from various quarters demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. A stern and emphatic message to this effect was given in Zahira Habibullah's case10 as well.
46. Justifying the measures to be taken for witness protection to enable the witnesses to depose truthfully and without fear, Justice Malimath Committee Report on Reforms of Criminal Justice System, 2003 has remarked as under:
"11.3 Another major problem is about safety of witnesses and their family members who face danger at different stages. They are often threatened and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. Many times crucial witnesses are threatened or injured prior to their testifying in the court. If the witness is still not amenable he may even be murdered. In such situations the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise...Time has come for a comprehensive law being enacted for protection of the witness and members of his family."
43. The Hon'ble Supreme Court in the case of MAHENDER CHAWLA AND OTHERS vs. UNION OF INDIA AND OTHERS8 were pleased to formulate "Witness Protection Scheme, 2018" at paragraph No.26.
8(2019) 14 SCC 615
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 The said "Witness Protection Scheme, 2018" observed at paragraph No.26, which reads as under:
"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.
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.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 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 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
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 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 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; ...
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(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.
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;
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(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 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;
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023
(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 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.
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(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.
(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;
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(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 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
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 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 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.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 The Competent Authority may pass an order for witness relocation to a safer place within the State/UT or territory of the 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)
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 The Competent Authority, District..................
Application for:
1. Witness Protection
2. Witness Identity Protection
3. New Identity
4. Witness Relocation Particulars of the Witness (Fill in Capital):
Name Age Gender (Male/Female/Other) Father's/Mother's Name Residential Address Name and other details of family members of the witness who are receiving or perceiving threats Contact details (Mobile/e-mail) Particulars of criminal matter:
FIR No. Under Section Police Station District D.D. No. (in case FIR not yet registered) Cr. Case No. (in case of private complaint) Particulars of the accused (if available/known):
Name Address Phone No. Email id
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 Name & other particulars of the person giving/suspected of giving threats Nature of threat perception. Please give brief details of threat received in the matter with specific date, place, mode and words used Type of witness protection measures prayed by/for the witness Details of interim/Urgent Witness Protection needs, if required 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: .................."
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.
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 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."
44. It is reported that the Delhi State Judiciary has established four Vulnerable Witness Deposition Complexes in the National Capital Territory. It is disheartening to show that in large number of cases, the acquittal is because of witnesses turning hostile and giving false evidence as there is no adequate protection to the witnesses. The witnesses are lured by any other external consideration or threatened or putting pressure or for any other unlawful reasons. Therefore, it affects substantially on the administration of Criminal Justice System.
45. Considering this unfortunate development in the country that in large percentage of cases, witnesses are turning hostile, is really threat to the administration of Criminal Justice System. The Hon'ble Supreme Court in
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 the case of STATE OF MAHARASHTRA vs. BANDU9 [BANDU's case (supra)] at paragraph Nos.10 and 12 observes as follows:
"10. ... there should be special centres for examination of vulnerable witnesses in criminal cases in the interest of conducive environment in Court so as to encourage a vulnerable victim to make a statement. Such centres ought to be set up with all necessary safeguards. Our attention has been drawn to guidelines issued by the Delhi High Court for recording evidence of vulnerable witnesses in criminal matters and also the fact that four special centres have been set up at Delhi for the purpose.
***
12. The directions of the Delhi High Court and setting up of special centres for vulnerable witnesses as noted above are consistent with the decision of this Court and supplement the same. We are of the view that all High Courts can adopt such guidelines if the same have not yet been adopted with such modifications as may be deemed necessary. Setting up of one centre for vulnerable witnesses may be perhaps required almost in every district in the country. All the High Courts may take appropriate steps in this direction in due course in phases. At least two such centres in the jurisdiction of each High Court may be set up within three months from today. Thereafter, more such centres may be set up as per decision of the High Courts."
46. Therefore, as a part of implementing Witness Protection Scheme as formulated by the Hon'be Supreme Court and effective implementation of the Scheme, establishment of Vulnerable Witness Deposition Complex is necessary in the State of Karnataka also. Therefore, the State of Karnataka is directed to put efforts in a positive 9 (2018) 11 SCC 163
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 way to establish the Vulnerable Witness Deposition Complex in each District by taking the model of the Delhi State Judiciary.
47. The Hon'ble Supreme Court in MAHENDER CHAWLA's (supra) case was pleased to issue direction at paragraph No.36 as below:
"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."
48. The Hon'ble Supreme Court was pleased to direct to establish the Vulnerable Witness Deposition Complex as a part to implement the Witness Protection Scheme effectively. It is also made clear that this
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 direction is law of land under Article 141 of Constitution of India. Therefore, it is hereby directed to establish Vulnerable Witness Deposition Complex.
49. It is reported that the State of Maharashtra has enacted legislation namely called as "Maharashtra Witness Protection and Security Act, 2017". But it is reported that in the State of Karnataka, there is no such legislation implementing the guidelines issued by the Hon'ble Supreme Court in enacting the Witness Protection Scheme. Therefore, it is hereby directed to the Chief Secretary, Government of Karnataka to take steps to make suitable legislation implementing the Witness Protection Scheme as guided by the Hon'ble Supreme Court in MAHENDER CHAWLA's case (stated supra).
50. Till making suitable legislation in this regard, the Scheme evolved by the Hon'ble Supreme Court shall be followed. Therefore, it is hereby directed the Registrar General, High Court of Karnataka and the Chief Secretary, Government of Karnataka, shall issue notification to
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 implement the Witness Protection Scheme as formulated by the Hon'ble Supreme Court in Mahender Chawla's case (supra) till enactment of the suitable legislation in this regard.
51. The copy of this order shall be forwarded to the Registrar General, High Court of Karnataka, the Chief Secretary, Government of Karnataka, and the Director General and Inspector General of Police, State of Karnataka, for necessary compliance of the directions of Hon'ble Supreme Court as stated above.
52. The Registrar General is directed to forward the copy of this order to the Director, Karnataka Judicial Academy, to circulate the copy of this order to all the Judicial Officers through the Principal District Judge of the respective Districts.
53. It is needless to say that, if directions of the Hon'ble Supreme Court are not implemented effectively by the concerned stakeholders, as above directed, then it
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NC: 2024:KHC-K:1260 CRL.P No. 201407 of 2023 may be amenable for initiation of Contempt of Court for non action in this regard.
54. Therefore, with these directions, criminal petition is disposed of.
Sd/-
JUDGE MH/DR/PB List No.: 19 Sl No.: 1