Holding

The Witness Protection Scheme, 2018 is deemed law under Art. 141/142 of the Constitution and must be enforced nationwide until a suitable parliamentary or State legislation is enacted.

Summary

The petitioners, who were witnesses or relatives of witnesses in the Asaram rape cases, alleged that they faced threats, attacks and even murders, and that the State failed to provide any protection, violating their right to a fair trial under Art. 21. They sought a court‑monitored witness‑protection programme and the establishment of vulnerable‑witness deposition complexes across the country. The Court examined whether the Constitution obliges the State to protect witnesses and whether a scheme prepared by the Union could be treated as law under Art. 141/142 pending legislative enactment. Relying on earlier judgments emphasizing the importance of witnesses and the need for statutory protection, the Court approved the Witness Protection Scheme, 2018 as law until Parliament enacts a specific statute. It directed the Union, all States and Union Territories to enforce the Scheme, to set up deposition complexes in every district court by the end of 2019, and to provide necessary financial support. The petition was consequently disposed of with these directions.

Issues considered

The Constitution imposes a duty on the State to protect witnesses under Art. 21 and to ensure a fair trial.
Whether a government‑prepared Witness Protection Scheme can be deemed law under Art. 141/142 pending legislative enactment.
Whether the Court can issue nationwide directions for the implementation of the Scheme and the establishment of vulnerable‑witness deposition complexes.

Legislation cited

Code of Criminal Procedure, 1973s. 273, s. 327, s. 340(3)(b)
Indian Penal Code, 1860s. 193, s. 195A, s. 354, s. 354A, s. 354B, s. 354C, s. 354D, s. 509
Juvenile Justice (Care and Protection of Children) Act
Protection of Children from Sexual Castes and Tribes (Prevention of Atrocities) Act, 1989
Protection of Children from Sexual Offences Act, 2012
Terrorist and Disruptive Activities (Prevention) Act, 1987
Whistle Blowers Protection Act, 2011

Subjects

witness protectionfair trialArticle 21Article 141Article 142criminal justicevulnerable witnessesdeposition complexesthreat and intimidationconstitutional law

Judgment

[2018] 14 S.C.R. 627 627

MAHENDER CHAWLA & ORS. A
v.
UNION OF INDIA & ORS.
(Writ Petition (Criminal) No. 156 of 2016)
DECEMBER 05, 2018 B
[A. K. SIKRI AND S. ABDUL NAZEER, JJ.]
Administration of Criminal Justice:
Witness protection – Witnesses are important players in judicial
system, who help the judges in arriving at correct factual findings C
– Notwithstanding the same, the conditions of witnesses in Indian
legal system is pathetic – They are threatened at various stages –
Due to lack of witness protection programme and the treatment that
is meted out to the witness, there is a reluctance in coming forward
and making statement during investigation and/or testifying in courts
D
– One of the main reasons for witnesses to turn hostile is that they
are not accorded appropriate protection by the State – Protection
of witnesses assumes significance to enable them to depose fearlessly
and truthfully – Failure to hear material witness is denial of fair
trial – If one is unable to testify in courts due to threats or other
pressure, it is clear violation of Art. 21 of Constitution – Witness E
Protection Scheme, 2018 prepared by Union of India will be
considered as law u/Art. 141/142 of Constitution, till the enactment
of suitable Parliamentary and/or State legislations on the subject –
Constitution of India – Arts. 21, 141 and 142.
Constitution of India: F
Art. 32 – Writ petition- By witnesses in a criminal case –
Alleging that they have been threatened by accused with serious
consequences if they deposed against him – It was also alleged that
as many as 10 witnesses had been attacked and 3 witnesses had
been killed – Held: States of Uttar Pradesh and Haryana have been G
directed to ensure full and proper protection to the petitioners by
providing adequate security.

H
627
628 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Disposing of the petition, the Court
HELD : 1.1 In an adversarial system, which is prevalent in
India, the court is supposed to decide the cases on the basis of
evidence produced before it. This evidence can be in the form of
documents. It can be oral evidence as well, i.e., the deposition of
B witnesses. The witnesses, thus, play a vital role in facilitating the
court to arrive at correct findings on disputed questions of facts
and to find out where the truth lies. They are, therefore, backbone
in decision making process. Whenever, in a dispute, the two
sides come out with conflicting version, the witnesses become
important tool to arrive at right conclusions, thereby advancing
C justice in a matter. This principle applies with more vigor and
strength in criminal cases inasmuch as most of such cases are
decided on the basis of testimonies of the witnesses, particularly,
eye-witnesses, who may have seen actual occurrence/crime.
[Para 1][634-E-H]
D 1.2 Thus, witnesses are important players in the judicial
system, who help the judges in arriving at correct factual findings.
The instrument of evidence is the medium through which facts,
either disputed or required to be proved, are effectively conveyed
to the courts. This evidence in the form of documentary and oral
is given by the witnesses. A witness may be a partisan or
E
interested witness, i.e., a witness who is in a near relation with
the victim of crime or is concerned with conviction of the accused
person. Even his testimony is relevant, though, stricter scrutiny
is required while adjudging the credence of such a victim.
However, apart from these witnesses or the witnesses who may
F themselves be the victims, other witnesses may not have any
personal interest in the outcome of a case. They still help the
judicial system. [Para 2][635-A-C]
Witness Protection in Criminal Trial in India by Girish
Abhyankar & Asawari Abhyankar – referred to.
G 1.3 Notwithstanding the same, the conditions of witnesses
in Indian Legal System can be termed as ‘pathetic’. There are
many threats faced by the witnesses at various stages of an
investigation and then during the trial of a case. Apart from facing
life threatening intimidation to himself and to his relatives, he
may have to face the trauma of attending the court regularly.
H Because of the lack of Witness Protection Programme in India
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 629

and the treatment that is meted out to them, there is a tendency A
of reluctance in coming forward and making statement during
the investigation and/or testify in courts. These witnesses neither
have any legal remedy nor do they get suitably treated. The
present legal system takes witnesses completely for granted.
They are summoned to court regardless of their financial and
B
personal conditions. Many times they are made to appear long
after the incident of the alleged crime, which significantly
hampers their ability to recall necessary details at the time of
actual crime. They are not even suitably remunerated for the
loss of time and the expenditure towards conveyance etc.
[Para 3][635-G; 636-A-C] C
Swaran Singh v. State of Punjab (2000) 5 SCC 68 –
relied on.
1.4 One of the main reasons for witnesses to turn hostile is
that they are not accorded appropriate protection by the State. It
is a harsh reality, particularly, in those cases where the accused D
persons/criminals are tried for heinous offences, or where the
accused persons are influential persons or in a dominating
position that they make attempts to terrorize or intimidate the
witnesses because of which these witnesses either avoid coming
to courts or refrain from deposing truthfully. This unfortunate E
situation prevails because of the reason that the State
has not undertaken any protective measure to ensure the safety
of these witnesses, commonly known as ‘witness protection’.
[Para 5][637-B-D]
1.5 Over the last many years criminal justice system in this F
country has been witness to traumatic experience where
witnesses turn hostile. This has been happening very
frequently. There may be many causes for this sordid phenomena.
[Para 6][637-D]
Ramesh and Others v. State of Haryana (2017) 1 SCC G
529: [2016] 8 SCR 936 – relied on.
1.6 All this has created problem of low convictions in India.
This has serious repercussions on the criminal justice system
itself. Criminal justice is closely associated with human rights.
Whereas, on the one hand, it is to be ensured that no innocent
H
630 SUPREME COURT REPORTS [2018] 14 S.C.R.

A person is convicted and thereby deprived of his liberty, it is of
equal importance to ensure, on the other hand, that victims of
crime get justice by punishing the offender. In this whole process,
protection of witnesses assumes significance to enable them to
depose fearlessly and truthfully. That would also ensure
fair trial as well, which is another concomitant of the rule of law.
B
[Para 8][643-C-D]
1.7 Failure to hear material witness is denial of fair trial.
The practice, however, to give protection to the witnesses is based
on ad hocism, i.e., on case to case basis. The Courts have adopted
different means to ensure witness protection, viz. (a) Publication
C of evidence of the witness only during the course of trial and not
after. (b) Re-trial allowed due to apprehension and threat to the
life of witness. (c) Necessity of anonymity for victims in cases of
rape. (d) Discouraging the practice of obtaining adjournments
in cases when witness is present and accused is absent.
D (e) Making threatening of witnesses as a ground for cancellation
of bail. (f) Cross-examination by video conferencing.
[Para 13][645-C-G]
Naresh Shridhar Mirajkar and Others v. State of
Maharashtra and Another [1966] 3 SCR 744 ; Sunil
E Kumar Pal v. Phota Sheikh and Other AIR 1984 SC
1591 ; Delhi Domestic Working Women’s Forum v.
Union of India (1995) 1 SCC 14 : [1994] 4 Suppl. SCR
528 ; State of U.P. v. Shambhu Nath Singh (2001) 4
SCC 667 : [2001] 2 SCR 854 ; Ram Govind Upadhyay
v. Sudarshan Singh II (2002) SLT 587 – referred to.
F
1.8 The right to testify in courts in a free and fair manner
without any pressure and threat whatsoever is under serious
attack today. If one is unable to testify in courts due to threats or
other pressures, then it is a clear violation of Article 21 of the
Constitution. The right to life guaranteed to the people of this
G country also includes in its fold the right to live in a society, which
is free from crime and fear and right of witnesses to testify in
courts without fear or pressure. [Para 16][647-A-B]
NHRC v. State of Gujarat 2003 (9) SCALE 329 ;
People’s Union for Civil Liberties (PUCL) v. Union of
H India 2003 (10) SCALE 967 ; Zahira v. State of Gujarat
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 631

(2004) 4 SCC 158 : [2004] 3 SCR 1050 ; Sakshi v. A
Union of India (2004) 5 SCC 518 : [2004] 2 Suppl.
SCR 723 ; Zahira Habibulla Sheikh v. Gujarat 2006
(3) SCALE 967 – referred to.
1.9 The Witness Protection Scheme, 2018 is the outcome
of the efforts put in by the Central Government with due B
assistance not only from the State Governments as well as Union
Territories but other stakeholders including Police personnel,
NALSA and State Legal Services Authorities, High Courts and
even civil society. [Para 28][662-B]
1.10 The essential features of the Witness Protection C
Scheme, 2018 include identifying categories of threat perceptions,
preparation of a “Threat Analysis Report” by the Head of the
Police, types of protection measures like ensuring that the
witness and accused do not come face to face during investigation
etc. protection of identity, change of identity, relocation of witness,
witnesses to be apprised of the scheme, confidentiality D
and preservation of records, recovery of expenses etc.
[Para 26][661-F-G]
1.11 Since it is beneficial and benevolent scheme which is
aimed at strengthening the criminal justice system in this country,
which shall in turn ensure not only access to justice but also E
advance the cause the justice itself, all the States and Union
Territories also accepted that suitable directions can be
passed by the court to enforce the said Scheme as a mandate of
the court till the enactment of a statute by the Legislatures.
[Para 27][661-G-H] F
1.12 In *Sakshi’s case, the Court had insisted about the
need to come up with a legislation for the protection of witnesses.
It had even requested the Law Commission to examine certain
aspects, which resulted to 172nd review of rape laws by the Law
Commission. However, the Court specifically rejected the G
suggestion of the Law Commission regarding examination of
vulnerable witnesses in the absence of accused. Having regard
to the provisions of Section 273 of the Code of Criminal
Procedure, which is based on the tenets of principle of natural
justice, that the witness must be examined in the presence of the
H
632 SUPREME COURT REPORTS [2018] 14 S.C.R.

A accused, such a principle cannot be sacrificed in trials
and in inquiries regarding sexual offences. In such a
scenario examination of these witnesses through
video conferencing provides the solution which balances
the interest of the accused as well as vulnerable witnesses.
[Para 29][662-C-E]
B
*Sakshi v. Union of India (2004) 5 SCC 518 : [ 2004]
2 Suppl. SCR 723 – referred to.
1.13 Part II(7)(L) of the Witness Protection Scheme, 2018
provides for usage of specially designed court room having special
C arrangements like live links, one way mirrors, and screens apart
from separate passages for witnesses and accused with the option
to modify the image of the face of the witness and to modify the
audio feed of the witness’s voice, so that he/she is not identified.
[Para 30][662-F]
D 1.14 There is a paramount need to have witness protection
regime, in a statutory form, which all the stakeholders and all the
players in the criminal justice system concede. At the same time
no such legislation has been brought about. These are the
considerations which had influenced this Court to have a holistic
regime of witness protection which should be considered as law
E under Article 141 of the Constitution till a suitable law is framed.
[Para 34][664-A-B]
1.15 The Scheme prepared by respondent No.1 is approved.
It comes into effect forthwith. The Union of India as well as States
and Union Territories shall enforce the Witness Protection
F Scheme, 2018 in letter and spirit. It shall be the ‘law’ under Article
141/142 of the Constitution, till the enactment of suitable
Parliamentary and/or State Legislations on the subject. In line
with the aforesaid provisions contained in the Scheme, in all the
district courts in India, vulnerable witness deposition complexes
G 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. [Para 35][664-C-F]

H
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 633

The State of Maharashtra v. Bandu @ Daulat 2018 (11) A
SCC 163 – referred to.
2. This Court by order dated March 24, 2017 had directed
the States of Uttar Pradesh and Haryana to ensure full and proper
protection to the petitioners by providing adequate security.
[Para 18][647-D] B
Case Law Reference
(2000) 5 SCC 68 relied on Para 4
[2016] 8 SCR 936 relied on Para 7
2003 (9) SCALE 329 referred to Para 9 C
2003 (10) SCALE 967 referred to Para 9
[2004] 3 SCR 1050 referred to Para 9
(2004) 2 Suppl. SCR 723 referred to Para 9
2006 (3) SCALE 967 referred to Para 9 D

(2004) 2 Suppl. SCR 723 referred to Para 11
[1966] 3 SCR 744 referred to Para 13
AIR 1984 SC 1591 referred to Para 13
E
(1994) 4 Suppl. SCR 528 referred to Para 13
[2001] 2 SCR 854 referred to Para 13
(2002) SLT 587 referred to Para 13
(2018) 11 SCC 163 referred to Para 33
F
CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Criminal) No. 156 of 2016.
Under Article 32 of the Constitution of India
Anand Mishra, Gaurav Agrawal, Advs. for the Petitioners.
G
K. K. Venugopal, AG, Tushar Mehta, SG, Birendra Kumar
Choudhary, Ms. Padma Choudhary, Sanjay Kumar Visen, Ms. Ruchi
Kohli, Ms. Nidhi Jaswal, Ms. Srishti Mishra, Ms. Hemantika Wahi, Ms.
Jesal Wahi, Ms. Puja Singh, Ms. Vishakha, Ms. Deepa M. Kulkarni,
Nishant Ramakantrao Katneshwarkar, Tara Chandra Sharma, Zoheb
Hussain, Ms. Charanya L. Kumaran, B. V. Balaram Das, S. Udaya H
634 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Kumar Sagar, Mrituyunjai Singh, Guntur Prabhakar, Ms. Prerna Singh,
M. Yogesh Kanna, Gunjan Kumar, Rajeev M. Roy, Ranjan Mukherjee,
Ms. Aprajita Mukherjee, Gopal Singh, Ms. Vimla Sinha, Tapesh Kumar
Singh, Aditya Pratap Singh, Ms. Aruna Mathur, Ms. Avneesh Arputham,
Ms. Anuradha Arputham, Ms. Geetanjali, M/S. Arputham Aruna And
Co, M. Shoeb Alam, Ujjwal Singh, Mojahid Karim Khan, Ms. Abha R.
B
Sharma, D. S.Parmarr, Ms. Sujeeta Srivastava, Mahender Singh, Jagdish
V., Ms. G. Indira, Mrinal K. M., Sibo Sankar Mishra, M. K. Pandey,
Niranjan, Ms. Shriya Maini, Ms. K. Enatoli Sema, Amit Kumar Singh,
Ms. Bansuri Swaraj, Ms. Swarupma Chaturvedi, Sarvesh Singh Baghel,
B. N. Dubey, Shuvodeep Roy, Rituraj Biswas, Somnath Banerjee, Nishe
C Rajen Shonker, D. K. Joy, Alim Anvar, Ms. Reegon S. Bel, Nebji N.,
Leishangthem Roshmani K.H., Ms. Maibam Babina, Ms. Anupama
Ngangom, Suhaan Mukerji, Ms. Astha Sharma, Amit Verma, Abhishek
Manchanda, Ms. Dimple Nagpal, M/s P.L.R. Chambers, Ms. Jaspreet
Gogia, R. Mulchesu, K. V. Lyngdoh, Deniel Stene Lyngdoh, Advs. for
the Respondents.
D
The Judgment of the Court was delivered by
A. K. SIKRI, J.
1. The instant writ petition filed by the petitioners under Article 32
of the Constitution of India raises important issues touching upon the
E efficacy of the criminal justice system in this country. In an adversarial
system, which is prevalent by India, the court is supposed to decide the
cases on the basis of evidence produced before it. This evidence can be
in the form of documents. It can be oral evidence as well, i.e., the
deposition of witnesses. The witnesses, thus, play a vital role in facilitating
F the court to arrive at correct findings on disputed questions of facts and
to find out where the truth lies. They are, therefore, backbone in decision
making process. Whenever, in a dispute, the two sides come out with
conflicting version, the witnesses become important tool to arrive at right
conclusions, thereby advancing justice in a matter. This principle applies
with more vigor and strength in criminal cases inasmuch as most of such
G cases are decided on the basis of testimonies of the witnesses, particularly,
eye-witnesses, who may have seen actual occurrence/crime. It is for
this reason that Bentham stated more than 150 years ago that “witnesses
are eyes and ears of justice”.

H
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 635
[A. K. SIKRI, J.]

2. Thus, witnesses are important players in the judicial system, A
who help the judges in arriving at correct factual findings. The instrument
of evidence is the medium through which facts, either disputed or required
to be proved, are effectively conveyed to the courts. This evidence in
the form of documentary and oral is given by the witnesses. A witness
may be a partisan or interested witness, i.e., a witness who is in a near
B
relation with the victim of crime or is concerned with conviction of the
accused person. Even his testimony is relevant, though, stricter scrutiny
is required while adjudging the credence of such a victim. However,
apart from these witnesses or the witnesses who may themselves be
the victims, other witnesses may not have any personal interest in the
outcome of a case. They still help the judicial system. In the words of C
Whittaker Chambers, a witness is “a man whose life and faith are
so completely one that when the challenge comes to step out and
testify for his faith, he does so, disregarding all risks, accepting all
consequences 1.”
3. The importance of the witness, particularly in a criminal trial is D
highlighted in a book in the following manner:
“In search of truth, he plays that sacred role of the sun, which
eliminates the darkness of ignorance and illuminates the face of
justice, encircled by devils of humanity and compassion.
xxx xxx xxx E

The value of witnesses can’t be denied, keeping in view the
dependency of the criminal proceedings on the testimonies and
cooperation of witnesses in all the stages of the proceedings,
especially in those cases where the prosecution has to establish
the guilt with absolute certainty via oral cross-examination of F
witnesses in hearings open to the world at large. In such cases,
the testimony of a witness, even if not as an eye witness, may
prove to be crucial in determining the circumstances in which the
crime might have been committed...”2
Notwithstanding the same, the conditions of witnesses in Indian G
Legal System can be termed as ‘pathetic’. There are many threats faced
by the witnesses at various stages of an investigation and then during
1
Whittaker Chambers, WITNESS QUOTES (January 7, 2014, 10.30 am),
http://www.brainy quote.com/quotes/keywords/witness.
2
Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar H
636 SUPREME COURT REPORTS [2018] 14 S.C.R.

A the trial of a case. Apart from facing life threatening intimidation to
himself and to his relatives, he may have to face the trauma of attending
the court regularly. Because of the lack of Witness Protection Programme
in India and the treatment that is meted out to them, there is a tendency
of reluctance in coming forward and making statement during the
investigation and/or testify in courts. These witnesses neither have any
B
legal remedy nor do they get suitably treated. The present legal system
takes witnesses completely for granted. They are summoned to court
regardless of their financial and personal conditions. Many times they
are made to appear long after the incident of the alleged crime, which
significantly hampers their ability to recall necessary details at the time
C of actual crime. They are not even suitably remunerated for the loss of
time and the expenditure towards conveyance etc.
4. In Swaran Singh vs. State of Punjab3, this Court speaking
through Wadhwa, J. expressed view on conditions of witnesses by stating
that:
D “The witnesses are harassed a lot. They come from distant places
and see the case is adjourned. They have to attend the court
many times on their own. It has become routine that case is
adjourned till the witness is tired and will stop coming to court. In
this process lawyers also play an important role. Sometimes
E witness is threatened, maimed, or even bribed. There is no
protection to the witnesses. By adjourning the case the court also
becomes a party to such miscarriage of justice. The witness is
not given respect by the court. They are pulled out of the court
room by the peon. After waiting for the whole day he sees the
matter being adjourned. There is no proper place for him to sit
F and drink a glass of water. When he appears, he is subjected to
prolong stretched examinations and cross examinations. For these
reasons persons avoid becoming a witness and because of this
administration of justice are hampered. The witnesses are not
paid money within time. The High Courts must be vigilant in
G these matters and should avoid harassment in these matters by
subordinate staff. The witnesses should be paid immediately
irrespective of the fact whether he examines or the matter is
adjourned. The time has come now that all courts should be linked
with each other through computer. The Bar Council of India has
3
H (2000) 5 SCC 68 at 678.
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 637
[A. K. SIKRI, J.]

to play important role in this process to put the criminal justice A
system on track. Though the trial judge is aware that witness is
telling lie still he is not ready to file complaint against such witness
because he is required to sign the same. There is need to amend
section 340(3)(b) of Cr.P.C.”
5. It hardly needs to be emphasised that one of the main reasons B
for witnesses to turn hostile is that they are not accorded appropriate
protection by the State. It is a harsh reality, particularly, in those cases
where the accused persons/criminals are tried for heinous offences, or
where the accused persons are influential persons or in a dominating
position that they make attempts to terrorize or intimidate the witnesses
because of which these witnesses either avoid coming to courts or refrain C
from deposing truthfully. This unfortunate situation prevails because of
the reason that the State has not undertaken any protective measure to
ensure the safety of these witnesses, commonly known as ‘witness
protection’.
6. Over the last many years criminal justice system in this country D
has been witness to traumatic experience where witnesses turn hostile.
This has been happening very frequently. There may be many causes
for this sordid phenomena.
7. In Ramesh and Others vs. State of Haryana4, this Court had
indicated some of the reasons which make witnesses turn hostile, as can E
be discerned from the following discussion.
“40. In some of the judgments in past few years, this Court has
commented upon such peculiar behaviour of witnesses turning
hostile and we would like to quote from few such judgments.
In Krishna Mochi v. State of Bihar [Krishna Mochi v. State of F
Bihar, (2002) 6 SCC 81 : 2002 SCC (Cri) 1220] , this Court
observed as under: (SCC p. 104, para 31)
“31. It is a matter of common experience that in recent times
there has been a sharp decline of ethical values in public life
even in developed countries much less developing one, like G
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

4
(2017) 1 SCC 529 H
638 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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.”
B “41. Likewise, in Zahira Habibullah Sheikh (5) v. State of
Gujarat [Zahira Habibullah Sheikh (5) v. State of Gujarat,
(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , this Court highlighted
the problem with the following observations: (SCC pp. 396-98,
paras 40-41)
C “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 paralysed,
and it no longer can constitute a fair trial. The incapacitation
may be due to several factors, like the witness being not in a
D 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
E 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 societal interests require that the victims
of the crime who are not ordinarily parties to prosecution and
F the interests of the State represented by their prosecuting
agencies do not suffer.… There comes the need for protecting
the witness. Time has come when serious and undiluted thoughts
are to be bestowed for protecting witnesses so that the ultimate
truth presented before the court and justice triumphs and that
G the trial is not reduced to a 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 have political patronage and could wield
muscle and money power, to avert trial getting tainted and
H derailed and truth becoming a casualty. As a protector of its
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 639
[A. K. SIKRI, J.]

citizens it has to ensure that during a trial in court the witness A
could safely depose the 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 requirement for
observance of the rule of law. There cannot be any deviation
B
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 C
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
D
protected so that the interests of justice do not get incapacitated
in the sense of making the proceedings before the courts mere
mock trials as are usually seen in movies.”
“42. Likewise, in Sakshi v. Union of India [Sakshi v. Union of
India, (2004) 5 SCC 518 : 2004 SCC (Cri) 1645] , the menace of
witnesses turning hostile was again described in the following E
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 F
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 G
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
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640 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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 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 CrPC should also apply in inquiry or trial of offences
B
under Sections 354 and 377 IPC.”
43. In State v. Sanjeev Nanda [State v. Sanjeev Nanda, (2012)
8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2012) 3 SCC (Civ) 899] ,
the Court felt constrained in reiterating the growing disturbing
trend: (SCC pp. 486-87, paras 99-101)
C
“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
D 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 Prasad Misra [State
E of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 : 1996
SCC (Cri) 1278] held that it is equally settled law that the evidence
of a 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
F the case of the prosecution or defence may be accepted. In K.
Anbazhaganv. Supt. of Police [K. Anbazhagan v. Supt. of
Police, (2004) 3 SCC 767 : 2004 SCC (Cri) 882] , 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
G 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 [Sanjeev Nanda v. State, 2009 SCC
OnLine Del 2039 : (2009) 160 DLT 775] and they found the
H accused guilty.
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 641
[A. K. SIKRI, J.]

101. We cannot, however, close our eyes to the disturbing fact in A
the instant case where even the injured witness, who was present
on the spot, turned hostile. This Court in Manu Sharma v. State
(NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010)
6 SCC 1 : (2010) 2 SCC (Cri) 1385] and in Zahira Habibullah
Sheikh (5) v. State of Gujarat [Zahira Habibullah Sheikh
B
(5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC
(Cri) 8] 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 C
hostile to subvert the judicial process, the court 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 IPC imposes punishment for
D
giving false evidence but is seldom invoked.”
44. On the analysis of various cases, the following reasons can
be discerned which make witnesses retracting their statements
before the court and turning hostile:
(i) Threat/Intimidation. E
(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 F
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 G
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
protection and from various quarters demand is made for the State
to play a definite role in coming out with witness protection
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642 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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 case [Zahira Habibullah Sheikh
(5) v. State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC
B
(Cri) 8] 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:
C
“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
D 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
E for protection of the witness and members of his family.”
47. Almost to similar effect are the observations of the Law
Commission of India in its 198th Report [ Report on “witness
identity protection and witness protection programmes”.] , as can
be seen from the following discussion therein:
F “The reason is not far to seek. In the case of victims of terrorism
and sexual offences against women and juveniles, we are dealing
with a section of society consisting of very vulnerable people, be
they victims or witnesses. The victims and witnesses are under
fear of or danger to their lives or lives of their relations or to their
G property. It is obvious that in the case of serious offences under
the Indian Penal Code, 1860 and other special enactments, some
of which we have referred to above, there are bound to be
absolutely similar situations for victims and witnesses. While in
the case of certain offences under special statutes such fear or
danger to victims and witnesses may be more common and
H
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 643
[A. K. SIKRI, J.]

pronounced, in the case of victims and witnesses involved or A
concerned with some serious offences, fear may be no less
important. Obviously, if the trial in the case of special offences is
to be fair both to the accused as well as to the victims/witnesses,
then there is no reason as to why it should not be equally fair in the
case of other general offences of serious nature falling under the
B
Indian Penal Code, 1860. It is the fear or danger or rather the
likelihood thereof that is common to both cases. That is why several
general statutes in other countries provide for victim and witness
protection.”
8. All this has created problems of low convictions in India. This
has serious repercussions on the criminal justice system itself. Criminal C
justice is closely associated with human rights. Whereas, on the one
hand, it is to be ensured that no innocent person is convicted and thereby
deprived of his liberty, it is of equal importance to ensure, on the other
hand, that victims of crime get justice by punishing the offender. In this
whole process, protection of witnesses assumes significance to enable D
them to depose fearlessly and truthfully. That would also ensure fair
trial as well, which is another concomitant of the rule of law.
9. Since this case relates to the issue of protection of witnesses,
we are eschewing any further discussion on other miseries faced by the
witnesses, though we emphasise the need for addressing other problems E
as well, at appropriate level, if the criminal justice system in this country
is to succeed. Adverting to the importance of witness protection, we
may mention that it has been highlighted and emphasised by the courts in
India, including this Court, time and again. Issues of protection of identity
of witnesses and witness protection programme have been raised in
number of judgments like NHRC vs. State of Gujarat5, People’s Union F
for Civil Liberties (PUCL) vs. Union of India 6, Zahira vs. State of
Gujarat7, Sakshi vs. Union of India8 and Zahira Habibulla Sheikh
vs. Gujarat9.
10. In People’s Union for Civil Liberties, wherein constitutionality
some of the provisions of the Prevention of Terrorism Act (POTA), G

5
2003 (9) SCALE 329
6
2003 (10( SCALE 967
7
(2004) 4 SCC 158
8
(2004) 5 SCC 518
9
2006 (3) SCALE 967 H
644 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 2002, were challenged, the Court carefully analyzed Section 30 of the
Act, which had mentioned about the protection of witnesses. This
provision provides for the proceedings to be held in camera in order to
keep the identity of witness confidential. The Court felt the reality that
very often witnesses do not come forward to testify before court in
serious crimes. Witnesses are not ready to give evidence mainly because
B
their lives might be in danger. In the court’s view, Section 30 of the Act
maintains a balance between the rights of a witness, the rights of an
accused and the interest of the public. However, secrecy of the witness
is an exception and not a rule under this section.
11. The protection of a child witness, who may also be a victim,
C becomes all the more important. In Sakshi vs. Union of India10, the
Court stressed that there is a dire need to come up with a legislation for
the protection of witnesses. The Court also had issued certain guidelines
on the procedure of taking of evidence from a child witness. The Court
also pointed out the need for special protection to a victim of sexual
D abuse at the time of recording her statement in court. The petitioner in
that case had given certain suggestions for effectively dealing with the
special provisions for testimony in child sexual abuse cases, which were
as follows:
a) The judges shall allow the use of a videotaped interview of the
E testimony of the child in the presence of a child-support person.
b) A child could be permitted to testify through closed circuit
television or from behind a screen to acquire an honest and frank account
of the acts complained of without any fear.
c) Only the judge should be allowed to cross-examine a minor on
F the basis of the questions given by the defence in writing after the
examination of the minor.
d) During the testimony of the child, sufficient interval should be
provided as and when she requires it.
12. In some other judgments, this Court gave some more guidelines,
G
in the following manner:
a) Sections 354 and 377 of the Indian Penal Code should be tried
and inquired on the same principles mentioned under sub-section
(2) of Section 327 Cr.P.C.
10
H (2004) 5 SCC 518
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 645
[A. K. SIKRI, J.]

b) While holding the trial of rape or child sex abuse, some sort of A
arrangements like a screen or something like it may be used so as to
make sure that victim or witnesses (who are equally vulnerable and
need protection like the victim) do not confront the accused;
c) Questions raised during the cross-examination by the counsel
of the accused that are directly related to and be reminiscent to the B
victim or the witnesses of the incident should be written down and given
to the presiding officer of the court in advance. The presiding officer
must put forth those questions to the victim or witness in simple and
clear language and as far as possible without making her uncomfortable;
13. It hardly needs to be emphasised that failure to hear material C
witness is denial of fair trial. The practice, however, to give protection
to the witnesses is based on ad hocism, i.e., on case to case basis. The
Courts have also, in the process, adopted different means to ensure
witness protection, which can be stated in brief detail:
(a) Publication of evidence of the witness only during the course D
of trial and not after [Naresh Shridhar Mirajkar and Others vs. State
of Maharashtra and Another; [1966 (3) SCR 744]
(b) Re-trial allowed due to apprehension and threat to the life of
witness [Sunil Kumar Pal vs. Phota Sheikh and Other; AIR 1984
SC 1591] E
(c) Necessity of anonymity for victims in cases of rape [Delhi
Domestic Working Women’s Forum vs. Union of India; (1995) 1
SCC 14)]
(d) Discouraging the practice of obtaining adjournments in cases
when witness is present and accused is absent. [State of U.P. vs. F
Shambhu Nath Singh; (2001) 4 SCC 667]
(e) Making threatening of witnesses as a ground for cancellation
of bail [Ram Govind Upadhyay v. Sudarshan Singh; II (2002) SLT
587]
(f) Cross-examination by video conferencing — This is one G
of the innovative methods devised, which is specifically helpful to the
victims of sexual crimes, particularly, child witnesses who are victims of
crime as well.

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646 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 14. In the instant case itself the petitioners have approached this
Court with the allegations that in the trials that are going on against
Asaram, who is charged with the offence of committing rapes in
numerous cases, the witnesses have been threatened with serious
consequences in case they depose against Asaram. It is alleged that as
many as 10 witnesses have already been attacked and three witnesses
B
have been killed.
15. There are four petitioners in this petition. These petitioners
include a witness, father of a murdered witness, father of the child rape
victim and a journalist who escaped a murder attempt by goons of godman
Asaram and his son Naryana Sai and still faces death threats by a jailed
C sharpshooter of Asaram and Narayan Sai. It is stated that Petitioner
No. 1 Mahender Chawla miraculously survived a murder attempt on his
life for daring to testify against so called godman, Asaram Bapu and his
son Narayan Sai in horrifying cases of rape of a child and two sisters.
Petitioner no. 1 also witnessed Narayan Sai doing Tantrik Practice on a
D dead body of a child in an Asaram in Madhya Pradesh, in which till date
there has not been any investigation due to the influence of Asaram.
Petitioner no. 2 Naresh Gupta is the father of a murdered witness, named,
Akhil Gupta. Akhil was killed for daring to be a witness against Asaram.
Petitioner no. 3 Karamvir Singh is the father of a child, who was raped
by Asaram. Petitioner no. 3’s son Somvir was threatened by 2 attackers
E despite having State police security. The attackers were apprehended
and released on bail. Shockingly the same attacker, named Narayan
Pandey, later killed a rape-case prosecution witness Kripal Singh. The
child rape victim’s family has been attacked, threatened and lives in
constant fear. It is also alleged that despite being threatened, the Uttar
F Pradesh Police shockingly withdrew half of their security. Petitioner
no. 4, Narendra Yadav is a journalist who survived a murder attempt on
his life because he dared to write articles to the dislike of Asaram Bapu
and Narayan Sai. He now lives in constant fear of being killed as the
Uttar Pradesh Police has given him a solitary security guard for just
eight hours a day, leaving him to fend for himself through the remaining
G 16 hours. It is also averred that the sharp shooter of Asaram, Narayan
Pandey, who is in jail for murdering a witness Kripal Singh, writes
threatening letters to him from inside the jail.
16. The petitioners have prayed for a court monitored SIT or a
CBI probe. It is stated by the petitioners that the prevailing feeling of
H
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 647
[A. K. SIKRI, J.]

fear amongst witnesses in the country seriously impairs the right of the A
people of this country to live in a free society governed by rule of law.
The right to testify in courts in a free and fair manner without any pressure
and threat whatsoever is under serious attack today. If one is unable to
testify in courts due to threats or other pressures, then it is a clear violation
of Article 21 of the Constitution. The right to life guaranteed to the
B
people of this country also includes in its fold the right to live in a society,
which is free from crime and fear and right of witnesses to testify in
courts without fear or pressure.
17. The petitioners had initially impleaded Union of India as
Respondent No. 1 and States of Haryana, Uttar Pradesh, Rajasthan,
Gujarat and Madhya Pradesh as Respondent Nos. 2 to 6. C

18. Appreciating the importance and seriousness of the matter,
this Court issued show cause notices in the petition on November 18,
2016. After the service of the notice when the matter came up for
hearing on March 24, 2017, this Court also directed the States of Uttar
Pradesh and Haryana to ensure full and proper protection to the petitioners D
by providing adequate security.
19. When the matter was again listed on August 28, 2017,
Mr. K.K. Venugopal, learned Attorney General appeared on behalf of
the Union of India, along with Ms. Pinky Anand, Additional Solicitor
General. It was pointed out that since this Court was primarily dealing E
with the issue pertaining to witness protection programme, it would be
appropriate that other States are also impleaded inasmuch as the issue
had PAN India significant and witness protection programme should be
available in all the States. The petitioners were, accordingly, directed to
implead other States as well and they be served with the notice of this F
petition. This is how the coverage of the petition has been extended to
the entire country, encompassing all the States and Union Territories.
20. The petition was amended and all the States and Union
Territories have been served and are represented through their respective
counsel. When the matter was thereafter taken up for hearing on G
November 17, 2017 all the respondents were called upon to file their
responses indicating as to what steps could be taken to have the witness
protection programme in place.
21. Mr. Venugopal, learned Attorney General for India was also
requested to give suggestions in the form of a draft scheme. It is
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648 SUPREME COURT REPORTS [2018] 14 S.C.R.

A heartening to note that Union of India did not take this petition as
adversarial and understood the necessity of having such a scheme in the
larger public interest. With this sensitivity in mind, Ministry of Home
Affairs have prepared a draft witness protection scheme, 2018 and placed
the same on record of this case. This was noted in the orders dated
April 13, 2018 and the State Governments as well as Union Territories,
B
who had already been supplied with the copy of the draft scheme by the
Ministry itself, were asked to furnish their comments by May 31, 2018
to the Ministry of Home Affairs. The Union Government was impressed
upon to finalise the scheme after receiving the comments/suggestions
from the various Governments. Order dated April 13, 2018, incorporating
C the aforesaid aspects, is reproduced below:
“We are informed that the Ministry of Home Affairs has prepared
a draft Witness Protection Scheme 2018. A copy of the said draft
scheme is handed over to us in the court today. Vide letter dated
22nd March, 2018, a copy of the said scheme is also provided to
D all the State Governments and the Union Territories Administration
requesting them to furnish their comments by 9th April, 2018.
Thereafter, again by reminder dated 11th April, 2018 all the State
Governments and Union Territories were asked to furnish their
comments by 31st May, 2018.
E We expect all the State Governments as well as the Union
Territories to furnish their comments by the aforesaid stipulated
date of 31st May, 2018 to the Ministry of Home Affairs. After
receiving the comments/suggestions the draft Witness Protection
Scheme 2018 shall be finalized by the Government, Ministry of
Home Affairs before the next date.
F
List the matter in the second week of August, 2018.
Learned amicus curiae is also at liberty to furnish his suggestions.”
22. When the matter was taken up on November 19, 2018, the
learned Attorney General informed that after taking the inputs from
G various States and Union Territories, Central Government had finalized
the scheme and filed it in this Court on November 06, 2018 supported by
its affidavit. He was also candid in his submission that this Court can
pass appropriate orders directing all the States to adopt that scheme and
provide a witness protection in accordance therewith till the time
appropriate legislation in this behalf is passed.
H
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 649
[A. K. SIKRI, J.]

23. We may place on record that as per the affidavit of the Central A
Government, the Witness Protection Scheme, 2018 is based on the inputs
received from 18 States/Union Territories, 5 States Legal Services
Authorities and open sources including civil society, three High Courts
as well as from Police personnel. It is also stated that the scheme has
been finalised in consultation with National Legal Services Authority
B
(NALSA). It is mentioned that the aim and objective of the 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 C
criminal law enforcement agencies and overall administration of justice.
24. The affidavit further emphasises that the witnesses need to
be given the confidence to come forward to assist law enforcement and
judicial authorities with full assurance of safety and the present Scheme
is aimed to identify the series of measures that may be adopted to D
safeguard witnesses and their family members from intimidate and threats
against their lives, reputation and property.
25. At this stage, we reproduce Witness Protection Scheme, 2018
as filed, in its entirety:
“Witness Protection Scheme, 2018 E

PREFACE
Aims & Objective:
The ability of a witness to give testimony in a judicial setting or to
cooperate with law enforcement and investigations without fear F
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
G
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
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650 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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:
B 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.
Hon’ble Supreme Court of India also held in State of Gujrat v.
C Anirudh Singh (1997) 6 SCC 514 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,
D he performs a sacred duty of assisting the court to discover the
truth”. Zahira Habibulla H. Shiekh and Another v. State of Gujarat
2004 (4) SCC 158 SC while defining Fair Trial said “If the witnesses
get threatened or are forced to give false evidence that also would
not result in a fair trial’’.

E 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 are found in 154th and 178th report of the Law
Commission in India. 198th Report of the Law Commission of
India titled as “Witness Identity Protection and Witness Protection
Programmes, 2006” is dedicated to the subject.
F
Hon’ble Supreme Court observed in Zahira case supra, “country
can afford to expose its morally correct citizens to the peril of
being harassed by anti-social elements like rapists and murderers”.
The 4 th National Police Commission Report, 1980 noted
‘prosecution witnesses are turning hostile because of pressure of
G accused and there is need of regulation to check manipulation of
witnesses.”
Legislature has introduced Section 195A IPC in 2006 making
Criminal Intimidation of Witnesses a criminal offence punishable
with seven years of imprisonment. Likewise, in statues namely
H
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 651
[A. K. SIKRI, J.]

Juvenile Justice (Acre and Protection of Children) Act, 2015, A
Whistle Blowers Protection Act, 2011, Protection of Children from
Sexual Castes and Tribes (Prevention of Atrocities) Act, 1989
also provides for safeguarding witnesses again the threats.
However no formal structured programme has been introduced
as on date for addressing the issue of witness protection in a
B
holistic manner.
In recent year’s extremism, terrorism and organized crimes have
grown and are becoming stronger and more diverse. In the
investigation becoming 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 C
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 co-operating with
the law enforcement agencies and deposing before the court of D
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 E
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 F
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, G
2018”
(b) It shall come into force from the date of Notification.

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652 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Part I
2. DEFINITIONS:
(a) “Code” means the Code of Criminal Procedure, 1973 (2 of
1974);
B (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 (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-
D in partner, siblings, children,grandchildren of the witness;
(e) “Form” means “Witness Protection Application Form”
appended to this Scheme;
(f) “In Camera Proceedings” means proceedings wherein the
Competent Authority/Court allows only those persons who are
E 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
F 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
G and above and also offences punishable punishable under Section
354, 354A, 354B, 354C, 354D and 509 of 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
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MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 653
[A. K. SIKRI, J.]

perception to the witness or his family members. It shall contain A
specific details about the nature of threats by the witness or his
family to their life, reputation or property apart from analyzing the
extent, the or persons making the threat, have the intent, motive
and resources to implement the theats.
It shall also categorize the threat perception apart from suggesting B
the specific witness protection measures which deserves to be
taken in the matter;
(k) “Witness” means any person, who posses information or
document about any offence;
(l) “Witness Protection Application” means an application moved C
by the witness in the prescribed form before a Competent
Authority for seeking Witness Protection Order. It can be moved
by the witness, his family member, his duly engaged counsel or
IO/SHO/SDPO/Prison SP concerned and the same shall
preferably be got forwarded through the Prosecutor concerned; D
(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 E
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. F
Part II
3. CATEGORIES OF WITNESS AS PER THREAT
PERCEPTION:
Category ‘A’ : Where the threat extends to life of witness or his G
family members, during investigation/trial or thereafter.
Category ‘B’ : Where the threat extends to safety, reputation or
property of the witness or his family members, during the
investigation/trial or thereafter.
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654 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B 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:-

C i. Budgetary allocation made in the Annual Budget by the State
Government;
ii. Receipt of amount of costs imposed/ordered to be deposited
by the courts/tribunals in the Witness Protection Fund;
iii. Donations/contributions from Charitable Institutions/
D Organizations 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.
E
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
F of the concerned District where the offence is committed, through
its Member Secretary along with supporting documents, if any.
6. PROCEDURE FOR PROCESSING THE
APPLICATION:
(a) As and when an application is received by the Member
G Secretary of the Competent Authority, in the prescribed form, it
shall forthwith pass an order for calling for the Threat Analysis
Report from the ACP/DSP in charge of the concerned Police
Sub-Division.
(b) Depending upon the urgency in the matter owing to imminent
H threat, the Competent Authority can pass orders for interim
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 655
[A. K. SIKRI, J.]

protection of the witness or his family members during the A
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. B
(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 C
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 D
full confidentiality.
(g) An application shall be disposed of within five working days of
receipt of Threat Analysis Report from the Police authorities.
(h) The Witness Protection Order passed by the Competent
E
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.
F
However the Witness Protection Order passed by the Competent
Authority for change of identity and/or relocation shall be
implemented by the Department of Home of the concerned State/
UT.
(i) Upon passing of a Witness Protection Order, the Witness
Protection Cell shall file a monthly follow-up report before the G
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
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656 SUPREME COURT REPORTS [2018] 14 S.C.R.

A Report shall be called from the ACP/DSP in charge of the
concerned Police Sub-Division.
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
B three months at a time. They may include:
(a) Ensuring that witness and accused do not come face to face
during investigation or trial;
(b) Monitoring of mail and telephone calls;
C (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;
D
(e) Concealment of identity of the witness by referring to him/her
with the changed name or alphabet;
(f) Emergency contact persons for the witness;
(g) Close protection, regular patrolling around the witness’s house;
E (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;

F (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
G 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
H day to day basis without adjournments;
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 657
[A. K. SIKRI, J.]

(n) Awarding time to time periodical financial aids/grants to the A
witness from Witness Protection Fund for the purpose of re-
location, sustenance or starting a new vocation/profession, if
desired;
(o) Any other form of protection measures considered necessary.
8. MONITORING AND REVIEW: B

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
C
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 :-
D
During the course of investigation or trial of any offence, an
application for seeking identity protection can be filed in the
prescribed form before the Competent Authority through its
Member Secretary.
Upon receipt of the application, the Member Secretary of the
Competent Authority shall call for the Threat Analysis Report. E
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 F
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 Witness G
Protection Cell to ensure that identity of such witness/his or her
family members including name/parentage/occupation/address/
digital footprints are fully protected.

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658 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 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
B 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.
C
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.

D 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
E Authority.
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 by the Witness Protection
F Fund.
Part VI
12. WITNESSES TO BE APPRISED OF THE SCHEME:
Every state shall give wide publicity to this Scheme. The IO and
G 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,
H Court Staff, Lawyers from both sides shall maintain full
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 659
[A. K. SIKRI, J.]

confidentiality and shall ensure that under no circumstance, any A
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 B
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.
C
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. D
15. REVIEW:
In case the witness or the police authorities are aggrieved by the
decisions of the Competent Authority, a review application may
be filed within 15 days of passing of the orders by the Competent
Authority. E
Witness Protection Scheme, 2018
Witness Protection Application
under
Witness Protection Scheme, 2018
F
Before, (To be filed in duplicate)
The Competent Authority,
District................................................................

Application for:
G
1. Witness Protection
2. Witness Identity Protection
3. New Identity
4. Witness Relocation
H
660 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 1. P articulars of the Witness (Fill in ---------------------------
Capital): ---------------------------
1) Name ---------------------------
2) Age ---------------------------
3) Gender (Male/Female/Other) ---------------------------
4) Father's/Mother’s Name ---------------------------
B 5) Residential Address ---------------------------
6) Name and other details of family ---------------------------
members of the witness who are ---------------------------
receiving or perceiving threats ---------------------------
7) Contact details (Mobile/e-mail)

C 2. P articulars of Criminal matter: ---------------------------
1) FIR No. ---------------------------
2) Under Section ---------------------------
3) Police Station ---------------------------
4) District ---------------------------
5) D.D. No. (in case FIR not yet ---------------------------
registered) ---------------------------
D 6) Cr.Case No. (in case of private
complaint)
3. P articulars of the Accused (if ---------------------------
available/known): ---------------------------
1) Name ---------------------------
2) Address ---------------------------
E 3) Phone No.
4) Email id
4. Name & other particulars of the ---------------------------
person giving/suspected of giving ---------------------------
threats ---------------------------
---------------------------
F
5. Nature of threat perception. Please ---------------------------
give brief details of threat received in ---------------------------
the matter with specific date, place, ---------------------------
mode and words used ---------------------------
6. Type of witness protection measures ---------------------------
G prayed by/for the witness ---------------------------
---------------------------
---------------------------
7. Details of Interim / urgent Witness ---------------------------
P rotection needs, if required ---------------------------
---------------------------
---------------------------
H
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 661
[A. K. SIKRI, J.]

• Applicant/witness can use extra sheets for giving additional A
information.
____________________
(Full Name with signature)
Date: .............................. B
Place:...........................…
UNDERTAKING
1. I undertake that I shall fully cooperate with the competent
authority and the Department of Home of the State and Witness C
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, competent authority under the D
scheme reserves the right to recover the expenses incurred on
me from out of the Witness Protection Fund.
_____________________
(Full Name with signature)
E
Date: ..............................
Place:...........................…”
26. As is clear from its reading, the essential features of the Witness
Protection Scheme, 2018 include identifying categories of threat
perceptions, preparation of a “Threat Analysis Report” by the Head of F
the Police, types of protection measures like ensuring that the witness
and accused do not come face to face during investigation etc. protection
of identity, change of identity, relocation of witness, witnesses to be
apprised of the scheme, confidentiality and preservation of records,
recovery of expenses etc. G
27. Since it is beneficial and benevolent scheme which is aimed at
strengthening the criminal justice system in this country, which shall in
turn ensure not only access to justice but also advance the cause the
justice itself, all the States and Union Territories also accepted that
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662 SUPREME COURT REPORTS [2018] 14 S.C.R.

A suitable directions can be passed by the court to enforce the said Scheme
as a mandate of the court till the enactment of a statute by the
Legislatures.
28. It is clear from the aforesaid events that the Scheme is the
outcome of the efforts put in by the Central Government with due
B assistance not only from the State Governments as well as Union
Territories but other stakeholders including Police personnel, NALSA
and State Legal Services Authorities, High Courts and even civil society.
There is no reason not to accede to the aforesaid submission of the
learned Attorney General and other respondents.
C 29. As pointed out above, in Sakshi’s case, the Court had insisted
about the need to come up with a legislation for the protection of
witnesses. It had even requested the Law Commission to examine certain
aspects, which resulted to 172nd review of rape laws by the Law
Commission. However, the Court specifically rejected the suggestion of
the Law Commission regarding examination of vulnerable witnesses in
D the absence of accused. Having regard to the provisions of Section 273
of the Code of Criminal Procedure, which is based on the tenets of
principle of natural justice, that the witness must be examined in the
presence of the accused, such a principle cannot be sacrificed in trials
and in inquiries regarding sexual offences. In such a scenario examination
E of these witnesses through video conferencing provides the solution which
balances the interest of the accused as well as vulnerable witnesses.
30. Part II(7)(L) of the Witness Protection Scheme, 2018 provides
for usage of specially designed court room having special arrangements
like live links, one way mirrors, and screens apart from separate passages
F for witnesses and accused with the option to modify the image of the
face of the witness and to modify the audio feed of the witness’s voice,
so that he/she is not identified.
31. In consonance with the same, the Delhi Judiciary has already
established four Vulnerable Witness Deposition Complexes in the National
G Capital Territory, the latest one being at the Dwarka District Court, which
was established in February, 2017. This complex provides facilities like
separate witness room, separate accused room, play area for the child
witnesses, pantry, separate toilet and an exclusive & comfortable waiting
area and is equipped with all facilities of audio-visual exchange for a
free interface between the presiding Judge, the witness and the accused
H without witness facing the accused. The complex has a separate entry
MAHENDER CHAWLA & ORS. v. UNION OF INDIA & ORS. 663
[A. K. SIKRI, J.]

for vulnerable witnesses, so that they do not come in direct contact with A
accused at any point of time. There are provisions for support persons,
pre-trial court visit and facilities for pick and drop of the witnesses from
their residence. In this way, all possible efforts have been made for
providing comfortable environment to vulnerable witnesses at this
complex in order to enable them to give their best evidence in criminal
B
proceedings.
32. One of the main reasons behind establishing these Vulnerable
Witness Deposition Complexes was that a large percentage of
acquittals in criminal cases is due to witnesses turning hostile and giving
false testimonies, mostly due to lack of protection for them and their
families, especially in case of women and children. C

33. In fact, the Supreme Court too, in The State of Maharashtra
v. Bandu @ Daulat (Order dt. 24.20.2017 in Crl. Appeal No. 1820/
2017) has directed as follows:
“10. … there should be special centres for examination of D
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 E
centres have been set up at Delhi for the purpose.
*****
12. The directions of Delhi High Court and setting up of special
centres for vulnerable witnesses as noted above are consistent F
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 center for vulnerable
witnesses may be perhaps required almost in every district in the
country. All the High Courts may take appropriate steps in this G
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.”
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664 SUPREME COURT REPORTS [2018] 14 S.C.R.

A 34. One thing which emerges from the aforesaid discussion is
that there is a paramount need to have witness protection regime, in a
statutory form, which all the stakeholders and all the players in the criminal
justice system concede. At the same time no such legislation has been
brought about. These are the considerations which had influenced this
Court to have a holistic regime of witness protection which should be
B
considered as law under Article 141 of the Constitution till a suitable law
is framed.
35. We, accordingly, direct that :
(i) This Court has given its imprimatur to the Scheme prepared by
C respondent No.1 which is approved hereby. It comes into effect
forthwith.
(ii) The Union of India as well as States and Union Territories
shall enforce the Witness Protection Scheme, 2018 in letter and
spirit.
D (iii) It shall be the ‘law’ under Article 141/142 of the Constitution,
till the enactment of suitable Parliamentary and/or State
Legislations on the subject.
(iv) In line with the aforesaid provisions contained in the Scheme,
in all the district courts in India, vulnerable witness deposition
E 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.
F 36. Writ petition stands disposed of in the aforesaid terms.

Kalpana K. Tripathy Petition disposed of.

G

H