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Wednesday, July 15, 2020

‘Hostile’ culture needs a cure

Witnesses and whistle-blowers turning hostile under various kinds of threats poses a big problem for the ends of justice and leads to an abysmally low rate of conviction,says Mayura Janwalkar

Written by MAYURA JANWALKAR | Published: September 25, 2013 5:31:12 am

The Bombay High Court last month ordered the setting up of a panel to hear applications seeking protection for witnesses and whistle-blowers. The court’s direction may be the first step in guarding those who aid the criminal justice system,but the need for a policy for protection of witnesses is underlined in bold by a conviction rate which stood at just 9.2 per cent in the state in 2012,the lowest in India.

While every prosecution case may not fall flat because of a witness turning hostile,witnesses certainly play a key role in bringing an offender to justice.

The 2010 killing of Pune’s RTI activist Satish Shetty,the prosecution’s first witness in a case he lodged against a developer for usurping land,and the elimination of Anil Bheda,a key prosecution witness in a case of alleged fake encounter killing of Chhota Rajan’s aide Ramnarayan Gupta alias Lakhan Bhaiya in 2006,are prominent examples of how crucial their deposition was or perhaps how damning their testimony could have been for the accused.

The threat may not always cost a witness his/her life,but it may be sufficient to deter him/her from testifying against an accused and thus defeat the purpose of the justice system,lawyers say. A witness may be threatened with harm to his family,loss of livelihood,social ostracisation or disowning by the family. A witness can be threatened or influenced by the accused or his aides in the absence of a programme that protects his interests and identity.

Rohini Salian,special public prosecutor in a number of high-profile cases,says witnesses need to be given protection not only against threat to their life,but also to ensure they are not compromised by other factors. Witnesses,she says,are of three types. “The first is the one who admits he fears for his life; the second is the one who can be bribed and the third is the one who tends to become indifferent owing to the delay in trial and does not show up for deposition. All of them need to be kept under care because ultimately justice has to be delivered.”

The need for protection of witnesses has been pointed out by the High Court on several occasions over the years. It took suo motu action after Shetty’s murder and pulled up the government for its inability to provide security to whistle-blowers and witnesses. However,the state government,although giving assurances of putting a policy in place,has so far not even been able to submit draft guidelines to the court.

Salian says that under special enactments like the Protection of Children From Sexual Offences Act,provisions have been made to serve a truncated chargesheet to the accused so that the identities of victims or witnesses are not revealed. This would ensure the accused does not try to intimidate them. “There is also a provision to submit the names and address of the victim or the witness to the court,which the court retains in a sealed cover.”

However,to come up with a fool-proof system in other offences as well is difficult,she says.

On August 20,a division bench of Justices V M Kanade and K R Shriram had asked the state government to implement two of its resolutions,issued on February 27 and August 13 respectively,for granting immediate protection to whistle-blowers facing threats. The court directed the constitution of a three-member panel comprising a senior IAS or MPSC-cadre officer,a senior IPS officer and an officer from the state welfare department for ensuring the implementation of the government resolutions. According to the GRs,after providing immediate police protection,an inquiry would be carried out by an assistant commissioner of police or a DSP into the activist’s application claiming danger to his life. Apart from whistle-blowers,the High Court said,the protection should also be extended to witnesses.

Retired High Court judge Hosbet Suresh says the HC’s direction should be welcomed as a first step towards protecting witnesses. However,the government still needs to fulfill its duty of framing a policy for witness protection,he says. “Every case is sensitive and a threat may come from anywhere,” he adds. The police force may be hard-pressed for manpower but protection of witnesses is the government’s responsibility,he adds.

Citing the system prevalent in the US,lawyer Yug Chaudhry says,“Sending two constables to guard a witness until he deposes in court is just a token gesture. After he deposes,he should be relocated,given a new identity and a job. The system should be leak-proof and his identity should be protected.”

Such protection is required not only for witnesses deposing in terror cases,but also in economic offences like the 2G scam where powerful people could be involved.

Talking of cases of women and child trafficking,chairperson of Tata Institute of Social Sciences’ Centre for Criminology and Justice,Dr Vijay Raghavan,says that in cases where women are lured into prostitution with a promise of a job or marriage,they will be afraid to testify against the trafficker if they have to go back to him for support. “Their families may not take them back and because of the lack of good rehabilitation,they will have no other source of livelihood. Their options are limited,” Raghavan says,adding that if there is a programme for relocating and rehabilitating such victims,those in need can avail of it,which will in turn boost conviction rates.

While directing the state government to set up the three-member committee,the High Court also observed,“We have noticed that a large number of cases of atrocities against members of scheduled castes and scheduled tribes. Such victims belong to the lower economic strata and they don’t have the financial strength (to counter threats). They should be granted protection.”

Wanted Protection

On March 13,2011,Anil Bheda,the key prosecution witness in the case of the 2006 encounter killing of Ramnarayan Gupta alias Lakhan Bhaiya in which several police officers including encounter specialist Pradeep Sharma were arrested,went missing from Navi Mumbai days before he could depose in court. His statement recorded by police in December 2009 had led to the arrest of 22 people,including policemen. Gupta’s wife Aruna had claimed he had been receiving threats since the trial court framed charges in the case on March 8,2011. On July 22,the high court was informed that Bheda was dead.

RTI activist Satish Shetty,who had exposed many land scams in Pune,was shot dead in the same city on January 13,2010. He had filed a complaint against Aryan Infrastructure and Investment for cheating and forgery,alleging that three sale deeds were executed to sell MSRDC land in Pune to developers that were cancelled before the registration of the complaint. The police later filed a ‘C’ summary report in his case stating the complaint was filed “under misunderstanding.”

On December 21,2004,Zahira Sheikh,main prosecution witness in the Vadodara’s Best Bakery case,turned hostile before a Mumbai sessions court and said she could not identify the people who threw soda bottles and stones at her and her family on March 1,2002,during the Gujarat riots . Her deposition had earlier led to the acquittal of 21 accused. Zahira was later sentenced to one-year imprisonment for perjury.

In January 2010,two unidentified men fired at the Churchgate flat of activist Nayana Kathpalia,who had been pursuing the cause of open spaces in the city through NGO Citispace. Sixty-five year-old Kathpalia,however,escaped unhurt. An extra bullet was found outside her flat and the weapon was abandoned near a tree outside the house.

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