Cases against legislators: SC asks trial courts to grant witness protection without application

The Court waiving off need for specific application for grant of witness protection could give the practice the thrust it needs


The Supreme Court has issued directions pertaining to cases filed and pending against current and former legislators all across the country such as, no unnecessary adjournment, vacation of stay on proceedings after a certain period of time as well as enforcement of the Witness Protection Scheme, 2018.

These directions were issued by a bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose while hearing the petition filed by Ashwini Upadhyay on the issue of pendency of cases against legislators. The court has already appointed Adv. Vijay Hansaria as amicus curiae in this case who also submitted a report before the bench based on information provided by High Courts of all the states. The report highlighted the following issues being faced by high courts:

  1.      Although video conferencing facilities are available in some of the courts, the same are not adequate to facilitate recording of evidence of witnesses.
  2.     The High Court of Kerala has specifically placed on record that the police officials are reluctant to arrest and produce the legislators.
  3.    The same issue is also being faced by the Calcutta High Court. Apart from the same, the amicus expressed concerns regarding the suitability of assigning 134 cases to a single Special Court in the State of West Bengal.
  4.    Even with respect to the State of Karnataka, the amicus brought up the issue of a Special Court being designated for the entire State, which is located in Bengaluru.
  5.   Certain issues that have been raised by a Committee appointed by the Chief Justice of the High Court of Madras were also highlighted by the learned amicus.

The report of the amicus curiae also made the following suggestions:

  •        The report suggests that for facilitating recording of evidence of witnesses the Central Government may bear the initial expenses for setting up of adequate video conferencing facility.
  •         The requirement for the witnesses to make an application seeking protection, as provided under the Witness Protection Scheme, be waived in these cases as witnesses may be apprehensive of making such an application in the first place.
  •      Taking into account the fact that in certain States there are cases which have been pending for more than 25 years, it is imperative to appoint Nodal Prosecution Officers who will be responsible to ensure that arrest warrants are being executed, accused are being produced regularly, summons are being served, etc.
  •      The tenure of judicial officers dealing with these cases should be at least 2 years in order to ensure continuity.
  •      Additionally, the judicial officers should follow effective case management strategies and should not grant unnecessary adjournments which might lead to delay.

Centre’s response

The Central government is yet to submit before the court status report relating to investigations by special agencies as well as inform the court on the possibility of providing funding for the establishment of at least one video conferencing facility in every district for conducting these cases. The bench granted Centre another week’s time to file a response while stating, “We hope and expect that the Union of India will take into consideration the requests made by the State Governments and a timely response will be submitted on all the above queries.”

Specific directions

The bench has issued some specific directions to all parties basis the submissions of the petitioner as well as the amicus curiae report. The bench has directed all states and Union Territories to strictly enforce the Witness Protection Scheme approved by the court in Mahender Chawla v. Union of India, [(2019) 14 SCC 615]. The court said, “Keeping in mind the vulnerability of the witnesses in such cases, the Trial Court may consider granting protection under the said Scheme to witnesses without their making any specific application in this regard.”

The court has further asked all states to follow the pronouncement in Asian Resurfacing of Road Agency Private Limited v. CBI, [(2018) 16 SCC 299] regarding vacation of stay on proceedings. The court had held that, “We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.”

The court also clarified that the directions issued in this petition are applicable to both sitting as well as former legislators (MPs and MLAs). The court further directed, “Keeping in mind the public interest involved in these matters, and in order to prevent undue delay, we direct that no unnecessary adjournments be granted in these matters.”

The concerns about specific high courts highlighted in the amicus curiae report were also taken into consideration and the court issued directions accordingly. On the issue of non-execution of warrants against the sitting and former legislators, the counsel for High Court of Calcutta was asked to provide a list of such cases and the “Chief Secretary/ Director General of Police of the State of West Bengal is directed to file an affidavit indicating the implementation of the orders passed by this Court, as well as the High Court, by the next date of hearing.”

Similar direction was passed for the High Court of Kerala where the state government claimed that it was cooperating with the high court in execution of warrants. The court directed the counsel for the high court to furnish a list of such cases to the Chief Secretary/ Director General of Police and directed Kerala government to file a report to that regard by next hearing.

The High Court of Karnataka has been directed to file an affidavit regarding the sufficiency of the designated Special Court to deal with the pending cases as also the status of the stays granted in these cases.

The court also stated that it will consider the remainder of the suggestions made by the amicus on the next date of hearing which is set after three weeks.

What it means for Witness protection

As rightly pointed out by the amicus Curiae, there are certain loopholes in the implementation of the Witness Protection Scheme. As per the Scheme, as laid out in Mahender Chawla & Ors. Vs. Union of India, in order to receive protection, an application in prescribed form is required to be made to the competent Authority (Standing Committee in each District chaired by District and Sessions Judge) which then calls for a Threat Analysis report from the ACP/DSP of the concerned police division. The report categorises threat protection (as per the three categories, ‘A’, ‘B’, and ‘C’) and suggests protection measures. The application is to be disposed of within 5 days of receipt of said report and the order thus passed is to be implemented by the Witness Protection Cell which is also set up under this scheme.

The scheme specifies that the protection should be proportionate to the threat and should be granted for 3 months at a time. The measures may include, inter alia, temporary change of residence, phone number, and escort to and from court, in camera trials, concealment of identity of witness and so on.

It is clear that submission of the application was sort of a prerequisite for receiving witness protection which meant that it had to voluntarily come from the witness’ counsel. The court having waived off the need to file such an application is a major leap towards normalcy of this practice that is yet to find its roots in the criminal justice system. There is no denying that our criminal justice system is in dire need of a usual practice of protecting the witness, especially in cases where the accused is someone placed at a higher level of social hierarchy or someone in a dominant position of power.

This direction of the apex court has now placed the ball in the court of law. It pushes trial courts to grant protection to witness, without the witness having to ask for it. Naturally, all that is needed now is for trial courts to take it upon themselves, and follow through this legally sound practice to steer criminal jurisprudence in the right direction that will ensure justice, in the truest sense of the word.

The Supreme Court order may be read here.


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