Today the manor problem before the justice dispensation system, especially in criminal case, is the
reluctance of witness to come forward to dispose before a Court regarding an incident on being threatened
such witness talk the easily course of turning hostile. The process comes under miscarriage of justice, this
social demand on the issue of witness protection. It is not that witnesses are averse to quality justice but the
facts that they are more concerned about their own
safety and honor disposing of against hardened crimi- nals may result in irreparable loss of life and property
to a witness. It is also happened that repeated visits to
courts and a volley of questions which are some-times
insulting, cause embarrassment to witness the problem
has to be increase day to day and some solution has to
be worked out so that the system may remain effective
regarding witness protection issues, the Supreme Court commented in Zahira Habibullah Sheikh case1.
That the process of fair trial which is condition
precedent for dispensation of justice is being seriously
affected because in most of the cases witnesses stand
incapacitated from action as eyes and ears of justice in
such circumstance, the SC observed that trial gets to
corrupt and paralyzed and it no longer can constitute
a fair trial. The fears may be due to various reasons
including lack of adequate protection to witness inside
and outside court. In this it has been seen that time has come when serous and undiluted thoughts are to be best
toward for protection of witnesses so that ultimate
truth is presented before the court and justice being
victorious and the trial is not reduced to mockery. The question for protection of a witness outside the court
is predominantly a problem to be address by the law
and order enforcing bodies, protection of witness during his examination is basically a responsibility of
courts. It is fundamental principal that the purpose of cross examination is to bring out the truth on record, but if the cross examination is aimed at harassing the witness by putting unnecessary question or irrelevant questions, the purpose is defeated and frustrated2
. The protection of witness from harassment during his examination is as follows: 1. The provisions which provided that a witness cannot be compelled to answer a question, which is inter to
shake his credit by injuring his character if the ques
tion is not reasonable3. 2. The protection against questions which are indecent or scandalous subject to the discretion of the court4. 3.The bar against putting questions which though
proper are insulting, annoying or needlessly offen
sive in from5. 4. Lastly right of a witness to refresh memory from
earlier writing6. The aforesaid provision about the issue of protection a witness from harassment during
examination and outlining, the duty of a court in this case the SC said in Makhanlal Bangal v/s Manas Bhunia & Other7
. That the "A Judge presiding over a trial needs
to effectively control examination, cross examination
and re-examination of the witness so as to exclude such
questions being put to permit and to relieve the witnesses from the need of answering such questions which they are not bound to answer. The Court has power to disallow questions
should be effectively exercised by reference to section
146,148, 150, 151 &152 of the evidence Act byexcluding
improper and impermissible question. The examination
of the witnesses should not be protracted and the witness
should not feel harassed and cross-examination must not be allowed to bully or take under advantage of witness-witnesses attend the court to discharge the
sacred duty of rendering and to justice. Witnesses are
entitled to be treated with respect and it is the judge
who has to see that witnesses feel confident in the
court". The question relating as right to refresh memory
by referring to earlier document is concerned, a conjoint reading of section 159 and 160 reveals that these
two sections do cover following sections: a)Refreshing memory by referring to any writing made by the witness all the time of transaction. b) Refreshing memory by referring to any writing made by the witness soon after the transaction. c)Right to refresh memory by referring to any writing made by any other person and read by the witness at the time of transaction or soon after words, pro
vided the witness knew it to be cored. d) Refreshing memory by referring to a copy of the
aforesaid document but with the permission of the
court. e) Test tying the facts from the documents referred to
in above when witness has no specific recollection
of the facts mentioned in the document but it is
shown that the facts were correctly recorded. The last provision which us there in section 160 is mentioned to covered situation where the witness has
to tally forgotten about the facts mentioned in the document which can be testified from the document
itself. The SC following observation made in the case of " The state of Andhra Pradesh v/s Cheemalapti Ganewara Rao and other8
" are guilty opposite "where
a witness has to depose to a large number of transaction
and those transaction are referred to or mentioned
either in the account books or in other documents there
is nothing wrong in allowing the witness to refer to the
account books and the documents while answering the questions put to him in his examination. He cannot be
expected to remember every transaction in all its details and Section 160 specifically permits a witness to testify
the facts mentioned in the documents referred to in Section 159 although he has no recollection of the facts
themselves if he is sure that the facts were correctly
recorded in the documents". One main distinction between the provisions of Section 159 & 160 appears to be is that for using a document or its copy under Section 159 it is not nec- essary that the document itself has been put on record
or made part of the evidence or be admissible while it will be so in the case under section 160. This is clearly
borne out from the observation made in Emperor v/s Mahadeo Dewoo9, to the effect that for refreshing
memory from a writing or memorandum it is not necessary
that the writing of a memorandum should be one which
is admissible in evidence. One of the modes to protect a witness deposing before the court in a heinous case may be to keep his identify undisclosed, provided here is an enabling statutory provision to that effect under POTA Act10, In people's union for Civil Liberties v/s union of India11. The SC observed that need for exist- ence and exercise of power to grant protection to a witness and preserve his or anonymity in a criminal trial has been universally recognized. Witness Protection Program to be needed:
In the case of Asif Mamu v. State of M.P12, the Supreme Court delivered the judgment through B.N. Agrawal J. that the prosecution has failed to prove its
judgment of acquitted as the view taken by the trial court was responsible one and the same could not be
said to the perverse in any manner. We are unhappy to
note that such a ghastly crime of brutal murder of three persons in broad light in the temple of justice, which is campus of district court in Bhopal, capital city of the
state Madhya Pradesh is going unpunished because of laches on the part of the prosecuting agency in
conducting the investigation in trial, apart from unco- operative attitude of the private prosecutors. Priory
the Appeal has been filed in Supreme Court by Asif Mamu and Mukhtiyar Malik against the conviction
passed by High Court which reversing the separate
judgment passed by the Session trial. The case is completely hostile of both the parties to their own interest. The honorable court remarked that the whole case said that there was absolute murder but hostile of the witnesses the trial court was bound to acquit to the appellants because
there was no any evidence against them. Conclusion: The first important problem is with regard to
anonymity of witnesses and the balancing of interests of the prosecution in protecting in the witness and the
rights of the accused. Now a witness is not treated with
respect in the court. He is pushed by the peon out from
the crowded court room. Witness wait for the whole day and then he finds that the matter adjourned. He has no space to sit and no place even have to get a glass water and when the witnesses appear in court, he is
subjected to unchecked and prolonged examination, cross-examination and finds himself in a alone and
helpless situation.
1) Zahira Habibullah Sheikh case 2) Govind v/s State of MP, 2005(1) MPLJ 549
3) Section 148,149 & 150 Evidence Act. 4) Section 151 Evidence Act 5) Section 152 Evidence Act , 6) Section 159& 160 Evidence Act
7) AIR 2001 SC 490, , 8) AIR 1963 SC 1850
9) AIR 1946 Bomb. 189
10) Section 30 In POTA Act, 11) AIR 2004 SC 456
12) Asif Mamu v/s State of M.P. 2008 (14) SCALE 442
Print Page
reluctance of witness to come forward to dispose before a Court regarding an incident on being threatened
such witness talk the easily course of turning hostile. The process comes under miscarriage of justice, this
social demand on the issue of witness protection. It is not that witnesses are averse to quality justice but the
facts that they are more concerned about their own
safety and honor disposing of against hardened crimi- nals may result in irreparable loss of life and property
to a witness. It is also happened that repeated visits to
courts and a volley of questions which are some-times
insulting, cause embarrassment to witness the problem
has to be increase day to day and some solution has to
be worked out so that the system may remain effective
regarding witness protection issues, the Supreme Court commented in Zahira Habibullah Sheikh case1.
That the process of fair trial which is condition
precedent for dispensation of justice is being seriously
affected because in most of the cases witnesses stand
incapacitated from action as eyes and ears of justice in
such circumstance, the SC observed that trial gets to
corrupt and paralyzed and it no longer can constitute
a fair trial. The fears may be due to various reasons
including lack of adequate protection to witness inside
and outside court. In this it has been seen that time has come when serous and undiluted thoughts are to be best
toward for protection of witnesses so that ultimate
truth is presented before the court and justice being
victorious and the trial is not reduced to mockery. The question for protection of a witness outside the court
is predominantly a problem to be address by the law
and order enforcing bodies, protection of witness during his examination is basically a responsibility of
courts. It is fundamental principal that the purpose of cross examination is to bring out the truth on record, but if the cross examination is aimed at harassing the witness by putting unnecessary question or irrelevant questions, the purpose is defeated and frustrated2
. The protection of witness from harassment during his examination is as follows: 1. The provisions which provided that a witness cannot be compelled to answer a question, which is inter to
shake his credit by injuring his character if the ques
tion is not reasonable3. 2. The protection against questions which are indecent or scandalous subject to the discretion of the court4. 3.The bar against putting questions which though
proper are insulting, annoying or needlessly offen
sive in from5. 4. Lastly right of a witness to refresh memory from
earlier writing6. The aforesaid provision about the issue of protection a witness from harassment during
examination and outlining, the duty of a court in this case the SC said in Makhanlal Bangal v/s Manas Bhunia & Other7
. That the "A Judge presiding over a trial needs
to effectively control examination, cross examination
and re-examination of the witness so as to exclude such
questions being put to permit and to relieve the witnesses from the need of answering such questions which they are not bound to answer. The Court has power to disallow questions
should be effectively exercised by reference to section
146,148, 150, 151 &152 of the evidence Act byexcluding
improper and impermissible question. The examination
of the witnesses should not be protracted and the witness
should not feel harassed and cross-examination must not be allowed to bully or take under advantage of witness-witnesses attend the court to discharge the
sacred duty of rendering and to justice. Witnesses are
entitled to be treated with respect and it is the judge
who has to see that witnesses feel confident in the
court". The question relating as right to refresh memory
by referring to earlier document is concerned, a conjoint reading of section 159 and 160 reveals that these
two sections do cover following sections: a)Refreshing memory by referring to any writing made by the witness all the time of transaction. b) Refreshing memory by referring to any writing made by the witness soon after the transaction. c)Right to refresh memory by referring to any writing made by any other person and read by the witness at the time of transaction or soon after words, pro
vided the witness knew it to be cored. d) Refreshing memory by referring to a copy of the
aforesaid document but with the permission of the
court. e) Test tying the facts from the documents referred to
in above when witness has no specific recollection
of the facts mentioned in the document but it is
shown that the facts were correctly recorded. The last provision which us there in section 160 is mentioned to covered situation where the witness has
to tally forgotten about the facts mentioned in the document which can be testified from the document
itself. The SC following observation made in the case of " The state of Andhra Pradesh v/s Cheemalapti Ganewara Rao and other8
" are guilty opposite "where
a witness has to depose to a large number of transaction
and those transaction are referred to or mentioned
either in the account books or in other documents there
is nothing wrong in allowing the witness to refer to the
account books and the documents while answering the questions put to him in his examination. He cannot be
expected to remember every transaction in all its details and Section 160 specifically permits a witness to testify
the facts mentioned in the documents referred to in Section 159 although he has no recollection of the facts
themselves if he is sure that the facts were correctly
recorded in the documents". One main distinction between the provisions of Section 159 & 160 appears to be is that for using a document or its copy under Section 159 it is not nec- essary that the document itself has been put on record
or made part of the evidence or be admissible while it will be so in the case under section 160. This is clearly
borne out from the observation made in Emperor v/s Mahadeo Dewoo9, to the effect that for refreshing
memory from a writing or memorandum it is not necessary
that the writing of a memorandum should be one which
is admissible in evidence. One of the modes to protect a witness deposing before the court in a heinous case may be to keep his identify undisclosed, provided here is an enabling statutory provision to that effect under POTA Act10, In people's union for Civil Liberties v/s union of India11. The SC observed that need for exist- ence and exercise of power to grant protection to a witness and preserve his or anonymity in a criminal trial has been universally recognized. Witness Protection Program to be needed:
In the case of Asif Mamu v. State of M.P12, the Supreme Court delivered the judgment through B.N. Agrawal J. that the prosecution has failed to prove its
judgment of acquitted as the view taken by the trial court was responsible one and the same could not be
said to the perverse in any manner. We are unhappy to
note that such a ghastly crime of brutal murder of three persons in broad light in the temple of justice, which is campus of district court in Bhopal, capital city of the
state Madhya Pradesh is going unpunished because of laches on the part of the prosecuting agency in
conducting the investigation in trial, apart from unco- operative attitude of the private prosecutors. Priory
the Appeal has been filed in Supreme Court by Asif Mamu and Mukhtiyar Malik against the conviction
passed by High Court which reversing the separate
judgment passed by the Session trial. The case is completely hostile of both the parties to their own interest. The honorable court remarked that the whole case said that there was absolute murder but hostile of the witnesses the trial court was bound to acquit to the appellants because
there was no any evidence against them. Conclusion: The first important problem is with regard to
anonymity of witnesses and the balancing of interests of the prosecution in protecting in the witness and the
rights of the accused. Now a witness is not treated with
respect in the court. He is pushed by the peon out from
the crowded court room. Witness wait for the whole day and then he finds that the matter adjourned. He has no space to sit and no place even have to get a glass water and when the witnesses appear in court, he is
subjected to unchecked and prolonged examination, cross-examination and finds himself in a alone and
helpless situation.
1) Zahira Habibullah Sheikh case 2) Govind v/s State of MP, 2005(1) MPLJ 549
3) Section 148,149 & 150 Evidence Act. 4) Section 151 Evidence Act 5) Section 152 Evidence Act , 6) Section 159& 160 Evidence Act
7) AIR 2001 SC 490, , 8) AIR 1963 SC 1850
9) AIR 1946 Bomb. 189
10) Section 30 In POTA Act, 11) AIR 2004 SC 456
12) Asif Mamu v/s State of M.P. 2008 (14) SCALE 442
No comments:
Post a Comment