Quick answer
A threatened witness can seek protection under a Witness Protection Scheme. Section 398 of the B.N.S.S. requires every State Government to prepare and notify such a scheme for the State. Before the B.N.S.S., the Supreme Court in Mahender Chawla v. Union of India (2018) approved the Witness Protection Scheme, 2018 and declared it to be law under Articles 141 and 142 until Parliament or the States legislate. Separately, threatening a person to make him give false evidence is an offence under Section 232 of the B.N.S.
The law
Section 398 B.N.S.S. says that every State Government shall prepare and notify a Witness Protection Scheme for the State "with a view to ensure protection of the witnesses". The Code of Criminal Procedure, 1973 (the old law) had no matching provision, so this is a new statutory duty.
Mahender Chawla v. Union of India, (2019) 14 SCC 615, Supreme Court of India, decided 5 December 2018. Bench: A.K. Sikri, Ashok Bhushan and S. Abdul Nazeer, JJ. The petitioners, including a witness and the father of a murdered witness, were connected with rape trials against Asaram and alleged that several witnesses had been attacked and some killed. The petitioners argued that a witness who cannot testify because of threats suffers a violation of Article 21. The Court, describing witnesses as the "eyes and ears of justice", stressed that protecting them lets them depose fearlessly and truthfully and secures a fair trial. It approved the Witness Protection Scheme, 2018 prepared by the Ministry of Home Affairs, directed the Union, States and Union Territories to enforce it, and held that it would be "law" under Articles 141 and 142 until suitable legislation is enacted. It also directed vulnerable witness deposition complexes in all district courts.
How the 2018 Scheme works
- Threat categories: Category A (threat to life of the witness or family), Category B (threat to safety, reputation or property) and Category C (moderate threat of harassment or intimidation).
- Competent Authority: a standing committee in each district, chaired by the District and Sessions Judge, with the district police chief and the head of the prosecution.
- Threat Analysis Report: prepared by the police on how serious and credible the threat is.
- Protection measures must be proportionate to the threat and last not more than three months at a time. They may include keeping the witness and accused from coming face to face, changing the witness's phone number, concealing identity, close protection and patrolling, temporary relocation, escort to court, in-camera trials (hearings closed to the public) and vulnerable witness court rooms with video links and screens.
- Witness Protection Fund: meets the expenses of protection orders.
Scheme and statute compared
| Point | Witness Protection Scheme, 2018 | Section 398 B.N.S.S. |
|---|---|---|
| Source | Prepared by the Union, approved by the Supreme Court | Act of Parliament |
| Legal force | Law under Articles 141 and 142 until legislation | Statutory duty on each State Government |
| Content | Detailed categories, procedure and measures | One line; details left to each State scheme |
Zoya saw an armed robbery and is the main witness. The accused's associates follow her and threaten to hurt her brother unless she changes her account in court. Zoya can apply for protection. After a threat analysis, the authority may order police patrolling near her house, an escort to court and the recording of her evidence in a vulnerable witness room so that she does not face the accused. Those who threatened her may also be prosecuted under Section 232 of the B.N.S. (old Section 195A IPC).
Current law note
Section 398 B.N.S.S. came into force on 1 July 2024. Mahender Chawla made the 2018 Scheme law only until Parliament or the States legislated; Section 398 now places a statutory duty on each State to notify its own scheme, for which the 2018 Scheme is the obvious model. For the wider procedure, see the B.N.S.S. complete notes.
Exam point
Section 398 B.N.S.S. obliges every State to notify a Witness Protection Scheme; Mahender Chawla (2018) made the 2018 Scheme binding law under Articles 141 and 142 until legislation, treating witness protection as essential to a fair trial.
