 bill no 250 of  2015 the witnesses (protection of identity) bill, 2015 byshri rabindra kumar jena, mpa billto provide for protection of identity to threatened witnesses in criminal cases involving serious offences, procedure and mechanism for such protection and for matters connected therewith or incidental theretobe it enacted by parliament in the sixty-sixth year of the republic of india as follows:— chapter i preliminary51 (1) this act may be called the witnesses (protection of identity) act, 2015short title, extent and commencement(2) it extends to the whole of india except the state of jammu and kashmir (3) it shall come into force on such date as the central government may, bynotification in the official gazette, appoint2 (1) in this act, unless the context otherwise requires,—definitions| (                                                                                   | a   | ) "close relative" includes spouse, parents, grandparents, sons,           ||-------------------------------------------------------------------------------------|-----|----------------------------------------------------------------------------|| daughters, grandchildren, brothers and sisters;                                     |     |                                                                            || (                                                                                   | b   | ) "identity" in relation to a person includes name, sex, names of parents, || occupation and address of such person;                                              | 5   |                                                                            || (                                                                                   | c   | ) "judge" means the presiding judge of a court of session or the judge     || of a court of equivalent status or of a special court;                              |     |                                                                            || 2 of 1974                                                                           |     |                                                                            || 10                                                                                  |     |                                                                            || (                                                                                   | d   | ) "serious offence" means an offence which is described as triable by a    || court of session in the first schedule to the code of criminal procedure, 1973      |     |                                                                            || and includes any offence which is required to be tried by a court of session or     |     |                                                                            || any other equivalent designated court or a special court, by law;                   |     |                                                                            || (                                                                                   | e   | ) "threatened witness" means any witness, in respect of whom, there is     || likelihood of danger to the safety of his life or life of his close relatives or    |     |                                                                            || serious danger to his property or property of his close relatives, by reason of     |     |                                                                            || his being a witness;                                                                |     |                                                                            || 15                                                                                  |     |                                                                            || (                                                                                   | f   | ) "victim" means any person who has suffered physical, mental,             || psychological or monetary harm or harm to his property as a result of the           |     |                                                                            || commission of any offence; and                                                      |     |                                                                            || 20                                                                                  |     |                                                                            || (                                                                                   | g   | )  "witness" means any person who is acquainted with the facts and         || circumstances, or is in possession of any information or has knowledge,             |     |                                                                            || necessary for the purpose of investigation, inquiry or trial of any crime involving |     |                                                                            || serious offence, and who is or may be required to give information or make a        |     |                                                                            || statement or produce any document during investigation, inquiry or trial of         |     |                                                                            || such case and includes a victim of such serious offence                            |     |                                                                            || 25                                                                                  |     |                                                                            || 2 of 1974                                                                           |     |                                                                            |(2) words and expressions used but not defined in this act and defined in the code of criminal procedure, 1973 shall have the meaning as assigned to them in that codeapplication3 the provisions of this act shall apply to—| (                                                                            | a   | ) investigation, inquiry and trial of serious offences;                 ||------------------------------------------------------------------------------|-----|-------------------------------------------------------------------------|| 30                                                                           |     |                                                                         || (                                                                            | b   | ) victims of serious offences, the recording of whose statements at the || trial in the court of session has not commenced; and                         |     |                                                                         || (                                                                            | c   | ) threatened witnesses in relation to serious offences whose identity   || has not been revealed to the accused or whose statements have not been       |     |                                                                         || recorded during investigation or during inquiry before the magistrate at the |     |                                                                         || date of commencement of this act                                            |     |                                                                         || 35                                                                           |     |                                                                         | chapter ii witness identity protection  order part- i identity protection during investigation40application for seeking identity protection order4 (1) during the course of investigation of any serious offence, if the investigating officer is satisfied that for the purpose of effective investigation of the case, it is necessary to protect the identity of any threatened witness, he may, through the public prosecutor or the assistant public prosecutor, as the case may be, apply in writing to the judicial magistrate of first class or metropolitan magistrate, as the case may be, for seeking an identity protection order45(2)in every application made under sub-section (1), the true identity of the threatened witness and such other particulars as may lead to the identification of the threatened witness shall not be mentioned, and instead a pseudonym or a letter of english alphabet shall be mentioned to identify the threatened witness, but the true identity and other particulars shall be disclosed to the magistrate(3) every application under sub-section (1)—5(a) shall be accompanied by relevant material and documents which areevidence that the witness is a threatened witness and need a grant of identity protection order, and(b) may be accompanied by a certificate of an officer of the rank ofsuperintendent of police or above certifying that the witness is a threatened witness10ex parte preliminary inquiry by the magistrate5 (1) the magistrate shall, upon receipt of an application under section 4, holda preliminary ex parte inquiry in camera to determine whether the witness is athreatened witness as claimed in the application and whether there is necessity to pass a protection order, and shall follow the procedure laid down in this section for such determination15(2) the magistrate may require the prosecution to place before him any materialor document which has not been already submitted, and which he considers relevant for the disposal of the application(3) the magistrate shall hear the prosecution and, in his discretion, may examine any person including the witness who is subject of the application orally, and shall record the substance of the statement20(4) during the course of the preliminary inquiry, no prosecutor, officer of the court or other person present or involved in the preliminary hearing shall disclose or reveal or leak out any information regarding the true identity of the witness, or any other particulars likely to lead to the identification of witness25(5) during the course of the preliminary inquiry, no oral evidence shall be given,and no question may be put to any person, if such evidence or question relates directly or indirectly to the true identity of the witness who is subject of the application(6) while considering the application, the magistrate shall have regard to the following:—(i) the general right of the accused to know the identity of witness;30(ii) the principle that witness anonymity orders are justified only inexceptional circumstances;(iii) the gravity of the offence; (iv) the importance of the evidence of threatened witness in the case;35(v) whether the statement of witness, if any, under sub-section (3) as towhy he is a threatened witness and as to why there is necessity to pass a protection order, is reliable; and(vi) whether there is other evidence which corroborates the evidence ofthreatened witness in respect of the offence6 (1) if, after consideration of—40order by the magistrate(a) the application and all material and documents submitted in support of the application under section 4; and(b) the statement of any person recorded, if any, under sub-section (3) of section 5;and, after hearing the prosecution, the magistrate is satisfied that—45(i) the witness who is subject of the application is a threatened witness;| (                                                                                  | ii   | ) withholding the identity of threatened witness until the investigation   ||------------------------------------------------------------------------------------|------|----------------------------------------------------------------------------|| is completed and final report of charge sheet is submitted in the court, shall not |      |                                                                            || be contrary to the interests of justice; and                                       |      |                                                                            || 5                                                                                  |      |                                                                            || 2 of 1974                                                                          |      |                                                                            || (                                                                                  | iii  | ) the need for passing a protection order outweighs the general right      || of the accused to know the identity of the witness, he shall pass a reasoned       |      |                                                                            || judicial order that until the investigation is completed and the police report     |      |                                                                            || referred to in sub-section (                                                       | 2    | ) of section 173 of the code of criminal procedure,                        || 1973 or charge sheet under any other law is forwarded to the magistrate or         |      |                                                                            || judge, the identity of threatened witness shall not be reflected or mentioned      |      |                                                                            || in—                                                                                |      |                                                                            || 10                                                                                 |      |                                                                            || 2 of 1974                                                                          |      |                                                                            || (                                                                                  | a    | ) any document prepared or any statement recorded under                    || sections 161 and 164 of the code of criminal procedure, 1973 or any other          |      |                                                                            || statement recorded during the course of investigation, including the case          |      |                                                                            || diary;                                                                             |      |                                                                            || 15                                                                                 |      |                                                                            || (                                                                                  | b    | ) the police report or charge sheet referred to above and documents        || forwarded along with the police report or charge sheet;                            |      |                                                                            || (                                                                                  | c    | ) any other document forwarded to the magistrate or judge in               || any proceeding in relation to such offence;                                        |      |                                                                            || (                                                                                  | d    | ) any proceeding before the magistrate or before any other court,          || during investigation, in relation to such offence                                 |      |                                                                            || 20                                                                                 |      |                                                                            |(2) if, however, after such consideration and hearing as referred to in subsection (1), the magistrate is satisfied that—| (            | a   | ) the witness who is the subject of the application is not a threatened   ||--------------|-----|---------------------------------------------------------------------------|| witness; or  |     |                                                                           || (            | b   | ) withholding the identity of such a witness shall—                       || 25           |     |                                                                           || (            | i   | ) be contrary to the interests of justice, or                             || (            | ii  | ) not outweigh the right of the accused to know the identity of           || the witness, |     |                                                                           |he shall, by a reasoned judicial order, dismiss the application307 (1) the true identity of witness who is subject of the application shall not bementioned or reflected in any order sheet or proceeding under this partprohibition of mentioning identity of witness(2) it shall not be lawful for any person to print or publish in any manner anymatter in relation to any proceeding under this part part- ii identity protection after completion of investigation35application for identity protection2 of 1974408 (1) if, after the police report referred to in sub-section (2) of section 173 ofthe code of criminal procedure, 1973 or charge sheet referred to in any other law is forwarded to the magistrate or judge, as the case may be, but before the examination of witnesses begins to commence at the trial, including inquiry, the assistant public prosecutor or the public prosecutor, as the case may be, is of the opinion that it is necessary to protect the identity of a threatened witness, whether or not, identity protection in respect of such threatened witness was sought or ordered at the stage of investigation under part-i, he may, move an application in writing to the judicial magistrate of first class or judge, before whom the case is pending, seeking an identity protection order(2) the application referred to in sub-section (1) may also be moved by the threatened witness, if such a witness intends to seek a protection order(3) the provisions of sub-sections (2) and (3) of section 4 shall apply mutatis mutandis to the application made under this section5(4) where an application filed under sub-section (1) before the magistrate or judge, as the case may be, has been rejected at any time under part-i or this part, such rejection, shall not preclude a fresh application being filed before the magistrate or judge, if fresh circumstances have arisen after the rejection of the earlier application for the grant of a protection order10preliminary inquiry by magistrate or judge9 (1) the magistrate or judge, as the case may be, shall, upon receipt of an application under section 8, hold a preliminary inquiry in camera to determine whether the witness is a threatened witness as claimed in the application and whether there is necessity for the passing of a protection order and shall follow the procedure laid down in this section for such determination15(2) the magistrate or judge, as the case may be, may require the prosecution or the threatened witness who has moved the application under section 8, to place before him any material or document which has not already been submitted, and which he considers relevant for the disposal of the application(3) the magistrate or the judge, as the case may be, shall hear the prosecution, and, subject to provisions of sub-sections (4) and (5) of this section, the accused, and may examine any person including the witness who is subject of the application, orally and shall record the substance of the statement2025(4) the magistrate or judge, as the case may be, shall, on the basis of the information which has come before him under sub-section (1) of section 8 or sub-sections (2) and (3), inform the accused or his pleader as to the apprehensions of the witness and as to why he is a threatened witness and the necessity for passing a protection order and, for that purpose, give a hearing to the accused before passing an order of protection:provided that the magistrate or judge shall not disclose the identity of the witness or any other particulars which may lead to the identification of the said witness:3035provided further that if the accused or his pleader wants to elicit furtherinformation from the prosecution of the threatened witness on the question of likelihood of danger to the life or property of the said witness or his close relatives, such accused or his pleader may be permitted to furnish a list of questions to be answered by the prosecution or the said witness but no question or information which may lead directly or indirectly to the identification of the said witness shall be permitted(5) the magistrate or judge, as the case may be, while examining the witness or any other person under sub-section (3) or hearing the submissions of the prosecutor or the applicant witness shall not allow the accused and his pleader to remain present during such inquiry40(6) the provisions of sub-sections (4) to (6) of section 5 shall apply mutatis mutandis to the preliminary inquiry under this part10 (1) if, after consideration of—order by the magistrate or judge(a) the application and all materials and documents submitted in support of the application by the parties; and45(b) the statements, if any, recorded under sub-section (3) of section 9 and after hearing the submissions of the prosecutor or the applicant witness, as the case may be, and the accused, the magistrate or judge, as the case may be, is satisfied that—| (                                                                             | i   | ) the witness who is subject of the application is a threatened   ||-------------------------------------------------------------------------------|-----|-------------------------------------------------------------------|| witness;                                                                      |     |                                                                   || 5                                                                             |     |                                                                   || (                                                                             | ii  | ) withholding the identity of threatened witness until the        || judgement in trial is given and if any appeal or revision is presented        |     |                                                                   || against the judgement, until the decision in the appeal or revision, as the   |     |                                                                   || case may be, is given, shall not be contrary to the interests of justice; and |     |                                                                   || (                                                                             | iii | ) the need for passing a protection order outweighs the general   || right of the accused to know the identity of the witness,                     |     |                                                                   || 10                                                                            |     |                                                                   |he shall pass a reasoned judicial order that until the judgement in trial is given and if any appeal or revision is presented against the judgement, until the decision of the appeal or revision, as the case may be, is given, the identity of threatened witness shall not be reflected or mentioned in,—| (                                                                               | a   | ) any document produced before the magistrate or judge, or before an   ||---------------------------------------------------------------------------------|-----|------------------------------------------------------------------------|| appellate or revisional court, in relation to such case;                        |     |                                                                        || 15                                                                              |     |                                                                        || (                                                                               | b   | ) any proceeding (including judgement and order) before the magistrate || or judge, or before an appellate or revisional court, in relation to such case; |     |                                                                        || 2 of 1974                                                                       |     |                                                                        |(c) any copy of documents required to be supplied to the accused as specified in sections 207 and 208 of the code of criminal procedure, 1973 or under any other law20(2) if, however, after such consideration and hearing as referred to in sub-section (1), the magistrate or judge, as the case may be, is satisfied that—(a) the witness who is subject of the application is not a threatened witness, or(b) that withholding the identity of such a witness shall—(i) be contrary to the interests of justice, or25(ii) not outweigh the right of the accused to know the identity of the witness, he shall, by a judicial reasoned order, dismiss the application11 (1) the true identity of witness who is subject of the application shall not be mentioned or reflected in any order sheet or proceeding under this part30prohibition of mentioning identity of witness(2) it shall not be lawful for any person to print or publish in any manner any matter in relation to any proceeding under this part chapter iii protection of witnesses and victims at the trial3512 (1) when in respect of a threatened witness, an order for identity protection has been passed under sub-section (1) of section 10, his statement in the court during trial shall be recorded as per the procedure laid down in the schedule i, by using two-way closed—circuit television or video link in such a manner that the identity of the witness is not disclosed to the accused and his pleader:recording of statements of threatened witnesses at the trial by closedcircuit television40provided that the accused and his pleader shall, subject to the provisions of sub-section (2), be entitled to hear the voice of the witness during recording of the statement45(2) the presiding judge may, on his own or on an application made by the prosecution or the threatened witness, if he is so satisfied, direct that while recording the statement referred to in sub-section (1), the voice of the witness shall be distorted, and in that event, the accused or his pleader shall be entitled to hear the distorted voice:provided that the undistorted voice-recording shall be kept in a sealed cover and the presiding judge shall have the exclusive right to access the undistorted voice5(3) when the statement is recorded as mentioned in sub-section (1), the public generally, including the media personnel, shall not have access to, or be or remain, in the room or other places used by the court for the purpose of recording of the statement(4) where the statement of the threatened witness is recorded under sub-sections (1)and (2), it shall not be lawful for any person to print or publish in any manner whatsoever, the identity of the threatened witness whose statement is so recorded1015recording of statements of victim at the trial of serious offences where protection order has not been sought or has been refused13 where in the case of trial of a serious offence, no application for a protection order has been made or having been made, has been refused but where the victim seeks that he may be permitted to depose without seeing the accused either physically or through television or video link to avoid trauma, the court may, except for enabling the victim to identify the accused either physically or through television or video link, direct that examination of the witness shall be conducted by using two-way closed—circuit television or video link and two-way audio system in the manner specified in the second schedule2014 (1) the technical personnel operating the two-way television or video link and the two-way audio system and the court master or stenographer of the judge referred to in the schedule i and ii, shall be administered an oath of secrecy in respect of the identity and other particulars of the threatened witnessoath of secrecy to be administered to certain persons referred to in schedules i and ii(2) it shall not be lawful for any of the persons referred to in sub-section (1) to reveal the identity of the witness to any other person or body25 chapter  iv district witness protection authoritydistrict witness protection authority15 (1) every state government shall, as soon as may be, by notification in the official gazette, establish a district witness protection authority for every district for carrying out purposes of this act(2) the authority shall consist of—30(a) the superintendent of police of the district, who shall be chairperson, ex-officio; and(b) not exceeding five officials of the police department, to be appointed by state government, as members3516 (1) every district witness protection authority shall formulate a witness protection programme to ensure safety and welfare of witnesseswitness protection programme(2) without prejudice to the generality of foregoing provision, the witness protection programme shall include—(a) making necessary arrangements to protect the witness or allow him to establish a new identity;40(b) relocating the witness; (c) providing accommodation to the witness; (d) providing financial assistance to the witness;45(e) permitting persons involved in the administration of the witness protection programme to use assumed names in carrying out their duties and to have documentation supporting those assumed names; or(f) doing any other thing permitted under the witness protection programme to ensure the safety of the witness chapter v miscellaneousappeal17 any person who is aggrieved by an order passed under section 10, mayappeal against such order to the high court within thirty days from the date of order:5provided that the high court shall dispose of the appeal as expeditiously aspossible and preferably within thirty days from the date of service of notice on respondentoffences1018 whoever contravenes the provisions of sub-section (2) of section 7,sub-section (2) of section 11 and sub-section (2) of section 14, shall be punished with imprisonment of either description which may extend to two years and shall also be liable to fine which may extend upto rupees twenty thousandoverriding effect of act19 the provisions of this act shall have effect notwithstanding anythinginconsistent therewith contained in any provision of the code of criminal procedure, 1973 or any other law for the time being in force2 of 197415power of high court to make rules20 (1) every high court may, with the previous approval of the stategovernment, make rules for the purpose of enforcement of the provisions of this act in the court of the magistrate or of the judge(2) in particular and without prejudice to the generality of the provision ofsub-section (1), such rules may provide for—20(a) the manner in which and the places at which the statement ofthreatened witnesses referred to in section 12 and the schedule i and the statement of victim referred to in section 13 and the schedule ii may be recorded by using two way closed-circuit television or video link and two-way audio system;25(b) the appointment, control and making available technical staff necessaryfor installation and operation of closed-circuit television and video link system, and for screening the victim and other witnesses from accused (3) all rules made under this section shall be published in the official gazette schedule  i(see section 12)1 there shall be a two-way closed-circuit television or video link and a twoway audio system established between the room from which the presiding judge functions (hereinafter called room a) and another room (hereinafter called room b)2 in room a, the presiding judge, the court master and the stenographer, the public prosecutor, the threatened witness in whose favour a protection order under section 10 has been passed and the technical personnel of the court operating the television or video link and the audio system, shall alone be present3 in room b, the accused, his pleader and the technical personnel of the court operating the television or video link and the audio system, shall alone be present4 (a) the threatened witness shall be examined by the prosecutor who is in room a directly, and he may identify the accused on the video screen but the camera in room a shall not be focused on the threatened witness and his image shall not be visible on the screen in room b(b) the said witness who is in room a shall be cross-examined by the accused or his pleader who are in room b through the two-way television or video link and the two-way audio system, subject to the procedure stated in sub-sections (1) and (2) of section 12 schedule  ii(see section 13)1 there shall be a two-way closed-circuit television or video link and a twoway audio system established between the room from which the presiding judge functions (hereinafter called room a) and the other room (hereinafter called room b)2 in room a, the presiding judge, the court master and stenographer, the accused and the technical personnel operating the two-way television or video link and the two-way audio system shall be present and the camera shall not be focused on the accused except when the victim has to identify the accused3 in room b, the victim, the public prosecutor and the pleader of the accused shall be present and except as permitted under para 2, the image of the accused shall not be shown on the screen in room b4 the victim shall be examined by the prosecutor or cross-examined by the pleader of the accused directly and the image of the accused who is in room a shall not be visible on the screen in room b statement  of  objects  and  reasonsthe present judicial system has taken the witnesses completely for grantedwitnesses are summoned to the court to give evidence in serious crimes however, due to lack of security to witness and his family members they turn hostile the legislative measures to emphasis the protection of witnesses have become imminent and inevitable need of the daythe law commission of india in its 198th report has also recommended for witness identity protection and witness protection programmes in case of all serious offences wherein there is danger to witnessesthe bill, therefore, seeks to provide for protection of identity of a threatened witness in criminal cases involving serious offences to ensure effective criminal justice delivery system in the countrynew delhi;rabindra kumar jenajuly 8, 2015 financial  memorandumclause 12 of the bill provides for recording of statements of threatened witnesses at the trial by using closed-circuit television or video link clause 13 provides for recording of statements of victim at the trial of serious offences by using closedcircuit television or video link clause 15 provides that every state government shall establish district witness protection authority clause 16 provides for providing accommodation and financial assistance to the witnesses the expenditure relating to the states shall be borne out of the consolidated funds of the respective states however, the expenditure in respect of union territories shall be borne out of the consolidated fund of india it is estimated that an annual recurring expenditure of rupees two hundred crore would be involved from the consolidated fund of indiaa non-recurring expenditure of rupees fifty crore is also likely to be involved———— a billto provide for protection of identity to threatened witnesses in criminal cases involving serious offences, procedure and mechanism for such protection and for matters connected therewith or incidental thereto————(shri rabindra kumar jena, mp)gmgipmrnd—2409ls(s3)—26112015