THE word 'witness' can be defined as any person, who is required to give evidence in any investigative or judicial proceedings in relation to the commission of an offence. At present the criminals have become organised and are creating a challenge to the existing state of law and order. In Bangladesh, it is seen that, in most of the cases involving rich and influential persons, essential witnesses turn hostile. Witnesses often get threats, intimidation and harassment by the accused party for preventing them from giving their evidence. Our legal framework to tackle such situation is inadequate.
Section 506 of the Penal Code, 1860 provides for punishment for committing criminal intimidation but it is very much insufficient for the protection of the witness. On the other hand, sections 151 and 152 of the Evidence Act, 1872 prohibit insulting questions to the witness while examining in the court of law.
Unfortunately, Bangladesh still does not have any separate law for the protection of witnesses. Recently while hearing a bail petition on 7 December 2015, a bench of the High Court Division of Bangladesh Supreme Court has directed the government to take necessary steps to enact a law for the security of the witnesses of criminal cases in order to ensure that witnesses appeared before courts without fear. And for the reason criminal cases could be disposed off quickly. The bench asked the secretaries to the Home Ministry and Law Ministry to include necessary rules in the relevant law so that the Public Prosecutors and Police remain accountable for absence of witnesses.
Under the English law, threatening a witness from giving evidence is contempt of Court. So any act of threat against a witness after he has given evidence in Court, is also considered as contempt. The UK Government has a law known as Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. Section 51 of the Act not only protects a person who is actually going to give evidence at a trial, but also protects a person who is helping the investigation of a crime.
In the United States, the Witness Security Reform Act, 1984 ensures the protection of a witness in an official proceeding concerning any serious offence. Protection is also being provided to the family of such witness if the family remains endangered on account of the participation of the witness in the judicial proceeding.
In the matter of Swaran Singh v State of Punjab (AIR 2000 SC 2017), the Supreme Court held that “A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot.” The Court also said that “Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him.”
Therefore, there is an urgent need for making a specific law providing for the rights and protection of the witnesses. It is necessary to ensure that the persons participating in the legal process are out of fear and undue influence, so that justice can be assured. Closed-circuit camera can be set up in all courts which can ensure security of the witnesses as well as all other persons related to court. Evidence through video conference can be given from a safe, secure and secret place, far from the court which should be legalised by the law.
Finally, equipping the courts with the modern technologies can make the witness free from any shadow of threat or intimidation which can enhance the quality of justice.
The writer is Advocate, Dhaka Judge Court.