Witness intimidation is treated much more seriously on paper than most witnesses realise, and the machinery is more accessible than they expect. The problem is that almost nobody uses it, because it is not explained at the police station.
The offence, and who can complain
Section 232(1) of the Bharatiya Nyaya Sanhita, 2023 provides that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause that person to give false evidence, shall be punished with imprisonment of either description which may extend to seven years, or with fine, or with both. Section 232(2) goes further. If an innocent person is convicted and sentenced in consequence of that false evidence to death or to imprisonment for more than seven years, the person who threatened is punished with the same punishment and sentence, in the same manner and to the same extent.
The procedural point is the one that matters most in practice. Section 215 of the Sanhita normally bars a court from taking cognizance of offences against public justice committed in relation to a court proceeding except on the complaint in writing of that court. That would leave a threatened witness waiting on the court to move. Section 216 removes the difficulty in a single sentence: a witness or any other person may file a complaint in relation to an offence under Section 232 of the Bharatiya Nyaya Sanhita, 2023.
The protection application
Section 398 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides that every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of witnesses. That statutory obligation sits on top of the Witness Protection Scheme, 2018, which the Supreme Court approved and directed the States and Union Territories to implement, and which States have adopted with local variations.
Under that Scheme the Competent Authority is a Standing Committee in each district, chaired by the District and Sessions Judge, with the head of the police in the district as a member and the head of the prosecution in the district as its Member Secretary. The application is filed in the prescribed form before the Competent Authority of the district where the offence was committed, through the Member Secretary. It may be moved by the witness, by a family member, by the witness's counsel, or by the investigating officer, the station house officer, the sub-divisional police officer or the Superintendent of the jail concerned.
What happens after you file
| Step | Who does it | Time |
|---|---|---|
| Order calling for a Threat Analysis Report | The Member Secretary, forthwith on receipt of the application | Immediately |
| Threat Analysis Report prepared and sent | The Assistant Commissioner or Deputy Superintendent of Police in charge of the sub-division | Within five working days of receipt of the order |
| Interim protection where the threat is imminent | The Competent Authority, pending the application | At any time during the pendency |
| Hearing, held in camera | The Competent Authority, interacting with the witness in person where possible | Before disposal |
| Disposal of the application | The Competent Authority | Within five working days of receipt of the Threat Analysis Report |
| Implementation and follow up | The Witness Protection Cell of the State, with a monthly follow up report | Reviewed quarterly by the Competent Authority |
Nothing in the Scheme precludes the police from providing immediate protection where there is a grave and imminent threat to the life of the applicant and his family, so an application is not a precondition to asking the station for help today.
The categories and the measures
The Threat Analysis Report categorises the threat. Category A is where the threat extends to the life of the witness or his family members during investigation, trial or thereafter. Category B is where it extends to safety, reputation or property. Category C is where the threat is moderate and extends to harassment or intimidation of the witness or his family members, their reputation or property. Measures ordered must be proportionate to the threat and are for a specific duration not exceeding three months at a time, renewable.
The measures the Scheme lists are broader than people assume. Ensuring that the witness and the accused do not come face to face during investigation or trial. Monitoring of mail and telephone calls. A changed or unlisted telephone number. Installation of security devices at the witness's home, such as security doors, closed circuit cameras, alarms or fencing. Concealment of identity by referring to the witness by a changed name or an alphabet. Close protection and regular patrolling. Temporary change of residence to a relative's house or a nearby town. Escort to and from court and a State funded conveyance on hearing dates. In camera trial. A support person present during the recording of the statement and deposition. Use of vulnerable witness court rooms with live video links, one way mirrors and screens, separate passages, and the ability to modify the image of the face and the audio feed of the voice. Recording of the deposition on a day to day basis without adjournments. And periodical financial aid from the Witness Protection Fund for relocation, sustenance or starting a new vocation. Change of identity and relocation are dealt with separately and are implemented by the Department of Home.
What to do this week
- Keep a dated log of every call, message, visit and follow, with the number, the words used and the names of anyone present
- Preserve the messages themselves on the device rather than as forwarded screenshots, because the device is what proves them
- Do not reply, do not negotiate and do not meet, because a recorded conversation in which you engaged is worth less than one in which you did not
- Give a written complaint at the police station, take the acknowledgement, and send a copy by registered post and email to the Deputy Commissioner of Police
- Tell the trial court on the very next date, because the court can act at once on attendance, escort and the manner of recording your evidence
- File the protection application through the Member Secretary of the Competent Authority in the district, annexing the log and the complaint
A caution and a practical note
The Scheme binds everyone who touches the file. Police, the prosecution department, court staff and lawyers on both sides are required to maintain full confidentiality and not to share any record or information relating to proceedings under it with anybody except the trial or appellate court, and then only on a written order. Insist on that if you are asked to discuss the application in an open corridor.
Where the case has been running for years, the most valuable measure is usually the dullest one on the list, which is day to day recording of the deposition without adjournments. Threats work through delay. A witness who is called eleven times over four years is being worn down whether or not anybody says anything actionable, and asking the court for continuous recording, escort on those dates and a screen is often more useful than asking for a police guard. If the station will not register your complaint at all, our answers on a refusal to register an FIR and on an investigation that is going nowhere set out the escalation, and our guide on the zero FIR deals with the jurisdiction excuse.