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Witnesses as per Bentham

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In Zahira Habibullah Sheikh & Ors. v. State of Gujarat & Ors. (supra), the Hon’ble Supreme Court, in Para 40 of the reports (SCC) observed as under:

“Witnesses as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle the truth and realities from coming out to the surface rendering truth and justice to become ultimate casualties.

Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. ‘there comes the need for protecting the witness. Time has come when serious and undiluted thought are to be bestowed for protecting witnesses so that the ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery.”

The Apex Court further held as under:

“The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in the Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. It ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before the Court mere mock trials as are usually seen in movies.

Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology. Every State is supposed to know these fundamental requirements.

Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the dat. Conducts which ‘illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal.”

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