Amid vociferous demands from the civil society to provide protection to witnesses, the Supreme Court on Monday made it clear that it was not "physically possible" to provide security to thousands of witnesses coming to courts every day to depose in criminal cases.
"How many criminal cases are pending? How many witnesses have to be protected? Do you have any idea?" a Bench of Chief Justice KG Balakrishnan and Justice DK Jain sought to know from the counsel of petitioner NGO - Country First, which wanted the government to implement a proper witness protection programme in the country.
The court wanted to know if any sample survey had been conducted on the issue.
As the petitioner's counsel said that at least in important cases witnesses should be provided protection, the bench said, "a man in the street is as important as a man in a palace."
The court said, "when there are a large number of cases, it is not possible to provide protection to all witnesses."
Additional Solicitor General Gopal Subramanium too submitted that there could not be blanket legislation for giving protection to witnesses. He, however, said that where a witness felt threatened the court could order protection for him.
Earlier, petitioner's counsel submitted that despite the recommendation of the Law Commission of India and Justice Malimath Committee that examined the lacunae in the criminal justice system, no definite steps had been in this regard.
"If a witness has a duty to speak the truth in the court, the state too has a duty to provide him protection…You can not expect the witness to speak the truth in the court and get threatened outside," petitioner's counsel submitted.
He pointed out that due to poor witness protection system, the rate of conviction was very poor in India.
The petitioner's counsel said that the State may not be able to provide protection to all witnesses but at least there must be some sort of system to witness protection. He suggested that in deserving cases, the public prosecutor could be given power to recommend protection for witnesses.
Subramanium submitted that the government was mulling changes in the Criminal Procedure Code by adding Section 164A under which statements of witnesses could be recorded before Magistrates making it difficult for them to retract.
The bench said making this provision would increase the burden on the trial courts and that there was need for increasing the number of courts.
The apex court asked the Centre to conduct a sample survey on any one Delhi court to find out which type of cases require witness protection programmes.
Giving six weeks to the Centre, the bench asked it to file details of the proposed amendment in the CrPC and also the number of judges the government proposed to increase to handle the extra burden of recording statements of witnesses by the magistrates.
It said the government affidavit should also contain suggestions on the ways in which a witness could be provided protection if he/ she felt threatened.