Cases Against MPs/MLAs : Karnataka High Court Directs Implementation Of Witness Protection Scheme

The Supreme court had in the case of Mahender Chawla vsUnion Of India, on December 5, 2018, approved the Witness Protection Scheme, 2018, prepared by Union of India and had directed it (Government of India) and all states and Union Territories, to enforce the same in letter and spirit.

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty gave the direction while hearing a suo-motu petition, in view of the directions issued by the Supreme Court asking the Chief Justices of the High Courts to formulate an action plan to rationalize the disposal of criminal cases pending against Member of Parliament (MP's) and Member of Legislative Assembly (MLA's).

The bench said "There cannot be any dispute in the cases pending before the special court prominent political personalities will be the accused. There is a possibility that some of the prosecution witnesses may become vulnerable witnesses. We are therefore of the view that it is all the more necessary to implement the witness protection scheme, in relation to the prosecution witness in the cases pending before the special court."

The court issued the following directions.

*State government to issue a formal order firstly constituting competent authority for Bengaluru Urban district and secondly for all other districts. As far as constituting competent authority for Bengaluru Urban is concerned it is to be done in two weeks from today.

*State witness protection funds is to be set up for effective implementation of the scheme. The said fund is to be set up in two weeks from today.

*State government to invite attention of all the investigating officers, to the provisions of the said scheme. Direct the said officers to take all possible steps for implementation of the said scheme.

*A direction shall be issued to investigating officers to bring to their notice to all the witnesses in pending cases before the special court (trying cases against MP/MLAs) that for their protection said scheme is available and they can make an application to the member secretary of the authority, in the form prescribed.

*Every investigating officer must be informed that it is his duty to assess whether a prosecution witness can become vulnerable due to various factors and whether there is a threat perception to the witness. He will apply his mind in the case of each witness and wherever necessary he will file witness protection applications.

*Even the judge presiding over a special court will have to apply his mind, whether any prosecution witness needs protection. Even if there is no application made by the witness for grant of protection if the judge is of view that the witness needs protection he can issue directions to state to take protection measures, under the said scheme.

*The judge can also request the competent authority to take immediate measures. If an oral or written application is made, the judge is bound to consider issuing direction as aforesaid.

*It is the duty of the special court to ascertain from the investigating officer before witnesses are examined whether any of them need protection under the said scheme.

* Registrar General of the High Court is directed to place on record information regarding availability of vulnerable witness deposition complexes in the state.

The bench once again directed the state government to place on record the process adopted to appoint prosecutors before the special court. It noted "It is the duty of state to ensure that a very competent prosecutor is appointed to work before the special court that is capable of handling the nature of prosecutions before the special court."

The bench also urged the state government to decide expeditiously on the request made by the High court for setting up a second special court to try cases against MP's and MLA's. The bench said "We hope and trust that the final decision on the second special court as per request made by the high court on the administrative side is taken by the state government."

Senior Advocate Aditya Sondhi appearing as amicus curiae in the matter informed the court that apart from 36 cases in which the state of Karnataka is the prosecuting agency. There are 136 cases in which agencies like the CBI, SFIO and Lokayukta are the prosecuting agencies. Following which the court directed the state government to coordinate with all the prosecuting agencies and place on record the name of the prosecutors appointed by them.

The court has now posted the matter for further hearing on December 18.