Hanskhali Gangrape & Murder: Calcutta HC Issues Orders For Witness Protection At State Expense

The Calcutta High Court vide order dated April 20 has allowed for the filing of a witness protection application before the competent authority as specified under the Witness Protection Scheme, 2018 to protect the family members of the victim in the Hanskhali gangrape and murder case wherein a probe by the Central Bureau of Investigation (CBI) had been ordered into a week back.

The Court has further directed the competent authority to take such a decision on the application without any unnecessary delay. The Court had reserved its order in the matter on Wednesday. 

According to reports, a 14-year-old girl belonging to the scheduled caste community died on April 5 after she was allegedly gangraped by the son of a panchayat member owing allegiance to the Trinamool Congress (TMC) and others in West Bengal's Nadia district. She was bleeding profusely when she returned home and died later that night, according to her parents who lodged a police complaint on April 10.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj ordered, 

"Having regard to the nature of allegation which have been made in the application it is necessary to extend protection to the members of the family as also witnesses of the incident. Hence, we permit the filing of the witness protection application before the competent authority as specified in Witness Protection Scheme, 2018 and on receipt of such application the competent authority is directed to take a decision and pass appropriate order for witness protection, proportionate to the threat perception, in accordance with the Scheme, without any unnecessary delay."

The Court further directed that until such an application is decided, the concerned authority must extend full protection to the witnesses and family members of the victim and also extend psychiatric/ psychological treatment to them to come out of the trauma.

Opining that the State government should bear the expenses of the witness protection as may be directed by the competent authority, the Court ordered, 

"Considering the peculiar facts of the case we direct respondent State to bear the expenses of witness protection as may be directed by the competent authority."

It may be noted that the Witness Protection Scheme, 2018 has not been notified by the West Bengal government. The Scheme had come into effect following the Supreme Court's order in Mahendra Chawla v. Union of India and stipulates the types of protective measures to be undertaken for witness protection proportionate to the threat for that specific duration. It also provides for protection of identity on the basis of threat analysis report, the change of identity, relocation of witnesses. 

The Bench noted that the Supreme Court in the aforesaid judgment had directed the the Union of India as well as State and Union Territories to enforce the Scheme in letter and spirit and had further underscored that it shall be the law under Article 141 of the Constitution till the enactment of a suitable Central or State legislation on this subject. 

Furthermore, the Bench upheld the argument advanced by Advocate General S.N Mookherjee that since the Scheme is the law of the land under Article 141 of the Constitution therefore even if the competent authority i.e. the Standing Committee has not been formally notified, an application for witness protection can still be made before the authorities that constitute the Standing Committee under the Scheme.

"Learned Advocate General has fairly stated that in view of the judgment of the Hon'ble Supreme Court in Mahender Chawla (supra) Witness Protection Scheme is now law of the land and even if the competent authority i.e. the Standing Committee has not been formally notified but its composition is mentioned in para 2(c) of the Scheme, therefore, the Standing Committee exists to which the application can be made and the prayer for witness protection can be considered by the Committee", the order read. 

Under the Scheme, the competent authority has been defined to mean the Standing Committee in each District chaired by District and Sessions Judge with Head of the Police in the District as Member and Head of the Prosecution in the District as its Member Secretary. The Scheme further provides that an application can be moved by the witness, his family member, his duly engaged counsel or IO/SHO/SDPO/Jail Superintendent in the prescribed form before the competent authority and that a witness protection order is to be passed by the competent authority detailing the witness protection measures to be taken.

The Scheme also stipulates the establishment of a State Witness Protection Fund from which the expenses incurred for the implementation of the witness protection order passed by the competent authority and other related expenditures are to be met. It may be noted that the Advocate General on Wednesday  had submitted before the Court that he would  take instructions as to how funding of the witness protection scheme will take place as both the Centre as well as the State government are entitled to contribute towards the State Witness Protection Fund as per the 2018 scheme.

During the proceedings, the counsel for the petitioner had submitted that one of the ruling party leaders of Bhagabangola Block President Mr. Afroze Sarkar had made certain remarks extending threats on account of which it has become necessary to extend protection to the witnesses and the family members of the victim. Accordingly, he had prayed for the extension of witness protection as specified under the Witness Protection Scheme, 2018 by placing reliance on Supreme Court judgment in Mahender Chawla v. Union of India. 

It may be noted that the Allahabad High Court in November 2021 had directed the Uttar Pradesh Government and all its concerned authorities/committees to implement the Witness Protection Scheme, 2018 forthwith. Furthermore, in September 2020, the Madras High Court had expressed displeasure over the non-implementation of the Witness Protection Scheme, 2018. "Though the Witness Protection Scheme has been evolved in the year 2018, still the system is not providing confidence to the witnesses to come out with the truth as against the hard-core criminals", observed the Bench.

Background

A Public Interest Litigation (PIL) had been filed wherein it had been alleged that on April 4, the deceased minor girl had been invited in the birthday party by one Brijgopal Goalain, Shyamnagar area in Hanshkhali in Nadia district of West Bengal, who is stated to be the son of an influential political leader of the ruling Trinamool Congress Party (TMC) and a member of Gazna Gram Panchayat. It was further alleged that the deceased was gang raped by Brijgopal Goalain with 4-5 other friends.

Opining that a fair investigation is required to instil confidence in the family members of the victim and also the residents of the locality and the State, the Court had underscored,

"..we are of the opinion that in order to have fair investigation in the matter and to instill confidence in the family members of the victim and also the residents of the locality and the State, the investigation should be carried out by the CBI instead of the local police. Hence, we direct the State Investigating Agency to hand over the investigation to the CBI with immediate effect. The State Investigating Agency will hand over all the papers relating to the investigation along with the custody of the accused persons to the CBI forthwith."

Earlier, the concerned authorities had been ordered to extend full protection to the family members of the victim and witnesses of the case. The CBI had also been ordered to furnish a report about the progress of investigation on the next date of hearing which is slated to take place on May 2.

Also Read: Hanskhali Gangrape & Murder: Calcutta High Court Reserves Order In Plea Seeking Implementation Of Witness Protection Scheme 2018

Case Title: Shaista Afreen and Others v. The State of West Bengal and Others

Case Citation: 2022 LiveLaw (Cal) 132

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