Supreme Court Expands Definition Of 'Vulnerable Witnesses'; Directs HCs To Frame Vulnerable Witness Deposition Scheme

Mehal Jain

11 Jan 2022 7:20 AM GMT

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Supreme Court Expands Definition Of Vulnerable Witnesses; Directs HCs To Frame Vulnerable Witness Deposition Scheme

Noting that "the need for and importance for setting up special facilities which cater to the creation of a safe and barrier-free environment for recording the evidence of vulnerable witnesses has been engaging the attention of this court over the last two decades", the Supreme Court on Tuesday issued comprehensive directions in this regard.By way of the first direction, the bench of Justices...

By way of the first direction, the bench of Justices DY Chandrachud and Surya Kant clarified that the definition of vulnerable witnesses contained in clause 3 of the VWDC (vulnerable witness deposition centres) scheme formulated by the Delhi High Court shall not be limited only to child witnesses who have not attended the age of 18 years and would be expanded to include inter alia the following categories of vulnerable witnesses-

a. age neutral victims of sexual assault read with section 273 and 327 of the Cr. P. C. and section 354 of the IPC;

b. gender neutral victims of sexual assault read with section 2(d) of the POCSO Act;

c. age and gender neutral victims of sexual assault under section 377 of the IPC read with paragraph 34(1) of the decision in Sakshi v. Union of India;

d. witnesses suffering from mental illness as defined under section 2(s) of the mental healthcare act of 2017 read with section 118 of the Indian evidence act;

e. any witness deemed to have threat perception under the witness protection scheme 2018 of the union government as approved by this court in Mahendra Chawla v union of India 2019 14 SCC 615;

f. any speech or hearing impaired individual or a person suffering from any other disability who is considered to be a vulnerable witness by the competent court;

g. any other witnesses deemed to be vulnerable by the court concerned

The bench recorded that in Sakshi v. Union of India, 2004 5 SCC 518, this court inter alia, issued certain directions which were to be in addition to those given in State of Punjab v. Gurmeet Singh 1996 2 SCC 384.

"More recently, in State of Maharashtra v. Bandhu, directions were issued by a two judge bench of this court for setting up special centres for examination of vulnerable witnesses in criminal cases so as to facilitate a conducive environment which would allow a vulnerable victim to make a statement before the court. This court dwelt on the guidelines which have been issued by the Delhi High Court for recording evidence of vulnerable witnesses in criminal matters and the fact that special centres have already been set up in Delhi for that purpose. While observing that the directions of the Delhi High Court and the setting up of special centres for vulnerable witnesses are consistent with the earlier decision of this court and in fact supplement the principles which have been laid down, this court issued the following directions (...)", the bench further observed.

"In order to facilitate the solitary purpose underlined in the decisions, this court has issued notice to all the High Courts in pursuance of which the High Courts have appeared. Based on the material which has been disclosed before the court, senior advocate Vibha Datta Makhija, Amicus Curiae, has prepared a tabulated statement of the position as it obtains in various high courts as on 25 October 2021. Based on the deliberations which have taken place during the course of the discussions in the court, the suggestions which have been proposed by the amicus curiae and the responses of some of the counsel who have appeared on behalf of the High Courts, the following directions are issued in furtherance of the earlier decisions of this court. These directions are intended to facilitate the implementation of the directions in the decision which was rendered on 24 October 2017 in state of Maharashtra v. Bandhu", said the bench on Tuesday.

The other directions issued by the bench are enumerated below-

2. All High Courts shall adopt and notify a vulnerable witness deposition (VWDC) scheme within a period of two months from the date of this order unless a scheme has already been notified. High courts which have already existing schemes in place may consider making suitable modifications to the scheme in order to bring it in conformity with the guidelines which are indicated in the present order. In formulating the VWDC scheme, the High Courts shall have due regard to the scheme which has been formulated by the Delhi High Court, which has been duly approved in the judgment of this court in Bandhu

3. Every High Court should set up a permanent VWDC committee

4. Proportionate to the time required for recording the evidence of the vulnerable witnesses and to conduct periodic training programmes, Every High Court is required to make an estimation towards manpower requirements to set up at least one permanent VWDC in every establishment of the district court, and estimate the optimal number of VWDCs required for the entire state within a period of three months

5. Having due regard to the importance of conducting periodic training programmes for managing and manning the VWDCs and sensitising all stakeholders including judicial officers, members of the bar and the staff of the court establishment, Justice Ms. Gita Mittal, former chief Justice of the Jammu and Kashmir High Court, is requested to chair the committee for designing, implementing an all India VDWC training programme

The initial tenure of the chairperson shall be for a period of two years. All High Courts and concerned role assignees are required to facilitate and shall give full cooperation to conducting training programmes in terms of the module which may be prepared by the chairperson

6. Upon the estimation of costs prepared by the VWDC committee of each High Court, the state government shall expeditiously sanction the requisite funds, not later than within a period of three months from the date of the submission of the proposal and disburse the same to the High Court in accordance with the project plan. The state government shall nominate a nodal officer drawn from the finance department, who shall ex-officio be associated with the work of the VWDC committee of the High Court and facilitate the implementation of the proposal submitted by the High Court in terms of the above directions. The High Court shall ensure that at least one permanent VWDC is set up in a district court establishment within a period of four months. The registrar general shall file compliance report before this court

7. In many states, ADR centres have been set up by the High Court in close proximity to the court establishment in districts. In such an eventuality, where such ADR centres are in place, the high courts would be at liberty to ensure that a VWDC is made available within the premises of the ADR centres so as to secure a safe, conducive and barrier free environment for recording the deposition of vulnerable witnesses

8. The National Legal Services Authority as well as the State Legal Services Authorities would be vital stakeholders and have an important role particularly in devising and implementing sensitisation and training programmes. The chairperson of the committee appointed by this court is requested to engage with NALSA and SALSAs to provide an effective interface for implementing the schemes for training

9. Where and to the extent it becomes necessary to so do, the Hon'ble chief justices of the High Courts would be at liberty to take all appropriate steps either on the administrative side or on the judicial side in furtherance of the present directions and the monitor compliance in a periodic basis

10. The Ministry of women and child development of the union of India as well as the states shall designate a nodal officer for coordinating the implementation of these directions and for facilitating all logistical support to Justice Ms. Gita Mittal, chairperson of the committee appointed by this court. The union ministry for women and Child development and all ministries for women and child development in the states shall cooperate with the chairperson by providing logistical and other financial support particularly in the context of providing reasonable honorarium to resource persons who are required to conduct training programmes for training all stakeholders. The High Courts shall in consultation with the chairperson of the committee enlist experts in the field to facilitate proper training and development in the context of all stakeholders

"A copy of this order shall be forwarded by the registrar general to the secretary, ministry of women and child development of the union government and to the secretaries of all state governments for compliance. Copies shall also be emailed to the registrars general of all the High Courts for necessary action", added the bench, disposing off the matter.

Background

The bench of Justices Chandrachud and Surya Kant was hearing a Miscellaneous Application as to the wider issue on the need to set up vulnerable witness court rooms in compliance with the decision of the Supreme Court in State of Maharashtra v. Bandu. In 2019, notices were directed to be issued to all the High Courts through the Registrars of the respective High Courts, for status report with regard to the establishment of the vulnerable witness deposition court rooms in compliance of the directions of this Court in State of Maharashtra v. Bandu [(2018) 11 SCC 163].

In Bandu's case, the Court had dealt with the suggestion that there should be special centres for examination of vulnerable witnesses in criminal cases in the interest of conducive environment in Court so as to encourage a vulnerable victim to make a statement. "Such centres ought to be set up with all necessary safeguards. Our attention has been drawn to guidelines issued by the Delhi High Court for recording evidence of vulnerable witnesses in criminal matters and also the fact that four special centres have been set up at Delhi for the purpose. We find merit in the above suggestion", the Court had opined

The bench of Justices A. K. Goel and U. U. Lalit had noted that in Sakshi v. Union of India and Ors (2004) 5 SCC 518 this Court, after due consideration of the above issue, issued following directions:

"(1) The provisions of sub-section (2) of Section 327 Cr.PC shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or trial of offences under Sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

These directions are in addition to those given in State of Punjab v. Gurmit Singh"

"The directions of Delhi High Court and setting up of special centres for vulnerable witnesses as noted above are consistent with the decision of this Court and supplement the same. We are of the view that all High Courts can adopt such guidelines if the same have not yet been adopted with such modifications as may be deemed necessary. Setting up of one centre for vulnerable witnesses may be perhaps required almost in every district in the country. All the High Courts may take appropriate steps in this direction in due course in phases. At least two such centres in the jurisdiction of each High Court may be set up within three months from today. Thereafter, more such centres may be set up as per decision of the High Courts. A copy of this order be sent to all the High Courts for necessary action", the bench of Justices Goel and Lalit had directed.

Case Title: Smruti Tukaram Badade v. The State Of Maharashtra and Anr

Citation : 2022 LiveLaw (SC) 80

Click here to read/download the judgment

Supreme Court Expands Definition Of 'Vulnerable Witnesses'; Directs HCs To Frame Vulnerable Witness Deposition Scheme

Mehal Jain

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