PATNA HIGH COURT
Guidelines for Recording of Evidence of Vulnerable Witnesses
No. ( 91/JJS Dated – 24/03/2022)
With the objective of ensuring a safe and conducive environment for recording the evidence of Vulnerable Witnesses in the light of the directions issued by the Supreme Court of India in Smruti Tukaram Badade Vs. State of Maharashtra & Anr. in Miscellaneous Application No. 1852 of 2019 in Criminal Appeal No. 1101 of 2019, the High Court of Judicature at Patna, do hereby, formulate the following Guidelines for Recording of Evidence of Vulnerable Witnesses :-
Preamble
The purpose of this protocol is to present guidelines and recommendations to improve the response of the justice dispensation system towards vulnerable witnesses.
This protocol prescribes guidelines while recording depositions of vulnerable witnesses in order to enable them to give their best evidence in criminal proceedings. Each witness is unique and is to be addressed accordingly. The vulnerability of a witness may emerge from a range of circumstances which include, but are not limited to – nature of crime, threats and intimidation, fear of reprisal, age, developmental levels, gender identity, sexual minorities, ethnicity, religious identity, caste, physical and/or mental disability, lack of infrastructural support, language barriers, geographical location etc. Some of the most challenging cases before judges during the course of their careers are those involving vulnerable witnesses such as children, victims of sexual offences or domestic violence, persons with disabilities, and witnesses experiencing threats to their life and property, among others. Vulnerable witnesses find their interaction with the legal process, especially the criminal justice process intimidating, particularly the courtroom experience. Under these circumstances, unless adequate support is provided, a vulnerable witness may not feel safe to provide robust testimony. Further, the lengthy process of navigating the adversarial criminal justice system or the civil justice system can affect the vulnerable witness’ psychological well-being in significant and long-lasting ways.
To respond effectively to the needs of vulnerable witnesses, the justice system needs to respond proactively with sensitivity in an enabling and age-appropriate manner, so that the judicial process is less traumatic and secondary victimisation can be minimized. Sensitive
engagement and suitable modifications of existing procedures (within the framework of the law), while ensuring the rights of the accused or the opposite party, can significantly impact the quality of deposition by vulnerable witnesses and potentially the outcome of a trial.
These Guidelines have been developed in furtherance of the Supreme Court’s directions in Smruti Tukaram Badade v. State of Maharashtra, and have been drawn from the Guidelines for recording of evidence of vulnerable witnesses in criminal matters prepared by different High Courts and Vulnerable Witness Deposition Committee constituted vide order dated 11.01.2022 passed in Smruti Tukaram Badade Case(Supra), Chaired by Hon’ble Ms. Justice Gita Mittal, as well as relevant statutory provisions, judgments, and international standards relevant to vulnerable witnesses.
Objectives of these Guidelines
1. To enable vulnerable witnesses to depose freely before any court in a safe and secure environment.
2. To minimize harm or secondary victimization of vulnerable witnesses in anticipation and as a result of participation in the justice system.
3. To ensure that the rights of all the parties in the judicial processes are effectively implemented. In the context of the criminal process – the accused’s right to a fair trial and due process, the right of the victim to take part effectively in the proceedings, to be treated sensitively and not be subject to secondary victimization, and the protection of the rights of a vulnerable witness (who may not necessarily be a victim), are effectively implemented.
Applicability
1. Short Title, extent and commencement-
a. These guidelines shall be called, “Guidelines for Recording Evidence of Vulnerable Witnesses”.
b. Unless otherwise provided, these guidelines shall govern the examination of vulnerable witnesses who are victims2 or witnesses in any case.
c. They shall apply to every court, including Juvenile Justice Boards in the State of Bihar.
d. Their application shall commence from the date notified by the High Court of Patna.
2. Construction of the guidelines-
These guidelines shall be liberally construed and interpreted, in view of the extant laws, to uphold the interests of vulnerable witnesses and to promote their maximum accommodation without prejudice to the right of the accused to a fair trial and due process.
3. Definitions –
a. Vulnerable Witness – For the purpose of these guidelines, “vulnerable witness” means and includes-
(i) any child victim or witness who has not completed 18 years of age;
(ii) any victim of an offence under the POCSO Act, 2012
(iii) any victim of an offence under Sections 376(1), 376(2), 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, 354, 354A, 354B, 354C, 354D and 377 of the Indian Penal Code;
(iv) any person with disability as defined under Section 2(s) of the Rights of Persons with Disabilities Act, 2016 and considered to be a vulnerable witness by the concerned court
(v) any witness suffering from “mental illness” as defined under Section 2(s) of the Mental Healthcare Act, 2017 read with Section 118 of the Indian Evidence Act, 1872;
(vi) any witness deemed to have a threat perception under the Witness Protection Scheme, 2018 of the Union Government as approved by the Supreme Court in Mahender Chawla v. Union of India3 ; and
vii) any other witness deemed to be vulnerable by the concerned court, [including Family Courts, Children’s Courts, Juvenile Justice Board, civil and criminal courts, or any tribunal or forum.]* *Subject to clarificatory orders of the Supreme Court.
b. Support Person – Means and includes Support Persons assigned by the Child Welfare Committee under the POCSO Rules, 2020 to render assistance to the child through the process of investigation and trial, or any other person assisting a child in the pre-trial or trial process in respect of an offence under the POCSO Act, support person or para legal volunteer provided by the Legal Services Authority under the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2017, or any other person appointed by the court to provide support including psycho-social support, accompany and assist the vulnerable witness, whether minor or major, to testify or attend judicial proceedings.
c. Best Interests of the Child – means the basis of any decision taken regarding the child, to ensure fulfilment of the child’s basic rights and needs, identity, social well-being and physical, emotional and intellectual development.
d. Development Level – Development level refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, mental, socio economical, cognitive and moral abilities.
e. In-Camera Proceedings – means proceedings wherein the court allows only those persons who are necessary to be present while hearing the witness deposing in the court
f. Concealment of identity of witness – Means and includes any legislative provision or judicial ruling prohibiting the disclosure of the name, address, school, family, relatives, neighbourhood or any other information which may lead to the identification of a vulnerable witness in print, electronic, social media, etc or made known to the public at large during investigation, trial and post-trial stage.
g. Comfort Items – Comfort items mean any article of choice of the vulnerable witness which may have a calming effect at the time of deposition and may include stuffed toy, blanket or book.
h. Court House Tour means a pre-trial tour of the courtroom and court complex by the Support Person or a para-legal volunteer, as the case may be, to familiarize a vulnerable witness with the environment and the basic process of adjudication and roles of each court official.
i. Live Link – ‘Live link’ means and includes a live television link, audio-video electronic means or other arrangement whereby a witness, while not being physically present in the courtroom11 is nevertheless present in the courtroom by remote communication using technology to give evidence and be cross-examined.
j. Special Measures – means and includes the use of legislative provisions, and any mode, method and instrument, etc, considered necessary for providing assistance in recording deposition of vulnerable witnesses.
k. Testimonial Aids – means and includes screens; single visibility mirrors, curtains, live links, image and/or voice altering devices; or any other technical devices, facilities and equipment.
l. Secondary Victimization – means victimization that occurs not as a direct result of a criminal act but through the response of institutions and individuals to the victim.
m. Revictimization – means a situation in which a person suffers more than one criminal incident over a period of time.
n. Waiting Room – A safe place for vulnerable witnesses where they can wait.
o. Special Measures Direction – The concerned court shall direct as to which special measure will be used to enable a vulnerable witness to depose freely and in a safe, accessible, and comfortable environment. Directions may be discharged or varied during the proceedings, but normally continue to be in effect until the proceedings are concluded.
4. Applicability of guidelines to all vulnerable witnesses-
For the avoidance of doubt, it is made clear that these guidelines shall apply to all vulnerable witnesses as defined in Rule 2(a) of these Guidelines, regardless of which party is seeking to examine the witness.
5. No inference of prejudice to be drawn from special measures-
The fact that a witness has had the benefit of a special measure to assist them in deposition, shall not be regarded in any way whatsoever as being prejudicial to the position of the other side and this should be made clear by the judge at the time of passing order in terms of these guidelines to the parties when the vulnerable witness is examined.
6. Identification of Stress causing factors of adversarial Criminal Justice System-
The Court shall consider the following factors which cause stress, especially but not only limited to child witnesses, rendering them further vulnerable witnesses, and impeding complete disclosure, and take necessary steps to mitigate or minimize the stress. The factors include, amongst others:
a. Multiple depositions
b. Not using developmentally appropriate language
c. Delays and repeated adjournments
d. Testifying more than once
e. Prolonged/protracted court proceedings
f. Lack of communication between professionals including police, doctors, lawyers, prosecutors, investigators, and mental health practitioners, and lack of convergence with authorities such as Child Welfare Committees, District Child Protection Units, One Stop Centres etc.
g. Fear of public exposure
h. Anxiety about threats from the accused and/or their associates
i. Confusion and guilt about testifying against a family member or relative
j. Lack of understanding of complex legal procedures
k. Face-to-face contact with the accused
l. Practices insensitive to developmental needs
m. Aggressive a n d inappropriate cross-examination, including asking irrelevant questions
n. Lack of adequate support, witness protection, and victims’ services
o. Sequestration of witnesses who may be supportive to the vulnerable witness
p. Placement that exposes the vulnerable witness to intimidation, pressure, or continued abuse
q. Lack of preparation to enable fearless and robust testifying
r. Worry about not being believed especially when there is no evidence other than the testimony of the vulnerable witness
s. Worry about being yelled at, ridiculed, or getting into trouble for testifying
t. Worry about retaliation or repercussions for themselves or their family
u. Worry about not being understood or being able to communicate effectively
v. Formality of court proceedings and surroundings including formal dress of members of the judiciary and legal personnel
w. Inaccessibility of the courtroom, particularly for vulnerable witnesses with disabilities
7. Competency of vulnerable witness-
Every vulnerable witness shall be presumed to be competent to testify as a witness, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions due to tender years, disability, either of body or mind, and illness, or any other cause of the same kind, in accordance with Section 118 of the Indian Evidence Act, 1872.
Explanation: A mentally ill person may also be held competent unless the person is prevented by the illness to understand questions.
When conducting the competency examination, the court shall not use “general knowledge” or “current affairs” questions to adjudge competence. Similarly, philosophical questions, such as, what truth means should be strictly avoided.
8. Persons allowed at competence assessment-
Only the following may be allowed to attend the competence assessment:
a. the judge and such court personnel deemed necessary and specified by order of the judge concerned;
b. the counsel for the parties;
c. the guardian ad litem;
d. non-offending parent, guardian, friend, relative of a child victim or a person in whom the child has trust or confidence;18
e. one or more support persons for a child victim or witness;
f. translator, interpreter, expert or special educator, if necessary;19
g. person familiar with the manner of communication of a vulnerable witness with intellectual or physical disability;20
h. the accused, unless the court determines that competence requires to be and can be fully evaluated in their absence; and
i. any other person, who in the opinion of the court can assist in the competence assessment.
9. Conduct of competence assessment. —
The assessment of a person, as to their competence as a witness shall be conducted only by the presiding judge.
10. Pre-trial visit of Witnesses to the Court –
Vulnerable witnesses shall be allowed a pre-trial court house tour or tour of the civil court or Juvenile Justice Board, etc., along with the support person or para-legal volunteer, as the case may be, to enable such witnesses to familiarise themselves with the layout, and may include visit to and explanation of the following:
a. the location of the accused in the dock;
b. court officials (what their roles are and where they sit);
c. who else might be in the court;
d. the location of the witness box;
e. a run-through of basic court procedure;
f. the facilities available in the court which may include the waiting room, toilet, separate passage for entry and exit, and testimonial aids;
g. discussion of any particular fears or concerns, including concerns regarding safety in relation to the accused, with the support person, prosecutors and the judge to dispel the fear, trauma and anxiety in connection with the upcoming deposition at court;
h. demonstration of any special measures applied for and/or granted, for example practising on the live link and explaining who will be able to see them in the courtroom, and showing the use of screens (where it is practical and convenient to do so).
11. Meeting the judge –
The Judge may meet a vulnerable witness suo motu on reasons to be recorded or on an application of either party in the presence of the prosecution and defence lawyer, or in their absence before the witness gives their evidence, for explaining the court process in order to help them to understand the procedure and give their testimony, free of fears and concerns.
12. Assistance of an interpreter, translator, special educator or expert-
(i) The court shall ensure that proceedings relevant to the testimony of a vulnerable witness or witness are conducted in language that is simple and comprehensible to the witness.
(ii) Wherever necessary, the court may, Suo motu or upon an application presented by either party or a Support Person of vulnerable witnesses take the assistance of a qualified and experienced interpreter, translator, special educator or expert, to enable recording of
evidence of vulnerable witnesses, and on payment of such fees as may be prescribed by the State Government or authority concerned.
(iii) The concerned court may consider the qualifications prescribed for interpreters, translators, sign language interpreters, special educators and experts in Rule 5, POCSO Rules, 2020 or any other laws, rules, or judgments of the High Court or Supreme Court in this regard.
(iv) The court may also take the assistance of a person familiar with the manner of communication of a vulnerable witness with physical or intellectual disability while recording evidence.
(v) If, in view of the vulnerable witnesses’ age, level of maturity or special individual needs of a witness, which may include but are not limited to disabilities (if any), ethnicity, poverty or risk of revictimization, the witness requires special assistance measures in order to testify or participate in the justice process, such measures shall be provided free of cost.
(vi) If the court appoints an interpreter, translator, special educator or expert, the respective counsel for the parties shall pose questions to the vulnerable witness only through them, either in the words used by counsel or, if the vulnerable witness is not likely to understand the same, in words, signs, or by such mode as is comprehensible to the vulnerable witness and which conveys the meaning intended by the counsel.
13. Legal assistance and legal aid-
The concerned court shall facilitate the right of a child victim under the POCSO Act to take assistance of a legal counsel of their choice. Further, any vulnerable witness who falls within the ambit of Section 12, Legal Services Authorities Act, 1987 or any other laws, rules, or polices that recognise their right to free legal aid may be provided with legal aid by the court either:
a. based on a request by or on behalf of the vulnerable witness; or
b. pursuant to an order of the court on its own motion.
14. Court to allow presence of Support Persons-
(i) The court shall inform vulnerable witnesses that they may take the assistance of a Support Person during the trial. In cases under the POCSO Act, 2012, the concerned court shall take into consideration the role of the Support Persons as provided in Rule 4(9), POCSO Rules, 2020.
(ii) The court shall allow Suo motu or on request, verbal or written, the presence of a Support Person of the choice of the vulnerable witness in the courtroom during the deposition, provided that such support person shall not completely obscure the witness from the view of the accused or the judge.
(iii) The court may allow the Support Person to take appropriate steps to provide emotional support to the vulnerable witness in the course of the proceedings and also inform the court if the vulnerable witness needs a break or is feeling stressed or triggered.
(iv) The court shall instruct the Support Person not to prompt, sway, influence or tutor the vulnerable witness during their testimony.
(v) Where no other suitable person is available, and only in very rare cases should another witness in the case, whose deposition has already been completed in all respects, be appointed as a Support Person. The court shall ordinarily appoint a neutral person, other than a parent, as a Support Person. It is only in exceptional circumstances keeping the condition of the vulnerable witness in mind, that the court should appoint a parent as a Support Person. In POCSO cases, however, care shall be taken to ensure that the provisions of the POCSO Rules, 2020 regarding engagement of Support Persons are adhered.
(vi) The court shall allow Support Persons to coordinate with the other stakeholders such as police, Special Juvenile Police Unit (SJPU), medical officer, prosecutors, mental health professionals, Child Welfare Committee, Juvenile Justice Board, defence counsels and courts.
(vii) As far as possible, the concerned court shall ensure the continuity of the same Support Person during the deposition.
(viii) If the Support Person is also a witness in the case, their testimony shall be recorded, ahead of the testimony of the vulnerable witness.
15. Right to be informed-
A vulnerable witness, their parents or guardian, lawyer, the Support Person, if designated, or other appropriate person designated to provide assistance shall, from their first contact with the court process and throughout that process, be promptly informed by the Court about the stage of the process and, to the extent feasible and appropriate, about the following:
c. charges brought against the accused, or if none, the stay of proceedings against them;
d. the progress of the case;
e. procedures of the criminal justice process including the role of vulnerable witnesses, the importance, timing and manner of testimony, and the ways in which proceedings will be conducted during the trial;
f. existing support mechanisms for a vulnerable witness when participating in proceedings, including services of a Support Person;
g. schedule of court proceedings that the vulnerable witness is either required to attend or is entitled to attend and the specific time and place of hearings and other relevant processes;
h. right of the informant or person authorised by the informant to be present at the time of hearing of the bail application of an accused under Sections 376(3), 376AB, 376DA, or 376DB of the Indian Penal Code, 1860, or under the POCSO Act.
i. right of vulnerable victims and their dependents to reasonable, accurate and timely notice of court proceedings and bail proceedings under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989;
j. right of vulnerable victims and their dependents to be heard during proceedings of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989;
k. availability of public and private emergency, and crisis services, including shelters;
l. availability of protective measures;
m. availability of victim’s compensation benefits;
n. availability of legal aid;
o. availability of institutional and non-institutional care under the juvenile justice system for vulnerable witnesses who may come under the ambit of a “child in need of care and protection”;
p. relevant rights of child victims and witnesses under the POCSO Act and Rules, JJ Act, 2015 and Model Rules or applicable State Rules, and other applicable laws, as well as the United Nations Convention on the Rights of the Child and other international legal instruments, including the Guidelines and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in its resolution 40/34 of 29 November 1985;
q. the progress and disposition of the specific case, including in a criminal case the apprehension, arrest and custodial status of the accused and any pending changes to that status, the prosecutorial decision and relevant post-trial developments and the outcome of the case and sentence imposed;
r. all decisions, or at least those decisions affecting the interests of the victim or vulnerable witness;
s. the process for appeal against the order of the court.
16. Waiting area for vulnerable witness-
The courts shall ensure that a waiting area for vulnerable witnesses with the support person, and the lawyer of the vulnerable witness, if any, is separate from waiting areas used by other persons. Care shall be taken to ensure that the waiting room is used only by the vulnerable witness and the non-offending family members and support persons. The waiting area should be accessible to all vulnerable witnesses, including those with disability. The waiting area for vulnerable witnesses should be furnished so as to make a vulnerable witness comfortable. This may include, but not be limited to, being furnished and equipped with toys, books, games, drawing and painting materials and other such activities, TV, etc. which can help lower the anxiety of the witness. It could include a place for very young child witnesses to rest or sleep. Accessible toilets and drinking water facilities should also be available inside the waiting room or within close proximity. The approach to the waiting area shall be in such a way that allows the witness to access it with ease and without having to confront other litigants, police, or the accused and their associates. The waiting area needs to be equipped with a digital “Case Number Display Monitor” that shows the case being called in the court. Arrangements for the vulnerable witness to depose from the waiting area, which may include monitors and screens for recording of the evidence of the child shall be made available.