What Is Section 398 Under Bnss

The BNSS has established a legally binding Witness Protection Scheme. This aligns with recent observations from the High Courts and the Supreme Court. According to BNSS Sec 398, each State Government must prepare and notify a Witness Protection Scheme (WPS) to protect witnesses. The criminal procedural framework now includes a new paragraph requiring state governments to create and notify witness protection schemes.

The Supreme Court ruled in the Mahender Chawla Case in 2018 that the Witness Protection Scheme (WPS) is legal until the Parliament or state governments create and implement their schemes. The Supreme Court’s 2018 order is the first to guarantee broad protection for witnesses in criminal trials, notwithstanding existing provisions under the IPC, IEA, and Cr. P.c now under BNS, BSA, and BNSS 2023.

The 2018 program established a comprehensive legal and administrative framework to safeguard witnesses. The process involved categorizing witnesses’ risk/vulnerability levels, implementing witness protection procedures, utilizing threat analysis reports by the police, and forming a body of police officials and judges to oversee its operations.

In 2019, MHA issued instructions for the Witness Protection Scheme to all states and union territories. The MHA has urged all states and union territories to fully implement the Witness Protection Scheme, 2018 since it is the ‘law’ under Article 141/142 of the Constitution.

Need for Witness Protection Scheme

• Witnesses play a critical part in the legal system. The accused can be held guilty on the testimony of a witness. The witnesses are not safe,as many get threats from the accused for not giving any testimony. Due to this threat, witnesses abstain from giving testimony. Due to this situation, it is important to protect the witness. This will even help in better administration of justice.
• This provision will help witnesses to come forward and take active participation in the criminal justice system. This, in turn will improve the justice delivery. Witnesses are the crucial elements of the proceedings and their well–being and safety need to be protected.

Features of the Witness Protection Scheme

• On receiving the request for protection from the witness, the authorities will conduct a risk assessment by taking into account factors like the nature of the crime, the potential for retaliation, the personal circumstances of the witness, etc. This will help in determining the level of threat faced by the witness.    
• The authorities will implement the appropriate protection measures based on the risk assessment. These included:

1. Providing security personnel or armed escorts,

2. Witnesses can be relocated to a safe place

3. Witness identity and appearance can be changed

4. Witnesses can be provided with financial assistance for temporary accommodation and living expenses.

• The BNSS even provided for the confidentiality of the identity of witnesses. If disclosed, it will attract a penalty. This provision provides extra protection to the witnesses.
• A witness assistance cell shall be created in every district. This cell will coordinate the implementation of protective measures. It will also provide support to witnesses throughout the legal proceedings.
• The scheme even provides protection to witnesses even after the conclusion of the trial. This scheme provides the rehabilitation and re-integration of the witnesses into society so that the witnesses can safely return to their normal lives without any fear.

Challenges

• Implementation of this scheme will require both financial and human resources. It will be a challenge to ensure the availability of funding and trained personnel.
• The implementation of this scheme will require the proper coordination and communication between various agencies, like law enforcement agencies, the judiciary, and various departments. There should be clear lines of communication and protocols.
• There needs to be widespread awareness of the scheme. The scheme can be successfully implemented only when people are aware of it. To spread awareness, the proper campaigns should be organized.
• There should be proper monitoring of the implementation of the scheme. There should be periodic feedback from the witnesses so that any shortcomings can be taken care of.  

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