Section 398 of BNSS, 2023 — Witness Protection Scheme

Introduction

Section 398 of the Bharatiya Nagarik Suraksha Sanhita, 2023 introduces a specific statutory provision for the protection of witnesses.

The section requires every State Government to prepare and notify a Witness Protection Scheme for the State with the objective of ensuring the protection of witnesses.

Witness protection is important because witnesses may face threats, intimidation, pressure or physical harm, particularly in cases involving powerful accused persons or organised criminal activity. Effective protection enables witnesses to participate in criminal proceedings without fear.

Meaning of Section 398 BNSS

Section 398 requires every State Government to establish a framework for protecting witnesses.

The provision is brief and contains a single statutory requirement: every State Government must prepare and notify a Witness Protection Scheme for its State.

The details of the protection measures are to be governed by the applicable Witness Protection Scheme.

Statutory Provision

Section 398 provides:

“Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.”

The use of the word “shall” makes the preparation and notification of the scheme a statutory obligation of every State Government.

Object and Purpose

The primary objectives of Section 398 are:

• to protect witnesses from threats and intimidation;
• to enable witnesses to give evidence without fear;
• to preserve the integrity of criminal proceedings;
• to prevent witnesses from being influenced or coerced;
• to strengthen public confidence in the criminal justice system; and
• to facilitate the discovery of truth during criminal trials.

Essential Elements

1. Mandatory Duty of State Government

Section 398 places a duty on every State Government.

The provision does not merely permit a State Government to establish a witness protection scheme. It requires the State Government to prepare and notify one.

2. Preparation of the Scheme

The State Government must prepare a Witness Protection Scheme for its State.

The scheme provides the framework through which witnesses requiring protection can be safeguarded.

3. Notification of the Scheme

Preparation alone is not sufficient.

The State Government must also notify the Witness Protection Scheme.

Notification gives the scheme formal legal and administrative effect within the State.

4. Protection of Witnesses

The ultimate purpose of the statutory requirement is to ensure protection of witnesses.

The exact protective measures depend upon the applicable Witness Protection Scheme and the circumstances of the particular witness.

Need for Witness Protection

Witnesses are an essential part of the criminal justice system. Their evidence may determine whether an accused person is convicted or acquitted.

However, witnesses may sometimes face:

• threats to their life or safety;
• intimidation;
• coercion;
• harassment;
• pressure to withdraw from proceedings;
• attempts to influence their testimony; or
• threats against family members.

A witness protection framework seeks to address these risks and enable witnesses to participate freely in the judicial process.

Witness Protection Scheme, 2018

Before Section 398 BNSS, the Supreme Court approved the Witness Protection Scheme, 2018 in Mahender Chawla v. Union of India.

The Supreme Court directed that the scheme would operate as law until appropriate legislation was enacted.

The Witness Protection Scheme, 2018 provides a comprehensive framework for assessing threats and adopting protective measures according to the level of risk faced by a witness.

Section 398 subsequently gave witness protection a specific statutory foundation within the criminal procedural framework.

Risk-Based Protection

The Witness Protection Scheme, 2018 broadly recognises different levels of threat to witnesses.

Protection measures can be determined according to the nature and seriousness of the threat.

The assessment may consider factors such as:

• threat to the life of the witness or family;
• threat to safety, reputation or property;
• likelihood of intimidation or harassment; and
• the importance of the witness to the criminal proceedings.

The specific measures depend upon the applicable scheme and the threat assessment.

Possible Protective Measures

Depending upon the circumstances and applicable scheme, witness protection may include measures such as:

• maintaining confidentiality of the witness’s identity;
• protection at the residence;
• police protection;
• installation of security devices;
• temporary relocation;
• permanent relocation in appropriate cases;
• changing identity in exceptional circumstances;
• preventing unnecessary face-to-face interaction with the accused; and
• other appropriate measures considered necessary for the safety of the witness.

These measures are not automatically available to every witness. They depend upon the applicable scheme and assessment of the threat.

Role of Threat Assessment

An important feature of the Witness Protection Scheme framework is the assessment of the level of threat faced by a witness.

The purpose of threat assessment is to determine:

• whether protection is necessary;
• the nature of the threat;
• the degree of protection required; and
• the appropriate protective measures.

This allows protection to be tailored according to the circumstances rather than providing identical protection to every witness.

Role in Criminal Proceedings

Witness protection directly supports the fairness and effectiveness of criminal trials.

A witness who is threatened or intimidated may be unwilling to provide truthful evidence. Protection therefore helps ensure that witnesses can participate in proceedings without external pressure.

The provision ultimately seeks to protect the integrity of the evidence-gathering and trial process.

Section 398 as a New BNSS Provision

Section 398 is a new statutory provision under BNSS.

There was no corresponding standalone provision in the Code of Criminal Procedure, 1973 requiring every State Government to prepare and notify a witness protection scheme in this manner.

The provision therefore represents an important structural development in Indian criminal procedure.

BNSS and CrPC

Section 398 does not have a direct corresponding section in the CrPC.

Witness protection was nevertheless recognised before BNSS through judicial directions and the Witness Protection Scheme, 2018.

The Supreme Court’s decision in Mahender Chawla v. Union of India played an important role in establishing the Witness Protection Scheme, 2018 as the operative framework until appropriate legislation was enacted.

BNSS has now expressly incorporated witness protection into the statutory criminal procedure framework through Section 398.

Important Case Law

Mahender Chawla v. Union of India

The Supreme Court recognised the serious need for protection of witnesses and approved the Witness Protection Scheme, 2018.

The Court directed that the scheme would be treated as law until suitable legislation was enacted.

The decision is particularly significant because it established a comprehensive framework for witness protection before the enactment of Section 398 BNSS.

Relationship with BNS and BSA

Section 398 operates within the framework created by the three new criminal laws:

• BNS, 2023: Defines substantive criminal offences and punishments.
• BNSS, 2023: Provides the procedural framework, including witness protection under Section 398.
• BSA, 2023: Governs the law relating to evidence.

Witness protection under BNSS helps ensure that witnesses can safely participate in proceedings in which evidence is governed by the BSA.

Important Distinctions

Witness Protection and Victim Compensation

Witness protection is concerned with safety and security of witnesses.

Victim compensation is concerned primarily with financial assistance and rehabilitation of victims.

Section 398 deals with witness protection, while Section 396 deals with the victim compensation scheme.

Witness Protection and Witness Examination

Witness examination concerns the process of recording and testing a witness’s evidence in criminal proceedings.

Witness protection concerns measures adopted to safeguard the witness from threats, intimidation or harm.

The two serve different purposes but operate together to support a fair trial.

Witness Protection and Police Protection

Police protection may be one of the measures available under a witness protection scheme.

However, witness protection is broader than simply providing police guards. Depending on the circumstances, it may involve confidentiality, relocation, security measures, identity protection and other safeguards.

Constitutional Connection

Witness protection is closely connected with the constitutional principles of fair procedure and access to justice under Article 21.

A criminal justice system cannot effectively discover the truth if witnesses are prevented from giving evidence because of threats or intimidation.

Protecting witnesses therefore supports the fairness and integrity of the criminal justice process.

Example

Suppose a key witness in a serious criminal case receives threats from persons connected with the accused.

The witness may require protection to safely participate in the proceedings. Under the applicable Witness Protection Scheme, the threat can be assessed and appropriate protective measures may be adopted depending on the level and nature of the risk.

Common Confusions

Does Section 398 itself list all witness protection measures?

No.

Section 398 simply requires every State Government to prepare and notify a Witness Protection Scheme. The specific protective measures are governed by the applicable scheme.

Is witness protection available only to victims?

No.

The provision concerns witnesses generally. A person may require protection because of their role as a witness in criminal proceedings.

Is Section 398 the same as the Witness Protection Scheme, 2018?

No.

Section 398 is the statutory BNSS provision requiring State Governments to prepare and notify a Witness Protection Scheme.

The Witness Protection Scheme, 2018 is the earlier comprehensive scheme approved by the Supreme Court.

Is witness protection automatic for every witness?

No.

Protection depends upon the circumstances and the applicable scheme, including assessment of the threat faced by the witness.

Important BNSS Provisions

Section 396

Deals with the Victim Compensation Scheme.

Section 397

Deals with the Treatment of Victims and requires specified hospitals to provide immediate free medical treatment.

Section 398

Deals with the Witness Protection Scheme.

Section 399

Deals with compensation to persons groundlessly arrested.

Topic at a Glance

• Topic: Witness Protection Scheme
• BNSS Section: Section 398
• Nature: New statutory provision under BNSS
• Duty: Every State Government must prepare and notify a Witness Protection Scheme
• Purpose: Protection of witnesses
• Main concern: Safety from threats, intimidation and harm
• Earlier framework: Witness Protection Scheme, 2018
• Important case: Mahender Chawla v. Union of India
• Direct CrPC equivalent: No direct corresponding provision
• Related provisions: Sections 396, 397 and 399 BNSS

Quick Revision

• Section 398 BNSS deals with the Witness Protection Scheme.
• Every State Government shall prepare and notify a Witness Protection Scheme.
• The purpose is to ensure the protection of witnesses.
• Section 398 is a new statutory provision under BNSS.
• There was no direct corresponding provision in the CrPC.
• Before Section 398, witness protection was substantially governed by the Witness Protection Scheme, 2018 approved by the Supreme Court.
• Mahender Chawla v. Union of India is the leading case associated with the 2018 scheme.
• Protection may include measures such as identity confidentiality, police protection, relocation and security arrangements, depending on the applicable scheme and threat assessment.
• Witness protection is different from victim compensation.
• Section 398 strengthens the witness-centred safeguards within the criminal justice system.

ALSO READ: Section 397 – Treatment of victims

Conclusion

Section 398 BNSS gives witness protection an express statutory foundation within India’s criminal procedural law. It places a mandatory responsibility on every State Government to prepare and notify a Witness Protection Scheme. The provision is significant because witnesses can face serious threats and intimidation that may affect their ability to participate freely and truthfully in criminal proceedings. By requiring a formal protection framework, Section 398 seeks to strengthen the integrity, fairness and effectiveness of the criminal justice system.