How to Apply for Witness Protection Under BNSS in India: Categories, Process, and Protective Measures Under Section 398

How to Apply for Witness Protection Under BNSS in India

Witnesses are the backbone of the criminal justice system, yet they often face threats, intimidation, and violence for coming forward with the truth. Recognising this reality, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has codified witness protection under Section 398, giving statutory backing to the framework originally directed by the Supreme Court in Mahender Chawla v. Union of India (2018). This guide explains the eligibility criteria, categories of protection, the application process, and the protective measures available to witnesses and their families.

The Legal Framework: Section 398 BNSS

Section 398 of the BNSS, 2023 provides the statutory basis for witness protection in India. This provision replaced the earlier framework that relied on judicial directions and scattered state-level schemes. The BNSS mandates that state governments shall prepare and notify a Witness Protection Scheme, and that the competent authority (typically the court or a designated officer) shall assess the threat to a witness and order appropriate protective measures. The codification ensures that witness protection is no longer discretionary but a legal obligation. For context on how the BNSS has reformed criminal procedure more broadly, consider the changes to processes like obtaining a certified copy of an FIR under BNSS.

Three Categories of Witness Threat Assessment

The witness protection framework classifies witnesses into three categories based on the severity of the threat they face. Category A covers cases where the threat extends to the life of the witness or the witness's family members. This is the highest level of threat and attracts the most comprehensive protection measures. Category B covers cases where the threat is to the safety, reputation, or property of the witness or the witness's family members. Category C covers cases where the threat is moderate, involving intimidation or harassment of the witness or the witness's family. The categorisation is determined through a risk assessment conducted by the competent authority after receiving the application.

Who Can Apply for Witness Protection?

Any witness who has reasonable apprehension that their life, safety, or property is in danger on account of their role as a witness in a criminal proceeding can apply for protection. The application can also be made on behalf of the witness by the investigating officer, the prosecutor, or any person authorised by the witness. Protection extends not only to the witness but also to the witness's family members, including spouse, children, parents, and dependents. Witnesses in cases involving serious offences such as those under the Bharatiya Nyaya Sanhita, 2023 (BNS) carrying severe punishments are more likely to receive higher-category protection. Witnesses in cases involving ragging complaints and criminal penalties may also seek protection if they face institutional retaliation.

Step 1: Filing the Application for Witness Protection

The application for witness protection must be filed before the competent authority, which is typically the court trying the case or a designated officer notified by the state government. The application should include: (1) the name and particulars of the witness seeking protection; (2) the case number and details of the criminal proceeding in which the applicant is a witness; (3) the nature and source of the threat, with specific details of any incidents of intimidation, violence, or harassment already faced; (4) the names of persons from whom the threat emanates, if known; (5) the category of protection sought (A, B, or C); (6) any supporting evidence such as threatening messages, police complaints, or photographs. The application must be accompanied by an affidavit verifying its contents.

Step 2: Risk Assessment by the Competent Authority

Upon receiving the application, the competent authority conducts a threat or risk assessment. This assessment considers several factors: the nature and gravity of the offence in which the witness is deposing; the criminal antecedents of the accused persons; the credibility and specificity of the threat perceived; any prior incidents of violence or intimidation against the witness; the vulnerability of the witness (age, gender, health, social standing); and the feasibility of providing the requested level of protection. The competent authority may seek a report from the police or investigating agency. Based on this assessment, the witness is placed in Category A, B, or C, and corresponding protection measures are ordered.

Protective Measures Available Under Each Category

The protection measures are proportional to the assessed threat level. For Category A witnesses (threat to life), the measures include: identity concealment in court records and proceedings; in-camera trial where the witness deposes behind screens or via video conferencing; secure accommodation at a safe house or undisclosed location; round-the-clock police protection and escorts; relocation of the witness and family to a different city or state; change of identity documents in extreme cases; financial assistance for livelihood during the period of protection; and legal assistance at state expense. For Category B witnesses (threat to safety, reputation, or property), the measures include: identity protection in records; police escorts during court appearances; regular patrolling near the witness's residence; installation of security devices; and legal assistance. For Category C witnesses (moderate intimidation), the measures include: regular interaction with local police; an assurance from the competent authority to the accused to refrain from intimidation; and monitoring of the witness's safety.

Witness Protection Fund

The BNSS framework contemplates the establishment of a Witness Protection Fund by each state government to finance protection measures. The fund is intended to cover expenses for safe houses, relocation, financial assistance, security arrangements, and legal aid. As of mid-2026, the creation and operationalisation of this fund varies significantly across states, with some states having established dedicated funds while others continue to draw from general police budgets. The Supreme Court's emphasis on timely compliance with court orders is relevant here, as delayed implementation of protection orders defeats their purpose.

Confidentiality and Identity Protection

A cornerstone of the witness protection framework is confidentiality. The identity of the witness seeking protection, the details of the application, and the nature of protective measures ordered are all treated as confidential. Court records relating to witness protection proceedings are sealed and not made available to the accused or their counsel except to the extent necessary for a fair trial. Any breach of confidentiality by officials is treated as a serious matter attracting disciplinary and criminal consequences. The court may also direct that the witness depose using a pseudonym, with their face concealed, or through video link from a secure location. These measures are particularly important in cases involving organised crime, terrorism, and offences against the state. The SC's transfer of bulldozer demolition contempt cases demonstrates how constitutional courts monitor enforcement of protective orders.

Duration and Review of Protection

Witness protection is not indefinite. The protection order specifies the period for which measures will remain in force, typically until the conclusion of the trial and, in serious cases, until the appeal period expires or the appeal is decided. The competent authority may review the protection order periodically, either on its own motion or on an application by the witness. If the threat level changes (increases or decreases), the category of protection may be upgraded or downgraded accordingly. A witness may also apply for extension of protection if circumstances warrant.

Challenges in Implementation

Despite the statutory framework, several challenges persist in the implementation of witness protection in India. The availability of safe houses and dedicated infrastructure varies significantly between states. Police resources for round-the-clock protection are often strained. Financial assistance amounts may be inadequate for witnesses who have had to abandon their livelihoods. The relocation process can be bureaucratically complex, especially when it involves crossing state boundaries. Additionally, awareness among witnesses about their right to seek protection remains low, particularly in rural areas and among vulnerable communities. These implementation gaps are similar to challenges seen in other regulatory frameworks, such as those governing e-waste authorisation for producers and recyclers, where the law exists but enforcement remains uneven.

Key Takeaways

Section 398 of the BNSS, 2023 provides a statutory foundation for witness protection in India, building on the Supreme Court's directions in the Mahender Chawla case. Witnesses are classified into three threat categories, with protection measures ranging from police escorts to complete relocation and identity change. The application is filed before the competent authority, which conducts a risk assessment. Protection extends to family members and is funded through a dedicated witness protection fund. While the legal framework is comprehensive, implementation varies by state, and witnesses should engage legal counsel to ensure their application is properly presented. For those navigating the broader criminal justice system, understanding how FIR procedures work under BNSS provides essential foundational knowledge.