Law & Policy
Prepare and Notify: The One Sentence the Sanhita Gives to Witness Protection
12 October 2026 · 17 min read
A code of criminal procedure is, among other things, an instrument of compulsion directed at people who have done nothing wrong. It summons them, it requires their attendance before a police officer, it forbids them to leave the place where they have been told to wait, and it punishes them if they stay away. None of that is objectionable; a trial that depended on the willingness of witnesses would not be a trial. But a code that compels a person to come and speak has to decide what it does when speaking is dangerous, because the risk it is asking him to take is one the proceeding itself created.
The Bharatiya Nagarik Suraksha Sanhita, 2023 decides that question in one sentence.
What the section says
Section 398 carries the marginal heading "Witness protection scheme". It reads, in full:
Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.
That is the whole of it. There are no sub-sections, no provisos and no explanation. The provision is new; the Bureau of Police Research and Development's note on the Scheme describes the clause as "an entirely new addition" to the criminal procedural framework.
It is worth recording where the section sits. Placement is not an argument, but it records a choice. Section 398 is in Chapter XXIX, headed "The Judgment", between section 397, which obliges hospitals to give free first aid to victims of certain offences, and section 399, which lets a Magistrate award up to a thousand rupees against a person who caused a groundless arrest. The chapter runs from the contents of a judgment to its translation and the despatch of a copy to the District Magistrate. A witness is exposed from the day he gives a statement to the police to the day he leaves the witness box. The section that addresses that exposure has been placed in the chapter that begins after the evidence has closed.
What the Sanhita says to a witness everywhere else
The contrast is not with some ideal statute. It is with the same enactment, read elsewhere.
On compulsion the Sanhita is detailed. Section 71 permits a court to serve a summons on a witness by electronic communication or registered post simultaneously with the ordinary summons, and section 71(2) tells the court when it may deem that service good. Section 179 empowers a police officer to require a witness's attendance by order in writing, with a proviso that the very young, the elderly, women, the disabled and the acutely ill shall not be required to attend anywhere but where they reside, and a second permitting such a person to attend at the police station if willing. Section 191 forbids a witness on his way to court from being subjected to unnecessary restraint, and then, by its proviso, permits the officer in charge of a police station to forward a witness who refuses to execute a bond to the Magistrate, "who may detain him in custody until he executes such bond, or until the hearing of the case is completed". Section 350 allows a court to order payment of a witness's reasonable expenses, "[s]ubject to any rules made by the State Government". Section 389 lets a court try a witness summarily for non-attendance and fine him up to five hundred rupees.
That is the apparatus for getting a witness into the witness box: service, attendance, bond, custody, expenses, summary punishment. Each element is enacted, and two of them — service, and the exemptions from attendance — are worked out to a level of detail that contemplates the actual situation of the person affected.
On protection the Sanhita has one provision and one cross-reference.
The first is section 366, "Court to be open". Sub-section (1) declares the courtroom an open court and then, by its proviso, allows the presiding Judge or Magistrate, "if he thinks fit", to order at any stage that the public generally, or any particular person, shall not have access to or remain in the room. Sub-section (2) makes the trial of rape and certain other offences an in camera trial. This is a real protective power, and it is enacted in the orthodox way: a decision-maker is identified, the stage at which he may act is stated, and the scope of what he may order is defined.
The second is section 216, "Procedure for witnesses in case of threatening, etc.", which reads in full: "A witness or any other person may file a complaint in relation to an offence under section 232 of the Bharatiya Nyaya Sanhita, 2023." Section 232 of the Nyaya Sanhita punishes a person who threatens another with injury to person, reputation or property "with intent to cause that person to give false evidence", with imprisonment up to seven years. The intent is part of the offence. A threat made to keep a witness away from court altogether, rather than to make him say something false, is not within section 232. It falls, if anywhere, within criminal intimidation under section 351 of the Nyaya Sanhita, which requires an intent to cause alarm or to make a person do or omit something, and for which sub-section (2) prescribes imprisonment up to two years. So the Sanhita's answer to a threatened witness is that he may lodge a complaint, and the provision it directs him to is not the one that fits the commonest threat.
Beyond that there is nothing. The word "identity" appears in the Sanhita — of the parties to a compromise, of a person previously convicted or acquitted, of an unknown offender, and, in the First Schedule, of a victim — but never of a witness. The word "vulnerable" does not appear in the Sanhita at all.
The sections nearby
Section 398's neighbours in Chapter XXIX are the proper comparison, because they were drafted into the same chapter of the same Act at the same time.
| Section | What it does | What it contains |
|---|---|---|
| 394, order for notifying address of a previously convicted offender | Empowers the sentencing court to order that a twice-convicted person notify his residence, and any change of or absence from it, after release | Six sub-sections: the qualifying convictions and sentences (sub-s. 1); a cap of five years from expiry of sentence (sub-s. 1); extension to conspiracy, abetment and attempt (sub-s. 2); the order void if the conviction is set aside (sub-s. 3); the power in appeal and revision (sub-s. 4); an express power in the State Government to make rules by notification (sub-s. 5); power for those rules to create a punishment for breach, and the forum to try it (sub-s. 6) |
| 396, victim compensation scheme | Requires a scheme for funding compensation to victims | Seven sub-sections: the scheme to be prepared "in co-ordination with the Central Government" (sub-s. 1); the authority that decides quantum, being the District or State Legal Services Authority (sub-s. 2); when the trial court may recommend compensation, including on acquittal or discharge (sub-s. 3); an application where the offender is untraced and no trial takes place (sub-s. 4); an outer limit of two months for the enquiry (sub-s. 5); interim first aid, medical benefit and other relief (sub-s. 6); the relationship with fines payable under the Nyaya Sanhita (sub-s. 7) |
| 397, treatment of victims | Obliges hospitals to give free first aid or medical treatment | The hospitals covered, public and private alike; the offences covered, enumerated by section; and a duty to inform the police |
| 398, witness protection scheme | Requires a Witness Protection Scheme | One sentence |
Section 20 is worth adding, because it is the Sanhita's model for asking a State Government to build an institution. It permits the State Government to establish a Directorate of Prosecution, and then states the eligibility of a Director (fifteen years at the Bar, or service as a Sessions Judge) and of an Assistant Director (seven years at the Bar, or service as a Magistrate of the first class). Where the Sanhita wants a State Government to constitute something, it has shown that it knows how to say who may sit in it.
Section 398 names no authority to administer the Scheme, no measure the Scheme must contain, no category of witness it must cover, no procedure for applying, no standard for deciding, no record to be kept, no confidentiality obligation, no penalty for breach of the Scheme, no review or appeal against a refusal of protection, and no date by which the Scheme is to exist.
What kind of instrument the Scheme is
Two drafting choices decide this, and both are visible on the face of the Sanhita.
The first is the verb. Section 2(1)(p) provides that "notification" means a notification published in the Official Gazette. That is a definition of the noun. Section 398 uses the verb, "notify", and the Sanhita's twenty-six definitions in clauses (a) to (z) of section 2(1) do not define it. The natural reading is that the Scheme is to be published in the Official Gazette, although the compilation referred to below queries, against three of the Schemes it lists, whether that was in fact done. But the Sanhita uses the formula "by rules" or "by notification" dozens of times when it means to confer a power of delegated legislation — including in section 394(5), four sections earlier, where the State Government "may, by notification, make rules to carry out the provisions of this section". Section 398 confers no power to make rules. A Scheme notified under it is therefore not rules; it is an executive instrument given a statutory occasion.
The second is the absence of any laying requirement, any penalty provision, and any enabling clause for the Scheme to create obligations on anyone. Section 394(6) shows what a rule-making power looks like when the legislature wants the subordinate instrument to bite: it provides expressly that the rules may provide for punishment for breach, and names the Magistrate who may try it. A Witness Protection Scheme cannot do that, because nothing in section 398 lets it.
There is also the noun the section ends on. Section 398 speaks of "the witnesses" — the definite article, with no antecedent anywhere in the section. "Victim" is defined in section 2(1)(y) as a person who has suffered loss or injury by reason of the act or omission of the accused. "Witness" is not defined in the Sanhita at all. Which witnesses the Scheme must protect, and from what, is left to the Scheme, which is left to the State Government.
The scheme that already existed
None of this arose on a blank page. On 5 December 2018, in Mahender Chawla v. Union of India, Writ Petition (Crl.) No. 156 of 2016, reported at (2019) 14 SCC 615, the Supreme Court recorded that there was a paramount need for a witness protection regime "in a statutory form" and that no such legislation had been brought about. It then approved the Witness Protection Scheme, 2018 prepared by the Union, directed the Union, the States and the Union Territories to enforce it in letter and spirit, directed that vulnerable witness deposition complexes be set up in all district courts by the end of 2019, and directed that the Scheme "shall be the 'law' under Article 141/142 of the Constitution" — the words that matter here — "till the enactment of suitable Parliamentary and/or State Legislations on the subject". The 2018 Scheme contains what section 398 does not. The Bureau of Police Research and Development's note on it records the features: witnesses categorised into three groups by the threat perceived against them; threat analysis reports prepared by the police to gauge the protection required; a body of police officials and Sessions or District Court judges to implement and oversee the Scheme; and protective measures including change of identity, relocation, and installation of security equipment at a witness's residence.
Section 398 is Parliamentary legislation on the subject. Whether it is the "suitable" legislation the direction contemplated is a question the direction's own wording raises and does not answer. One reading is that the condition has been satisfied: Parliament has legislated, the Article 141/142 footing of the 2018 Scheme has accordingly fallen away, and what governs a State is whatever that State has notified — which, in a State that has notified nothing, is nothing. The other reading is that a provision which supplies no protection is not legislation "on the subject" of protecting witnesses in the sense the Court meant, so the 2018 Scheme continues to hold the field until each State replaces it. The question is not academic, and it is not answered by the text of section 398, which says nothing about the 2018 Scheme at all.
The schemes notified before 1 July 2024
Several States notified witness protection schemes between 2018 and 2024, in compliance with the direction in Mahender Chawla and not under any section of any statute, because there was then no section to notify them under. Odisha's is a convenient example because it is on the public record: the Witness Protection Scheme, 2019, published in the Odisha Gazette on 6 July 2019, defining "Competent Authority" as a Standing Committee in each district chaired by the District and Sessions Judge, with the head of the district police as member and the head of prosecution as member secretary.
That scheme opens by defining "Code" to mean the Code of Criminal Procedure, 1973, and defines the offences it covers partly by reference to sections of the Indian Penal Code. Both enactments were repealed with effect from 1 July 2024. The stale cross-references are the lesser problem: section 8(1) of the General Clauses Act, 1897 provides that where a Central Act repeals and re-enacts a provision, references to the repealed provision "in any other enactment or in any instrument" are to be construed, unless a different intention appears, as references to the provision re-enacted.
The harder question is the standing of the scheme itself. Section 531(2)(b) of the Sanhita saves notifications, orders and rules "made under the said Code" and deems them made under the corresponding provisions of the Sanhita. Section 24 of the General Clauses Act continues in force any "order, scheme, rule, form or bye-law" "made or issued under the repealed Act" — the word "scheme" is there expressly — so far as it is not inconsistent with the re-enacted provisions. Both savings turn on the instrument having been made under the repealed Code. A witness protection scheme notified in 2019 was not made under the Code of Criminal Procedure; it was notified in obedience to a judgment. Neither saving plainly reaches it, and section 398 contains no transitional provision deeming an existing scheme to be a Scheme under the section. A State that notified in 2019 and has done nothing since may be in a weaker position than it looks.
Where the position stands
Because section 398 fixes no time by which a Scheme must exist, the question of which States have one is a matter of fact rather than of law. The section also imposes no duty to report: a State Government that has notified a Scheme need tell no one, and a State Government that has not is answerable to no authority named in the Sanhita. There is consequently no register of the Schemes, and the factual question has to be answered by whoever happens to be counting.
A recent public count is a compilation filed on behalf of the amicus curiae in the Supreme Court's suo motu proceedings, In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials, SMW (Crl.) No. 1 of 2017, published among the Court's uploads in February 2026. It annexes two tables. The first lists twenty States and Union Territories with a Scheme, of which four are pre-Sanhita schemes or, in Maharashtra's case, a separate statute. The second lists sixteen States and Union Territories recorded as not having issued a Scheme under section 398 — among them Uttar Pradesh, Madhya Pradesh, Tamil Nadu, Kerala, Karnataka, Jharkhand and Chhattisgarh. The compilation records that no time limit has been prescribed for the framing and promulgation of a Scheme, and asks that the States which have not notified one be directed to file status reports and to state the time within which they will.
Those are the amicus's tables and the amicus's prayer, not findings of the Court, and they should be read as a snapshot rather than a roll. One entry can be checked against another public source and does not survive it: Annexure B records the Andaman and Nicobar Islands as having issued no Scheme, while the India Code repository carries, under the Bharatiya Nagarik Suraksha Sanhita, a notification of the Andaman and Nicobar Islands Administration titled the Andaman and Nicobar Islands Witness Protection Scheme 2024, issued on 9 July 2024. The discrepancy is not a criticism of the compilation. It is a consequence of the section: where the statute requires no report and establishes no register, even the count is an estimate. What the tables do establish is that more than two years after the Sanhita came into force the position is uneven enough to be worth tabulating, and uncertain enough to be tabulated wrongly.
Maharashtra is the exception that shows the alternative. The Maharashtra Witness Protection and Security Act, 2017 is an Act of a legislature, with sections on the constitution of State and district committees and their powers, the procedure for providing protection, the factors to be considered, non-disclosure of a witness's name during investigation, protection during investigation and during trial, measures that may be taken by the court, offences and their cognizance, and a power to make rules. Whatever its merits, it is the form the subject takes when a legislature treats it as its own business.
What the section leaves to be settled elsewhere
Section 398 is doing something plainly worth doing. A statutory peg for witness protection is better than a direction of the Supreme Court holding the field for want of legislation, and a scheme framed State by State can take account of conditions that differ between States. This note is not an argument that the power should not exist, and it is not an opinion on the section's validity, which the text alone cannot answer.
It is an argument about completeness. The section creates a duty and supplies none of the content that would make the duty determinate: no minimum content for the Scheme, no authority to administer it, no standard of decision, no remedy for a witness refused protection, no obligation of confidentiality, no consequence for breach, and no date by which any of it must exist. None of those omissions is an omission of principle. Each has a model within a few pages of the same Act. A power to make rules, and for the rules to punish their breach, is in section 394(5) and (6). A named deciding authority and an outer time limit are in section 396(2) and (5). Eligibility criteria for the officers a State Government is to appoint are in section 20(2). A protective power with an identified decision-maker and a defined scope is in the proviso to section 366(1). The content itself has existed since 2018 in a Scheme the Supreme Court approved.
If they are not supplied by amendment, they will be supplied by construction — one writ petition at a time, brought by witnesses in States that have notified nothing, against a section that tells them only that a Scheme was to have been prepared. That is the slower course, and for a witness who has already been threatened it is not a course at all.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.