Witness Protection Scheme Under the BNSS (Section 398): a New Statutory Mandate (2026)

Explainer · Criminal Procedure · BNSS

Updated for 2026 · Claw Editorial

A criminal trial depends on witnesses who are willing to come to court and tell the truth. When a witness is threatened, bribed, or scared into silence, the whole case can collapse. For years, India had no statutory scheme to protect such witnesses, only a Supreme Court approved framework. That gap is what Section 398 closes. Since 1 July 2024, Section 398 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) requires every State Government to prepare and notify a Witness Protection Scheme. This explainer sets out what the provision does, why it is new, and how it builds on earlier law. Last verified October 2026.

01The problem of the frightened witness

A witness is often the weakest point in a criminal case. If the accused is powerful, the witness may be threatened, offered money, or made to fear for the safety of his family. A witness who turns hostile, or who simply stops attending, can undo a strong prosecution.

For a long time, protecting such witnesses was left to the discretion of the police and the administration. There was no law that made the state responsible for it. That left witnesses exposed and trials fragile.

Section 398 addresses this by turning witness protection into a statutory duty. It does not create an offence. It places an obligation on the State to have a scheme in place.

02What Section 398 says

Section 398 of the BNSS provides that every State Government shall prepare and notify a Witness Protection Scheme for the State, with a view to ensuring the protection of witnesses. The obligation is on the State Government, and it is mandatory in form.

The section itself is short. It does not lay down one uniform list of protective measures for the whole country. Instead, it makes each State prepare and notify its own scheme, and the detailed procedure, the categories of witnesses, and the measures available are set out in that State scheme.

Section 398 does not itself protect a witness. It commands every State to have a scheme that does. The duty is the reform.

03Why this is a new statutory mandate

Section 398 has no direct equivalent in the old Code of Criminal Procedure, 1973. This is one of the genuinely new provisions of the BNSS, not a renumbered version of an old section.

Before the BNSS, witness protection rested on executive schemes and on directions of the courts. By placing the duty in the Sanhita itself, the law converts witness protection from a matter of administrative discretion into an express statutory responsibility of the State Government. That change of status is the point of the provision.

04The background: Mahender Chawla and the 2018 scheme

Section 398 did not appear from nothing. It builds on a line of concern about witness safety that the Supreme Court had already acted on.

In Mahender Chawla v. Union of India (2018), the Supreme Court approved the Witness Protection Scheme, 2018, prepared by the Union, and directed that it be treated as binding until Parliament enacted a law on the subject. Section 398 of the BNSS is the statutory step that followed. It gives the idea a permanent home in the Sanhita and makes every State notify its own scheme.

Since the BNSS came into force, States and Union Territories have been notifying their schemes under Section 398. For example, Delhi notified the Delhi Witness Protection Scheme, 2025, and Goa has notified its own scheme.

05What a witness protection scheme usually covers

The measures differ from State to State, because each notifies its own scheme. In broad terms, the schemes approved so far tend to include the following, depending on the level of threat.

• Threat categorisation. Witnesses are sorted into categories by the seriousness of the threat, for example a threat to life as against a threat to reputation or property.
• Identity protection. Concealing or changing the identity of the witness, and preventing face-to-face contact with the accused.
• Physical protection. Security at home or in court, escorts, and monitoring of communications where needed.
• Relocation and support. Temporary or permanent relocation, and financial support in appropriate cases.

The exact measures, the authority that decides, and the procedure are set out in the State scheme, so the scheme notified in the relevant State should always be read.

06Practical points

• Read the State scheme. Section 398 is only the duty. The actual protection comes from the scheme notified in the State where the case is being tried. Start there.
• Apply early. Where a witness faces a real threat, an application for protection under the State scheme should be made without waiting for the threat to grow.
• Match the measure to the threat. The schemes work by threat category, so the facts showing the level of danger matter.
• Keep it separate from the offence of threatening a witness. Protection is preventive. Threatening a witness to give false evidence is itself an offence under the BNS. See threatening a person to give false evidence under BNS Section 230.

For the wider vocabulary of a criminal case, see the glossary of Indian litigation terms.

07Where Claw fits

Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.

Witness protection is applied for inside live matters, and the case law reading Section 398 and the various State schemes is still taking shape. Claw supports both sides of that work. Its judgment search covers more than 30 crore decisions, with the Supreme Court from 1950 and the High Courts from 1990, so you can trace how courts have treated witness safety, including the Mahender Chawla line, with a result in under 5 seconds. Its case tracking keeps the cases, orders and hearings in a matter in view across 9,102 courts, benches and forums. You can search cases by party name or by advocate name, across the full case search coverage of Indian courts.

Claw does not grant protection and is no substitute for legal advice, and it does not use customer documents to train its AI models. Set up a free Claw account to research and follow these matters by party name or advocate name.

08Sources and further reading

• India Code (official statute text): indiacode.nic.in
• Bare text of the BNSS: devgan.in
• Ministry of Home Affairs (new criminal laws): mha.gov.in
• Claw: clawlaw.in

This explainer is general information, not legal advice. Witness protection is governed by the scheme notified in each State, so read the applicable State scheme and take advice from counsel before you act.

09Frequently asked questions