Supreme Court Holds Witness-Protection Under UAPA Must Be Individually Justified; Sets Aside Blanket Secrecy Orders

A bench of Justices Abhay S. Oka and Ujjal Bhuyan heard an appeal arising out of an NIA prosecution in Chennai challenging a Special Court order that permitted hiding the identities and police statements of multiple witnesses under Section 44(2) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 17(2) of the National Investigation Agency Act, 2008 (NIA Act). The question was whether the Special Court and the High Court could grant omnibus protection and withhold copies of Section 161 Cr.P.C. statements from the accused even after examination-in-chief.

The Supreme Court allowed the appeal and set aside the impugned orders to the extent they granted blanket non-disclosure. The Court held that sub‑section (2) of Section 44 of the UAPA (and the corresponding provision in the NIA Act) constituted an exception to the normal right of the accused to inspect police statements, and therefore the satisfaction that “the life of such witness is in danger” had to be recorded qua each witness on the basis of material placed before the Court. The Court emphasised that after recording such satisfaction the court must “apply its mind” and record brief reasons as to what protective measures were necessary; an omnibus order in respect of many witnesses was impermissible. The Court, in its reasoning, observed: “The first condition precedent for the exercise of powers under sub-section 2 of Section 44 of UAPA is the recording of the satisfaction by the Special Court that the life of the concerned witness is in danger. Obviously, this satisfaction must be recorded based on the material available before the Special Court. The extent and the nature of the material required to record such satisfaction will depend upon the facts and circumstances of each case. Since sub-section 2 of Section 44 of the UAPA is an exception to the general rule, the condition precedent for the exercise of power of recording a clear satisfaction based on material as stated above must be complied with.” The Court also rejected the submission that accused had no right of hearing under these provisions, noting that the Scheme for Witness Protection did not displace the court’s duty to apply principles of natural justice.

Background: The appellant, accused No.1 in the NIA trial, faced charges originally under Sections 341, 294(b) and 307 IPC, with later additions including UAPA offences. The NIA applied under Section 44(2) UAPA and Section 17(2) NIA Act to conceal identities and withhold police statements of numerous witnesses, and the Special Court by its order dated 21 August 2019 permitted hiding the identity and address of specified witnesses, sequestered original statements in a sealed cover, and directed that originals be opened on the date of examination and “the statement of such witness shall be supplied to the accused immediately” after examination-in-chief. The NIA challenged aspects of that order in the Madras High Court. The High Court upheld clauses permitting hiding identities but set aside the clause that required supply of statements to the accused after examination-in-chief, observing: “Once the Court formed an opinion that the witnesses are to be protected, the said protection must be in complete form and it cannot be diluted at any circumstances...” The Supreme Court found that both the Special Court and the High Court had failed to record individualized satisfaction and had passed overbroad directions. It therefore set aside the orders and disposed of the NIA application (Annexure P‑3), while permitting fresh, proper applications to be filed within eight weeks. The Court directed that if such applications were filed within eight weeks, the identity of the witnesses would not be disclosed till disposal of those applications, and clarified that the Court could, in an appropriate case, decline to disclose threat-material to the accused while ensuring the accused’s right to a hearing in the process.

Case Details: Case No.: 2025 INSC 746 (Criminal Appeal arising out of SLP (Criminal) No.18155/2024) Case Title: Mohammed Asarudeen v. Union of India & Ors. Appearances: For the Petitioner(s): Mr. Shoeb Alam, Sr. Adv.; Mr. D. Kumanan, AOR; Mr. Sheikh F. Kalia, Adv.; Mr. A. Noufal, Adv. For the Respondent(s): Mr. Suryaprakash V. Raju, A.S.G.; Mr. Zoheb Hussain, Adv.; Mr. Annam Venkatesh, Adv.; Mr. Arkaj Kumar, Adv.; Mr. Aaditya Shankar Dixit, Adv.; Mr. Arvind Kumar Sharma, AOR; Mr. B. Mohan, Adv.; Mr. Gaurav Sarkar, Adv.