The Supreme Court of India has ruled that any protection of witness identity under the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the National Investigation Agency Act, 2008 (NIA Act) must strictly comply with the statutory requirement of recording satisfaction that the life of the witness is in danger. In a significant judgment delivered by a bench comprising Justices Abhay S. Oka and Ujjal Bhuyan, the Court set aside prior orders of the Special Court and the Madras High Court for failing to meet these criteria.
Background
The appellant, Mohammed Asarudeen, is the first accused in a case pending before the Special Court for NIA cases in Chennai. Initially charged under Sections 341, 294(b), and 307 of the Indian Penal Code (IPC), additional charges were later framed under Sections 120B, 143, 147, 148, 302 read with 149 IPC, and Sections 15, 16, 18, 18B, 19, and 20 of the UAPA.
Following the charge-sheet, the Special Public Prosecutor filed an application under Section 44(2) of the UAPA and Section 17(2) of the NIA Act, read with Section 173(6) of the Code of Criminal Procedure (Cr.P.C.), seeking to withhold the identity and statements of certain witnesses for reasons of safety and security.
Arguments
Senior counsel for the appellant contended that the Special Court had failed to record the required satisfaction that the lives of the witnesses were in danger, a condition precedent under Section 44(2) of the UAPA. Conversely, the Additional Solicitor General (ASG) argued that the requisite satisfaction was recorded and that the accused had accepted the order by not challenging it initially.
Special and High Court Orders
On August 21, 2019, the Special Court allowed the prosecution to withhold identity and addresses of 15 witnesses. However, it directed that their statements be supplied to the accused after examination-in-chief.
The High Court, in a judgment dated October 21, 2024, upheld the concealment of witness identity but set aside the clause requiring post-examination disclosure, holding that “once the court formed an opinion that the witnesses are to be protected, the said protection must be in complete form.”
Supreme Court’s Analysis
The Supreme Court held that the powers under Section 44(2) of the UAPA and Section 17(2) of the NIA Act are exceptional and must be invoked with strict adherence to statutory conditions. The Court emphasized that:
“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.”
It observed that the Special Court made only a general remark without evaluating each witness’s situation individually. Moreover, the High Court’s blanket endorsement of non-disclosure post-examination was found to be legally unsustainable:
“The Special Court must be conscious of the fact that sub-section 2 of Section 44 of UAPA is an exception to the normal rule.”
The Court further clarified that an omnibus application covering multiple witnesses is impermissible without specific averments and material for each witness.
Regarding the accused’s right to a hearing, the Court rejected the ASG’s submission that the accused are not entitled to one:
“On the face of it, we do not find that sub-section 2 of Section 44 of UAPA and sub-section 2 of Section 17 of the NIA Act exclude the principles of natural justice.”
Decision
The Supreme Court set aside the orders of both the Special Court and the High Court, and disposed of the NIA’s application dated August 2, 2019. It granted eight weeks for the Special Public Prosecutor to file a fresh, witness-specific applicati
