Introduction:
The Delhi High Court, in Bilal Mir v. National Investigation Agency & Connected Matter, has held that Special NIA Courts cannot pass blanket orders declaring multiple prosecution witnesses as “protected witnesses” under Section 44 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). Justice Neena Bansal Krishna ruled that the Special Court must independently assess the threat perception concerning each witness and record specific reasons before extending such protection.
The petitions arose from proceedings in the alleged Jammu and Kashmir terror conspiracy case investigated by the National Investigation Agency (NIA). After filing the chargesheet in April 2022, the NIA sought protected status for several prosecution witnesses. The Special Court allowed the applications and declared 23 witnesses as protected, directing that copies of their statements supplied to the accused should contain redacted identities.
The accused challenged these orders, contending that they were passed without hearing the defence, without supplying copies of the applications, and without recording any individual reasons demonstrating why each witness required protection. The petitioner also challenged the refusal to provide unredacted copies of the statements of two protected witnesses before their cross-examination, arguing that such non-disclosure adversely affected his right to defend himself effectively.
Arguments of the Parties:
The petitioner argued that the Special Court had mechanically granted protected witness status to a large number of witnesses without independently evaluating the threat faced by each of them. It was submitted that Section 44 of the UAPA requires judicial satisfaction based on individual facts and circumstances, which could not be replaced by a common or omnibus order. The petitioner further contended that the applications seeking witness protection were never supplied to the defence and that the orders were passed without granting an opportunity of hearing.
The petitioner also challenged the denial of unredacted copies of the statements of protected witnesses X-5 and X-11 before their cross-examination. According to him, effective cross-examination forms an essential part of the right to a fair trial under Article 21 of the Constitution. Without knowing the identity of the witnesses, he argued, it would be impossible to properly test their credibility or prepare an effective defence.
The National Investigation Agency defended the orders passed by the Special Court. It submitted that witness protection is an important safeguard in terrorism-related prosecutions where witnesses may face serious threats to their life and safety. The respondent argued that anonymity is often necessary to ensure that witnesses come forward without fear and that such protection serves the larger interest of a fair criminal trial.
Court’s Judgment:
The Delhi High Court held that Section 44 of the UAPA is an exception to the ordinary rule of criminal procedure and therefore must be applied cautiously. Justice Neena Bansal Krishna observed that a Special Court cannot issue blanket orders granting protected witness status to multiple witnesses without independently examining the circumstances relating to each witness.
Referring to the Supreme Court’s judgment in Mohammed Asarudeen v. Union of India, the Court reiterated that every request for witness protection must be assessed individually. The Special Judge is required to apply judicial mind to the specific threat perception concerning each witness and record reasons showing why anonymity is necessary. The Court clarified that while proof of an imminent threat may not always be available, there must at least be a reasonable probability of danger to the witness’s life or property if his or her identity is disclosed.
The Court further observed that witness protection and the accused’s right to a fair trial are equally important constitutional considerations. While anonymity may encourage witnesses to testify fearlessly, it cannot unnecessarily curtail the accused’s right to meaningful and effective cross-examination. Therefore, before refusing to provide unredacted statements, the Special Court must pass a reasoned order explaining why disclosure of the witness’s identity would expose that witness to danger.
Justice Krishna explained that at the stage of recording evidence, the Special Judge must evaluate each protected witness individually by considering the nature of the witness’s testimony, its significance in the prosecution case, the issues sought to be proved and the likelihood of any threat arising from disclosure of identity. If adequate security measures can sufficiently protect the witness, the Court may permit disclosure of identity. If not, anonymity may continue, but only after recording detailed reasons.
Although the High Court declined to interfere with the orders granting protected witness status to several prosecution witnesses, noting that the petitioner had challenged those orders at a belated stage after the trial had substantially progressed, it found merit in the grievance relating to witnesses X-5 and X-11.
Accordingly, the Court set aside the Special Court’s order refusing to furnish unredacted copies of their statements and remanded the matter for fresh consideration. It directed the Special Judge to examine, before recording the testimony of these witnesses, whether disclosure of their names, addresses and identities would genuinely endanger their safety. Depending upon such assessment, the Court may either protect or disclose the requested details by passing a reasoned order.
The judgment reinforces that witness protection under the UAPA cannot become an automatic or routine exercise. It emphasizes that Special Courts must carefully balance the need to protect vulnerable witnesses with the accused’s constitutional right to a fair trial, ensuring that both interests are safeguarded through individualized judicial scrutiny and reasoned decision-making.