IMPORTANT POINT
Protected witnesses – While deciding what kind of measures should be adopted, court must record its reasons.

ORDER

P.V. Balakrishnan, J.—This Criminal Miscellaneous Case is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’, for short) challenging the orders dated 03.09.2025 passed in Crl.M.P No.115/2025 and in Crl.M.P.No.95/2025 in RC No.01/2022/NIA/KOC by the Special Court for Trial of NIA Cases, Kerala, Ernakulam.

2. The petitioners are accused Nos. 6 and 7 in SC 2/2025/NIA pending before the Special Court for trial of NIA cases, Ernakulam. The offences alleged against the petitioners are under Sections 120B,121A,122 of IPC and Sections 18,18B,20,38 and 39 of Unlawful Activities (Prevention) Act,1967 (hereinafter referred to as ‘the UAP Act’ for short). The petitioners were arrested on 27.11.2024 and after completing investigation charge sheet was filed against them on 21.05.2025.

3. During the pendency of SC No.2/2025/NIA, the respondent filed Crl.M.P.No.115/2025, under Section 44 of the UAP Act before the Special Court praying for an order to treat CWs 49 to 53, CW61, CW62 and CW79 as protected witnesses and also not to supply the contents of the Section 161 Cr.P.C. statements and connected documents listed in Annexure E list attached to Annexure IV charge sheet, which tends to disclose the identity of these witnesses. The Special Court allowed the Crl.M.P.No.115/2025 as per Annexure V order. Consequently, Crl.M.A.No.95/2025 filed by the respondent under Section 193(7) of BNSS was also allowed as per Annexure VI order and the court directed to issue only redacted part of the documents listed in the documents list attached to the charge sheet as Document Nos.30 to 36, 74 to 79, 86 and 87 to the accused. It is challenging Annexures V and VI orders, this Crl.M.C has been filed by accused Nos. 6 and 7.

4. Heard Adv. Thushar Nirmal Sarathy, the learned counsel appearing for the petitioners and Adv. O.M. Shalina, the learned DSGI appearing for the respondent.

5. The learned counsel for the petitioners submitted that the orders passed by the Special Court directing not to supply the contents of Section 161 statements of CW49 to 53, CW61, CW62 and CW79 and to treat these witnesses as protected, is illegal and irregular and against the ends of justice. He, by relying on the decision of the Apex Court in Mohammed Asarudeen v. Union of India (2025 KHC Online 6526), submitted that the identity of two witnesses ordered to be protected is already revealed by the respondent and if so, the very purpose of Section 44 (2) of UAP Act is lost and, therefore, the impugned orders in respect of these witnesses cannot be sustained. He further submitted that, there is no threat to the lives of these witnesses from the hands of the petitioners and the trial court has, without even satisfying itself that such a threat exists, passed the impugned orders. He argued that the Special Court is bound to record satisfaction qua individual witnesses and merely on the basis of some general/vague reasons, ought not to have allowed the applications. Lastly, he submitted that the impugned orders passed by the Special Court are non speaking orders, without application of mind and on this ground alone, are liable to be set aside.

6. Per contra, the learned counsel for the respondent supported the impugned orders and contended that there are no grounds to interfere with the same. She argued that the petitioners are involved in serious offences relating to terrorist activities and if the identity of the material witnesses are disclosed, the lives of those witnesses will be in danger. She submitted that the prosecution has filed the application with specific averments in relation to every witnesses, pointing out the danger to their life and that the trial court, after considering the materials on record, has rightly passed the impugned orders.

7. On an anxious consideration of the rival submissions and the materials on record, we are of the view that there is considerable force in the submissions made by the learned counsel for the petitioners