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Issues Comprehensive Guidelines for Witness Protection in UAPA Trials
The has laid down a detailed framework for courts handling witness protection applications under the , emphatically ruling that the provision is a shield for witnesses and not a sword for the prosecution to abridge the accused's fundamental . A bench of Justice Anita Sumanth and Justice Sunder Mohan dismissed two petitions filed by four accused in a high-profile murder case linked to the , but used the opportunity to issue sweeping directions to ensure that witness protection orders do not undermine .
The Coimbatore Murder Case
The case stems from the brutal murder of a spokesperson in Coimbatore on . The petitioners—Abu @ Syed Abuthagir, Sadham @ Sadham Hussain, Subair, and Mohamed Rafiqul Hasan—are alleged members of the now-banned PFI, charged with conspiracy and murder under the and terror offences under the UAPA. During trial, the sought protection for certain witnesses, citing threats to their lives. The granted protection for four witnesses (LWs 10, 11, 12, and 15) and associated documents, while also rejecting the accused's plea to recall six prosecution witnesses for cross-examination.
Arguments: Protection vs. Fair Trial
The accused, through counsel , argued that the witness protection orders were passed mechanically without proper application of mind, and that the denial of unredacted statements effectively stripped them of the ability to effectively cross-examine protected witnesses. They contended that the selection of protected witnesses was arbitrary and severely prejudiced their defence.
Countering these submissions, Additional Solicitor General , assisted by Special Public Prosecutor , argued that the protection was warranted given the extreme threat perception, as evidenced by threat assessment reports. He stressed that the accused's was not curtailed since the chief examination was conducted in their presence and redacted portions were elicited openly.
Court's Legal Analysis
The court delved into the legislative history of witness protection, tracing it from the , through and , to its current avatar under and . Relying on landmark rulings—including Kartar Singh v. State of Punjab (1994), PUCL v. Union of India (2004), and Mohammed Asarudeen v. Union of India (2025)—the bench clarified the delicate balance that must be struck.
The court identified three permissible approaches for trial courts: (1) supplying unredacted statements before trial, (2) furnishing unredacted statements after chief examination but before cross-examination, or (3) maintaining for life only in "" with "" recorded in writing. The bench noted that the third option, which abridges cross-examination, cannot be exercised on mere asking.
Key Observations
"This provision is meant to be a from threats and not a to curtail or abridge the valuable right of cross-examination."
The court expressed displeasure at the mechanical manner in which Special Courts often grant witness protection. It observed that in many cases, courts accept redactions made by the investigating officer without independent examination, which is contrary to the object of Section 44. The bench emphasized that the decision on what material to redact must rest with the court, not the prosecution.
"It is only in cases where the Court is of the view that the protection to the witness is for lifetime and the unredacted statements of witnesses... are never furnished to the accused, that the right of cross-examination is abridged. This option cannot be exercised on mere asking and it should be exercised only in ."
On the of anonymous witnesses, the court held:
"The of such witness, would not be the same as that of the other witnesses, whose versions have been subjected to complete cross-examination, and the Court therefore, has to look for of such testimony."
Decision and Directions
The court dismissed both criminal original petitions, finding no merit in the challenge to the Special Court's orders. It noted that with respect to the recall of witnesses, sufficient opportunity had been given to the defence, and in the one instance where it had not, the court had already granted recall. As for the protection order, the bench observed that the accused's was not abridged since the chief examination was conducted in their presence.
However, the court issued comprehensive guidelines for all trial courts handling witness protection applications under . Key directions include:
- An for multiple witnesses is impermissible; specific averments are required for each witness.
- The court must first assess the gravity of the threat, whether it is temporary or extends beyond deposition.
- The accused has a right to be heard on such applications, but not to know witness identities before the order.
- The principle of is the rule; is an exception that must be strictly construed.
- Evidence of anonymous witnesses requires due to .
- Orders under Section 44 are and subject to revision based on changing circumstances.
The matter has been posted for , to receive a Standard Operating Procedure (SOP) from the amicus curiae, , to streamline the process. The court directed the registry to return the sealed cover files to the Special Court forthwith.
