NIA Courts Must Independently Assess Threat To Each Witness Before Declaring Them 'Protected' Under UAPA: Delhi High Court

The Delhi High Court has held that Special NIA Courts must independently assess the threat perception concerning each witness before declaring them “protected” under the Unlawful Activities (Prevention) Act (UAPA).

Justice Neena Bansal Krishna observed that blanket or omnibus orders granting witness protection in such cases, without recording proper individual reasons, are impermissible.

The Court said that protection under Section 44 of the UAPA must be based on an independent assessment of each witness, supported by recorded reasons, while ensuring that the accused's right to a fair trial is not compromised.

“Therefore, in every case, where satisfaction under Section 44(2) is recorded, the Court cannot pass a blanket Order. The learned Special Court must be conscious that Section 44(2) of the UAPA, is an exception to the normal rule. Therefore, the satisfaction as required under Section 44(2), has to be recorded qua an individual witness,” the judge said.

The Court was dealing with two petitions filed by accused Bilal Mir, arising from an NIA cases related to the alleged Jammu & Kashmir terror conspiracy case.

After filing the chargesheet in April 2022, the NIA moved applications seeking protected status for several prosecution witnesses. The Special Court allowed the applications declaring 23 witnesses as protected and directing that their statements be supplied to the accused only after redacting their identities.

Mir challenged the two orders, contending that the same were passed without supplying the applications to the defence, without hearing him and without recording reasons or identifying any specific threat perception for each witness.

Mir also challenged a subsequent order refusing to provide unredacted copies of the statements of two protected witnesses (X-5 and X-11) before their cross-examination. He argued that non-disclosure of their identities impaired his right to effectively defend himself.

Referring to the Supreme Court's decision in Mohammed Asarudeen v. Union of India, the Court observed that blanket or omnibus orders declaring multiple witnesses under UAPA as protected without examining the circumstances of each witness are legally unsustainable.

The Court said that the Special NIA Judge is required to independently apply his mind to each witness and record some finding of the reasons for which each witness is declared as a Protected Witness.

“The threshold for granting the status of Protected Witness is that there must be existence of danger to the life or the property of such witnesses. While it may not be possible to always give a finding of there being an imminent danger present, but it has to be assessed on the probability of the danger that a witness may face, if the anonymity is not granted,” the Court said.

It added that at the stage of examination of witnesses after Charges are framed, the Special Judge has to pass an order in writing giving the reasons for not granting the unre-dacted statements of the protected witnesses to the accused.

“While declaring witnesses as protected may be a part of ensuring a fair trial, to encourage such witnesses to come forth and depose and to bring the actual evidence on record, but the corresponding question that arises, is of the right of accused to a fair cross-examination of the witnesses, includes disclosure of the identity of the witness,” the Court said.

Justice Krishna observed that while accused has a right to a fair trial and must be granted an effective and meaningful opportunity for cross-examination of the Protected Witnesses, it is for the Special Judge to consider at the stage of recording evidence, the case of each Protected Witness.

The Court said that the special judge may refer to the statement of the witness, its significance and the relevance in the entire prosecution case, in the context of the entire prosecution case, and the aspects sought to be proved and the potential threat to his life, to ascertain whether the address, name and the identity of the witness, can be reasonably disclosed, for which the appropriate measures may be defined in the reasoned order.

“If found otherwise, the identity of the accused may be withheld, but again give the reason why the name and identity, cannot be disclosed,” the Court said.

It added: “The extraordinary situation of threat to the witness would only require an extra caution by the Special Court, while assessing the evidence of such Protected Witness and due caution and trepidation must be exercised, while reading such evidence. However, if the circumstances so demand, the identity of witness be withheld, to ensure that he comes forward to depose.”

Accordingly, the Court refused to set aside the orders granting protected status to some prosecution witnesses, observing that the challenge was raised by Mir at a highly belated stage after he had not questioned the witnesses' protected status during the course of the trial.

However, it set aside the Special Court's order dismissing his application seeking to furnish the complete unredacted and de-anonymized copy of the statements of protected witnesses X-5 and X-11.

The Court remanded the matter back to the Special Judge, to specifically consider before the recording of their respective testimony, as to whether the disclosure of their name, address and identity would be life threatening to them, so that they may then refuse to depose if they want or whether such details can be disclosed by ensuring appropriate measures to ensure their safety and security.

“The details as sought by the Petitioner, may accordingly, be protected or disclosed by recording due reasons,” the judge said.

Counsel for Petitioner: Mr. Adit S. Pujari, Adv., Mr. Kartik Venu, Adv., Mr. R Jude Rohit, Mr. Arjan Ajai Singh Chonker, Mr. Bhavesh Seth, Mr. Harshwardhan Pushkin Sharma, Advocates

Counsel for Respondent: Mr. Gautam Narayan (SPP), Ms. Asmita Singh, Mr. Shashank Jain, Mr. Geet Dehariya, Advocates

Title: Bilal Mir v. NIA & other connected matter

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