Witness Protection In UAPA Cases Can't Be Prosecution's Sword To Curtail Right Of Cross-Examination: Madras High Court Issues Directions

The bench of Justice Anita Sumanth and Justice Sunder Mohan added that whenever the prosecution files an application for witness protection, the court should not issue directions mechanically. The judge added that the court was to first examine the gravity of the threat, whether life of the witness was in danger and whether the threat would only continue till he deposes before the court, and then take a decision.

“We observe that this provision is meant to be a protection / shield to the witnesses from threats and not a sword in the hands of the prosecution to curtail or abridge the valuable right of cross-examination. Therefore, whenever an application is made by the prosecution, or by any witness seeking protection, he Court would have to first examine the gravity of the threat, whether the life of the witness was in danger or whether the threat to the witness would only continue till he deposes before the Court,” the court said.

The court thus issued the following directions:

• The Court is empowered and has the discretion under Section 44(1) to hold an in camera trial if the circumstances of the case so justify.
• After the completion of investigation, the investigation officer may append a note with the final report and the statements collected during the course of investigation seeking redaction of a portion of the statement. Section 173(6) Cr.P.C./ Section 193(7) BNSS does not authorize withholding of the entire statement recorded under Section 161(3), but only a part thereof and that too only on the ground that “essential in the interests of justice and is inexpedient in the public interest”. The police officer is also required to adduce brief reasons as to why redaction is sought .
• Though redaction is with respect to “identity” and “address” these expressions take within their fold any other relevant aspect like his native place, his profession or any other special feature which may tend to pinpoint the witness to the accused .
• Though the Public Prosecutor may suggest the material to be redacted the final decision must rest with the Court since it is the Court which must ultimately be satisfied under Section 16(2) on the suitability of the measures taken.
• An omnibus application for witness protection, cannot be made by the prosecution. There must be specific averments with respect to every witness and the Court must bestow its attention to assess the presence of danger / fear in relation to a particular witness .
• An accused has a right of hearing when the application under Section 44(2) comes up for consideration but is not entitled to know the identity of such witnesses in respect of whom the application(s) are made till such time an order is passed on the application, and subject to the same.
• The principle of 'open justice' is the rule. Witness anonymity orders are an exception to this rule and must be strictly construed. Identity will be withheld only in exceptional circumstances when the Special Court is satisfied that the life of the witness is in jeopardy

Further, the court added that even while ordering witness protection, the courts must examine the circumstances, the stage till which the protection is to be granted, and whether the protected information may be disclosed before trial commences or before cross-examination.

The court also added that while considering the evidence of the anonymous witness, the court should keep in mind that the version of the witness is not fully tested as the right of cross-examination is abridged. Thus, it was observed that the probative value of such witnesses would not be the same as other witnesses and the court should look for corroboration of such testimony.

The court was hearing a petition filed by a group of men, who were members of the now-banned Popular Front of India (PFI). The men were accused of conspiring to strike terror within a section of people in the country and killing the then spokesperson of Hindu Munnani (Front), Coimbatore.

The Special Investigation Division of the CB-CID had filed an application seeking to declare some witnesses as protected witnesses and to direct not to supply copies of statements recorded in respect of the protected witnesses. The court had accorded protection to some witnesses for life. Later, when the accused had sought to recall some of the witnesses, their application was rejected by the special court and this was challenged by the accused persons by way of the present case.

The accused argued that there was no justification in treating certain witnesses as protected and the judge should have permitted to recall some protected witnesses as the accused were denied the right to cross-examine them at the first instance. It was also argued that the selection of some witnesses as protected was arbitrary and without any application of mind. It was argued that such protection had prejudiced the accused as they were unable to put forth a proper case.

The court noted that with respect to some witnesses, the defence had either availed the opportunity of cross-examination or chosen not to. The court also noted that in instances where no opportunity of cross-examination had been granted in the first instance, the judge had granted the opportunity later.

The court also noted that the chief examination was conducted in the presence of the accused and even the redacted portion was elicited in the presence of the accused. The court thus observed that there was no reason to interfere in the case since the right of cross-examination had not been abridged or curtailed.

However, during the course of the hearing, the court observed that in many cases, the judge used to grant protection of witness on mere asking and there was little clarity on the manner in which the protection was to be extended, period of protection and the reason for such decision.

This prompted the court to observe that while considering witness protection applications, the court should endeavour to strike a balance between protecting the identity of the witnesses and upholding the right of the accused to cross-examine the witness.

Counsel for Petitioners: Mr. I. Abdul Basith

Counsel for Respondent: Mr. AR. L. Sundaresan, Additional Solicitor General Assisted By Mr. R. Karthikeyan, Special Public Prosecutor for NIA Cases, Mr. Sharath Chandran (Amicus Curiae)

Case Title: Abu @ Syed Abuthagir and Others v Union of India

Citation: 2026 LiveLaw (Mad) 444

Case No: CRL OP Nos 4906 & 4909 of 2026