Special Court Has To Consider Case Of Each Witness Separately While Dealing With Application For Protection Of Witnesses U/S.44 Of UAPA: Kerala High Court

The High Court was considering a Criminal Miscellaneous Case filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging the orders of the Special Court for Trial of NIA Cases, Kerala, Ernakulam.

The Division Bench of Justice Sushrut Arvind Dharmadhikari and Justice P. V. Balakrishnan held, “It is also to be seen that the impugned orders does not reflect consideration of the materials on record, before deciding the measures to be taken for keeping the identity of the witnesses secret. No reasons, at least in brief, is also not stated for allowing the application and the order merely says that “the reasons stated in the petition are convincing”. That apart, the Special Court has also not considered the case of each witnesses separately, regarding the possible dangers to their lives based on the materials on record and has merely allowed the application by finding that no prejudice is caused to the accused.”

Advocate Thushar Nirmal Sarathy represented the Petitioner, while Deputy Solicitor General of India O.M. Shalina represented the Respondent.

Factual Background

The petitioners are two accused persons booked in a case registered under Sections 120B,121A,122 of IPC and Sections 18,18B,20,38 and 39 of the Unlawful Activities (Prevention) Act,1967 (UAP Act). The petitioners were arrested on November 27, 2024, and after completing the investigation, a charge sheet was filed against them on May 21, 2025. During the pendency of the case, the respondent filed an application 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 which tend to disclose the identity of these witnesses. The Special Court allowed the same.

Consequently, the application filed by the respondent under Section 193(7) of BNSS was also allowed, and the Court directed the issuance of only the 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. The Petitioners thus approached the High Court challenging these orders.

Reasoning

The Bench noted that the Order in the Petition was passed based on an application made by the prosecution under Section 44 of the UAP Act, read with Section 17 of the NIA Act. The Bench explained that an application for protection of witnesses under Section 44 (2) of the UAP Act can be filed either by a witness or by the Public Prosecutor. The Trial court can also, on its own motion, if the conditions mentioned in Section 44 (2) are made out, take appropriate measures as it deems fit for keeping the identity and address of the witness secret.

“Section 44(2) shows that the first condition precedent for the exercise of the power is the recording of the satisfaction by the Special Court that the life of a witness is in danger. It is after recording the said satisfaction, the 2nd stage comes into operation, leading the court to pass such orders for keeping the identity and the address of the witness secret. It is to be taken note that Section 44 (2) also mandates that while deciding what kind of measures should be adopted, the court must record its reasons”, it noted.

On a perusal of the facts of the case, the Bench found that the prosecution had made an application with respect to a number of witnesses and that there were specific averments in relation to every witness, but the Special Court had not recorded a clear satisfaction that the lives of the witnesses were in danger, based on the materials.

“At this juncture, we will also take note of the fact that even though the petitioners have specifically contended that the identity of two of the witnesses have already been revealed by the prosecution and that the very purpose of Section 44 (2) of UAP Act is defeated, the same has also not been considered by the Special Court”, it added.

Thus, setting aside the impugned orders, the Bench directed the Special Court to reconsider the petitions afresh.

Cause Title: R. Ragavendran v. Union Of India (Neutral Citation: 2026:KER:9772)

Appearance

Petitioner: Advocates Thushar Nirmal Sarathy, P.A.Shyna

Respondent: Deputy Solicitor General of India O.M. Shalina

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