Protected Witness Identity In UAPA Trial Can Be Withheld Only By Reasoned Order Balancing Fair Trial And Threat Perception: Delhi High Court
The Court set aside an order refusing de-anonymised copies of statements of two protected witnesses and remanded the matter to the Special Judge for a reasoned decision on whether their names, addresses and identities could be disclosed with safeguards or withheld due to a threat to life.
Justice Neena Bansal Krishna, Delhi High Court
The Delhi High Court has held that while an accused in a UAPA trial has a right to effective and meaningful cross-examination of protected witnesses, the Special Court must decide, by a reasoned witness-specific order, whether disclosure of the witness’s name, address and identity would endanger life or whether such details can be disclosed with appropriate safety measures.
The Court was hearing petitions by an accused in an NIA case challenging orders declaring several prosecution witnesses as protected witnesses and a later order refusing complete unredacted and de-anonymised copies of the statements of Protected Witnesses X-5 and X-11.
A Bench of Justice Neena Bansal Krishna observed: “…while the accused has a right to a fair trial and must be granted an effective and meaningful opportunity for cross-examination of the Protected Witnesses, and the anonymity of a witness, may have some impact on the extent of cross-examination, but …it is for the learned Special Judge to consider at this stage of recording evidence, the case of each Protected Witness and 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, by the learned Special Judge. 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 further held: “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.”
Advocate Adit S. Pujari appeared for the petitioner, while Special Public Prosecutor Gautam Narayan appeared for the respondents.
Background
The NIA case related to allegations concerning cadres of proscribed terrorist organisations and their affiliates operating in Jammu and Kashmir and allegedly being orchestrated from Pakistan. The petitioner was charged under provisions of the IPC and UAPA.
The NIA had moved applications under Section 44 of the UAPA, read with Section 17 of the NIA Act, seeking protection of witnesses. The Special Judge first declared 16 witnesses as protected witnesses and later granted protected status to 8 additional witnesses.
The petitioner challenged the earlier orders declaring witnesses as protected and also challenged the later order refusing unredacted and de-anonymised copies of statements of Protected Witnesses X-5 and X-11.
Court’s Observations
The Court examined Section 44 of the UAPA and Section 17 of the NIA Act, noting that they permit in-camera proceedings and measures to keep the identity and address of a witness secret where the Court is satisfied that the life of such witness is in danger.
The Court observed: “In such cases, the Court must make an independent assessment and consider the aforesaid parameters while granting anonymity to a witness or a victim. The procedure of fair trial necessitates not only a speaking Order giving reasons must be passed by the Special Court, but an opportunity may also be given separately to the Accused to address his concerns, while the anonymity is granted to any witness.”
The Court further stated: “Such grant of protection of anonymity must not be prompted merely on an Application filed by the Prosecution, but it requires application of mind by the Special Court, who must give the reasons in writing.”
Referring to Mohd. Asarudeen v. Union of India (2025), the Court said omnibus orders protecting multiple witnesses without witness-specific satisfaction are impermissible.
The Court held: “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.”
However, the Court refused to interfere with the earlier orders declaring witnesses as protected, noting that the petitioner had not challenged them at the relevant stage and that the challenge came when prosecution evidence was being recorded.
The Court observed: “The record reveals that the challenge to the Orders dated 08.04.2022 and 20.03.2023, has been made in the light of observations of the learned Special Judge in the subsequent Order dated 24.07.2025, whereby while dismissing the Application filed by the Petitioner to supply him with the un-redacted copies of the statement of these protected witnesses, observed that such a request would in fact, tantamount to review of the earlier Orders dated 08.04.2022 and 20.03.2023, which was beyond the jurisdiction of the Court.”
The Bench added: “While the learned Special Judge is required to consider each witness independently, whether such witness needs to be declared as a Protected Witness, but it cannot be overlooked that though the learned Special Judge may not have considered each case individually, but on consideration of the entire Charge Sheet and the statement of the witnesses, the Court found sufficient material disclosed for declaring these witnesses as Protected Witnesses.”
Accordingly, the petition challenging the earlier protected-witness orders was dismissed.
The Court drew a distinction between the stage of supplying prosecution material after filing of charge sheet and the later stage of examination of witnesses after charges are framed.
The Court stated: “However, there is a second stage in a criminal trial, which is of examination of witnesses, after the Charges are framed. Even at this stage, it has to be an Order in writing of the Court, giving the reasons for not granting the unre-dacted statements of the protected witnesses.”
The Court identified the central issue as whether redacted statements would affect effective cross-examination and the accused’s right to a fair trial.
The Court emphasised that fair trial remains central even in special enactments such as the UAPA. It referred to Bimal Kumar Khalsa v. Union of India (1988), Kartar Singh v. State of Punjab (1994), and People’s Union for Civil Liberties v. Union of India (2004) while examining the relationship between witness anonymity and cross-examination.
The Court noted: “The right of Fair trial is the cornerstone of our Constitution, ensured to every litigant who approaches the Court.”
On the importance of cross-examination, the Court referred to Kartar Singh (1994) and observed: “It was observed that, “it is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross-examining lawyer‟s client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; And the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.”
The Court added that Section 44 UAPA and Section 17 NIA Act do not take away the right of cross-examination, but permit withholding of identity and addresses in appropriate cases.
At the same time, the Court recognised that witness protection is necessary in grave cases, including terror offences, where witnesses may not come forward without anonymity.
Referring to Zahira Habibulla H Sheikh v. State of Gujarat (2004), the Court noted the importance of witness protection and observed: “Indeed, the witness anonymity and protection, is another facet of fair trial, to ensure that truth and justice is not scuttled only because the witness is not forthcoming due to fear for his life and harm to his family.”
The Court further observed: “A provision of this nature should not be looked at merely from the angel of protection of witness whose life may be in danger if his identity is disclosed, but also in the interest of the community to ensure that heinous offences like terrorism, are effectively prosecuted and punished. If witnesses are not given appropriate protection, they would never come forward to give evidence and there would be no effective prosecution of terror offences.”
Conclusion
The Court allowed the petition challenging the order refusing de-anonymised material for Protected Witnesses X-5 and X-11, set aside the order, and remanded the matter to the Special Judge.
The Court dismissed the petition challenging the earlier orders declaring witnesses as protected.
Cause Title: Bilal Mir v. National Investigation Agency (Neutral Citation: 2026:DHC:6223)
Appearances
Petitioner: Advocates Adit S. Pujari, Kartik Venu, R. Jude Rohit, Arjan Ajai Singh Chonker, Bhavesh Seth and Harshwardhan Pushkin Sharma
Respondent: Special Public Prosecutor Gautam Narayan with Advocates Asmita Singh, Shashank Jain and Geet Dehariya