Institute of Legal and Management Studies

The Supreme Court held that a blanket restriction on the disclosure of witness statements in cases under the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) is impermissible. It emphasized that any order limiting the defence's access to such statements must be based on an individualised assessment, specifically whether a real threat exists to the life or safety of each witness.

The Court clarified that any such restriction must be supported by a well-reasoned judicial order, demonstrating careful application of mind and consideration of the protective measures adopted for each witness; and without these elements being fulfilled, withholding disclosure of statements cannot be justified, the court said.

The normal rule is that the accused is entitled to the copies of the statements of witnesses recorded by the police during the investigation, the Court said.

A bench of Justices Abhay S Oka and Ujjal Bhuyan heard the case where the Appellant was facing trial under the UAPA for alleged involvement in terrorist activities. During the investigation conducted by the National Investigation Agency (NIA), statements of 15 prosecution witnesses were recorded under Section 161 of the Code of Criminal Procedure (Cr.P.C.). The Special Court, invoking Section 44 of the UAPA and Section 17 of the NIA Act, 2008, passed a blanket order to withhold the identities and statements of these witnesses, citing threats to their lives.

The High Court later upheld the Special Court's decision, continuing the bar on disclosure even after the witnesses had been examined-in-chief, prompting the appeal to the Supreme Court.

Before the Supreme Court, the Appellant argued that although Section 44 of UAPA equivalent to Section 17 of NIA Act, empower courts to protect witnesses by concealing identities, holding in-camera proceedings, and limiting disclosure, it can be done only if the court records satisfaction, based on credible material, that there is a genuine threat to the life or safety of a witness. Since, there was no individualized assessment of the threat perception to each witness, including the measures being taken for their identity protection, thus the blanket order passed by the Special Court, later approved by the High Court, was unjustified.

Finding force in the Appellant's argument, the judgment authored by Justice Oka observed that the protection under Section 44(2) of the UAPA must be tailored to each individual witness, rather than imposed through a blanket order. The Court underscored that although safeguarding witnesses is crucial, it cannot come at the cost of completely undermining the accused's right to a fair trial, including the right to cross-examination.

Even if there is satisfaction recorded regarding danger to the witness, the disclosure of the statements cannot be mechanically barred.

“It is not that in every case that after such satisfaction is recorded, the Court can pass an order prohibiting the prosecution from providing a copy of the entire statement of the prosecution witnesses till the conclusion of the trial. The Court has to apply its mind considering the material on record, what kind of measures should be adopted for keeping the identity and address of such a witness, secret. While deciding what kind of measures should be adopted, the Court must record brief reasons.”, the court said.

The Court further ruled that Courts should not carry out a mechanical exercise while adjudicating an application made by the prosecution for grant of protection on disclosure of the witness statements.

"..the Court has to apply its mind in relation to danger to a particular witness. An omnibus application cannot be made by the Special Public Prosecutor for the grant of protection under sub-section 2 of Section 44 for all witnesses or a number of witnesses. Even if an application is made in respect of more than one witness, specific averments in relation to every witness must be made in the application. In our view, sub-section 2 of Section 44 of the UAPA (sub-section 2 of Section 17 of NIA) must be strictly complied with, as the exercise of the power may affect the right of the accused to defend.”, the court observed.

In terms of the aforesaid, the Court allowed the appeal, set aside both orders, and directed the NIA to file a fresh application within 8 weeks, ensuring proper judicial scrutiny of the witness's threat perceptions.

Case Title: MOHAMMED ASARUDEEN VERSUS UNION OF INDIA & ORS.

Citation : 2025 LiveLaw (SC) 636

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Appearance:

For Petitioner(s) :Mr. Shoeb Alam, Sr. Adv. Mr. D.Kumanan, AOR Mr. Sheikh F. Kalia, Adv. Mr. A. Noufal, Adv.

For Respondent(s) :Mr. Suryaprakash V. Raju, A.S.G. Mr. Zoheb Hussain, Adv. Mr. Annam Venkatesh, Adv. Mr. Arkaj Kumar, Adv. Mr. Aaditya Shankar Dixit, Adv. Mr. Arvind Kumar Sharma, AOR Mr. B. Mohan, Adv. Mr. Gaurav Sarkar, Adv.