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The Madras High Court has issued detailed procedural safeguards governing witness protection and anonymity under Section 44 of the Unlawful Activities (Prevention) Act, 1967, while emphasising the accused’s valuable right of cross-examination and fair trial.

A Division Bench comprising the Hon’ble Dr Justice Anita Sumanth and the Hon’ble Mr Justice Sunder Mohan held that witness protection must serve as a shield against genuine threats and should not become a sword in the hands of the prosecution to curtail or abridge cross-examination.

The ruling was delivered in Abu @ Syed Abuthagir and Others v. Union of India represented by the Inspector of Police, National Investigation Agency, in Crl.O.P. Nos.4906 and 4909 of 2026.

Although the High Court dismissed both criminal original petitions on their individual facts, it expressed displeasure over the mechanical manner in which witness-protection orders were being passed by Special Courts. The Bench consequently issued general directions governing applications under Section 44 of the UAPA and the corresponding provisions of the National Investigation Agency Act, 2008.

Case Details

Background of the Criminal Case

The prosecution case arose from an incident that allegedly occurred at about 11.15 p.m. on 22 September 2016. The then spokesperson of Hindu Munnani in Coimbatore was allegedly attacked by a group of persons and sustained grievous injuries, following which he died.

The case was initially registered as Crime No.735 of 2016 under Section 302 of the Indian Penal Code and investigated by the Special Investigation Division of CBCID, Coimbatore.

The prosecution alleged that the petitioners and other accused, who were stated to be members of the Popular Front of India, had conspired to strike terror among a section of people by various means, including the murder of the deceased.

The investigation was subsequently entrusted to the National Investigation Agency. The case was re-registered on 29 January 2018 for offences under Sections 120-B, 153-A and 302 IPC, read with Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967.

Charge sheets and supplementary charge sheets were filed against the accused for offences under the IPC and Sections 16, 18 and 20 of the UAPA. The trial was being conducted in Special S.C. No.17 of 2022 before the Special Court under the National Investigation Agency Act at Poonamallee, Chennai.

Two Orders Challenged Before the High Court

The two criminal original petitions challenged different orders passed by the NIA Special Court.

Crl.O.P. No.4906 of 2026: Recall of Prosecution Witnesses

The petitioners challenged the order dated 17 December 2025 passed in Crl.M.P. No.322 of 2025.

They sought recall of P.W.40, P.W.52 and P.Ws.62 to 65 for further cross-examination. It was contended that P.Ws.40 and 52 had not been cross-examined and that P.Ws.62 to 65 required further cross-examination in the light of the subsequent depositions of P.Ws.73 to 75.

The Special Court permitted the recall of P.W.40 because no earlier opportunity had been granted to cross-examine that witness. The request concerning the other witnesses was rejected.

The Special Court found that P.Ws.62 to 65 had already been extensively cross-examined. P.W.52 was present for cross-examination on 12 August 2024, but the defence counsel had consciously declined to cross-examine him after receiving and perusing the exhibits marked through the witness.

Crl.O.P. No.4909 of 2026: Protected Witnesses and Documents

The second petition challenged the order dated 24 December 2025 passed in Crl.M.P. No.318 of 2025.

Through that order, the Special Court declared L.Ws.10, 11, 12 and 15 as protected witnesses. Documents connected with them, including D25, D26, D28, D50, D74, D89, D102, D119, D120, D121, D130, D131, D194 and D215, were also treated as protected documents along with the threat-assessment reports and enquiry statements.

The protection was extended for the lifetime of the witnesses based on the Special Court’s assessment that the threat to their lives was extreme.

Arguments of the Accused

The petitioners contended that there was no adequate justification for treating the witnesses as protected witnesses. They argued that the selection of witnesses for protection was arbitrary and that such protection substantially prejudiced their ability to present an effective defence.

It was submitted that cross-examination is a fundamental component of a fair criminal trial. According to the petitioners, the Special Court should not have granted protection without strictly satisfying the statutory requirements under Section 44(2) of the UAPA.

The petitioners relied upon decisions including Kartar Singh v. State of Punjab, (1994) 3 SCC 569, concerning the balance between witness protection and the accused’s right to cross-examine prosecution witnesses.

NIA’s Response

The Additional Solicitor General, appearing for the National Investigation Agency, submitted that witness protection was necessary considering the gravity of the case, the threat perception and the material produced before the Special Court.

The NIA argued that the Special Court had not mechanically accepted the prosecution’s entire request. Although protection had been sought for several witnesses, only four witnesses were ultimately declared protected after consideration of the available material.

It was also submitted that the examination-in-chief of the protected witnesses had been conducted in the presence of the accused and that even the redacted portions had been elicited in their presence.

Decision on Recall of Witnesses

The High Court declined to interfere with the order concerning recall of P.W.52 and P.Ws.62 to 65.

The Bench found that sufficient opportunity to cross-examine the witnesses had already been provided. In the case of P.Ws.62 to 65, the defence had exercised that opportunity and conducted extensive cross-examination.

In the case of P.W.52, the defence had received the exhibits and consciously chosen not to cross-examine the witness when he was made available.

Where the Court found that no previous opportunity had been granted, namely in the case of P.W.40, the Special Court had corrected the position by permitting his recall.

Therefore, the High Court found no illegality in the order dated 17 December 2025.

Decision on Protected Witnesses

The High Court also declined to interfere with the order declaring L.Ws.10, 11, 12 and 15 as protected witnesses.

The Bench noted that protection had initially been sought for approximately 20 witnesses, but the Special Court had restricted protection to four witnesses after considering the contentions, case law, fair-trial requirements and threat-assessment material.

The identity of the witnesses had, in practice, not remained secret during the course of the trial. The petitioners also did not dispute that the documents already furnished to them revealed the witnesses’ identities.

Consequently, the High Court found that the accused’s right of cross-examination had not actually been abridged or curtailed by the impugned protection order. It described the challenge on the facts of the case as more cosmetic than substantive because no real prejudice was demonstrated.

High Court Expresses Displeasure Over Mechanical Protection Orders

Despite dismissing the two petitions, the Division Bench expressed serious concern about the manner in which witness-protection applications were being decided by Special Courts.

The Court observed that witness protection was sometimes granted for the mere asking, without sufficient clarity regarding:

• the nature and gravity of the threat;
• the reasons for declaring a particular witness protected;
• the specific protection measures required;
• the extent of redaction permitted;
• the duration of protection; and
• the effect of protection upon cross-examination and fair-trial rights.

The Court explained that Section 44 of the UAPA is intended to operate as a protection or shield for witnesses facing genuine threats. It cannot be converted into a prosecution weapon to curtail the valuable right of cross-examination.

Section 44 UAPA: Witness Anonymity Is an Exception

Section 44(1) of the UAPA permits proceedings to be conducted in-camera when the Court records reasons in writing.

Under Section 44(2), where an application is made by a witness or the Public Prosecutor based on apprehended danger to the witness’s life, the Court may adopt appropriate measures to keep the identity and address of the witness secret. The Court must, however, record its satisfaction and reasons.

Section 44(3) permits protective measures including holding proceedings at a protected place, removing the witness’s name and address from accessible records, issuing confidentiality directions and restricting publication of the proceedings.

The High Court held that open justice remains the general rule. Witness anonymity is an exception and must therefore be strictly construed.

Protection Must Be Based on Each Individual Witness

The prosecution cannot file an omnibus application seeking identical protection for all witnesses without explaining the threat faced by each person.

Specific averments must be made concerning every witness for whom protection is requested. The Special Court must independently assess the existence, nature and gravity of the threat faced by each witness.

The Court must also consider whether the threat is likely to continue only until the witness gives evidence or whether it is so serious that protection should continue for a longer period, including, in an exceptional case, for the witness’s lifetime.

Court, Not Police, Must Decide What Is Redacted

The High Court held that the final decision concerning redaction must rest with the Court.

Although the investigating officer or Public Prosecutor may identify the material proposed to be redacted, the Court cannot mechanically accept the prosecution’s redactions without conducting its own examination.

Section 173(6) CrPC and Section 193(7) BNSS do not ordinarily authorise withholding an entire witness statement. Only the necessary portion may be excluded, for recorded reasons, where disclosure is inexpedient in the public interest and exclusion is essential in the interests of justice.

Redaction may extend beyond the witness’s name and address. It can include the witness’s native place, profession or any distinctive feature capable of revealing the person’s identity.

Three Available Approaches to Witness Protection

The High Court identified three broad approaches available to a Special Court:

1. Provide the complete unredacted statement before commencement of the trial.
2. Provide the unredacted statement after examination-in-chief but before cross-examination.
3. Continue anonymity and withhold identifying particulars for the lifetime of the witness.

The first two approaches ordinarily preserve the accused’s right to cross-examination because the defence receives the complete statement before conducting cross-examination.

The third approach significantly abridges cross-examination because the defence may remain unaware of the identity and background of the witness. Lifetime anonymity must therefore be confined to extraordinary or exceptional cases supported by weighty reasons.

Importance of Cross-Examination

The Court recognised that an important purpose of cross-examination is to discover who the witness is, understand the witness’s position in life and test the witness’s credibility.

If the identity and background of the witness remain permanently concealed, the defence may be unable to investigate whether the person is a stock witness, has relevant antecedents or has previously deposed in similar cases.

The Court therefore held that the probative value of anonymous testimony cannot automatically be treated as equal to evidence tested through complete cross-examination.

Where cross-examination has been restricted because the witness remains anonymous, the trial court must evaluate the evidence with greater caution and ordinarily look for corroboration.

Guidelines Issued by the Madras High Court

The Division Bench issued the following directions for applications involving witness protection under Section 44 of the UAPA:

1. The Court may conduct an in-camera trial under Section 44(1) where the facts and circumstances justify such a course.
2. The investigating officer may append a note with the final report seeking redaction of a portion of a witness statement, but must provide brief reasons.
3. The power of redaction does not ordinarily permit withholding the entire witness statement.
4. Identity-related information includes the witness’s address, native place, profession and other distinguishing particulars capable of revealing identity.
5. The Public Prosecutor may suggest the material to be redacted, but the final decision must be independently taken by the Court.
6. An omnibus application cannot be made. Specific allegations and threat particulars must be provided separately for every witness.
7. The accused has a right to be heard when an application under Section 44(2) is considered, but is not entitled to know the protected witness’s identity before the application is decided.
8. Open justice is the general rule and witness anonymity is an exception that must be strictly construed construed.
9. The Court must decide the stage until which the witness’s identity, name and address require protection.
10. Protection may continue for the lifetime of a witness only in exceptional cases supported by weighty reasons and a grave threat perception.

Witness-Protection Orders Can Be Revisited

The High Court clarified that an order under Section 44 of the UAPA is interlocutory in character and is not permanently final.

The Special Court may reconsider the order suo motu or upon an application by the witness or Public Prosecutor where circumstances or the gravity of the threat change.

Therefore, witness-protection orders may be revisited and modified more than once during the trial, depending upon the evolving threat perception and other relevant circumstances.

Standard Operating Procedure Requested

Since there was no uniform procedure governing applications for witness protection, the Division Bench requested the learned Amicus Curiae, Mr Sharath Chandran, to circulate a Standard Operating Procedure.

The matter was directed to be listed on 21 September 2026 for receipt of the proposed SOP.

Final Outcome

The High Court found no justification for interfering with the Special Court’s orders dated 17 December 2025 and 24 December 2025.

Accordingly, Crl.O.P. Nos.4906 and 4909 of 2026 and the connected miscellaneous petitions were dismissed.

However, the judgment assumes wider procedural importance because it lays down safeguards to prevent mechanical witness-anonymity orders and to balance the safety of endangered witnesses with the accused’s right to an effective defence and cross-examination.

Key Legal Principle

Witness protection under Section 44 UAPA is a shield against genuine threats; it cannot become a prosecution tool for curtailing cross-examination.

Frequently Asked Questions

Can a UAPA witness automatically receive lifetime anonymity?

No. Lifetime anonymity can be granted only in extraordinary or exceptional circumstances where the threat is grave. The Special Court must record weighty and witness-specific reasons.

Can the prosecution seek protection for several witnesses through one general application?

No. Specific averments concerning the danger faced by each witness must be made. An omnibus application without witness-specific particulars cannot satisfy Section 44(2) of the UAPA.

Who decides which portions of a witness statement should be redacted?

The final decision must be taken by the Court. The investigating officer or Public Prosecutor may make suggestions, but the Court cannot mechanically accept the prosecution’s proposed redactions.

Does the accused have a right to be heard?

Yes. The accused has a right of hearing when the witness-protection application is considered. However, the accused is not entitled to know the witness’s identity before the application is decided.

Can a witness-protection order be modified later?

Yes. The High Court held that such an order is interlocutory and can be reviewed or modified depending upon changes in circumstances and threat perception.

What is the evidentiary value of anonymous witness testimony?

Where anonymity restricts effective cross-examination, the evidence must be evaluated cautiously. The Court should consider the extent of the restriction and ordinarily look for corroborating material.

Authoritative legal resources: Readers may access the Madras High Court Judgments Portal, the India Code Portal and the Supreme Court of India for official legal materials.

Disclaimer: This article is a legal-news analysis intended for general information. It does not constitute legal advice. Readers should refer to the complete judgment and obtain professional advice for individual cases.