Summary
In an NIA-prosecuted UAPA trial, the Special Court on an omnibus application allowed the identity of fifteen witnesses and their Section 161 CrPC statements to be withheld until their examination-in-chief, and the High Court went further by barring supply of the statements even after examination-in-chief. The Supreme Court set aside both orders, holding that Section 44(2) UAPA (and the identical Section 17(2) NIA Act), being an exception to the accused's normal entitlement to witness statements, requires a recorded satisfaction based on material that the life of each individual witness is in danger, followed by a reasoned choice of protective measures; omnibus applications and blanket orders are impermissible, and the accused has a right of hearing on such applications.
Issues
- What conditions must be satisfied before a Special Court may take measures under Section 44(2) of the UAPA or Section 17(2) of the NIA Act to keep the identity and address of a witness secret.
- Whether an omnibus application for the protection of many witnesses without witness-specific averments can be allowed, and whether a blanket order withholding Section 161 statements for the whole trial can be passed.
- Whether the accused has a right of hearing on an application under Section 44(2) UAPA or Section 17(2) NIA Act, having regard to the Witness Protection Scheme, 2018.
Provisions considered
- Section 44, particularly Section 44(2), Unlawful Activities (Prevention) Act, 1967Section 44 was quoted in full. Only sub-section (1) (in camera proceedings) begins with a non-obstante clause. Sub-section (2) may be invoked by a witness, by the Public Prosecutor or suo motu, and its first condition precedent is a satisfaction, recorded on material before the Special Court, that the life of the particular witness is in danger; thereafter the court must apply its mind to what measures to adopt and record brief reasons. Being an exception to the general rule, it must be strictly complied with and the satisfaction must be recorded qua each individual witness. (¶¶ 2, 8, 9, 10, 11, 12, 14, 15, 21)
- Section 17(2), National Investigation Agency Act, 2008Held to be pari materia with and identical to Section 44(2) of the UAPA; the same requirements of witness-specific, material-based satisfaction, reasoned choice of measures and strict compliance apply. (¶¶ 2, 3, 8, 11, 15, 16, 18, 21)
- Section 173(6) read with the first proviso to Section 207, Code of Criminal Procedure, 1973The normal rule is that the accused is entitled to copies of the statements of witnesses recorded by the police during investigation, unless the court exercises the power under Section 173(6) read with the first proviso to Section 207 to exclude a part of a statement; Section 44(2) UAPA is an exception to this rule. (¶¶ 2, 8)
- Clauses 2(c) and 9, Witness Protection Scheme, 2018The Scheme, approved in Mahender Chawla v. Union of India, does not deal with the powers of the Court at all; it creates a competent authority (a district Standing Committee) which hears requests for identity protection. It therefore does not support the contention that the accused has no right of hearing before the Special Court on an application under Section 44(2) UAPA or Section 17(2) NIA Act. (¶ 21)
Held
- The normal rule is that the accused is entitled to copies of the statements of prosecution witnesses recorded during investigation unless the court exercises the power under Section 173(6) read with the first proviso to Section 207 CrPC. Of the four sub-sections of Section 44 UAPA (Section 17 NIA Act), only sub-section (1), which permits in camera trial for reasons recorded, begins with a non-obstante clause. (¶ 8)
- Section 44(2) UAPA can be invoked by a prosecution witness, by the Public Prosecutor or by the Special Court suo motu. The first condition precedent is that the Special Court records a satisfaction, based on the material before it, that the life of the concerned witness is in danger; the nature and extent of material needed depends on the facts, but since the provision is an exception to the general rule this condition must be complied with. (¶ 9)
- After satisfaction is recorded a second stage follows: the court must consider, on the material, what measures should be adopted to keep the identity and address of the witness secret and record brief reasons. It does not follow that in every case the court may prohibit the prosecution from supplying the entire statement until the conclusion of the trial; a blanket order of the kind suggested by the High Court cannot be passed. (¶¶ 10, 14)
- On a plain reading of Section 44(2) the court must apply its mind to the danger to a particular witness. An omnibus application by the Special Public Prosecutor for protection of all or a number of witnesses is impermissible; even where one application covers several witnesses, specific averments must be made in relation to each. Section 44(2) UAPA and Section 17(2) NIA Act must be strictly complied with because the exercise of the power may affect the right of the accused to defend. (¶¶ 11, 15)
- The Special Court neither considered the case of each witness separately nor recorded a material-based satisfaction that the life of any particular witness was in danger, making only a general observation in the interests of justice; its order cannot be sustained. The High Court's view that protection once granted must be complete and that sealed statements can never be supplied to the accused even after examination-in-chief ignores the second part of Section 44(2). Both orders were set aside and the NIA's application disposed of. (¶¶ 12, 13, 14, 15)
- The order does not preclude the witnesses or the Special Public Prosecutor from invoking Section 44(2) UAPA and Section 17(2) NIA Act afresh; eight weeks were granted to file proper applications, and if filed within that time the identity of the witnesses concerned is not to be disclosed pending their disposal, subject to the Special Court's orders. It is for the court to decide whether the threat-perception material should be disclosed to the accused, and it may decline to do so. No adjudication was made on the existence of any threat. (¶¶ 16, 17, 18, 19, 20)
- The Witness Protection Scheme, 2018 creates a machinery before a competent authority and does not deal with the powers of the Court; nothing in Section 44(2) UAPA or Section 17(2) NIA Act excludes the principles of natural justice. The accused has a right of hearing on such an application, but until orders are passed, and subject to them, is not entitled to know the identity of the witnesses concerned, since disclosure during pendency would defeat the purpose of the power. The ASG's submission that the accused has no right of hearing was rejected subject to these observations. (¶ 21)
Result
Appeal allowed; order of the Special Court dated 21.08.2019 and the impugned High Court judgment set aside; NIA's application dated 02.08.2019 disposed of; Special Public Prosecutor granted eight weeks to file proper applications under Section 44(2) UAPA and Section 17(2) NIA Act in relation to particular witnesses; identity of such witnesses not to be disclosed pending disposal of any such applications; pending applications disposed of.