Delhi HC Sets Aside Protected Witness Order, Directs NIA Special Judge to Give Reasons on Identity Disclosure for Each Witness

Justice Neena Bansal Krishna remanded the matter after holding that the Special Judge must consider individually whether revealing the identity of Protected Witnesses X-5 and X-11 would endanger their lives, rather than withholding their details by default.

The Delhi High Court on 29 July 2026 set aside an order of the NIA Special Judge that had refused to supply Bilal Mir, an accused in a terror-related case, with the unredacted statements of two protected prosecution witnesses. Justice Neena Bansal Krishna, sitting singly, held that the Special Judge was obligated to consider the case of each protected witness individually before declining disclosure, and to record reasons in writing. The petitioner, in custody since 12 October 2021, had sought the unredacted Section 164 CrPC statements of Protected Witnesses X-5 and X-11 before their cross-examination. The judgment draws the line between the legitimate protection of witnesses whose lives may be at risk and the constitutional right of an accused to effective cross-examination.

The Case Against Bilal Mir and the Protected Witness Orders

On 10 October 2021, the NIA registered RC-29/2021/NIA/DLI under Sections 120B, 121A, 122 and 123 of the IPC and Sections 18, 18A, 18B, 20, 38 and 39 of the UAPA. The case alleged that cadres of proscribed organisations including Lashkar-e-Taiba, Hizb-ul-Mujahideen, Al Badr and their affiliates—The Resistance Front, People Against Fascist Forces and Mujahideen Gazwatul Hind—were operating in Jammu & Kashmir under direction from Pakistan, recruiting local youth and procuring arms for terrorist purposes.

Bilal Mir, a timber businessman and property dealer from Gulbagh Colony, Parimpora, Srinagar, was arrested on 12 October 2021. On 8 April 2022, when the chargesheet was filed naming him as Accused No. 3, the NIA simultaneously moved an application under Section 44(2) and 44(3) of the UAPA read with Section 17 of the NIA Act, 2008 seeking protection for 15 witnesses. The Special Judge allowed it the same day and declared 16 witnesses as protected. The order noted only that the application was heard and allowed, and directed that the statements be supplied with identities concealed. No individual threat perception was recorded for any witness.

A second application on 20 March 2023 accompanied the first supplementary chargesheet. It secured protected status for 8 additional witnesses by another brief order. Protected Witnesses X-5 and X-11, whose statements Bilal Mir later sought, were covered by the first order of 8 April 2022.

Charges under Section 120B and 121A IPC and Sections 18 and 18B of the UAPA were directed to be framed on 30 July 2024, and were formally framed on 20 August 2024. The prosecution then began examining witnesses. Between 13 January 2025 and 30 April 2025, testimony of several protected witnesses was recorded.

The Petitioner's Applications and the Special Court's Refusals

On 7 July 2025, after learning that Protected Witnesses X-5 and X-11 were scheduled to appear before the Special Judge on 12 July 2025, Bilal Mir moved an application seeking their complete unredacted and de-anonymised Section 164 CrPC statements—recorded on 23 March 2022 and 5 April 2022 respectively—to prepare for cross-examination.

The Special Judge declined to list the application before 12 July 2025, prompting Bilal Mir to approach this Court in Crl.M.C. 4467/2025. The Delhi High Court on 10 July 2025 disposed of that petition with a direction that the Special Judge consider the application on 12 July 2025. The Special Judge eventually dismissed the application on 24 July 2025, observing that granting the unredacted statements would amount to a review of the orders dated 8 April 2022 and 20 March 2023, and that no power of review existed under Section 362 of the CrPC. This order formed the subject of CRL.M.C. 5130/2025.

Bilal Mir also challenged the original protected witness orders of 8 April 2022 and 20 March 2023 in CRL.M.C. 5129/2025, arguing they were non-speaking, omnibus orders passed without considering individual threat perceptions and without giving him an opportunity to be heard, given that he lacked legal representation at that stage and appeared only through video conferencing.

Two Legal Questions Framed by the Court

Justice Neena Bansal Krishna identified two distinct questions across the two petitions: first, whether the declaration of witnesses as protected had followed the procedure envisaged by law; and second, whether at the stage of examining those witnesses, the accused was entitled to their unredacted statements for effective cross-examination.

On the first question, the Court accepted that the orders of 8 April 2022 and 20 March 2023 were omnibus and non-speaking, contrary to what Section 44(2) of the UAPA requires. The provision mandates that satisfaction about a threat to the life of a witness must be recorded in writing and must be assessed for each witness individually. Blanket orders covering multiple witnesses without individual consideration are not a valid exercise of the power.

The Court referred extensively to the Supreme Court's judgment in Mohammed Asarudeen v. Union of India, 2025 INSC 746, which had deprecated the practice of omnibus witness protection orders. In that case, the Supreme Court had set aside an NIA Special Court order on two grounds: the order did not disclose the court's satisfaction that witnesses faced a threat, and it failed to apply its mind to the specific protective measures warranted for each witness.

Despite acknowledging these deficiencies, however, the Court declined to set aside the 2022 and 2023 orders in CRL.M.C. 5129/2025. The reasoning was that Bilal Mir had never questioned the protected status of X-5 and X-11 at any prior stage—not before the Special Court, not before this Court, and not before the Supreme Court, which had itself been monitoring the trial. The challenge had been filed on 28 July 2025, at the highly belated stage of recording of prosecution evidence. The Court found that his real grievance was not the protected status itself but the refusal to supply unredacted statements, and that the challenge to the 2022 and 2023 orders appeared prompted only by the Special Judge's observations in the 24 July 2025 order. CRL.M.C. 5129/2025 was accordingly dismissed.

The Right to Cross-Examine Protected Witnesses

The more substantive analysis addressed the second petition. The Court held that Section 44 of the UAPA and Section 17 of the NIA Act do not abolish the right of cross-examination—they permit the identity and address of a witness to be withheld, but the right to cross-examine remains intact. The question is the extent to which anonymity can be maintained without rendering cross-examination meaningless.

The Court drew on Kartar Singh v. State of Punjab, (1994) 3 SCC 569, which upheld the constitutional validity of identical provisions under the TADA but acknowledged that non-disclosure of identity puts an accused at a disadvantage in exposing the previous conduct and character of witnesses. The right to impeach the credibility of a witness under Section 155 of the Indian Evidence Act, 1872 necessarily requires knowledge of who the witness is. Without that, in cases involving communications, meetings, and group conduct, an accused cannot effectively rebut the factual allegations made against him.

The Court also referred to People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, which upheld Section 30 of POTA but held that anonymity is not a general rule—identity is withheld only in exceptional circumstances when the Special Court is satisfied that the life of the witness is in jeopardy. The judgment also referred to the Punjab and Haryana High Court's observations in Bimal Kumar Khalsa v. Union of India, 1988 P&H 95, that an accused who does not know the address and identity of a prosecution witness cannot instruct counsel to effectively cross-examine that witness.

Justice Neena Bansal Krishna observed that there are two distinct stages in a criminal trial at which the question of witness identity arises. The first is the stage of supplying documents under Section 207 CrPC after the chargesheet, when redacted statements are provided in compliance with protected witness orders. The second, separate stage is when witnesses are actually examined. At this second stage, the Special Judge must make a fresh, written assessment for each protected witness: whether disclosure of the name, address and identity of that witness would be life-threatening, or whether appropriate protective measures can be put in place to allow disclosure. If the identity is to be withheld even at this stage, reasons must be recorded for that decision too.

The Court rejected the Special Judge's view that any application for unredacted statements necessarily amounts to a review of the original protected witness orders. The two are conceptually distinct exercises. The protected witness order determines the initial status; the question at the examination stage is whether the degree of anonymity must be maintained in full or can be calibrated, with reasons.

The NIA's Defence of the Orders

The NIA submitted that there is no constitutional or statutory requirement to disclose the complete identity of a protected witness before cross-examination. It relied on Gurbachan Singh v. State of Bombay, (1952) 1 SCC 683, where the Supreme Court upheld externment proceedings under the Bombay Police Act on the basis of evidence not supplied to the accused, on the ground that the purpose of the scheme was to secure the safety of persons who could not otherwise depose against anti-social elements. The NIA also argued that the protected witness orders in this case were based on objective threat perception and that the Supreme Court in Md. Asarudeen had set aside orders on two specific grounds that were distinguishable on the facts here.

The NIA further pointed to the Supreme Court's order dated 15 May 2024 in SLP (Crl.) No. 83/2024 titled Suhail Ahmad Thokar v. NIA, which had directed the Special Court to examine protected witnesses first. The NIA contended this was relevant to the question of delay. Bilal Mir responded that he was not a party to that SLP, that the conduct of a co-accused cannot estop him, and that the Supreme Court in its later order of 16 July 2025 had itself enquired whether non-protected witnesses related to the petitioner in that SLP could be examined—a departure from the earlier direction. He also pointed out that the trial has not been declared time-bound by any court and that the Special Judge had not followed any fixed sequence in summoning protected witnesses, leaving him without a fixed point at which to raise the challenge earlier.

Outcome

CRL.M.C. 5130/2025 was allowed and the order dated 24 July 2025 passed by the NIA Special Judge was set aside. The matter was remanded. The Special Judge is directed to consider, before recording the testimony of Protected Witnesses X-5 and X-11, whether disclosure of their name, address and identity would be life-threatening to those witnesses. If the circumstances allow disclosure with appropriate protective measures, those details are to be provided to the accused. If the identity must still be withheld, the Special Judge must record reasons for that conclusion as well. The parties are directed to appear before the Special Judge on 10 August 2026.

CRL.M.C. 5129/2025, challenging the original protected witness orders of 8 April 2022 and 20 March 2023, was dismissed as belated, with the Court finding no genuine grievance about the protected status of X-5 and X-11 having been raised at any prior stage of the trial.