Madras HC Lays Down Nine-Point Framework for UAPA Witness Protection, Dismisses PFI Accused Challenges in NIA Trial

Dismissing revision petitions filed by four accused in a 2016 Coimbatore murder case, a Madras HC Division Bench issued binding guidelines on how Special Courts must exercise discretion under Section 44 of the UAPA when granting witness protection orders.

A Division Bench of the Madras High Court, comprising Dr. Justice Anita Sumanth and Justice Sunder Mohan, pronounced a common order on 7 September 2026 dismissing two criminal original petitions filed by four accused persons facing trial before the Special Court under the National Investigation Agency Act, 2008, in connection with the murder of a Hindu Munnani spokesperson in Coimbatore in September 2016. While dismissing both petitions, the Bench went on to lay down a nine-point framework governing the manner in which Special Courts must consider and pass orders under Section 44 of the Unlawful Activities (Prevention) Act, 1967 and Section 17 of the NIA Act, 2008, and directed an amicus curiae to prepare a Standard Operating Procedure for witness protection proceedings.

The Two Challenges Before the High Court

The four petitioners — Abu @ Syed Abuthagir, Sadham @ Sadham Hussain, Subair, and Mohamed Rafiqul Hasan, arrayed as A1, A2, A3, and A5 in Crime No. 735 of 2016 — approached the High Court under Section 528 of the BNSS, challenging two orders of the Special Court at Poonamallee, Chennai.

The first petition, Crl.O.P. No. 4906 of 2026, attacked an order dated 17 December 2025 in Crl.M.P. No. 322 of 2025 in Spl.S.C. No. 17 of 2022. That petition before the Special Court had sought recall of prosecution witnesses P.W.40, P.W.52, and P.Ws.62 to 65 for cross-examination. The Special Court allowed recall only in the case of P.W.40 and rejected the prayer in respect of the remaining witnesses.

The second petition, Crl.O.P. No. 4909 of 2026, challenged an order dated 24 December 2025 in Crl.M.P. No. 318 of 2025. That order had treated L.Ws. 10, 11, 12, and 15 as protected witnesses, and directed that documents D25, D26, D28, D50, D74, D89, D102, D119 to D121, D130, D131, D194, and D215, along with threat assessment reports and enquiry statements connected to those witnesses, be treated as protected documents. The protection was made effective for the lifetime of the four witnesses.

Background: Coimbatore Murder, NIA Takeover, and a Long Trial

On 22 September 2016 at approximately 23:15 hours, the then spokesperson of Hindu Munnani was attacked in Coimbatore and succumbed to grievous injuries. An FIR was registered as Crime No. 735 of 2016 under Section 302 IPC and taken up by the Special Investigation Division of the CBCID, Coimbatore. It was alleged that the petitioners, along with other accused, were members of the Popular Front of India (PFI) and had conspired to strike terror by, among other means, brutally murdering the deceased.

The case was transferred to the NIA and re-registered on 29 January 2018 under Sections 120B, 153A, and 302 IPC read with Sections 16 and 18 of the UAPA. Charge sheets were filed against A2 and A3 on 7 April 2018, against A1 on 21 June 2018, and a second supplementary charge sheet against A5 on 6 August 2021. Trial has been under way since then, with the Supreme Court reportedly monitoring it to avoid further delays.

Witness protection had already been granted by the Special Court on two prior occasions: first on 26 April 2018 in Crl.M.P. No. 154 of 2018, and again on 19 August 2021 in Crl.M.P. No. 283 of 2021, each time directing that the identity of certain listed witnesses be kept from the accused under Section 44 of the UAPA.

Why the Special Court's December 2025 Orders Were Challenged

After the Supreme Court decided Mohammed Asarudeen v. Union of India & Ors. (SLP (Crl.) No. 18155 of 2024, dated 6 May 2024), the petitioners filed Crl.M.P. No. 233 of 2025 pointing out that Section 44(2) of the UAPA required the Court to record specific reasons before granting witness protection, and that omnibus orders would not suffice. That petition was allowed on 21 August 2025 on an endorsement by the Special Public Prosecutor.

The NIA then filed a fresh petition, Crl.M.P. No. 318 of 2025, seeking to re-declare certain witnesses as protected. The Special Court, after considering the contentions of both sides, restricted the protection to four witnesses — L.Ws. 10, 11, 12, and 15 — based on its assessment that the threat assessment report revealed an extreme threat to their lives, and extended that protection for their lifetime.

In the parallel petition on witness recall, the Special Court noted that P.Ws. 52 and 62 to 65 had already been cross-examined extensively, or that the defence had consciously declined to cross-examine them despite being present. P.W.52 had been examined-in-chief on 31 May 2024; all exhibits through him had been furnished on that date; and when he appeared for cross-examination on 12 August 2024, the defence declined to proceed. The recall prayer was thus rejected for all witnesses save P.W.40, who had not been cross-examined at the first instance.

Submissions of Counsel

Mr. I. Abdul Basith, appearing for the petitioners, argued that the selection of witnesses as protected was arbitrary and without adequate application of mind, and that the protection greatly prejudiced the accused by curtailing their right to cross-examine effectively. He relied on Kartar Singh v. State of Punjab (1994) 3 SCC 569, rendered in the context of TADA, and Chandrasekhar Patel v. Suresh & Ors. (2023 Supreme (SC) 1261). He submitted that courts grant witness protection “for the mere asking” without examining the statutory requirements.

Mr. AR.L. Sundaresan, Additional Solicitor General, appearing for the NIA along with Mr. R. Karthikeyan, Special Public Prosecutor for NIA cases, maintained that the Special Court had examined the threat perception and the gravity of the case before limiting protection to four witnesses. He relied on Gurbachan Singh v. State of Bombay (1952 AIR SC 221), Hira Nath Mishra v. Principal, Rajendra Medical College (1973 AIR (SC) 1260), and Mahender Chawla v. Union of India (2019) 14 SCC 615 for the proposition that cross-examination was not, in every case, mandatory.

Mr. Sharath Chandran was appointed amicus curiae on the broader question of how witness protection under Section 44 of the UAPA must be understood and applied. The Bench recorded its appreciation for his oral and written assistance.

How the Bench Reasoned on the Two Petitions

On the recall petition, the Division Bench found no ground to interfere. The defence had been given adequate opportunity to cross-examine each of the witnesses concerned. Where the defence had availed that opportunity, no case for recall was made out. Where the defence had voluntarily declined — as with P.W.52 — no prejudice could be attributed to the court or the prosecution. The Special Court had correctly identified the one instance (P.W.40) where the right had not been exercised and had granted that opportunity. The Bench agreed with that limited exercise of discretion.

On the witness protection petition, the Bench rejected the argument that the order was a blanket, unreasoned grant. It observed that the Special Court had not accepted the prosecution's case wholesale — the prayer originally sought protection for 20 witnesses but the Court restricted it to four, after sifting through contentions of both parties and considering applicable case law. The protection for those four witnesses extended to their lifetime because the learned judge found the threat perception to be extreme.

Critically, the Bench noted that the identity of the witnesses had not in practice been kept secret during the course of the trial. The defence itself, before the Special Court, had argued that the documents supplied to the accused revealed the witnesses' identities. That concession on the facts meant that the right of cross-examination had not been abridged by the order granting protection. The Bench therefore held that the challenge was “more cosmetic rather than substantive, as no prejudice has been caused.”

The Bench's Displeasure at Trial Court Conduct

Even as the petitions were dismissed, the Bench expressed displeasure at how the Special Court had been handling witness protection over the course of the trial. It found that copies of statements had not been furnished to the accused after examination-in-chief, as directed in the 2021 order, because the Special Court had relied on the earlier Division Bench order in Mohammed Asarudeen — an order that was subsequently reversed by the Supreme Court. The Bench also found that in many cases before the Special Court, protection had been granted mechanically and without clarity on the extent, duration, and manner of protection.

Statutory Architecture: From TADA to UAPA

Tracing the legislative history with the assistance of amicus curiae, the Bench noted that witness protection provisions had evolved through the Terrorist Affected Areas (Special Courts) Act, 1984, through successive editions of TADA in 1985 and 1987, through the Prevention of Terrorism Act, 2002 (POTA), and ultimately into Section 44 of the UAPA and Section 17 of the NIA Act. Section 30 of the POTA, which had required the Court to record its satisfaction and the reasons for concluding that a witness's life was in danger, was carried forward word for word into Section 44(1) to Section 44(4) of the UAPA when POTA was repealed in 2004.

The Bench recalled the balance articulated by the Punjab and Haryana High Court in Bimal Kaur Khalsa v. Union of India (AIR 1988 P&H 95): the court must ensure a witness can depose free from fear, while simultaneously ensuring the accused can cross-examine effectively. The Supreme Court in Kartar Singh had endorsed this balance, holding that for “weighty reasons” recorded in writing, a court may withhold the identity and address of a witness whose life may be in danger, while ordinarily disclosing such details before trial commences. The constitutional validity of similar provisions was upheld by the Supreme Court in PUCL v. Union of India (2004) 9 SCC 580, subject to the requirement that protection be exceptional, reasoned, and commensurate with the threat.

The Supreme Court's decision in Mohammed Asarudeen (2025 SCC OnLine SC 1219) had been the immediate trigger for this litigation. That decision had held that an omnibus application cannot be made for multiple witnesses; that specific averments must be made for each witness; that the court must apply its mind to what measures to adopt and record brief reasons; and that protection need not be ad infinitum in every case.

Three Available Approaches and the Probative Value of Anonymous Evidence

The Bench identified three approaches a Special Court may take once it decides protection is warranted. First, unredacted statements may be provided before trial commences. Second, unredacted statements may be furnished after examination-in-chief and before cross-examination. Third, protection may be maintained for the lifetime of the witness, with unredacted statements never furnished to the accused.

The first two options do not abridge the right of cross-examination and may be exercised where there is a reasonable apprehension of threat. The third option does abridge that right and can be exercised only in extraordinary or exceptional circumstances, with weighty reasons recorded.

The Bench also addressed the probative value of the testimony of an anonymous witness who could not be fully cross-examined. Where anonymity is maintained for the life of the witness and cross-examination is consequently abridged, the version of that witness is not fully tested. The court must therefore look for corroboration, and the value of uncorroborated testimony of such a witness will depend on the nature of the evidence and the facts of the case. The Bench endorsed the suggestion of the amicus that the investigating officer should file an affidavit disclosing the antecedents of such witnesses — including whether they have deposed in other cases — so that the trial judge may assess weight appropriately.

Nine-Point Framework Issued

Drawing on the statutory provisions, the case law, and the written and oral submissions of the amicus, the Bench issued the following directions applicable to Special Courts dealing with witness protection applications under Section 44 of the UAPA and Section 17 of the NIA Act:

1. The Court is empowered under Section 44(1) to hold an in-camera trial if the circumstances justify it.
2. An investigating officer may append a note to the final report seeking redaction of part of a statement, but Section 173(6) Cr.P.C. / Section 193(7) BNSS does not authorise withholding of the entire statement — only a part thereof, and only on grounds of public interest. Brief reasons must be adduced.
3. The expressions “identity” and “address” extend to any feature — native place, profession, or special characteristic — that may tend to identify the witness to the accused.
4. Though the Public Prosecutor may suggest material to be redacted, the final decision must rest with the Court, which must itself be satisfied under the provision.
5. An omnibus application cannot be made by the prosecution; specific averments in relation to each witness are mandatory.
6. An accused has a right of hearing when an application under Section 44(2) is considered, but is not entitled to know the identity of the concerned witness until an order is passed on the application.
7. Open justice is the rule; witness anonymity orders are a strict exception applicable only when the Court is satisfied that the life of the witness is in jeopardy.
8. Within that exception, the Court must examine the stage till which identity, names, and addresses are to be protected, and whether protected information may be disclosed before trial or before cross-examination.
9. The residual category — where for weighty reasons the identity of a potential witness whose life may be in danger is withheld indefinitely — is subject to a strict standard and must be supported by reasons that are both recorded and weighty.

The Bench further observed that an order under Section 44 is interlocutory in character and may be revisited at any time, either suo motu or on the application of the witness or the Public Prosecutor, as circumstances change.

It also noted that a Witness Protection Scheme prepared in 2018 had apparently never been notified and appeared to have been abandoned. The Bench found the Scheme, in any event, to be solely witness-centric and not structured to balance the rights of the defence, since review was available only to the witness or the police authority.

Outcome

Both Crl.O.P. No. 4906 of 2026 and Crl.O.P. No. 4909 of 2026, together with the connected miscellaneous petitions Crl.M.P. Nos. 3548 and 3545 of 2026, were dismissed on 7 September 2026. The trial before the Special Court at Poonamallee is to continue. Mr. Sharath Chandran, amicus curiae, was requested to circulate a Standard Operating Procedure for witness protection proceedings before Special Courts. The matter was listed on 21 September 2026 for receipt of that SOP. The Registry was directed to return files received from the Special Court in a sealed cover forthwith.