Mohammed Asarudeen vs Union Of India 2025 INSC 746 - S.44(2) UAPA - Witness Protection

Unlawful Activities (Prevention) Act, 1967 - Section 44(2) - Witness Protection -An omnibus application cannot be made by the Special Public Prosecutor for the grant of protection under 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. (Para 11)

Section 44 (2) can be invoked by a prosecution witness or by the Public Prosecutor. In a given case, even the Special Court can exercise this power suo motu (Para 9)

The first condition precedent for the exercise of powers under Section 44(2) is the recording of the satisfaction by the Special Court that the life of the concerned witness is in danger. Obviously, this satisfaction must be recorded based on the material available before the Special Court. The extent and the nature of the material required to record such satisfaction will depend upon the facts and circumstances of each case. Since Section 44 (2) UAPA is an exception to the general rule, the condition precedent for the exercise of power of recording a clear satisfaction based on material as stated above must be complied with. After recording the satisfaction, the second stage comes into play. 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. (Para 9) The satisfaction as required by sub-section 2 of Section 44 of UAPA has to be recorded qua an individual witness.(Para 15)

The accused has a right of hearing on the application under sub-section 2 of Section 44 of the UAPA, but obviously, till orders are passed by the Court on the application and subject to such orders, the accused is not entitled to know the identity of the witnesses in respect of whom the application is made. If, during the pendency of the application, the identity of the witness is disclosed in any manner, the very purpose of the power conferred on Section 44(2) of the UAPA will be lost. (Para 21)