UAPA Sections 44, 45 and 46: Witness Protection, Sanction and Evidence

Sections 44 to 46 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) govern safeguards for endangered witnesses, the requirement of government sanction before a court takes cognizance of specified offences, and the use of lawfully intercepted communications as evidence.

Section 44: Protection of witnesses

In-camera proceedings are proceedings conducted without ordinary public access. Under section 44(1), the court may order them for recorded reasons. If the court is satisfied that a witness's life is in danger, section 44(2) permits measures to keep the witness's identity and address secret, on the witness's or prosecutor's application or on the court's own motion.

Section 44(3) identifies examples: choosing a secure hearing venue, omitting identifying details from publicly accessible records, preventing disclosure of identity or address, and restricting publication of proceedings where the public interest warrants it. Under section 44(4), contravening a direction or decision made under subsection (3) is punishable by imprisonment extending to three years and a fine.

Section 45: Previous sanction and independent review

Cognizance means the court's judicial taking notice of an alleged offence for proceeding according to law. Section 45(1)(i) requires previous sanction from the Central Government or its authorised officer for offences under Chapter III. Under section 45(1)(ii), offences under Chapters IV and VI require the previous sanction of the Central or, as applicable, State Government; offences against a foreign country's government additionally require Central Government sanction.

Section 45(2), inserted by the 2008 amendment, requires an appointed authority to independently review the evidence collected during investigation and recommend whether sanction should be given. The decision and recommendation must follow the prescribed timelines. The India Code record lists the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 among the rules governing this process.

Section 46: Intercepted communications as evidence

Intercepted communications include wire, electronic and oral communications intercepted under lawful authority, including under the Indian Telegraph Act, 1885, Information Technology Act, 2000 or another applicable law. Section 46 provides for their admissibility notwithstanding conflicting evidence-law provisions, subject to its express safeguards and other applicable requirements.

As a rule, each accused must receive a copy of the competent authority's interception order at least ten days before the trial, hearing or proceeding in which the material is to be used. The trial judge may waive that period only on finding that timely delivery was not possible and that the accused will not be prejudiced by the delay. The statutory reference to the Indian Evidence Act, 1872 is reproduced below as enacted; the Bharatiya Sakshya Adhiniyam, 2023 replaced that general evidence statute from 1 July 2024, subject to applicable savings and transitional provisions.

Operative provisions: Sections 44, 45 and 46

The following preserves the uploaded statutory provisions and amendment references. The operative language should be read together with later legislation, applicable procedural rules, judicial interpretation and transitional provisions.

Section 44 Protection of witnesses

(1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the court so desires.

(2) A court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.

(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a court may take under that sub-section may include-

(a) the holding of the proceedings at a place to be decided by the court;

(b) the avoiding of the mention of the name and address of the witness in its orders or judgments or in any records of the case accessible to public;

(c) the issuing of any directions for securing that the identity and address of the witness are not disclosed;

(d) a decision that it is in the public interest to order that all or any of the proceedings pending before such a court shall not be published in any manner.

(4) Any person who contravenes any decision or direction issued under sub-section (3), shall be punishable with imprisonment for a term which may extend to three years, and shall also be liable to fine.

Section 45 Cognizance of offences

(1) No court shall take cognizance of any offence- (i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf; (ii) under Chapter IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and 2[if] such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. 3[(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as the case may be, the State Government.] -------- 1. Section 45 renumbered as sub-section (1) thereof by Act 35 of 2008, s. 13 (w.e.f. 31-12-2008). 2. Subs. by Act 28 of 2019, s. 9 for "where" (w.e.f. 14-8-2019). 3. Ins. by Act 35 of 2008, s. 13 (w.e.f. 31-12-2008).

Section 46 Admissibility of evidence collected through the interception of communications

Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under the provisions of the Indian Telegraph Act, 1885 (13 of 1885) or the Information Technology Act, 2000 (21 of 2000) or any other law for the time being in force, shall be admissible as evidence against the accused in the court during the trial of a case: Provided that the contents of any wire, electronic or oral communication intercepted or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court unless each accused has been furnished with a copy of the order of the competent authority under the aforesaid law, under which the interception was directed, not less than ten days before trial, hearing or proceeding: Provided further that the period of ten days may be waived by the judge trying the matter, if he comes to the conclusion that it was not possible to furnish the accused with such order ten days before the trial, hearing or proceeding and that the accused shall not be prejudiced by the delay in receiving such order.

Related UAPA provisions and official references

For related procedure, see sections 43A to 43F on arrest, investigation, bail, presumptions and information requirements, and sections 47 to 50 on jurisdiction and general provisions.

Official sources: India Code - UAPA and rules; India Code - UAPA consolidated PDF; Ministry of Home Affairs - Acts.