Mohammed Asarudeen vs Union Of India

2025 INSC 746 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.___________/2025 [ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.18155/2024]

MOHAMMED ASARUDEEN APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. RESPONDENT(S)

JUDGMENT

ABHAY.S.OKA,J.

1. Leave granted.

2. Heard learned senior counsel appearing for the

appellant and learned Additional Solicitor General

appearing for the first respondent. The appellant is

accused No. 1. The appellant is being tried by the Special

Court for the National Investigation Agency (hereinafter

referred to as ‘the NIA') cases in Chennai. Initially, an

offence was registered under Sections 341, 294(b) and 307

of the Indian Penal Code, 1860 (for short, ‘the IPC’). Signature Not Verified Digitally signed by KAVITA PAHUJA Date: 2025.05.21 10:19:24 IST Subsequently, Sections 120B, 143, 147, 148, 302 read with Reason: 1 149 of the IPC and Section 15 read with Sections 16, 18,

18B, 19 and 20 of the Unlawful Activities (Prevention) Act,

1967 (for short, ‘the UAPA’) were added. Upon completion

of investigation/filing of charge-sheet, an application was

made by the Special Public Prosecutor of the NIA, invoking

powers of the Special Court under Section 44 of the UAPA,

read with Section 17 of the National Investigation Agency

Act, 2008 (for short, ‘NIA Act’) read with Section 173(6)

of Cr.P.C., for the protection of witnesses. The

provisions of Section 44 of the UAPA, as well as Section 17

of the NIA Act, are pari materia. In this case, we are

concerned with sub-section 2 of Section 44 of the UAPA.

Section 44 of the UAPA reads thus:

“4. 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—

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(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.”

3. Sub-section 2 of Section 17 of the NIA Act is

identical. The prayer made by the Special Public Prosecutor

in the application reads thus:

“(1) to issue necessary order or orders for not supplying of copies of the statement recorded under Section 161 of Cr.P.C. in respect of Protected Witnesses to the accused persons or their advocate/legal counsel under the provisions of section 17 of the NIA Act, 2008 and section 44 of the UA(P) Act, 1967 r/w 173(6) Cr.P.C., in view of safety and security of the witnesses, until such time this Hon’ble Court deems fit; and to provide copy of statements of those witnesses, who are not treated protected witnesses to the accused person or their advocate/legal aid;”

4. By the order dated 21st August, 2019, the application

was allowed by the Special Court by passing the following

3 order:

“6. In the result, this petition is allowed and ordered as under:

(1) The petitioner/prosecuting agency is permitted to hide the identity and address of the witnesses, namely L.W. 10, L.W. 11, L.W.12, L.W.19, L.W.20, L.W.21, L.W.22, L.W.34, L.W.35, L.W.36, L.W.37, L.W.38, L.W.39, L.W.40 and L.W.70 mentioned in Annexure-A to the charge sheet and in the statements of the said witnesses recorded u/s 161 of Cr.P.C. in the copies to be furnished to the accused persons.

(2) The petitioner is directed to submit one separate set of true copy of such hided copy of statements of those witnesses and the Annexure-A to the charge-sheet, to the Court, along with the copies to be supplied to the accused persons, to keep with the case- records. Upon such submission, the office of this Court is directed to keep the original of Annexure-A to the charge-sheet, and the statements u/s 161 of Cr.P.C. of the said witnesses in a sealed cover separately under safe custody of this Court.

(3) The original statements u/s 161 of Cr.P.C. in respect of those witnesses will be opened from the sealed cover on the date of examination of the concerned witness and after examination-in-chief is over, the statement of such witness shall be supplied to the accused immediately.”

5. The order of the Special Court was challenged by the

first respondent through the NIA before the High Court. By

the impugned judgment, the High Court held that clauses (1)

4 and (2) of paragraph 6 of the order of the Special Court

needs no interference. However, the High Court interfered

with clause (3) of paragraph 6 by setting it aside. The

result of the impugned order is that, in relation to the

witnesses mentioned in clause 1 of paragraph 6 of the order

of the Special Court, the accused will not be entitled to

the copies of the statements of such witnesses recorded

under Section 161 of the Code of Criminal Procedure, 1973

(for short, ‘the Cr.P.C.) even after examination-in-chief

of the said witnesses is recorded.

6. The submission of the learned senior counsel appearing

for the appellant is that the satisfaction which is

required to be recorded in terms of sub-section 2 of

Section 44 of UAPA and sub-section 2 of Section 17 of the

NIA Act, has not been recorded by the Special Court. He

submitted that, notwithstanding the failure of the Special

Court to record the satisfaction, as clause (3) of

paragraph 6 of the order of the Special Court protected the

appellant, he did not challenge the order.

7. Learned ASG submitted that the satisfaction required

to be recorded in terms of sub-section 2 of Section 44 of

the UAPA and sub-section 2 of Section 17 of the NIA Act has

been clearly recorded in paragraph 5 of the order of the

Special Court. It is submitted that in any case, the

5 appellant accepted the order of the Special Court as he did

not challenge the same. He submitted that the Special

Court could have always directed that the copies of the

statements of the protected witnesses should not be given

to the accused even after the examination-in-chief of the

said witnesses is over.

8. We have considered the submissions. The normal rule is

that the accused is entitled to the copies of the

statements of witnesses recorded by the police during the

investigation unless the concerned Court exercises the

power under sub-section 6 of Section 173 of the Cr.P.C.

read with first proviso of Section 207 of the Cr.P.C. We

have already quoted Section 44 of the UAPA. Sub-section 1

of Section 44 of the UAPA starts with a non-obstante clause

which permits the Court to conduct the trial in camera for

reasons to be recorded. The same is the provision of sub-

section 1 of Section 17 of the NIA Act. It is pertinent to

note that out of four sub-sections of Section 44 (Section

17 of the NIA), only sub-section 1 starts with a non-

obstante clause.

9. Sub-section 2 of Section 44 of the UAPA 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. The first condition precedent for the exercise of

6 powers under sub-section 2 of Section 44 of UAPA 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 sub-section 2 of Section 44 of the 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.

10. 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.

11. On plain reading of sub-section 2 of Section 44 of the

UAPA, the Court has to apply its mind in relation to danger

7 to a particular witness. An omnibus application cannot be

made by the Special Public Prosecutor for the grant of

protection under sub-section 2 of 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.

12. In the facts of this case, we find that the Special

Court was dealing with an application where the prayer

under sub-section 2 of Section 44 of UAPA was made in

respect of a large number of witnesses. The Special Court

has not considered the case of each witness separately

regarding the possible dangers to their lives. The Court

has also not recorded satisfaction based on material that

the life of a particular witness is in danger. A very

general observation has been made in paragraph 5 that, in

the interests of justice, the Court feels that the identity

of the witnesses can be hidden till the examination in

chief of the witnesses is recorded. According to us, the

order of the Special Court cannot be sustained as even the

first satisfaction, which is required to be recorded in

8 terms of sub-section 2 of Section 44 of UAPA, has not been

recorded.

13. Now we come to the impugned judgment of the High

Court. The relevant part of paragraph 21 of the said order

reads thus:

“21. Once the Court formed an opinion that the witnesses are to be protected, the said protection must be in complete form and it cannot be diluted at any circumstances. Once the statement under Section 161 Cr.P.C. in respect of those protected witnesses are kept in a sealed cover, it cannot be opened after examination of the concerned witnesses and after examination in chief is over. It cannot be opened for the purpose of handing over to the accused persons. It is to be opened only for the purpose of- dealing with the case by the court and for disposal of the case.”

14. This observation of the High Court completely ignores

the second part of sub-section 2 of Section 44 of the UAPA.

Even assuming that a satisfaction was recorded that there

was a danger to the life of a witness, the Court was

required to apply its mind to decide what measures should

be taken to protect the witness as regards his identity,

address and name, etc. The Court must apply its mind to

decide what measures should be taken and record brief

reasons for taking such measures. Therefore, in every case

where the first part of satisfaction under sub-section 2 of

9 Section 44 is recorded, the Court cannot pass a blanket

order as suggested by the High Court in paragraph 21. The

Special Court must be conscious of the fact that sub-

section 2 of Section 44 of UAPA is an exception to the

normal rule. Therefore, we disapprove the findings

recorded by the Special Court and the High Court to that

extent.

15. In any case, both the Courts have lost sight of the

fact that the satisfaction as required by sub-section 2 of

Section 44 of UAPA has to be recorded qua an individual

witness. We, therefore, set aside both the orders and

dispose of the application made by NIA on 2nd August, 2019

(Annexure - ‘P-3’).

16. This order will not preclude either the prosecution

witnesses or the Special Public Prosecutor from invoking

the powers of the Special Court under sub-section 2 of

Section 44 of the UAPA and sub-section 2 of Section 17 of

the NIA Act. If such applications are made, the Court will

decide the same in accordance with law in the light of what

we have held in this judgment.

17. As far as the material produced regarding the threat

perception is concerned, it is for the Court to decide

whether such material should be disclosed to the accused.

In a given case, the Court may decline to disclose the

10 material to the accused.

18. We grant time of eight weeks to the Special Public

Prosecutor to file a proper application to invoke

provisions of Section 44(2) and Section 17(2).

19. If such applications are made in relation to

particular witnesses within eight weeks from today, till

the disposal of the applications, subject to the orders

which may be passed by the Special Court on the

applications, the identity of the witnesses shall not be

disclosed in any manner.

20. It is obvious that we have made no adjudication on the

factual controversy, as the Special Court itself has not

made any adjudication about the existence of threat

perception in relation to the witnesses mentioned in the

application.

21. At this stage, learned ASG submitted that when

application under sub-section 2 of Section 44 of the UAPA

or sub-section 2 of Section 17 of NIA is heard by the

Special Court, the accused have no right of hearing. He

placed reliance on the Witness Protection Scheme, 2018,

(for short, ‘the Scheme’) which has been approved by this

Court in the case of Mahender Chawla & Ors. vs. Union of

India & Ors.1. He also drew our attention to the fact that

1.(2019) 14 SCC 615

11 this Court has given its imprimatur to the scheme, as

stated in paragraph 36 of the said judgment. We have

perused the entire scheme. The Scheme does not deal with

the powers of the Court at all. The scheme creates a

machinery in the form of a competent authority as defined

in clause 2(c), which is the Standing Committee in each

district, chaired by the District and Sessions Judge, with

the head of the police in the district as a member and the

head of the prosecution in the district as its Member

Secretary. Clause 9 contemplates the competent authority

examining the request for seeking identity protection of a

witness. Clause 9 itself contemplates a hearing of the

application. However, this hearing is conducted by the

competent authority and not by the Court. On the face of

it, we do not find that sub-section 2 of Section 44 of UAPA

and sub-section 2 of Section 17 of the NIA Act exclude the

principles of natural justice. As observed earlier, it is

for the Court to decide whether the nature of the material

regarding the threat perception relied upon, should be

disclosed to the accused. The Court has a power to direct

that the material should not be disclosed to the accused.

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

12 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 sub-

section 2 of Section 44 of the UAPA will be lost. Subject

to what we have observed above, we reject the submission of

the learned ASG.

22. The appeal is accordingly allowed on the above terms.

23. Pending application(s), if any, shall stand disposed

of.

..........................J. (ABHAY S.OKA)

.........................J. (UJJAL BHUYAN)

NEW DELHI;

May 6, 2025.

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ITEM NO.6 COURT NO.4 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) NO.18155/2024

[Arising out of impugned final judgment and order dated 21-10-2024 in CRLOP No. 2872/2024 passed by the High Court of Judicature at Madras]

MOHAMMED ASARUDEEN Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s)

(IA No.297674/2024-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) Date : 06-05-2025 This matter was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE ABHAY S. OKA HON'BLE MR. JUSTICE UJJAL BHUYAN

For Petitioner(s) :Mr. Shoeb Alam, Sr. Adv.

Mr. D.Kumanan, AOR Mr. Sheikh F. Kalia, Adv.

Mr. A. Noufal, Adv.

For Respondent(s) :Mr. Suryaprakash V. Raju, A.S.G. Mr. Zoheb Hussain, Adv.

Mr. Annam Venkatesh, Adv.

Mr. Arkaj Kumar, Adv.

Mr. Aaditya Shankar Dixit, Adv.

Mr. Arvind Kumar Sharma, AOR Mr. B. Mohan, Adv.

Mr. Gaurav Sarkar, Adv.

UPON hearing the counsel the Court made the following O R D E R Leave granted.

The appeal is allowed in terms of the signed Reportable Judgment.

(KAVITA PAHUJA) (AVGV RAMU) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

[Signed Reportable Judgment is placed on the file]

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