1. Trial under IPC and UAPA — Application for witness protection under Section 44 UAPA and Section 17 NIA Act — Withholding of Section 161 CrPC statements. (Para 1 , 2 , 3 , 4 , 5 )
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2025 Supreme(SC) 886
SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYA, JJ.
Mohammed Asarudeen – Appellant
Versus
Union Of India & Ors. – Respondents
Criminal Appeal No. 2443 of 2025 [arising out of special leave petition (criminal) No. 18155 of 2024]
Decided On : 06-05-2025
Advocates Appeared:
For the Appellant : Mr. Shoeb Alam, Sr. Adv., Mr. D.Kumanan, AOR., Mr. Sheikh F. Kalia, Adv., Mr. A. Noufal, Adv.
For the Respondents: 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.
For the Appellant : Mr. Shoeb Alam, Sr. Adv., Mr. D.Kumanan, AOR., Mr. Sheikh F. Kalia, Adv., Mr. A. Noufal, Adv.
For the Respondents: 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.
The court emphasized the necessity of recording specific satisfaction regarding the danger to witnesses before granting protection measures under UAPA and NIA Act, ensuring individual assessments rather than blanket orders.
Headnote:(A) Indian Penal Code, 1860 - Sections 341, 294(b), 307, 120B, 143, 147, 148, 302 read with 149 - Unlawful Activities (Prevention) Act, 1967 - Sections 15, 16, 18, 18B, 19 and 20 - National Investigation Agency Act, 2008 - Section 17 - Right to fair trial - Protection of witnesses - Court must record specific satisfaction that witness life is in danger before granting protection under Sections 44 of UAPA and 17 of NIA Act. (Paras 9, 10, 11, 12)
(B) Criminal Procedure Code, 1973 - Section 161 - Right of accused to obtain copies of statements - General rule that accused entitled to witness statements unless measures are justified under law. (Paras 8, 13)
Facts of the case:
The appellant is an accused being tried under several sections of IPC and UAPA. An application sought witness protection measures which were partially upheld, with the High Court setting aside part of the Special Court's order.
Findings of Court:
Both the Special Court and High Court failed to comply with statutory requirements for recording satisfaction regarding witness safety.
Issues: Whether the courts recorded adequate satisfaction for witness protection measures.
Ratio Decidendi: The court determined that individual assessment of danger to witnesses is required before granting blanket orders for witness protection, and such powers must be strictly construed.
Result: Appeal allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Whether the Special Court recorded necessary satisfaction for witness protection and whether the High Court could prohibit disclosure of statements even after examination-in-chief. (Para 6 , 7 , 21 )
3. Witness protection is an exception to general disclosure rules, requiring individual satisfaction of danger to life and reasoned measures for maintaining secrecy. (Para 8 , 9 , 10 , 11 , 12 , 14 , 15 , 17 , 21 )
4. Power under Section 44(2) UAPA and Section 17(2) NIA Act requires recorded satisfaction of danger to each individual witness's life based on material. (Para 9 , 11 , 15 )
5. Orders of Special Court and High Court set aside; prosecution granted eight weeks to file proper individual applications for witness protection. (Para 15 , 16 , 18 , 19 , 22 )
6. What are the conditions precedent for exercising powers of witness protection under Section 44(2) UAPA or Section 17(2) NIA Act?
The court must record satisfaction, based on available material, that the life of the concerned witness is in danger. Since this is an exception to the general rule of disclosure, this condition must be strictly complied with. (Para 9 , 11 )
7. Can a court grant witness protection through a single omnibus application for multiple witnesses?
No. The court must consider the case of each witness separately. Specific averments regarding the danger to the life of every individual witness must be made in the application. (Para 11 , 12 , 15 )
8. Is a court permitted to pass a blanket order withholding witness statements from the accused throughout the trial?
No. After recording satisfaction of danger, the court must apply its mind to determine the specific measures necessary to keep the identity and address secret and record brief reasons for those measures. (Para 10 , 14 )
9. Does an accused have a right to be heard on applications for witness protection under the UAPA or NIA Act?
Yes, the principles of natural justice apply. However, the court may decide not to disclose the specific material regarding threat perception to the accused to prevent compromising the witness's identity. (Para 21 )
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’). Subsequently, Sections 120B, 143, 147, 148, 302 read with 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 17 3(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—
(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 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 petition
