Supreme Court of India
MOHAMMED ASARUDEENversusUNION OF INDIA & ORS
- Citation
- 2025 INSC 746
- Decided
- 6 May 2025
- Disposal
- Appeal(s) allowed
- Bench
- ABHAY S OKA
Holding
The Court held that satisfaction under sub‑section 2 of section 44 of the UAPA (and sub‑section 2 of section 17 of the NIA Act) must be recorded individually for each witness; an omnibus application is not permissible, and the orders of the Special Court and High Court were set aside.
Summary
The appellant, accused in a NIA case, challenged an order of the Special Court that granted witness protection to a large number of witnesses under sub‑section 2 of section 44 of the UAPA and the corresponding provision in the NIA Act, without recording individual satisfaction for each witness. The High Court upheld most of the Special Court's order but struck down the provision that barred the accused from receiving copies of the protected witnesses' statements after examination‑in‑chief. The Supreme Court examined whether the statutory requirement of recording a specific satisfaction of danger to each witness was complied with and whether an omnibus application for protection is permissible. It held that the satisfaction must be recorded qua each individual witness and that a blanket order cannot be made. Consequently, both the Special Court’s and the High Court’s orders were set aside, and the appeal was allowed, with directions to file a proper individual application within eight weeks.
Issues considered
- Whether the Special Court complied with the requirement of recording satisfaction under sub‑section 2 of section 44 of the UAPA (and sub‑section 2 of section 17 of the NIA Act) for each individual witness when the application covered multiple witnesses.
- Whether an omnibus application for protection of a large number of witnesses is permissible under the statutory scheme.
- Whether the accused is entitled to a hearing and to copies of statements of protected witnesses under the provisions of the UAPA, NIA Act and CrPC.
- Whether the High Court’s order prohibiting disclosure of protected witnesses' statements even after examination‑in‑chief is valid.
Legislation cited
Headnote
Issue for Consideration Whether the Special Court while dealing with an application under sub-section 2 of s.44 of Unlawful Activities (Prevention) Act, 1967 made in respect of a large number of witnesses, recorded the satifaction which is required to be recorded in terms of sub-section 2 of s.44 by sub-section 2 of s.44 of UAPA was recorded qua an individual witness. Headnotes† Unlawful Activities (Prevention) Act, 1967 – Sub-section 2 of s.44 – National Investigation Agency Act, 2008 – s.17 – Code of Criminal Procedure, 1973 – s.173(6) –
Subjects
Protection of WitnessPrinciples of Natural JusticeRight of hearingMaterial produced regarding the threat perceptionSub-section 2 of Section 44 of UAPAOmnibus applicationRight of accused to defend
Judgment
[2025] 5 S.C.R. 707 : 2025 INSC 746
Mohammed Asarudeen
v.
Union of India & Ors.
(Criminal Appeal No. 2443 of 2025)
06 May 2025
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]
Issue for Consideration
Whether the Special Court while dealing with an application under
sub-section 2 of s.44 of Unlawful Activities (Prevention) Act, 1967
made in respect of a large number of witnesses, recorded the
satifaction which is required to be recorded in terms of sub-section 2
of s.44 of UAPA. Whether the satisfaction as required by sub-section 2
of s.44 of UAPA was recorded qua an individual witness.
Headnotes†
Unlawful Activities (Prevention) Act, 1967 – Sub-section 2
of s.44 – National Investigation Agency Act, 2008 – s.17 –
Code of Criminal Procedure, 1973 – s.173(6) – Appellant
was tried by the Special Court for the National Investigation
Agency cases – Charge-sheet was filed – An application was
made by the Special Public Prosecutor of the NIA, invoking
powers of the Special Court u/s.44 of the UAPA, r/w. s.17 of
the NIA Act, 2008 r/w. s.173(6) of CrPC, for the protection
of witnesses, which was allowed – The order of the Special
Court was challenged before the High Court – The result of the
impugned order passed by the High Court 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
u/s.161 of the CrPC even after examination-in-chief of the said
witnesses is recorded – Correctness:
Held: On plain reading of sub-section 2 of s.44 of the UAPA, the
Court has to apply its mind in relation to danger 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 s.44 for all witnesses or a number of witnesses – Even if
an application is made in respect of more than one witness,
* Author
708 [2025] 5 S.C.R.
Supreme Court Reports
specific averments in relation to every witness must be made in
the application – In view of this Court, sub-section 2 of s.44 of
the UAPA (sub-section 2 of s.17 of NIA) must be strictly complied
with, as the exercise of the power may affect the right of the
accused to defend – On facts, the Special Court was dealing
with an application where the prayer under sub-section 2 of s.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 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 – The order of the Special Court
cannot be sustained – The first satisfaction, which is required to be
recorded in terms of sub-section 2 of s.44 of UAPA, has not been
recorded – Similarly, the observation of the High Court completely
ignores the second part of sub-section 2 of s.44 of the UAPA –
Both the Courts have lost sight of the fact that the satisfaction as
required by sub-section 2 of s.44 of UAPA has to be recorded qua
an individual witness – Therefore, both the orders are set aside.
[Paras 11, 12, 14]
Unlawful Activities (Prevention) Act, 1967 – Sub-section 2 of
s.44 – Recording of satisfaction:
Held: The first condition precedent for the exercise of powers
under sub-section 2 of s.44 of UAPA is the recording of the
satisfaction by the Special Court that the life of the concerned
witness is in danger – 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 s.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 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
[2025] 5 S.C.R. 709
Mohammed Asarudeen v. Union of India & Ors.
a witness, secret – While deciding what kind of measures should
be adopted, the Court must record brief reasons. [Paras 9, 10]
Unlawful Activities (Prevention) Act, 1967 – ss.44 – National
Investigation Agency Act, 2008 – s.17 – Witness Protection
Scheme, 2018 – cl.2(c) – It was contended by the State that
when application under sub-section 2 of s.44 of the UAPA or
sub-section 2 of s.17 of NIA is heard by the Special Court, the
accused have no right of hearing – Correctness:
Held: On the face of it, sub-section 2 of s.44 of UAPA and
sub-section 2 of s.17 of the NIA Act does not exclude the principles
of natural justice – The accused has a right of hearing on the
application under sub-section 2 of s.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 sub-section 2 of s.44 of the UAPA will be lost. [Para 21]
Case Law Cited
Mahender Chawla & Ors. v. Union of India & Ors. [2018] 14 SCR
627 : (2019) 14 SCC 615 – referred to.
List of Acts
Unlawful Activities (Prevention) Act, 1967; National Investigation
Agency Act, 2008; Witness Protection Scheme, 2018.
List of Keywords
Protection of Witness; Principles of Natural Justice; Right of
hearing; Material produced regarding the threat perception;
Sub-section 2 of Section 44 of UAPA; Omnibus application; Right
of accuse to defend.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2443 of 2025
From the Judgment and Order dated 21.10.2024 of the High Court
of Judicature at Madras in CRLOP No. 2872 of 2024
710 [2025] 5 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Appellant:
Shoeb Alam, Sr. Adv., D. Kumanan, Sheikh F. Kalia, A. Noufal.
Advs. for the Respondents:
Suryaprakash V. Raju, A.S.G., Zoheb Hussain, Annam Venkatesh,
Arkaj Kumar, Aaditya Shankar Dixit, Arvind Kumar Sharma, B.
Mohan, Gaurav Sarkar.
Judgment / Order of the Supreme Court
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
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.
[2025] 5 S.C.R. 711
Mohammed Asarudeen v. Union of India & Ors.
(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;”
712 [2025] 5 S.C.R.
Supreme Court Reports
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 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) 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.
[2025] 5 S.C.R. 713
Mohammed Asarudeen v. Union of India & Ors.
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 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 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
714 [2025] 5 S.C.R.
Supreme Court Reports
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 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 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:
[2025] 5 S.C.R. 715
Mohammed Asarudeen v. Union of India & Ors.
“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 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 material to the accused.
716 [2025] 5 S.C.R.
Supreme Court Reports
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 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.
1 (2019) 14 SCC 615
[2025] 5 S.C.R. 717
Mohammed Asarudeen v. Union of India & Ors.
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 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.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Ankit Gyan
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