Supreme Court: Blanket Order Can’t Be Passed U/S 44(2) UAPA; Court Must Record Satisfaction For Each Witness
The Supreme Court set aside the Order of the Special Court for the National Investigation Agency concerning the grant of witness protection.
Justice Abhay S. Oka, Justice Ujjal Bhuyan, Supreme Court
The Supreme Court clarified that a ‘blanket order’ under Section 44(2) of the UAPA for witness protection cannot be passed since the Special Court must record satisfaction for each witness.
The Court set aside the Order of the Special Court for the National Investigation Agency (NIA) concerning the grant of witness protection under the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the National Investigation Agency Act, 2008 (NIA Act).
The Bench of Justice Abhay S Oka and Justice Ujjal Bhuyan held, “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 subsection 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.”
Senior Advocate Shoeb Alam appeared for the Appellant, while ASG Suryaprakash V. Raju represented the Respondents.
Brief Facts
The Special Court had allowed an Application, permitting the prosecuting agency "o hide the identity and address of the witnesses The Special Court also directed that the original statements under Section 161 of th Cr.P.C. of these witnesses would be kept in a sealed cover and opened only on the date of examination, with the statement being supplied to the accused immediately after examination-in-chief.
The High Court, by its impugned Judgment, upheld the Special Court's Order. This meant that the accused would not be entitled to copies of the Section 161 statements of protected witnesses even after examination-in-chief of the said witnesses was recorded.
Court’s Reasoning
The Supreme Court pointed out Sub-section (2) of Section 44 of the UAPA, stating that its invocation requires a clear satisfaction, based on material, that "the life of the concerned witness is in danger".
“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,” the Bench remarked.
“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,” the Court stated.
The Bench held, “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 subject to such orders, the accused is not entitled to know the identity of the witnesses in respect of whom the application is made.”
Consequently, the Court ordered, “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.”
Accordingly, the Supreme Court allowed the Appeal.
Cause Title: Mohammed Asarudeen v. Union Of India & Ors. (Neutral Citation: 2025 INSC 746)
Appearance:
Appellant: Senior Advocate Shoeb Alam; AOR D. Kumanan; Advocates Sheikh F. Kalia, A. Noufal, Dev Sareen and Shereef K.A.
Respondents: ASG Suryaprakash V. Raju; AOR Arvind Kumar Sharma; Advocates Zoheb Hussain, Annam Venkatesh, Arkaj Kumar and Aaditya Shankar Dixit
