Jharkhand High Court
Kuldeo Sah @ Mithun Sah vs The State Of Jharkhand & Another on 24 February, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.736 of 2023
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Kuldeo Sah @ Mithun Sah ... ... Appellant
Versus
The State of Jharkhand & Another... ... Respondents
With
Criminal Appeal (D.B.) No.1208 of 2023
-----
Kuldeo Sah @ Mithun Sah ... ... Appellant
Versus
The State of Jharkhand & Another... ... Respondents
With
Criminal Appeal (D.B.) No.1504 of 2023
-----
Pappu Sah @ Pappu Kumar Sah ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellants : Mr. Gautam Kumar, Advocate
: Mr. Abhinav Raj, Advocate
: Mr. Ashutosh Kumar Sinha, Advocate
For the State : Mrs. Lily Sahay, A.P.P.
[in Cr. Appeal (DB) No.736/2023]
: Mrs. Nehala Sharmin, Spl. P.P.
[in Cr. Appeal (DB) No.1208/2023]
: Mrs. Ruby Pandey, A.P.P.
[in Cr. Appeal (DB) No.1504/2023]
For the Resp. No.2 : Mr. Pratyush Lala, Advocate
: Mr. Deepak Sahu, Advocate
For the Resp. No.3 : Mr. Prashant Pallav, D.S.G.I.
: Ms. Shivani jaluka, AC to DSGI
------
th
Order No. 27/Dated 24 February, 2025
Per Sujit Narayan Prasad, J.
1. These appeals originally have been filed under
Section 21(4) for a direction for release of the appellants
from judicial custody who have been taken into custody for
the offence under Section 370/34 of the Indian Penal Code.
2. We, after calling the case diary, have decided the
case on merit and rejected the prayer for bail of the
appellants.
3. One of the main reasons for rejection of the prayer
for bail of the appellants was that the trafficked minor
victims had not been traced out even though serious efforts
having been said to be taken even by constituting special
investigating teams.
4. This Court has called upon the SPs of the
concerned districts, taking into consideration the fact that
the victim has not been recovered as yet.
5. Learned counsel representing the State, in course of
argument, had submitted that all possible efforts have been
taken to trace out the victim but when they have not found
any further clue, have taken endeavour to get the details of
Aadhar Card of the victim by making correspondences to
the authority, i.e., UIDAI, through e-mail/.
6. This Court, on the prayer being made by the learned
State counsel, has impleaded the authority, i.e., UIDAI, as
party respondent to the present proceeding and had issued
notice.
7. Mr. Prashant Pallav, learned Deputy Solicitor
General of India, has appeared on behalf of the authority,
UIDAI.
8. He has filed affidavits. The ground has been taken
by the authority, UIDAI, that in view of the provision of
Section 33(1) of the Aadhar (Targeted Delivery of Financial
and other Subsidies, Benefits and Services) Act, 2016
(hereinafter to be referred to as the Act, 2016), the details of
Aadhar Care of any individual can be supplied but only
under the direction of the High Court.
9. It has been submitted by making reference of the
judgment passed by the Constitution Bench of the Hon'ble
Apex Court rendered in the case of K.S.Puttaswamy (retd.)
& Anr. Vs. Union of India and Others reported in (2019)
1 SCC 1 wherein the validity of Section 33(1) and 33(2) of
the Act, 2016 has been held to be valid.
10. It has been stated in the affidavit that save and
except the procedure as established under the statutory
command as under Section 33(1) of the Act, 2016, the
details of information of Aadhar Card can be provided to
the investigating agency but the requirement is two folds
that regular application is to be made to the authority,
UIDAI or on direction passed by the High Court in view of
the amendment inserted in the provision of 33(1) of the Act,
2016 from 25.07.2019 whereby and whereunder
amendment has been inserted to the effect that such
information can be supplied by the authority on the
direction passed by the High Court.
11. This Court, after considering the stand inter alia
taken by the authority, UIDAI, has passed order on
11.02.2025 wherein observation has been made that why
the steps are not being taken as provided under Section 33
(2) of the Act, 2016.
12. Mr. Prashant Pallav, learned Deputy Solicitor
General of India, has submitted that so far as taking
recourse within the fold of Section 33(2) of the Act, 2016 is
concerned, as per requirement the investigating agency is
to make an application before the authorized authority as
per the order dated 29.12.2023 issued by the Ministry of
Electronics and Information Technology, Government of
India whereby and whereunder while exercising the power
conferred by Sub-section (2) of Section 33 of the Aadhar
(Targeted Delivery of Financial and Other Subsidies,
Benefits and Services) Act, 2016 (18 of 2016), the Central
Government has authorized the Union Home Secretary,
Ministry of Home Affairs as the Officer specially authorized
for the purposes of issue of directions under the said sub-
section.
13. This Court, having heard learned counsel for the
authority, UIDAI, and in view of the observation as has
been expressed by this Court in the order 17.12.2024 and
11.02.2025 wherein the concern has been shown in
passing the aforesaid orders was of tracing out the victim
who is traceless since the year 2014, i.e., more than a
decade.
14. Since the issue pertains to the human trafficking
and the investigating agency is taking endeavours in
tracing out the victim but they have not got any success as
yet and, as such, they now intend to take recourse of the
electronic means for the purpose of locating the victim.
15. This Court has shown its concern that the human
trafficking has been brought under the fold of the schedule
of the National Investigation Agency Act, 2008 under the
fold of scheduled offence.
16. This Court has also shown its concern that the
trafficking is a means for mis-utilizing them in the anti-
national activities. The reference of all those orders need to
be made herein which are being quoted hereunder as :-
"Order No.23/ Dated 17th December 2024
Reference may be made to the order dated 29.10.2024,
which is quoted hereunder.
"Affidavits have been filed by the respondent-UIDAI.
2. Mr. Prashant Pallav, the learned DSGI appearing for
the UIDAI has submitted by referring to the provision of
section 31 of the Aadhaar (Targeted Delivery of
Financial & Other Subsidies, Benefits and Services) Act,
2016 that there is no such provision available in the
Statute to provide any details of the Aadhar Card of any
individual.
3. It has been submitted that the proper course would
have been to make an application before the authority
of UIDAI giving therein the details and the reason for
seeking the details of the suspected person for 2 whom
the allegation of trafficking leading to institution of
present F.I.R under the provision of section 370/34 of
the I.P.C has been levelled.
4. In response, Mrs. Nehala Sharmin, the learned
Spl.P.P has submitted by referring to paragraph no.7 of
the counter-affidavit dated 17.10.2024 that the S.I.T
has made a requisition seeking the details from the
UIDAI so as to have a clue to trace out the minor who
has been subjected to trafficking and is not being traced
out for last about more than 10 years, the two minors
herein.
5. Mr. Prashant Pallav, the learned DSGI, upon this,
has submitted that the copy of the said affidavit has not
been served upon him.
6. Mrs. Nehala Sharmin, the learned Spl.PP has
transmitted the copy of the said affidavit through
Electronic Mode. However, it has been submitted by the
learned Spl.PP that the communication of the S.I.T has
also been sent to the authority of UIDAI on 28.03.2024
through official e-mail of S.I.T.
7. This Court fails to understand that when requisition
has been made before the authority of UIDAI then why
the appropriate decision, either way, not be
communicated to the S.I.T. The authority which has
been constituted for the aforesaid purpose, i.e. UIDAI, is
also having the element of the public functionary and,
as such, when any application, that too, by the
prosecution side, i.e. herein the S.I.T, if have been
made, then it was the bounded duty of the concerned
authority to take a decision by making reference of the
rider available in the statute, but they cannot in any
circumstances keep the matter pending by not taking
any decision upon the same.
8. Let the learned Spl.PP be furnished the details of the
official mail to which the said communication had been
sent to the UIDAI.
9. Let the further affidavit be filed by UIDAI by taking a
decision on the said application.
10. In the meanwhile, as has been submitted by the
learned Spl.PP, the endeavour has been taken by the
S.I.T, since, as per her instruction, the S.I.T has moved
today to have a clue of the traceless two minors on the
date when both the minors have been subjected to
trafficking.
11. Let the further update be furnished on the next date
of hearing by filing appropriate affidavit to be filed by
the individual who is heading the S.I.T.
12. It has been submitted by Mr. Gautam Kumar, the
learned counsel appearing for the appellantsthat
although he is representing the appellants, but it is
rampant in the area where trafficking is in the large
scale, as such, an effective measure is to be taken by
the District Administration, particularly, the Police
Administration to put a check upon the menaces of
trafficking.
13. The learned Spl.PP, therefore, is directed to file an
affidavit regarding what remedial measure has been
taken to protect or put a check upon the trafficking of
the minor/adults from that area.
14. As prayed for, list these matters on 4.12.2024.
2. Mr. Prashant Pallav, learned DSGI, in pursuant thereto has
submitted that in view of the judgment passed by the
Constitutional Bench of the Hon'ble Supreme Court in the
case of K.S. Puttaswamy (Retd.) & Anr. vs. Union of India &
Ors. reported in (2019) 1 SCC 1, particularly at para nos. 403,
405, 407, 408, 772, 779, 780 and 781, whereby and where
under, by way of an amendment in the statutory command as
conferred under Section 33 (1) of the UAID Act, provision has
been made to make an application before the Court.
Therefore, submission has been made that it would be proper
for the prosecuting agency to make an application in the light
of the provision as contained under Section 33(1) of the Act
for the purpose of passing appropriate direction so as to
provide the details of the Aadhar Card of the missing child. 3.
Upon this, learned Spl.P.P. Mrs. Nehala Sharmin has
submitted that she will make an application for passing
appropriate order for tracing out the missing male child, who
is traceless since 2014. Learned State Counsel, has, therefore
sought for time. 4. Mr. Gautam Kumar, learned counsel for
the appellants has submitted that the prayer for bail of the
appellants has already been dealt with vide order dated
19.02.2024 by dismissing the same. However, the trial is
going on in which prosecution evidence has already been
closed but there is no further progress in the trial in the garb
of pendency of the instant appeals. 5. We want to make it
clear that the present appeals, which have been filed for
consideration on the issue of bail of the appellants, have
already been decided by this Court vide order dated
19.02.2024 and the present appeals are pending only for the
purpose of issue of tracing out the male child who is missing
since 2014 and for which this Court has also called upon the
State to file an affidavit on the basis of which S.I.T. has been
constituted. The affidavit has been filed wherein it has been
stated that although the trafficked child of the present appeal
has not been traced out but during the tracing out process,
several other trafficked children have been recovered. 6.
However, as prayed for by learned State counsel, let the
matter be listed on 9th January, 2025. 7. Let the copy of the
said application, which is to be filed with an affidavit, be filed
well in advance so that learned DSGI may also be able to file
response before the next date."
25/Dated: 11.02.2025
1. Affidavit has been filed on behalf of UIDAI.
2. Learned counsel for the UIDAI by placing the same, has
submitted that in view of the rider created under Section 33
(1) of Aadhaar Act, 2016, wherein, the requirement to furnish
the information including identity information or
authentication records is only to be made available after
providing an opportunity of hearing to both the Aadhaar
number holder and UIDAI number.
3. We have considered the import of Section 33 of Aadhaar
Act, 2016, in entirety.
4. Section 33(1) speaks with respect to providing the details of
Aadhaar Card having with the proviso that before providing
the information including identity information or
authentication records, an opportunity of hearing is to be
given to the Aadhaar Card holder and the authority, i.e.,
UIDAI.
5. Sub-section (2) thereof provides that the details of Aadhaar
Card can be provided with the permission of the authority,
i.e., not below the rank of Secretary to the Govt. of India.
6. The purport of Aadhaar Card has been interpreted by the
Hon'ble Apex Court in the case of K.S. Puttaswamy (Retd.) &
Anr. Vrs. Union of India & Ors., reported in (2019) 1 SCC 1,
wherein, the validity of Section 33(1) and (2) of the Act, 2016
have been considered.
7. We have no quarrel upon the said ratio and the purport of
aforesaid provision but we are concern, as to how, the child
who have been subjected to trafficking, are to be traced out.
8. The details of Aadhaar Card of the victim child has been
supplied to UIDAI by the Investigator so as to trace out the
location of the victim children through their mobile phones, if
they are using.
9. It is the plea of the Investigator that they are not getting
any clue and whatever mechanism is to be followed that is
only the effort will be in dark and in that direction, we have
taken decision to also consider the issue of tracing out the
children by making an effort to get the mobile number and for
that, the best mechanism would be to have the Aadhaar Card
of the children.
10. Since, the question of trafficking of children whose details
of Aadhaar Card is to be provided to the Investigator as per
requisition made by them but herein, the difficulty as per the
statutory mandate is that the Aadhaar Card holder is also to
be provided with an opportunity of hearing as per proviso to
Section 33(1) of the Act, 2016.
11. The Legislation has taken care of for seeing the instances
where the Aadhaar Card holder is not traceable who is
involved in any terrorist activities leading to national security
then how the situation will be dealt with and for that reason,
the provision has been made under sub-section (2) thereof.
12. The said provision confers power upon the authority,
UIDAI to seek permission from the competent authority of the
Central Government not below the rank of Secretary.
13. The purpose is obvious that there cannot be any
compromise with the national security and if any terrorist is
to be traced out or his location is to be located, then how,
sub-section (1) of Section 33 can be made applicable and for
that reason, sub-section (2) has been inserted with Section 33
of the Act, 2016.
14. Here, we are dealing with the case of an offence which is
under schedule to the National Investigation Agency Act.
15. The racket is involved in the issue of trafficking and the
said racket is to be traced out and for that purpose, clue is
required to get the information about the trafficked children.
16. The activities of traffickers are also said to be issue of
national security since they are dealing with the future
generation, i.e. the young children of the nation jeopardizing
the national interest.
17. There might be chances of involvement of such children in
terrorist activities leading to threat upon the national security
and by that, the Act will come under the fold of Section 15 of
the U.A.(P) Act, 1967.
18. As such, this Court is of the view that why emphasis is
being given by the authority of the provision of sub-section (1)
of Section 33 of the Aadhaar Act, 2016 and why the efforts are
not being taken by taking recourse as provided under sub-
section (2) of Section 33 of the Aadhaar Act, 2016.
19. Learned counsel appearing for the respondent-UIDAI, in
view of the above, has sought for a week time to seek
instruction on the aforesaid.
20. Accordingly and as prayed for by the learned counsel for
the respondent-UIDAI, list these matters on 19.02.2025."
17. Although we have shown our concern regarding
taking recourse of the provision of Section 33(2) of the Act,
2016 but we are of the view that procedure will be time
consuming and when the matter is before the Court for the
purpose of passing an order upon the UIDAI to supply the
details of Aadhar Card which has already been
requisitioned by the investigating agency by making due
correspondences before the competent authority of UIDAI,
hence, consideration is required to be made as to whether
the provision as contained under Section 33(1) of the Act,
2016 can be exercised for the purpose of doing substantive
justice which is the efforts to be taken in aid to the
investigating agency to trace out the victim who is traceless
since the year 2014.
18. This Court, before answering the aforesaid issue, is
of the view that if any law has been made out by the
Parliament or the State Legislature, the same is for the
purpose of doing substantive justice and the law cannot
come in the way of doing substantive justice.
19. It needs to refer herein the legal Maxim Salus
populi (est) suprema lex, means that the welfare of the
people is the supreme law and this can be achieved only
when justice is administered lawfully and judicially,
reference in this regard may be made to the Judgment
rendered by the Hon'ble Apex Court in the case of Lala
Ram(DEAD) by Legal Representative and Ors v. Union
of India and another , (2015) 5 SCC 813.
20. Further, it is the fundamental principle in view of
the fact that the laws are handmaid for the substantive
justice, reference in this regard be made to the judgment
rendered by Hon'ble Apex Court in the case of ECGC Ltd. v.
Mokul Shriram EPC JV, (2022) 6 SCC 704. For ready
reference the relevant paragraph of the aforesaid judgment
is being quoted as under:
"25. The Division Bench held as under : (Indian Oil Corpn.
case [Indian Oil Corpn. v. Orissa Sales Tax Tribunal, 2009
SCC OnLine Ori 353] , SCC OnLine Ori paras 24-25)
"24. -------- The rules of procedure are intended to
advance justice & not to defeat it. 'Procedural law is
intended to facilitate & not to obstruct the course of
substantive justice.' [vide Hoosein Kasam Dada (India)
Ltd. v. State of M.P. [Hoosein Kasam Dada (India)
Ltd. v. State of M.P., (1953) 1 SCC 299 : 1953 SCR 987 :
AIR 1953 SC 221] ; Garikapati Veeraya v. N. Subbiah
Choudhry [Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540] ; GaneshTrading Co. v. Moji
Ram [Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91]
; Harcharan v. State of Haryana [Harcharan v. State of
Haryana, (1982) 3 SCC 408] ; and Shiv Shakti Coop.
Housing Society v. Swaraj Developers [Shiv Shakti Coop.
Housing Society v. Swaraj Developers, (2003) 6 SCC
659]"
21. Further, there is no dispute that the validity of the
Act, 2016 has been the subject matter before the Hon'ble
Apex Court in the Constitution Bench, in the case of
K.S.Puttaswamy (retd.) & Anr. Vs. Union of India and
Others (Supra). The validity of Section 33(1) as also 33(2) of
the Act, 2016 was challenged on the pretext that the
privacy of any individual citizen of the country cannot be
put in danger. The same has been answered by Hon'ble
Apex Court, as would be evident from paragraph 403, 405,
407, 408, 772, 779, 780 and 781.For ready reference the
aforesaid relevant paragraph are being quoted as under:
403. A close look at sub-section (1) of Section 33 would
demonstrate that the sub-section (1) is an exception to Section
28(2), Section 28(5) and Section 29(2) of the Act. Those
provisions put a bar on the disclosure of an information
thereby protecting the information available with Uidai in
respect of any person. However, as per sub-section (1), such
information can be disclosed if there is an order of a court
which order is not inferior to that of a District Judge. This
provision, therefore, only states that in suitable cases, if court
passes an order directing an Authority to disclose such an
information, then the Authority would be obliged to do so.
Thus, an embargo contained in Sections 28 and 29 is partially
lifted only in the eventuality on passing an order by the court
not inferior to that of the District Judge. This itself is a
reasonable safeguard. Obviously, in any proceedings where
the court feels such an information is necessary for the
determination of controversy that is before the court, before
passing such an order, it would hear the parties concerned
which will include the person in respect of whom the
disclosure of information is sought.
405. Adverting to sub-section (2) of Section 33, it can be seen
that this provision enables disclosure of information including
identity information records in the interest of national
security. This provision further states that the Authority is
obliged to disclose such information in pursuance of a
direction of an officer not below the rank of Joint Secretary to
the Government of India specially authorised in this behalf by
an order of the Central Government. Proviso thereto sub-
section (2) puts an additional safeguard by prescribing that
every direction issued under this sub-section shall be
reviewed by an Oversight Committee consisting of the Cabinet
Secretary and the Secretaries to the Government of India in
the Department of Legal Affairs and the Department of
Electronics and Information Technology before it takes effect.
Further, such a direction is valid only for a period of three
months from the date of its issue which can be extended by
another three months.
407. We may point out that this Court has held in Ex-
Armymen's Protection Services (P) Ltd. v. Union of India [Ex-
Armymen's Protection Services (P) Ltd. v. Union of India, (2014)
5 SCC 409] that what is in the interest of national security is
not a question of law but it is a matter of policy. We would like
to reproduce the following discussion therefrom : (SCC p. 416,
paras 16-17)
"16. What is in the interest of national security is not a
question of law. It is a matter of policy. It is not for the
court to decide whether something is in the interest of the
State or not. It should be left to the executive. To quote Lord
Hoffman in Secy. of State for Home Deptt. v. Rehman [Secy.
of State for Home Deptt. v. Rehman, (2003) 1 AC 153 :
(2001) 3 WLR 877 (HL)] : (AC p. 192-C, para 50)
'50. ... [in the matter] of national security is not a question
of law. It is a matter of judgment and policy. Under the
Constitution of the United Kingdom and most other
countries, decisions as to whether something is or is not in
the interests of national security are not a matter for
judicial decision. They are entrusted to the executive.'
17. Thus, in a situation of national security, a party cannot
insist for the strict observance of the principles of natural
justice. In such cases, it is the duty of the court to read into
and provide for statutory exclusion, if not expressly
provided in the rules governing the field. Depending on the
facts of the particular case, it will however be open to the
court to satisfy itself whether there were justifiable facts,
and in that regard, the court is entitled to call for the files
and see whether it is a case where the interest of national
security is involved. Once the State is of the stand that the
issue involves national security, the court shall not disclose
the reasons to the affected party."
408. Even in K.S. Puttaswamy [K.S. Puttaswamy v. Union of
India, (2017) 10 SCC 1] , this Court has recognised data
retention by the Government which may be necessitated in the
public interest and in the interest of national security. We
may also usefully refer to the PUCL v. Union of
India [PUCL v. Union of India, (1997) 1 SCC 301] . In that case,
action of telephone tapping was challenged as serious
invasion of individual's privacy. The Court found that Section
5(2) of the Telegraph Act, 1885 permits the interception of
messages in circumstances mentioned therein i.e. "occurrence
of any public emergency" or "in the interest of public safety".
The Court explained these expressions in the following
manner : (PUCL case [PUCL v. Union of India, (1997) 1 SCC
301] , SCC pp. 313-14, para 28)
"28. Section 5(2) of the Act permits the interception of
messages in accordance with the provisions of the said
section. "Occurrence of any public emergency" or "in the
interest of public safety" are the sine qua non for the
application of the provisions of Section 5(2) of the Act.
Unless a public emergency has occurred or the interest of
public safety demands, the authorities have no jurisdiction
to exercise the powers under the said section. Public
emergency would mean the prevailing of a sudden condition
or state of affairs affecting the people at large calling for
immediate action. The expression "public safety" means the
state or condition of freedom from danger or risk for the
people at large. When either of these two conditions are not
in existence, the Central Government or a State
Government or the authorised officer cannot resort to
telephone-tapping even though there is satisfaction that it
is necessary or expedient so to do in the interests of
sovereignty and integrity of India, etc. In other words, even
if the Central Government is satisfied that it is necessary or
expedient so to do in the interest of the sovereignty and
integrity of India or the security of the State or friendly
relations with sovereign States or public order or for
preventing incitement to the commission of an offence, it
cannot intercept the messages or resort to telephone-
tapping unless a public emergency has occurred or the
interest of public safety or the existence of the interest of
public safety requires. Neither the occurrence of public
emergency nor the interest of public safety are secretive
conditions or situations. Either of the situations would be
apparent to a reasonable person."
772. Sub-section (1) of Section 33 contains an ample
restriction in respect of any disclosure information which can
be done only in pursuance of an order of the court not inferior
to that of a District Judge. The restriction in disclosure of
information is reasonable and has valid justification. The
authority whose duty is to safeguard the entire data has to be
heard before passing an order by the court which amply
protects the interest of a person whose data is to be disclosed.
An order of the court not inferior to that of a District Judge for
disclosure of information itself is an ample protection to that,
for no unreasonable purpose data shall be disclosed.
779. We are satisfied that the provision fulfils threefold test as
laid down in Puttaswamy case [K.S. Puttaswamy v. Union of
India, (2017) 10 SCC 1] . There are no grounds to declare
Section 33 as unconstitutional.
780. We also need to advert to one of the submissions of the
petitioner that permitting disclosure of information for police
investigation violates the protection against self-incrimination
as provided under Article 20 clause (3). It is true that under
Section 33 the court may order for disclosure of information
even for a police investigation. But information so received in
no manner can be said to violate the protection given under
Article 20(3). The basic information which are with Uidai are
demographic and biometric information. In this context,
reference is made to the eleven-Judge Constitution Bench
judgment of this Court in State of Bombay v. Kathi Kalu
Oghad [State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC
1808 : (1961) 2 Cri LJ 856] . The Constitution Bench had
occasion to consider clause (3) of Article 20 of the
Constitution. In the above case, from the accused who was
charged under Sections 302/34 IPC, during the investigation
prosecution has obtained three specimen of handwriting
which were compared by his handwriting which was part of
the evidence. A question was raised as to the admissibility of
the specimen of handwriting, it was contended that use of
specimen of handwriting violated protection under Article
20(3). This Court in para 16 laid down the following : (AIR pp.
1816-17)
"16. In view of these considerations, we have come to the
following conclusions:
(1) An accused person cannot be said to have been
compelled to be a witness against himself simply because
he made a statement while in police custody, without
anything more. In other words, the mere fact of being in
police custody at the time when the statement in question
was made would not, by itself, as a proposition of law, lend
itself to the inference that the accused was compelled to
make the statement, though that fact, in conjunction with
other circumstances disclosed in evidence in a particular
case, would be a relevant consideration in an enquiry
whether or not the accused person had been compelled to
make the impugned statement.
(2) The mere questioning of an accused person by a police
officer, resulting in a voluntary statement, which may
ultimately turn out to be incriminatory, is not "compulsion".
(3) "To be a witness" is not equivalent to "furnishing
evidence" in its widest significance; that is to say, as
including not merely making of oral or written statements
but also production of documents or giving materials which
may be relevant at a trial to determine the guilt or
innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm
or fingers or specimen writings or showing parts of the body
by way of identification are not included in the expression
"to be a witness".
(5) "To be a witness" means imparting knowledge in respect
of relevant facts by an oral statement or a statement in
writing, made or given in court or otherwise.
(6) "To be a witness" in its ordinary grammatical sense
means giving oral testimony in court. Case law has gone
beyond this strict literal interpretation of the expression
which may now bear a wider meaning, namely, bearing
testimony in court or out of court by a person accused of an
offence, orally or in writing.
(7) To bring the statement in question within the prohibition
of Article 20(3), the person accused must have stood in the
character of an accused person at the time he made the
statement. It is not enough that he should become an
accused, any time after the statement has been made."
781. From what has been held in the above case, it is clear
that "to be a witness" is not equivalent to "furnishing
evidence" in its widest significance. The use of information
retained by Uidai given by the order of the court under Section
33 cannot be said to be violating the protection as contained
under Article 20(3). Thus, Article 20(3) is not violated by
disclosure of information under Section 33. In view of the
foregoing discussion, we hold that Section 33 is
constitutional.
22. The Hon'ble Apex Court, while dealing with the
issue, has taken into consideration the larger issue of
maintaining the privacy of an individual.
23. It has been observed therein that the provision as
contained under Section 33(1) of Act,2016 has been held to
be valid.
24. The issue which we are considering is the efforts
which are being taken by the investigating agency in
tracing out the victim who is not being traced out since
sometime in the year 2014.
25. It appears from the various affidavits filed on behalf
of the investigating agency that even though several
raids/searches have been made in the different parts of the
country but no whereabouts of the victim has been found
out as yet.
26. The investigating agency, in order to take the
further steps, has made an application before the UIDAI in
view of the provision of Section 33(1) of the Act, 2016. The
authority of the UIDAI has expressed that applicability of
the provision of Section 33(1) of the Act, 2016 which is
coming in their way in providing the details as per the copy
of the Aadhar Card supplied to them along with the
requisition made by the Investigating Officer which has also
been appended with the interlocutory application being I.A.
No. 126 of 2025 filed in Criminal Appeal (DB) No. 1208 of
2023.
27. We are of the view that the concern of the authority
of the UIDAI with respect to the rider having been put
under Section 33(1) of the Act, 2016 cannot be said to be
unfounded.
28. We are conscious with the legal proposition that a
thing is to be done in pursuance to the law as established
and nobody can be allowed to travel in deviation to the
statutory provision, reference in this regard be made to the
judgment rendered by Hon'ble Apex Court in the case of
State of Uttar Pradesh vs. Singhara Singh and Ors., AIR
(1964) SC 358, wherein it has been held as under:
25. "....its result is that if a statute has conferred a power to
do an act and has laid down the method in which that power
has to be exercised, it necessarily prohibits the doing of the
act in any other manner than that which has been prescribed.
The principle behind the rule is that if this were not so, the
statutory provision might as well not have been enacted...."
29. Further, the Hon'ble Apex Court in the case of Babu
Verghese and Ors. vs. Bar Council of Kerala and Ors.,
(1999) 3 SCC 422, has reiterated the same view wherein it
has been held at paragraphs 31 & 32 as under:
"31. It is the basic principle of law long settled that if the
manner of doing a particular act is prescribed under any
statute, the act must be done in that manner or not at all. The
origin of this rule is traceable to the decision in Taylor v.
Taylor which was followed by Lord Roche in Nazir Ahmad v.
King Emperor who stated as under: "[W]here a power is given
to do a certain thing in a certain way, the thing must be done
in that way or not at all." 32. This rule has since been
approved by this Court in Rao Shiv Bahadur Singh v. State of
V.P. and again in Deep Chand v. State of Rajasthan. These
cases were considered by a three-judge bench of this Court in
State of U.P. v. Singhara Singh and the rule laid down in Nazir
Ahmad case was again upheld. This rule has since been
applied to the exercise of jurisdiction by courts and has also
been recognized as a statutory principle of administrative
law."
30. But simultaneously it is also to be seen as to
whether, in such circumstances where the Investigating
Officer is still to take an effective measure to trace out, the
direction can be passed by the High Court in view of the
requirement as put under Section 33(1) of the Act, 2016?
31. So far as the opportunity of hearing which is the
condition precedent as provided under Section 33 of the
Act, 2016, the question which has been taken note by this
Court in its earlier order dated 11.02.2025 that the victim
is traceless then how can the opportunity of hearing is to
be given. Therefore, in such circumstances, the statutory
provision does not mean that the same is to be considered
in the adversity of the interest of the concerned victim and,
here the concept of doing substantive justice is to be taken
care of.
32. Since we have already expressed our view that law
is for doing substantive justice and we are dealing with the
issue of the victim who has not been traced out having
been traceless since sometime in the year 2014 and, as
such, for the purpose of doing substantive justice towards
the parents, more particularly, the victim who is traceless
for more than a decade, this Court is of the view that the
power which is to be exercised by the High Court as
provided under Section 33(1) of the Act, 2016 is required to
be exercised.
33. The intent of the Act, 2016 as per its preamble is to
have the details of an individual so that by allotting a
particular number as contained in the Aadhar Card, all
details of an individual is to be traced out. The said aspect
of the matter has not been held to be ultra vires by the
Hon'ble Apex Court but simultaneously the crux of the
judgment which has been passed by the Hon'ble Apex
Court in the case of K.S.Puttaswamy (retd.) & Anr. Vs.
Union of India and Others (supra) is to maintain the
balance equally, i.e., by maintaining the issue of privacy.
34. Here the factual aspect which cannot be disputed,
i.e., the issue of victim who is to be traced out and if the
Aadhar Card details will be furnished to the Investigating
Agency, there might be chance of recovery of the victim.
35. This Court, therefore, is passing the direction upon
the authority of the UIDAI to supply the details as per the
requisition made by the Investigating Agency under the
sealed cover forthwith.
36. Accordingly, I.A. No. 126 of 2025 stands disposed
of.
37. The matter is being posted after four weeks for filing
the affidavits updating the issue of the efforts taken to trace
out the victim.
38. List this matter on 26.03.2025.
39. Let the written order be communicated by Mr.
Prashant Pallav, learned Deputy Solicitor General of India
to the authority of UIDAI.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
A.F.R.
Birendra/
