[Cites 14, Cited by 0]

Kerala High Court

R.Ragavendran vs Union Of India on 6 February, 2026

Crl.M.C.10590 of 2025


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                                                       C.R.
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

     THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI

                                   &

            THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN

     FRIDAY, THE 6TH DAY OF FEBRUARY 2026 / 17TH MAGHA, 1947

                        CRL.MC NO. 10590 OF 2025

   (CRIME NO.1/2022 OF NATIONAL INVESTIGATION AGENCY KOCHI,
                           Ernakulam
      AGAINST THE ORDER DATED 03.09.2025 IN CRMP 115/2025 IN
RC NO.1 OF 2022 OF SPECIAL COURT FOR TRIAL OF NIA
CASES,ERNAKULAM)
PETITIONER/ACCUSED NOS. 6 AND 7:

     1       R.RAGAVENDRAN,
             AGED 36 YEARS
             S/O.RAJAN, 7/8, PHASE-1, TNHB, SATHUVANCHERI,
             VELLORE, TAMIL NADU, PIN - 632009

     2       B.G.KRISHNAMURTHY,
             AGED 50 YEARS
             S/O. B.K.GOPAL RAO, NEMMAR ESTATE, NEAR BUKKABIDYLU,
             SRINGERI TALUK, CHICKAMANGALUR DISTRICT, KARNATAKA,
             PIN - 577139


             BY ADVS.
             SRI.THUSHAR NIRMAL SARATHY
             SMT.P.A.SHYNA



RESPONDENT/COMPLAINANT:

             UNION OF INDIA,
             REPRESENTED BY NATIONAL INVESTIGATION AGENCY, HMT-
             MEDICAL COLLEGE ROAD, KALAMASSERY, ERNAKULAM, PIN -
             683503
 Crl.M.C.10590 of 2025


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             BY ADV O.M.SHALINA, DEPUTY SOLICITOR GENERAL OF
             INDIA

      THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
03.02.2026, ALONG WITH WA.58/2022, THE COURT ON 6.2.2026
PASSED THE FOLLOWING:
 Crl.M.C.10590 of 2025


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                SUSHRUT ARVIND DHARMADHIKARI,                                    CR
                                    &
                       P.V.BALAKRISHNAN,JJ.
                   -------------------------------------
                     Crl.M.C. No. 10590 of 2025
                    ---------------------------------
                Dated this the 6th day of February 2026

                                   ORDER

P.V.BALAKRISHNAN,J

This Criminal Miscellaneous Case is filed under Section 528 of

the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS', for short)

challenging the orders dated 03.09.2025 passed in Crl.M.P

No.115/2025 and in Crl.M.P.No.95/2025 in RC No.

01/2022/NIA/KOC by the Special Court for Trial of NIA Cases,

Kerala, Ernakulam.

2. The petitioners are accused Nos. 6 and 7 in SC 2/2025/NIA

pending before the Special Court for trial of NIA cases, Ernakulam.

The offences alleged against the petitioners are under Sections

120B,121A,122 of IPC and Sections 18,18B,20,38 and 39 of

Unlawful Activities (Prevention) Act,1967 (hereinafter referred to as

'the UAP Act' for short). The petitioners were arrested on

27.11.2024 and after completing investigation charge sheet was

filed against them on 21.05.2025.

3. During the pendency of SC No.2/2025/NIA, the respondent Crl.M.C.10590 of 2025

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filed Crl.M.P.No.115/2025, under Section 44 of the UAP Act before

the Special Court praying for an order to treat CWs 49 to 53, CW61,

CW62 and CW79 as protected witnesses and also not to supply the

contents of the Section 161 Cr.P.C. statements and connected

documents listed in Annexure E list attached to Annexure IV charge

sheet, which tends to disclose the identity of these witnesses. The

Special Court allowed the Crl.M.P.No.115/2025 as per Annexure V

order. Consequently, Crl.M.A.No.95/2025 filed by the respondent

under Section 193(7) of BNSS was also allowed as per Annexure VI

order and the court directed to issue only redacted part of the

documents listed in the documents list attached to the charge sheet

as Document Nos.30 to 36, 74 to 79, 86 and 87 to the accused. It is

challenging Annexures V and VI orders, this Crl.M.C has been filed

by accused Nos. 6 and 7.

4. Heard Adv.Thushar Nirmal Sarathy, the learned counsel

appearing for the petitioners and Adv. O.M.Shalina, the learned

DSGI appearing for the respondent.

5. The learned counsel for the petitioners submitted that the

orders passed by the Special Court directing not to supply the

contents of Section 161 statements of CW49 to 53, CW61, CW62

and CW79 and to treat these witnesses as protected, is illegal and Crl.M.C.10590 of 2025

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irregular and against the ends of justice. He, by relying on the

decision of the Apex Court in Mohammed Asarudeen v. Union of

India (2025 KHC Online 6526), submitted that the identity of

two witnesses ordered to be protected is already revealed by the

respondent and if so, the very purpose of Section 44 (2) of UAP Act

is lost and, therefore, the impugned orders in respect of these

witnesses cannot be sustained. He further submitted that, there is

no threat to the lives of these witnesses from the hands of the

petitioners and the trial court has, without even satisfying itself that

such a threat exists, passed the impugned orders. He argued that

the Special Court is bound to record satisfaction qua individual

witnesses and merely on the basis of some general/vague reasons,

ought not to have allowed the applications. Lastly, he submitted that

the impugned orders passed by the Special Court are non speaking

orders, without application of mind and on this ground alone, are

liable to be set aside.

6. Per contra, the learned counsel for the respondent supported

the impugned orders and contended that there are no grounds to

interfere with the same. She argued that the petitioners are

involved in serious offences relating to terrorist activities and if the

identity of the material witnesses are disclosed, the lives of those Crl.M.C.10590 of 2025

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witnesses will be in danger. She submitted that the prosecution has

filed the application with specific averments in relation to every

witnesses, pointing out the danger to their life and that the trial

court, after considering the materials on record, has rightly passed

the impugned orders.

7. On an anxious consideration of the rival submissions and

the materials on record, we are of the view that there is

considerable force in the submissions made by the learned counsel

for the petitioners. Annexure V order in Crl.M.P.No.115/2025 has

been passed on the basis of an application made by the prosecution

under Section 44 of the UAP Act read with Section 17 of NIA Act.

Section 44 of the UAP Act reads as follows:

44. 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;

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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.

8. The provisions of Section 44 of the UAP Act as well as

Section 17 of the NIA Act are pari materia. An application for

protection of witnesses under Section 44 (2) of the UAP Act can be

filed either by a witness or by the Public Prosecutor. The trial court

can also on its own motion, if the conditions mentioned in Section

44 (2) are made out, take appropriate measures as it deems it for

keeping the identity and address of the witness secret. Section

44(2) shows that the first condition precedent for the exercise of the

power is the recording of the satisfaction by the Special Court that

the life of a witness is in danger. It is after recording the said

satisfaction, the 2nd stage comes into operation, leading the court to

pass such orders for keeping the identity and the address of the

witness secret. It is to be taken note that Section 44 (2) also

mandates that while deciding what kind of measures should be

adopted, the court must record its reasons.

9. The Hon'ble Apex Court in the decision in Mohammed

Asarudeen (cited supra), while considering the scope and ambit of Crl.M.C.10590 of 2025

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Section 44(2) of UAP Act and Section 17 of NIA Act, has

categorically held that, the recording of satisfaction by the Special

Court that the life of the concerned witness is in danger, must be

based on the materials available before the court. It was also held

that the extent and the nature of the material required to record

such satisfaction, will depend upon the facts and circumstances of

each case and that the recording of clear satisfaction, based on

materials is mandatory. The Apex Court further held that after

recording satisfaction, the court has to apply its mind on the

materials on record and decide as to what kind of measures should

be adopted for keeping the identity and address of such witness

secret and for that, the court must record brief reasons. It was

further held that the Special Court must apply its mind and has to

consider the case of each witnesses separately, regarding the

possible dangers to their lives.

10. In the instant case, it is true that the prosecution has

made an application with respect to a number of witnesses and that

there are specific averments in relation to every witnesses. But a

perusal of the impugned orders would go to show that the special

court has not recorded a clear satisfaction that the life of the

witnesses are in danger, based on materials. It is also to be seen Crl.M.C.10590 of 2025

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that the impugned orders does not reflect consideration of the

materials on record, before deciding the measures to be taken for

keeping the identity of the witnesses secret. No reasons, at least in

brief, is also not stated for allowing the application and the order

merely says that "the reasons stated in the petition are convincing".

That apart, the Special Court has also not considered the case of

each witnesses separately, regarding the possible dangers to their

lives based on the materials on record and has merely allowed the

application by finding that no prejudice is caused to the accused. At

this juncture, we will also take note of the fact that even though the

petitioners have specifically contended that the identity of two of the

witnesses have already been revealed by the prosecution and that

the very purpose of Section 44 (2) of UAP Act is defeated, the same

has also not been considered by the Special Court.

11. The result of the forgoing discussions is that the impugned

orders passed by the Special Court cannot be sustained and are

liable to be set aside. In such circumstances, the Special Court is

directed to reconsider Crl.M.P.No.115/2025 and Crl.M.P.No.95/2025,

afresh in the light of the observations made afore, as per law.

In the result, Crl.M.C.No.10590/2025 is allowed as follows:

i) The order dated 03.09.2025 in Crl.M.P.No.115/2025 in R.C.No.01/2022/NIA/KOC passed by the Special Court Crl.M.C.10590 of 2025

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for trial of NIA Cases, Kerala, Ernakulam is set aside.

ii) The order dated 3.9.2025 in Crl.M.P.No.95/2025 in RC No.01/2022/NIA/KOC passed by the Special Court for trial of NIA Cases, Kerala, Ernakulam is also set aside.

iii) Crl.M.P.No.115/2025 and Crl.M.P.No.95/2025 are remitted back to the Special Court for fresh consideration and disposal as per law, in the light of the observations made in this order.