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On April 17, the Supreme Court granted bail to two accused who were alleged to belong to the CPI (Maoist) and were further alleged to have a role in the murder of two Telugu Desam Party (TDP) leaders. In this 2018 murder case of TDP leaders, the court granted bail on the grounds that the accused had been detained for more than four years and that charges had not yet been framed.
The Court also observed that the materials on record fail to provide reasonable grounds for believing that the allegations against the appellants of commission of an offense under the UAPA are prima facie true, and thus the bar against granting bail under Section 43D(5) of the Unlawful Activities (Prevention) Act was not invoked.
“We have examined material relied upon against the appellants in paragraph 5 of the additional affidavit of the respondent as well as the chargesheet. Taking the material against the appellants as it is and without considering the defence of the appellants, we are unable to form an opinion that there are reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true. Hence, the embargo on the grant of bail under proviso to sub-section (5) of Section 43D will not apply in this case.” (Para 21)
The division bench of Justice Abhay S. Oka and Justice Rajesh Bindal also noted that:
“The appellants are in custody for four and half years. The charge has not been framed and the prosecution proposes to examine more than 140 witnesses. Some of the accused are absconding. Thus, there is no possibility of the trial commencing in the near future.” (Para 22)
Brief background of the case:
On September 23, 2018, Kidari Sarveswara Rao, a member of the Legislative Assembly and whip of the Telugu Desam Party in the Legislative Assembly, and Siveri Soma, a former Telugu Desam Party MLA, were killed near the village Livitiputtu, Pothangi Panchayat, within the jurisdiction of Dumbriguda Police Station in Visakhapatnam.
On the same day, the Personal Secretary of the deceased, a sitting MLA, filed a FIR against 45 accused persons allegedly affiliated with the Communist Party of India (Maoist), a designated terrorist organisation specified in the first schedule of the UAPA.
Previously, the investigation was conducted by a Special Investigation Team, which was later transferred to the National Investigation Agency (NIA). The appellants (accused nos. 46 and 47, respectively) were arrested on October 13, 2018, and their chargesheets were filed on April 10, 2019. The chargesheet named 79 (originally 85) accused persons and 144 witnesses. The charges have yet to be framed.
Submissions made by the counsel for the appellants:
Senior Advocate Colin Gonsalves informed the Court that there is no evidence against either of the accused to show that they provided shelter and logistical support to the Maoists or co-accused, or that they planted landmines. He also claimed that there is no prima facie evidence of the two appellants’ involvement in the offense of murder in question.
It was argued that the charges in the case had not been framed, and that with 144 prosecution witnesses to be examined, the trial would take years, and that the appellants’ continued incarceration would amount to a violation of their rights under Article 21 of the Constitution.
Submissions made by the counsel for the state:
The ASG, K. M. Nataraj, appearing for the Union of India, on the other hand submitted that according to the Memorandum dated October 13, 2018 under Section 27 of the Indian Evidence Act, 1872 shows that a steel can weighing about 10 kg, containing bolts, nuts, and filled with explosive material, and connected to a detonator through a wire, was recovered at the instance of accused no. 46.
He stated that accused no.46’s disclosure statement on January 16, 2019 shows that he had also purchased a large quantity of medicines worth Rs.8000/- and handed them over to a Maoist.
It was also claimed that the appellants were in constant contact with each other via cell phones for 18 days prior to the incident, after which the accused no.47’s cell phone was turned off.
He maintained that there is strong prima facie evidence against the appellants and that, as a result of the proviso to subsection (5) of Section 43D of the UAPA, the appellants are ineligible for bail.
Observations made by the court:
One of the most important considerations for the bench in deciding this case was that the accused no. 84 had been granted bail by the High Court on the grounds that he was not a suspect in the crime. Because, as the state’s counsel argued, the medicines were purchased by accused no. 46 at the request of accused no. 84, who had already been granted bail, the court made the following observation:
“We fail to understand how the purchase of medicines worth Rs.8000/- by accused no.46 at the instance of accused no.84 much before the incident has any connection with the incident which took place on September 23, 2018. This is apart from the fact that accused no.84 has been granted bail by the High Court.” (Para 12)
Concerning the disclosure statement date of January 16, 2019, the Court stated that the first condition for the applicability of Section 27 is that the information provided by the accused must lead to the discovery of the fact as a direct result of such information. The Court made the following observations:
“Now looking at the Discovery Memo dated 16th January 2019, at the highest, it means that accused no.46 showed the shop from which the medicines were purchased. Thus, he led the police to the shop. There was no discovery of any fact as a result of the information supplied by accused no.46. The same is the case with the other allegation that accused no.46 showed a Xerox shop where accused no.47 and one Kiran were allegedly standing on 23rd September 2018. Therefore, the statements of accused no.46 that he would show the medical shop and the Xerox shop may not be, prima facie, admissible under Section 27 of the Evidence Act.” (Para 14)
The court also stated that the appellants made confessional statements immediately after the police apprehended them, even before their arrest was recorded, which raises questions about the authenticity of the statements. The court said the following:
“In any case, accused no. 46 and 47 were not present at the time of the commission of the offence. Therefore, we cannot form an opinion that there are reasonable grounds for believing that the accusations against accused no. 46 are prima facie proved.” (Para 18)
Based on the observations made by the court above, the court concluded that the materials on record do not state reasonable grounds for believing that the allegations of commission of an offense under the UAPA against the appellants are prima facie true. The court then ruled that the prohibition on bail provided under proviso to subsection (5) of Section 43D does not apply in this case. Thus, after hearing the appellants and respondent, the Court directed the Special Judge, NIA to release the appellants on bail within a week on appropriate conditions.
The complete judgment can be read here.
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