UAPA | 'No Reasonable Grounds To Believe Accusations Are Prima Facie True' : Supreme Court Grants Bail To Two Alleged Maoists After 4.5 Years' Custody

The Supreme Court on Monday granted bail to two accused persons allegedly belonging to CPI (Maoist) in the 2018 murder case of two leaders of Telugu Desam Party (TDP) on the ground that they were in custody for more than four years and charges have not been framed yet.

The Court further observed that materials placed on record do not state reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true and hence the bar against granting bail as per Section 43D(5) of the Unlawful Activities (Prevention) Act was not attracted.

The division bench of Justice Abhay S. Oka and Justice Rajesh Bindal noted:

“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.”

The incident occurred on September 23, 2018 wherein Kidari Sarveswara Rao (a member of the Legislative Assembly and whip of the Telugu Desam Party in Legislative Assembly) and Siveri Soma (former MLA belonging to Telugu Desam Party) were killed near the village Livitiputtu, Pothangi Panchayat within the jurisdiction of Dumbriguda Police Station at Visakhapatnam.

An FIR was lodged by the Personal Secretary of the deceased sitting MLA on the same day against the 45 accused persons allegedly belonging to the Communist Party of India (Maoist), a terrorist organisation notified in the first schedule of the UAPA.

The case was subsequently transferred to the National Investigation Agency (NIA). The appellants (accused no. 46 and 47 respectively) were arrested on October 13, 2018 and a chargesheet was filed against them on April 10, 2019.

In the chargesheet, 79 (initially 85) accused persons and 144 witnesses were named.

Senior Advocate Colin Gonsalves submitted before the Court that there is no material against both the accused to show that they provided shelter and logistic support to the Maoists as well as co-accused and that they planted landmines.

He further submitted that there is no prima facie evidence of the involvement of the two appellants in the offence.

It was argued that the charges have not been framed in the case and considering the fact that 144 prosecution witnesses are to be examined, the trial would take years and hence, the continuing incarceration of the appellants will amount to a violation of their rights under Article 21 of the Constitution.

On the other hand, the ASG, K. M. Nataraj appearing for the Union of India submitted that 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 the accused no. 46.

He pointed out that the disclosure statement made by accused no.46 on January 16, 2019 shows that he purchased a huge quantity of medicines worth Rs.8,000/- and handed them over to a Maoist.

It was also submitted that the appellants were constantly in touch with each other on cell phones for 18 days prior to the incident and thereafter, the cell phone of accused no.47 was switched off.

He further submitted that there are strong prima facie evidence against the appellants and therefore in view of the proviso to subsection (5) of Section 43D of UAPA, the appellants are disentitled to bail.

Court’s Observation

The Court noted that the accused no. 84 was granted bail by the High Court on the ground that he was prima facie not involved in the offence.

The Court noted:

“We fail to understand how the purchase of medicines worth Rs.8,000/- 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.”

As far as the disclosure statement date January 16, 2019 is concerned, the Court noted the first condition for the applicability of Section 27 is that the information given by the accused must lead to the discovery of the fact, which is the direct outcome of such information.

The Court observed:

“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.”

It was further opined by the court that appellants gave confessional statements immediately after the police caught hold of them even before their arrest was recorded, therefore, prima facie, it creates a doubt about the genuineness of the statements.

“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.”, the Court said.

The Court further observed that materials placed on record do not state 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 subsection (5) of Section 43D will not apply in this case.”, the Court held.

Thus, the Court directed the Special Judge, NIA to release the appellants on bail within a week on appropriate conditions after hearing the appellants and respondent.

Case Title: Yedala Subba Rao & Anr. v. Union of India

Citation : 2023 LiveLaw (SC) 317

Unlawful Activities (Prevention) Act 1967- Section 43D(5)-materials placed on record do not state reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true- bail granted to two alleged Maoists

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