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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1153 OF 2023
(Arising out of Special Leave Petition (Crl.) No.10160 of 2021)
Yedala Subba Rao & Anr. …Appellants
versus
Union of India ...Respondent
J U D G M E N T
ABHAY S. OKA, J.
1. Leave granted.
FACTUAL ASPECTS
2. The appellants are accused nos.46 and 47 in FIR No. 65 of 2018
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registered on 23 September 2018 at Dumbriguda Police Station,
District Vishakhapatnam, in Andhra Pradesh. The appellants, along
with other coaccused, are being prosecuted for the offences
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2023.04.17
17:33:53 IST
Reason:
punishable under Section 120B read with Section 302 of the Indian
Penal Code, Sections 18, 19, 20 and 39 of the Unlawful Activities
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(Prevention) Act, 1967 (for short ‘the UAPA’). The appellants are also
charged with offences punishable under Sections 4 and 5 of the
Explosives Substances Act, 1908 (for short ‘the Explosives Act’).
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3.
The incident is of 23 September 2018. At about 12:10 hours,
Shri Kidari Sarveswara Rao, a member of the Legislative Assembly and
whip of the Telugu Desam Party in Legislative Assembly and one Shri
Siveri Soma, a former MLA belonging to Telugu Desam Party, were
killed near the village Livitiputtu, Pothangi Panchayat within the
jurisdiction of Dumbriguda Police Station at Visakhapatnam. This
incident took place when both of them were proceeding to village Sarai
to attend a function. The allegation is that 45 accused persons who
belonged to the Communist Party of India (Maoist), a terrorist
organisation notified in the first schedule of the UAPA, stopped the
convoy of vehicles of the aforesaid two leaders. The accused compelled
them to get out of their cars. Both of them were taken towards Y
Junction. Thereafter, the MLA was taken to the lefthand side of Y
Junction and the ExMLA was taken to the righthand side of Y
Junction. Both of them were killed by three gunshots. The Personal
Secretary of the deceased sitting MLA lodged FIR on the same day in
which he named 45 accused. Earlier, investigation was carried out by
a Special Investigation Team, which was subsequently transferred to
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the National Investigation Agency (NIA). The case was registered by
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NIA as RC02/2018 NIA/HYD on 6 December 2018. The appellants
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were arrested on 13 October 2018. A chargesheet was filed against
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them on 10 April 2019. It appears from the said chargesheet that
there are 79 accused though initially there were 85 accused. About
144 witnesses have been named in the charge sheet so far. The
charge has not yet been framed. Some of the accused are absconding.
The appellants have been in custody for the last four years and seven
months.
SUBMISSIONS
4. Shri Colin Gonsalves, the learned senior counsel appearing for
the appellants, has taken us through the relevant portions of the
charge sheet filed against the present appellants. He pointed out that
the recovery of landmine is shown at the instance of appellant no.1
accused no.46, which on the face of it, is highly suspicious. He
pointed out that there is no recovery shown at the instance of the
accused no.47. He pointed out that the second allegation against
accused no.46 is that the call details record of accused nos.46, 47 and
84 show that they were always in touch with each other which shows
that they were partners in the criminal conspiracy. He pointed out
that accused no.84 has been granted bail by the High Court. He
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pointed out that another allegation against accused no.46 is that he
purchased huge quantity of medicines worth Rs.8,000/ which were to
be handed over to a Maoist sent by accused no.84. He submitted 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 pointed out that there
is no evidence to show that the alleged landmines had any connection
with the offence of killing the aforesaid two leaders. He would,
therefore, submit that there is no prima facie evidence of the
involvement of the two appellants in the offence. He relied upon a
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decision of this Court in the case of
Union of India v. K.A. Najeeb .
He submitted that even charges have not been framed. Some of the
accused are absconding. Considering the fact that there are 144
prosecution witnesses, the trial is going to take years and therefore,
continuing incarceration of the appellants will amount to a violation of
their rights under Article 21 of the Constitution.
5. Shri K.M. Nataraj, learned ASG appearing for the respondent,
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pointed out the Memorandum dated 13 October 2018 under Section
27 of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’),
which shows that a steel can weighing about 10 kg containing bolts,
nuts and filled with explosive material and connected to a detonator
1 (2021) 3 SCC 713
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through a wire was recovered at the instance of accused no.46 near a
kaccha road near village Sarai where the deceased political leaders
were to visit. He also pointed out that the landmine was planted with
the object of killing the said two leaders. He pointed out that the
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disclosure statement made by accused no.46 on 16 January 2019
shows that he purchased a huge quantity of medicines worth
Rs.8,000/ and handed them over to a Maoist. He pointed out that the
appellantsaccused used different SIMs standing in the names of third
parties to remain in touch with the coaccused. As regards accused
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no. 47, he submitted that the disclosure statement of 13 October
2018 records that both the appellants dug a pit near a kaccha road
leading to Sarai village and planted a landmine therein. He also
pointed out that the accused nos.46 and 47 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. Shri
Nataraj further urged that both accused nos.46 and 47 are involved in
the offence and there is a strong prima facie material against them.
He, therefore, submitted that in view of the proviso to subsection (5)
of Section 43D of UAPA, the appellants are disentitled to bail as there
is material on record to believe that the accusations against the
appellants are prima facie true.
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OUR VIEW
6. We have given careful consideration to the submissions. We
have perused the material against the appellants in the context of
stringent provisions for the grant of bail incorporated under the
proviso to subsection (5) of Section 43D of UAPA. We have perused
the chargesheet filed against the appellants. The allegation against
the first appellantaccused no.46 is that he provided shelter and
logistic support to Maoists and coaccused for facilitating the offence
of murder of the two leaders. The second allegation is that the present
appellants planted landmines near the village where the programme
was to be held. It is further alleged that appellant no.1 accused
no.46 was in constant touch with accused no.84, who in turn was in
touch with the Maoists. It is further alleged that the cell phone call
record shows that the appellants were in touch with each other
immediately after the incident. The accused no.46 purchased huge
quantity of medicines and handed over the same to a Maoist sent by
accused no.84.
7.
The allegation against accused no.47 is that he had association
with accused no.46. He was found in possession of certain pamphlets
and literature of the terrorist organisation – CPI (Maoist). Another
allegation is that accused no.47 had given shelter to Communist party
workers.
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8. One of the allegations in the chargesheet is that the present
appellants were in touch with each other for about 1718 days before
the incident. Moreover, they were regularly conversing with accused
no.84, who in turn was communicating with the workers of the CPI
(Maoist) Party.
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9.
We may note here that by the judgment and order dated 15
December 2020 passed by a Division Bench of Andhra Pradesh High
Court in Crl. Appeal No.229 of 2020, accused no.84 has been granted
bail. We have perused the judgment, which is produced along with IA
No.21015 of 2022. In the said judgment, the High Court has
considered the CDR records of the telephonic conversation between
accused no.46 and accused no.84. In paragraph 9, the High Court
observed that accused no.46 was an ExSarpanch of the village where
accused no.84 was teaching in a government school and therefore, it
was natural that being an ExSarpanch, people were constantly
approaching him. The calls were exchanged between these two
accused on the date of the offence and after the offence. The High
Court observed that when an offence of such a nature happened in the
vicinity, it is not unusual that accused no.46, who was an Ex
Sarpanch, would receive calls from many persons immediately after
the commission of the offence. The High Court further observed that
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there was an allegation that medicines worth Rs.8,000/ were
purchased at the instance of the accused no.84 which were handed
over at his instance to one Kiran, who was also a Maoist. The High
Court observed that in the chargesheet filed against accused no.46, it
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was noted that the said Kiran was arrested on 18 September 2018
and was in custody on the date of the offence. Therefore, the High
Court opined that accused no.84 was prima facie not involved in the
offence and, at the highest, was guilty of an offence punishable under
Section 202 of IPC.
10. The grant of bail by the High Court to accused no.84 is very
relevant in this case as in paragraph 17.19 of the chargesheet filed
against the present appellants, the allegation is that call detail records
of accused nos.46,47 and 84 show that they were exchanging calls
which indicates that they are the parties to the conspiracy.
11. As regards the allegation of purchase of medicines worth
Rs.8,000/ by accused no.46, the prosecution has relied upon a
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Disclosure Memo dated 16 January 2019. In the Disclosure Memo,
it is alleged that accused no.46 disclosed that one Kiran approached
him in July 2018 to help him to purchase medicines. Thereafter, he
received a call from accused no.84, who informed him that one person
will give him a list of medicines and cash of Rs.10,000/ and he
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should help him to purchase medicines. The disclosure statement
records that accused no.46 helped that person to purchase medicines
from a medical shop and he led the police party to the said medical
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shop. In the disclosure statement, he also stated that on 23
September 2018, he saw accused no.47 along with one person (Kiran)
at a Xerox shop at Dumbriguda Junction. Accused no.46 stated that
he will be able to show the said shop, and accordingly, he showed the
said shop.
12. 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
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place on 23 September 2018. This is apart from the fact that accused
no.84 has been granted bail by the High Court.
13. Now we will have to decide whether the disclosure statement
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dated 16 January 2019 is admissible in evidence. It is necessary to
advert to the law laid down by a Bench of three Hon’ble Judges of this
Court in the case of Jaffar Hussain Dastagir v. State of
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. This Court followed a decision of the Privy Council in
Maharashtra
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the case of Pulukuri Kottaya v. King Emperor which is a locus
| classicus | . In paragraph no.5 of the decision in the case of | Jaffar | , this |
|---|
2 (1969) 2 SCC 872
3 (1946) SCC online Privy Council 47
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Court held thus:
Under Section 25 of the Evidence Act no
“5.
confession made by an accused to a police officer can
be admitted in evidence against him. An exception to
this is however provided by Section 26 which makes a
confessional statement made before a Magistrate
admissible in evidence against an accused
notwithstanding the fact that he was in the custody of
the police when he made the incriminating statement.
Section 27 is a proviso to Section 26 and makes
admissible so much of the statement of the accused
which leads to the discovery of a fact deposed to by
him and connected with the crime, irrespective of the
question whether it is confessional or otherwise. The
essential ingredient of the section is that the
information given by the accused must lead to the
discovery of the fact which is the direct outcome
of such information. Secondly, only such portion
of the information given as is distinctly connected
with the said recovery is admissible against the
accused. Thirdly, the discovery of the fact must
relate to the commission of some offence. The
embargo on statements of the accused before the
police will not apply if all the above conditions are
fulfilled. If an accused charged with a theft of
articles or receiving stolen articles, within the
meaning of Section 411 IPC states to the police, “I
will show you the articles at the place where I have
kept them” and the articles are actually found
there, there can be no doubt that the information
given by him led to the discovery of a fact i.e.
keeping of the articles by the accused at the place
mentioned. The discovery of the fact deposed to in
such a case is not the discovery of the articles but
the discovery of the fact that the articles were
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kept by the accused at a particular place.
principle there is no difference between the above
statement and that made by the appellant in this case
which in effect is that “I will show you the person to
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whom I have given the diamonds exceeding 200 in
number”. The only difference between the two
statements is that a “named person” is substituted for
“the place” where the article is kept. In neither case
are the articles or the diamonds the fact discovered.”
(emphasis added)
14. As held by this Court, Section 27 of the Evidence Act is an
exception to the general rule under Section 25 that a confession made
by an accused to a police officer is not admissible in evidence. 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. Only such portion of the
information given as is distinctly connected with the said discovery is
admissible against the accused. Now looking at the Discovery Memo
| dated 16 | th | 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
| 23 | rd | 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. |
|---|
Moreover, as noted in the order of the High Court granting bail to
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accused no.84, the said Kiran, who was allegedly standing with
| accused no.47 near the Xerox shop on 23 | rd | September 2018 was |
|---|
| already in custody from 18 | th | September 2018 and he continued to be |
|---|
| in custody even on 23 | rd | September 2018. |
|---|
15. There is one more crucial aspect. A statement of one G.Narasinga
Rao, who was allegedly running the said medical shop has been
recorded during the investigation. In the statement, he has stated that
| on 16 | th | January 2019, NIA team visited his shop and inquired about |
|---|
the sale of medicines involving a large amount in July 2018 and the
team brought accused no.46 with them. This shows that the NIA team
was already aware of the location of the shop from which a large
quantity of medicines was allegedly purchased by accused no.46 in
July 2018.
16. Now, we come to the material to show that there was a recovery
of landmine at the instance of accused no.46. It must be noted here
that it is not the case of the prosecution that the recovery of landmine
was at the instance of the accused no.47. The recovery Panchama
(Annexure A1) to IA no. 74099 of 2022 is styled as “Mediators’ Report
| and Seizure Panchnama”. It records that at about 4 pm on 13 | th |
|---|
October 2018, the mediators were present at Livitiputtu village with
ASP Amitabh for preparing the Mediators’ Report and Seizure
Panchanama. It is recorded in the Panchnama that ASP Amitabh, an
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IPS officer, along with other 9 or 10 police officials with a Bomb
Disposal Team, visited Livitiputtu village. On the way, they saw four
persons, including the accused nos.46 and 47, who were holding
plastic bags. When they tried to flee, the police chased them and
caught hold of them. In the same Panchnama, a long statement of
accused no.46 is recorded, which is in the nature of a confessional
statement. There is also a confessional statement of accused no.47 in
| the same Panchnama. | Prima facie, | these statements may not be |
|---|
admissible in evidence being hit by Section 25 of the Evidence Act.
Going by the “Mediators’ Report and Seizure Panchnama”, the
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. The material portion of the “Mediators’ Report and
Seizure Panchnama” appears after the confessional statement of the
accused no. 46. It reads thus:
| “ | After that He himself taken us to some far kuccha |
|---|
| road towards Sarvai village. He then shown us the | |
| Land mine plotted along with the Electrical wire. | |
| Thereafter Bomb Disposal team removed bomb in | |
| presence of us (Mediators), ASP Amitabh Bardar, IPS | |
| and by examining it was found to be a Steel Can | |
| weighing about 10 kg, containing Bolts, Nuts and filled | |
| with Explosive Material and connected to a Detonator | |
| through a hole. A 20 m long red wire is attached to | |
| operate it. After that Bomb Disposal Team Defused | |
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| and recorded videos and took pictures and Seized | | | | | |
|---|
| Landmine, Detonator, Electrical Wire. We Mediators | | | | | |
| examined the plastic bag of Yedala Subbarao, found | | | | | |
| Brochures and banners along with his Karbonn mobile | | | | | |
| and has been seized.” | | | | | |
| | | | | [emphasis added] |
17.
It is pertinent to note that a long confessional statement of
accused no.46 has been recorded within inverted commas in the said
document, and thereafter, the aforesaid portion has been written. It is
not noted in the confessional statement of accused no.46 that he
stated that he would show the place where he had planted the
landmine. If accused no.46 had made such a statement leading to the
discovery of the landmine, the discovery of the fact that the landmine
was planted by accused nos.46 at a particular place could have been
proved, provided the landmine was to be used in the offence. However,
there is no such confessional statement of accused no.46 recorded
that he will show the place where landmine was planted by him. The
| Panchnama | | shows that the accused no.46 took them to a place and |
|---|
showed landmine. There is no confessional statement made by him
giving information that he is in a position to show the place where he
| had planted landmine. Therefore, | prima facie, | “the Mediators’ Report |
|---|
and Seizure Panchnama” is not helpful to the prosecution in proving
that the landmine was discovered at the instance of the accused
no.46.
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18. As can be seen from the chargesheet, in paragraph 17.32, there
were three material allegations against accused no.46. The first was of
plantation of a landmine which we have already discussed. The
second one was that he provided shelter and logistic support to the
Maoists for facilitating the commission of the offence. The third
circumstance that he purchased medicines worth Rs.8,000/ as per
the suggestion of accused no.84 will also have to be kept out of
consideration for the reasons already recorded. In paragraph 5 of the
additional affidavit of the respondent, the material against the
appellants has been set out in a tabular form. In the tabular form, it
is not mentioned that there are statements of the witnesses who had
seen accused nos.46 or 47 giving shelter to the Maoists. 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. |
|---|
19. Coming to allegations against accused no.47, we may note here
that his confessional statement recorded under the Mediators Report
and Seizure Panchnama is not admissible evidence as he has not
disclosed any fact that led to any discovery. In his statement, it is
recorded that he was carrying Maoist literature and banners. It is
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recorded in the Panchnama that eight brochures, two banners, and
one landmine, along with electric wire and detonators, were seized
from four persons. It is not specifically mentioned in the Panchnama
that the brochures and banners were recovered from accused no.47.
The prosecution case that accused no.47, with one Kiran, was found
| standing at a particular place on 23 | rd | September 2018 appears to be |
|---|
very doubtful, as noted by us earlier. Then what is against accused
no.47 is that he was in touch with accused no.46 on the telephone.
The same was the allegation against accused no.84, who has been
enlarged on bail.
| Subsection (5) of Section 43D of the UAPA reads thus: | |
| “(5) Notwithstanding anything contained in the |
| Code, no person accused of an offence |
| punishable under Chapters IV and VI of this Act |
| shall, if in custody, be released on bail or on his |
| own bond unless the Public Prosecutor has been |
| given an opportunity of being heard on the |
| application for such release: |
| Provided that such accused person shall not | | | | | |
|---|
| be released on bail or on his own bond if the | | | | | |
| Court, on a perusal of the case diary or the | | | | | |
| report made under Section 173 of the Code is | | | | | |
| of the opinion that there are reasonable | | | | | |
| grounds for believing that the accusation | | | | | |
| against such person is prima facie true. | | | | | ” |
| | | | (emphasis added) | |
21. We have examined material relied upon against the appellants in
paragraph 5 of the additional affidavit of the respondent as well as the
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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 subsection (5) of Section 43D will not apply in this
case. We, however, make it clear that the findings recorded in this
Judgment are only prima facie observations recorded for the limited
purposes of examining the case in the light of the proviso to s ub
section (5) of Section 43D of the UAPA. The trial shall be conducted
uninfluenced by these observations.
22. As narrated earlier, 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.
23.
It is obvious that while granting bail, stringent conditions will
have to be imposed. We propose to leave it to the learned Special
Judge to impose appropriate conditions.
24. Accordingly, we set aside the impugned orders. We direct the
respondent to ensure that appellants are produced before the learned
Special Judge for the trial of NIA cases at Vijayawada within a
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maximum period of one week from today. The learned Special Judge
shall release the appellants on bail on appropriate conditions
determined by him after hearing the appellants and respondent. The
appeal is, accordingly, allowed.
.………………………J.
(Abhay S. Oka)
..………..……………J.
(Rajesh Bindal)
New Delhi;
April 17, 2023.