A.V. Sesha Sai, J.:— Accused Nos. 46 and 47 in S.C. No. 119 of 2019 on the file of the learned Metropolitan Sessions Judge-cum-Special Judge for trial of N.I.A. Act Cases at Vijayawada are the appellants in the present Criminal Appeal, preferred under Section 21(4) of the National Investigation Agency Act, 2008.
2. Heard Sri. D. Suresh Kumar, learned counsel for the appellants, and Sri. Siddi Ramulu, learned Senior Public Prosecutor for the National Investigation Agency, apart from perusing the entire material available on record.
3. In an incident that took place at 12.10 p.m. on 23.09.2018 two representatives of the people were alleged to have been killed by the Maoists. In connection with the said offence, Dumbriguda Police registered Cr. No. 65 of 2018 on 23.09.2018 against 45 persons initially. Subsequently, the case was taken up by the National Investigation Agency and, during the investigation, some more persons were added as accused and re-registered the same as Rc. No. 2/2018/NIA/Hyd, under Sections 120-B, 147, 148, 149, 302, 342, 353 and 397 IPC, Sections 25 and 27 of the Indian Arms Act and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. Thereafter, after completion of investigation, the National Investigation Agency filed charge sheet and also supplemental charge sheet. Appellants herein filed Crl.M.P. No. 1120 of 2020 on the file of the learned Metropolitan Sessions Judge-cum-Special Judge for trial of N.I.A. Act Cases at Vijayawada, under Sections 437 and 439 of Cr.P.C., seeking their enlargement on bail. The prosecution resisted the said application by filing a counter. The learned Judge, by way of an order, dated 23.12.2019, dismissed the said application. In the present Criminal Appeal, filed under Section 21(4) of the National Investigation Agency Act, challenge is to the said order passed by the learned Metropolitan Sessions Judge-cum-Special Judge for trial of N.I.A. Act Cases at Vijayawada.
4. Learned counsel for the appellants herein contends that the order passed by the learned Metropolitan Sessions Judge-cum-Special Judge for trial of N.I.A. Act Cases at Vijayawada is highly erroneous and contrary to law, besides being opposed to the very spirit and object of the provisions of the National Investigation Agency Act and the Unlawful Activities (Prevention) Act. It is further contended that, in the absence of any material on record, which prima facie shows the involvement of the appellants herein in the crime, the learned Judge grossly erred in dismissing the application; that the proviso to Section 43-D(5) of the Unlawful Activities (Protection) Act does not impose any absolute prohibition on the discretion of the Court to consider and grant bail; that the reasons assigned by the learned Judge, for dismissing the application, are neither sustainable nor tenable in the eye of law. In support of his submissions and contentions, the learned counsel placed reliance on the following judgments:
1. State Of Kerala v. Raneef . [(2011) 1 SCC 784].
2. The order, dated 21.12.2012, in Crl.A. No. 824 of 2012, passed by the composite High Court.
5. On the contrary, totally supporting the impugned order and opposing the application for bail, filed by the appellants herein, it is contended by the learned Senior Public Prosecutor that there is no error nor there exists any infirmity in the impugned order and that the appellants herein are not entitled for bail in view of the existence of prima facie case against the appellants herein and in view of the mandate of law as provided under proviso to Section 36-D(5) of the Unlawful Activities (Prevention) Act; that, having regard to the nature of accusations against the appellants herein in the charge sheet filed against the appellants, they are not entitled for any indulgence of this Court. The learned Senior Public Prosecutor, in support of his submissions and contentions, places reliance on the judgment of the composite High Court in the case of National Investigation Agency v. Saddam Hussain (Crl.A. Nos. 791 and 792 of 2016, dated 07.11.2010).
6. In the above background, now the point that emerges for consideration of this Court is:
Whether the order passed by the learned Special Judge, dismissing the bail application, is sustainable and tenable and whether the appellants are entitled for bail?.
7. It is absolutely not in controversy that initially First Information Report was registered by the police against 45 persons on the report given by the Personal Secretary to the deceased. Subsequently, 40 persons were also included during the course of investigation and the appellants herein are accused Nos. 46 and 47. In the supplemental charge sheet, filed against the appellants herein, under the caption ‘the Role and Involvement of the accused Nos. 46 and 47-appellants herein, it is stated as follows:
17.32: Role and involvement of accused Yedala Subba Rao (A46)
17.32.1: The subject was arrested on 13.10.2018 and was examined in police custody during which he furnished details in the presence of independent witnesses about his active involvement in the conspiracy and his association with members of proscribed organization CPI (Maoist) in killing of MLA Shri Kidari Sarveswara Rao and Ex-MLA Siveri Soma in broad day light and in the presence of general public on 23.09.2018 near Livitiputtu village.
17.32.2: During the police custody, the accused A46 voluntarily disclosed and subsequently pointed out a medical shop at Araku Valley from where he purchased huge quantity of medicine worth about Rs. 8000/- to be handed over to a Maoist sent by Vanthala Dharmayya (A84). A46 also pointed out Antriguda junction from where he picked up two Maoists by name Dasu (A86) & Jaggu to be dropped at Arama Ghat. Thereafter, he pointed out a place where Gemmili Sobhan was directed to wait with Maoist Kiran on 23.09.2018 and mount surveillance on the movement of MLA and Ex-MLA's vehicles and pass on the same to him and Maoist cadres at Livitiputtu Village.
17.32.3: Investigation revealed that Yedala Subba Rao was a TDP Rytu Sangham President for Dumbriguda Mandal and was active in TDP. He obtained the copy of MLA's village visits programme and passed on the same to CPI (Maoist) cadres and also shared the movement details of the public representatives to the Maoists enabling them to plan execution of the murder. He was in contact with CPI (Maoist) cadres Dasu (A86) and Jaggu and he provided logistics and shelter to them. He had also planted landmine near Livitiputtu village along with Gemmili Sobhan (A47) and other Maoists on 22.09.2018 as part of conspiracy by the CPI (Maoist) cadres. On 23.09.2018 in order to avoid suspicion, he reached Sarai village at about 12 noon where MLAs Grama Darsini programme was scheduled to be held on the day of incident. He got a call from Gemmilli Sobhan 9A47) at 12.09 hrs i.e. immediately after the MLA and Ex-MLAs vehicles crossed the Dumbriguda junction.
17.32.4: The analysis of Call Data Records (CDRs) of mobile numbers 6304581367, 9493957771, 9440913079 obtained by A46 clearly establishes his association with co-accused persons Gemmilli Sobhan (A47) and Vanthala Dharmayya (A84). It was revealed that one number 8309087043 registered in the name of another person and obtained by A46 was in constant touch with Vanthala Dharmayya (A84), it was also in touch with certain Maoist number 9337855913. The call pattern during the relevant period also supports the revelation made by the accused with regard to his association with other accused persons. Apart from 6304581367, 9493957771, 9440913079, A46 reportedly was using two mobile numbers i.e. 9493957772 and 9491077089. This fact has been corroborated by the witnesses who have stated that A46 used to frequently change his mobile numbers.
17.32.5: It was revealed during investigation that the accused got in touch telephonically with A47 for the first time on 05.09.2018, i.e. just about 3 weeks prior to the incident. The calls ended on 23.09.2018, i.e. after the incident. The timing of the calls exchanged between A46 and A47 on 23.09.2018 is noteworthy—12.09 hrs i.e. just after the MLA and Ex-MLA crossed the Dumbriguda junction.
17.32.6: During the police custody, the accused A46 admitted before the police in presence of independent witnesses that he is associated with members of CPI (Maoist) for long; on their directions he had provided the schedule of MLA's party programme named Grama Vikasam/Grama Darshini to the Maoists Dasu (A86) and Jaggu @ Jogesh; he provided shelter and logistic support to the Maoists and facilitated commission of offence, and he planted the IED along Gemmilli Sobhan (A47) and other Maoists on 22.09.2018 on the way to Sarai near Livitiputtu village.
17.33: Role and involvement of accused Gemmili Sobhan(A47)
17.33.1: He was arrested on 13.10.2018 along with A46 and A49 CPI (Maoist) literature (Banner and Pamphlets) was recovered at the time of his arrest and joint disclosure and subsequent pointing out by Yedela Subba Rao (A46) led to recovery of a landmine weighing about 10 kgs along with electric detonator and 20 meters electrical wire near the scene of crime.
17.33.2 The analysis of CDRs of Gemmili Sobhan mobile number 9490335978 and Yedala Subba Rao's mobile numbers 9493957771 and 6304581367 indicate that they started to talk to each other over phone since 05.09.2018. After the incident he switched off his mobile number for 3 days. Gemmilli Sobhan (A47) admitted that he had provided shelter to CPI (Maoist) at his residence on 05.09.2018 and 22.09.2018 and other logistic support to them till execution of murder of MLA and Ex-MLA. He had also planted the landmine near Livitiputtu Village along with Yedala Subba Rao (A46) and other Maoists on 22.09.2018 as part of conspiracy by the CPI (Maoist) cadres.
17.33.3 It was revealed that on 23.09.2018, he along with one Maoist mounted surveillance at Dumbriguda junction on the movement of MLA & Ex-MLA's vehicles from 8 am to 12 noon and passed on the information to A46 and Maoist cadres at Livitiputtu Village through accompanying Maoist Kiran.
17.33.4 Investigation revealed that Gemmilli Sobhan took Maoists Dasu (A86) and Jaggu to a weekly market at Kinchumanda on 19.09.2018. He was in contact with Yedala Subba Rao (A46) physically as well as over phone in furtherance of the sconspiracy.
17.33.5 During investigation, Gemmilli Sobhan (A47) admitted before the police in presence of independent witnesses that he is associated with members of CPI (Maoist) on their directions he had worked under Yedala Subba Rao (A46). He was introduced to Maoists Dasu (A86) and Jaggu @ Jogesh by his relative Korra Kamala A49), he planted the IED along with Yedala Subba Rao (A46) and other Maoists on 22.09.2018 on the way to Sarai near Livitiputtu village; he provided shelter and logistic support to the Maoists and facilitated commission of offence by mounting surveillance on the vehicles of MLA and Ex-MLA along with Maoist Kiran.
8. Having regard to the nature of the allegations against A46 and A47-appellants herein and the language of proviso to Section 43-D(5) of the Unlawful Activities (Prevention) Act, appellants herein, in the considered opinion of this Court, are not entitled for any indulgence of this Court and the order of the learned Sessions Judge, dismissing the application for enlargement of A46 and A47 cannot be faulted.
9. In the result, Criminal Appeal is dismissed.
10. As a sequel thereto, miscellaneous petitions, if any pending in this appeal, shall stand closed.