Supreme Court Grants Bail to UAPA Accused No.46 & No.47 (2023)

Facts

On 23 September 2018, two political leaders—Shri Kidari Sarveswara Rao and Shri Siveri Soma—were ambushed and murdered near Livitiputtu village, an incident that gave rise to FIR No. 65 of 2018 registered at Dumbriguda Police Station, Visakhapatnam; the investigation, initially undertaken by a Special Investigation Team and subsequently by the National Investigation Agency, culminated in a charge‑sheet dated 10 April 2019 enumerating offences under Sections 120B read with 302 IPC, Sections 18, 19, 20 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), and Sections 4 and 5 of the Explosives Substances Act, 1908, with the appellants designated as accused No. 46 and No. 47 among a roster of 79 persons.

The appellants, having remained in judicial custody for more than four years, sought relief from the Andhra Pradesh High Court by invoking the proviso to sub‑section (5) of Section 43D of the UAPA, contending that the prosecution's case depended upon disclosure statements made by accused 46 to police and on alleged telephonic contacts with accused 84, who had earlier been liberated on bail; the High Court, however, denied bail to accused 46 and 47 while granting it to accused 84, prompting the present appeal before the Supreme Court.

During the investigation, accused 46 disclosed the location of a medical shop from which medicines worth Rs 8,000 had been procured and subsequently pointed police to a Xerox shop where he asserted that accused 47 and a detainee named Kiran had been present on the day of the murders; the shop proprietor thereafter testified that the investigative team was already aware of the medical shop's whereabouts prior to receiving accused 46's information, thereby raising the question of whether any factual discovery ensued from the accused's disclosures.

Simultaneously, the "Mediators' Report and Seizure Panchnama" recorded that on 13 October 2018 officials recovered a landmine, assorted brochures, banners, a mobile phone and detonators after accosting the appellants; however, no confessional statement by accused 46 indicated an intention to reveal the location of the landmine, and accused 47's statement merely referenced possession of Maoist literature, rendering the link between the disclosed information and the discovered artefacts tenuous.

The charge‑sheet, particularly paragraph 17.32, alleged that the appellants participated in planting a landmine, provided shelter and logistical assistance to Maoist operatives, and purchased medicines on the suggestion of accused 84; yet the prosecution presented no witness testimony corroborating the shelter allegation, and the appellants were not present at the scene when the alleged offence was committed.

Issue

Whether, in the face of the stringent bail bar embedded in the proviso to sub‑section (5) of Section 43D of the UAPA, the Supreme Court may grant bail to accused 46 and 47, considering (a) the admissibility of the disclosure statements made by accused 46 under Section 27 of the Evidence Act, 1872, and (b) the existence of any prima facie material linking the appellants to the planting of the landmine and the murder of the two political leaders.

Rule

The applicable statutory framework comprises (i) the proviso to sub‑section (5) of Section 43D of the UAPA, which restrains bail unless the court, after hearing the public prosecutor, is convinced that reasonable grounds exist to believe the accusation is prima facie true and that the accused is unlikely to tamper with evidence or flee; and (ii) Section 27 of the Evidence Act, 1872, which permits admission of a statement made to a police officer only when the information leads directly to the discovery of a fact, only the portion of the statement directly connected with such discovery is admitted, and the discovered fact relates to the commission of an offence.

Analysis

The Court, commencing its scrutiny with the nature of the allegations, observed that the prosecution's case against accused 46 rested upon three distinct pillars: provision of shelter and logistical support to Maoist cadres, procurement of medicines at the behest of accused 84, and the alleged facilitation of a landmine discovery; for accused 47, the charge centred on alleged association with accused 46, possession of Maoist literature and alleged participation in digging a pit wherein the landmine was purportedly placed.

Turning first to the admissibility of the disclosure statements, the Court reiterated the triadic requisites of Section 27 as elucidated in Jaffar Hussain Dastagir v. State of Maharashtra and the earlier Privy Council decision in Pulukuri Kottaya; the Court held that the information supplied by accused 46 concerning the medical shop and the Xerox shop failed to satisfy the "discovery of a fact" criterion, for the only result was the identification of premises already known to investigators, and no fact relating to the commission of the alleged offence emerged therefrom.

Consequently, the Court declared the statements inadmissible both under Section 27 and, by virtue of their confessional character made to police officers prior to formal arrest, under Section 25 of the Evidence Act, thereby extinguishing the evidentiary foundation upon which the prosecution sought to demonstrate a conspiratorial nexus.

With the disclosure evidence discarded, the Court examined the residual material, notably the allegation of medicine procurement; it observed that the purchase, occurring "much before" the murders, bore no logical nexus to the planting of a landmine or to the homicide itself, and that the mere existence of telephonic contact between the appellants and accused 84, a person already liberated on bail, did not rise to the level of proof required to establish participation in the alleged terrorist act.

Moreover, the Court found that the seizure of the landmine and associated items, although documented in the Panchnama, could not be ascribed to the appellants on the basis of a statement indicating that they would lead investigators to the device; the absence of such a statement nullified any claim that the discovery was effected at their "instance," a prerequisite for invoking Section 27.

Addressing the substantive bail bar, the Court applied the proviso to Section 43D(5), emphasizing that the statutory mandate obliges the court to form an opinion of "reasonable grounds" for the accusation's prima facie truth after perusing the case diary or report; the Court, having found no admissible evidence establishing a factual link between the appellants and the murder or the landmine, concluded that it could not satisfy the prima facie threshold, thereby rendering the statutory impediment inapplicable.

In weighing the procedural context, the Court noted the appellants' prolonged pre‑trial detention of over four years, the absence of framing of charges, the projected examination of more than one hundred and forty witnesses, and the presence of absconding co‑accused, factors which collectively underscored the disproportionate impact of continued incarceration on the appellants' liberty guaranteed under Article 21 of the Constitution.

Accordingly, the Court set aside the impugned order of bail denial, directed that the appellants be produced before the Special Judge within one week, and remanded the matter for the imposition of appropriate bail conditions, thereby restoring liberty while preserving the integrity of the trial process.

Conclusion

The Supreme Court, after rejecting the admissibility of the prosecution's disclosure statements and finding no prima facie material linking accused 46 and 47 to the murder of the two political leaders, granted bail to the appellants notwithstanding the stringent bail provision of the UAPA, and ordered their release on bail subject to conditions to be prescribed by the Special Judge.

Bail under the Unlawful Activities (Prevention) Act (UAPA)

Why Choose SimranLaw: Navigating bail applications under the Unlawful Activities (Prevention) Act demands a nuanced grasp of both the substantive anti‑terrorism framework and the procedural safeguards enshrined in the Constitution; at SimranLaw, our team of seasoned criminal litigators combines deep expertise in UAPA jurisprudence with a strategic approach tailored to the high‑stakes environment of terrorism‑related prosecutions, ensuring that every facet of the bail requisition, from statutory interpretation of the proviso to sub‑section (5) of Section 43D to the meticulous challenge of evidentiary admissibility under Sections 25 and 27 of the Evidence Act, is meticulously addressed; our advocates begin by scrutinising the charge‑sheet and accompanying affidavits to identify any lacunae in the prosecution's prima facie case, simultaneously preparing a robust factual matrix that underscores the accused's lack of presence at the alleged offence, the absence of direct linkage between alleged transactions—such as the purchase of medicines—and the terrorist act, and the procedural irregularities that render continued detention disproportionate; we then craft a comprehensive bail petition that not only satisfies the procedural requisites of hearing the public prosecutor but also pre‑emptively counters arguments of potential evidentiary tampering or flight risk by proposing stringent yet reasonable conditions, including surrender of passport, mandatory periodic reporting, and prohibitions on contact with co‑accused, thereby assuaging judicial apprehensions without unduly encroaching upon liberty; leveraging our extensive experience before the Supreme Court, High Courts, and specialized tribunals, we are adept at invoking landmark authorities such as Jaffar Hussain Dastagir and Pulukuri Kottaya to demonstrate that statements obtained without the requisite discovery element cannot sustain a denial of bail, and we further supplement legal argumentation with expert forensic analysis that may dismantle the prosecution's narrative of conspiratorial communication; in parallel, our counsel remains vigilant about statutory timelines, filing interlocutory applications to compel compliance with the Criminal Procedure Code, and seeking stay orders where procedural delays threaten the accused's right to a speedy trial; the counsel's role extends beyond the courtroom, offering clients comprehensive guidance on post‑bail compliance, including adherence to restrictions under the UAPA, coordination with investigative agencies to prevent inadvertent breaches, and strategic planning for the forthcoming trial phases; our client‑centric model guarantees confidentiality, prompt responsiveness, and transparent communication, qualities that have rendered SimranLaw the preferred choice for individuals and organisations confronting UAPA charges across the High Court of Punjab and Haryana at Chandigarh and beyond; whether confronting a bail denial in a high‑profile terrorism matter or challenging the admissibility of incriminating statements, SimranLaw furnishes the strategic insight, procedural mastery, and relentless dedication requisite to secure liberty while upholding the rule of law, positioning clients for the most favourable outcome in the most demanding criminal contexts.