Allowed

Vanthala Dharmayya v. Union of India

Andhra Pradesh HC15 Dec 2020CRLA/229/2020

Case brief

AI extract

What is this about?

Criminal Appeal filed by accused No.84 challenging bail dismissal. Court examined rel. of proviso to Section 43-D(5) UAPA and Apex Court precedent. Held no absolute bar on bail; appellant entitled to bail.

What did the court decide?

Accused No.84 released on bail on executing personal bond of Rs.25,000 with two sureties.

What the court decided

Vanthala Dharmayya Vs Union of India — Criminal Trial and Appeal | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE A.V.SESHA SAI

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AND

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THE HON’BLE SRI JUSTICE K.SURESH REDDY

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CRIMINAL APPEAL No.229 OF 2020

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JUDGMENT: (per Hon’ble Sri Justice A.V.Sesha Sai)

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Accused No.84 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 is the appellant in the present Criminal Appeal, preferred under Section 21 (4) of the National Investigation Agency Act, 2008.

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Heard Sri D.Suresh Kumar, learned counsel for the appellant, and Sri Siddi Ramulu, learned Senior Public Prosecutor for the National Investigation Agency, apart from perusing the entire material available on record.

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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

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AVSS,J & KSR,J Crl.A.No.229 of 2020

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(Prevention) Act, 1967. Thereafter, after completion of investigation, the National Investigation Agency filed charge sheet and also supplemental charge sheet. On the basis of the confession statement of A46-Sri Yedala Subba Rao, appellant herein came to be added as A84 and ever since he has been in Central Prison, Visakhapatnam. Appellant herein filed Crl.M.P.No.1831 of 2019 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 his 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.

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Learned counsel for the appellant herein contends that the order passed by the learned Metropolitan Sessions Judgecum-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

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involvement of the appellant 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:

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1. State of Kerala v. Raneef [(2011) 1 SCC 784].

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2. The order, dated 21.12.2012, in Crl.A.No.824 of

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2012, passed by the composite High Court.

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On the contrary, totally supporting the impugned order and opposing the application for bail, filed by the appellant 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 appellant herein is not entitled for bail in view of the existence of prima facie case against the appellant herein and in view of the mandate of law as provided under proviso to Section 43-D (5) of the Unlawful Activities (Prevention) Act; that, having regard to the nature of accusations against the appellant herein in the charge sheet filed against the appellant, he is 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

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in the case of National Investigation Agency v. Saddam

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Hussain (Crl.A.Nos.791 and 792 of 2016, dated 07.11.2010).

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In the above background, now the point that emerges for consideration of this Court is :

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Whether the order passed by the

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learned Special Judge, dismissing the bail application, is sustainable and tenable and whether the appellant is entitled for bail?.

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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 one of the deceased. Subsequently, 40 persons were also included during the course of investigation and the appellant herein is accused No.84. On the basis of the confession statement of A46, obviously, the appellant herein was included. Appellant herein is a Government Teacher in the area where the offence had taken place. In the supplemental charge sheet, filed against the appellant herein, under the caption ‘the Role and Involvement of the accused No.84appellant herein, it is stated as follows:

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17.46 : Yedela Subba Rao (A46), during interrogation in police custody revealed that Vanthala Dharmayya had close contacts with Maoists and had asked him to buy medicines for Maoists. Accordingly he purchased medicines worth Rs.8000/- in the month of July 2018 from Teja Medicals, Araku Valley owned by one G.Narsinga Rao and handed over the same to a Maoist by name Kiran who had approached him. Based on his revelations a search was conducted at the house of Vanthala Dharmayya

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on 16.01.2019 and mobile phones with SIM cards, tab and other electronic gadgets like router were seized. Further, he was arrested on the same day, based on the preliminary questioning and other circumstantial evidences connecting him to the crime.

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17.47 : Vanthala Dharmayya (A84) as part of conspiracy was found to be using four mobile numbers viz 6281915925, 8985373282, 8985915337 & 9491648201 and he was in regular contact using mobile number 8985873282 with other accused persons Yedala Subba Rao (A46) (6304581367) on the day prior to the incident, at the time of incident and after the incident. Further he was also in regular touch physically with other accused Yedala Subba Rao (A46).

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17.48 Vanthala Dharmayya (A84) with his mobile numbers 898573282 and 8985914337 was in touch with a mobile number 8309087043 which was obtained by Yedala Subba Rao (A46) for commission of the offence and exchanged 26 calls/SMS with the said number during the period from 8.8.2018 to 24.9.2018. Further he was in continuous touch with the said mobile number (8309087043) on the day prior to the incident and after the incident and this number was finally switched off on 24.9.2018 immediately after the commission of crime. The number 8309087043 was also in touch with a phone number 9337855913 used by Maoists.

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17.49 Vanthala Dharmayya (A84) was working for the prescribed organization CPI (Maoists) in Narayanapatnamm, related to Araku area as Militia member and supplied medicines and foot wear to the Maoists during the earlier period.

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17.50 Vanthala Dharmayya (A84) and actively participated in the conspiracy with CPI (Maoists) for targeting and killing of both MLA and Ex-MLA as they are cooperating with the Government for Mining of Bauxite in the area.

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17.51 Vanthala Dharmayya (A84) was using a Samsung Tab (SM-T111 Galaxy Tab 3 Lite 7.0), IMEI

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No.352423063572380 and had browsed proxysite.com on 10.12.2018 and also accessed privacy settings. Further, he visited Youtube to see/listen to Jana Natya Mandali songs and browsed/searched about Dappu Ramesh on Youtube. Jana Natya Mandali now known as Gana Natya Sangam (GNS) is a frontal organization of CPI (Maoist) and it conducts the programmes to recruit locals for CPI (Maoist) and spread propaganda against the democratically elected Government and its schemes.

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At paragraph 17.55, it is stated as follows:

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“Mobile phones, tab and other electronic gadgets seized during the search at the house of Vanthala Dharmayya (A84) on 16.01.2019 were sent to CERT-In, New Delhi for extraction of date and forensic examination. CERT-In Report vide DO No.7(9)/2018-CERT-In, dated 06.05.2019 provided a report on data extraction. Data extracted from the Samsung Tab revealed that he had accessed Youtube to watch/download songs of Jana Natya Mandali (a frontal organization of Maoits) and the songs of Dappu Ramesh (Folk Singer, sympathizer of Maoists). It was also revealed that he had watched contents related to naxal bari revolutions. Though watching these sites alone may not be an offence, this indicates that he was having strong Left Wing Extremist ideology and bolsters the allegation against him having association with Maoists”.

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Ultimately, the prosecution filed supplemental charge

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sheet against the appellant herein for the offences under Section 120-B r/w 302 IPC and Sections 18 and 38 of the Unlawful Activities (Protection) Act. According to the above referred paragraphs of the charge sheet, it is very much clear that the allegation against the appellant herein is that he was in contact with A46 prior to and after the incident. It is also

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AVSS,J & KSR,J Crl.A.No.229 of 2020

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clear from the charge sheet that the incident took place on 23.09.2018 at 12.10 p.m. The particulars of the phone calls between A46 and A84-appellant herein are given at paragraph No.17.21 of the charge sheet, which read as under:

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V.Dharmayya (A84)	Y.Subbarao (A46)	Date	Time	Duration	Call Type
8985373282	6304581367	23/09/2018	12:26:47	83	CALL OUT
8985373282	6304581367	23/09/2018	12:29:08	70	CALL IN
8985373282	6304581367	23/09/2018	12:31:16	41	CALL OUT
8985373282	6304581367	23/09/2018	12:32:23	21	CALL IN
8985373282	6304581367	23/09/2018	17:33:41	83	CALL OUT
8985373282	6304581367	23/09/2018	18:02:33	18	CALL OUT
8985373282	6304581367	23/09/2018	18:16:46	28	CALL IN

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The above table demonstrates prima facie that there were calls from the phone of the appellant herein to the phone of A46, subsequent to the incident but not prior thereto. Accused No.46 is the Ex-Sarpanch of the village and the appellant herein is a Government Teacher in the village, as such, calls which reached to the phone of A46 from the phone of the appellant herein cannot be the basis for denying the bail as normally when an offence of this nature takes place in the village, there can be a possibility of so many people contacting the person who was earlier the Sarpanch of the village. Another important aspect which needs mention in this context is that, according to the prosecution, A84appellant herein purchased medicines for an amount of

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Rs.8000/- in the month of July, 2018 from ‘Teja Medicals’ at Araku Valley and handed over the same to a Maoist-Mr.Kiran, who had approached him. It is also clear from the charge sheet filed against A46 that the said Kiran was arrested by the local police on 18.09.2018 and presently he is in Central Jail, Visakhapatnam i.e. even on the date of the offence he was behind the bars. Admittedly, the offence had taken place on 23.09.2018 i.e. much subsequent to the date on which A84 was alleged to have given the medicines.

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It is also clear from a reading of the judgment rendered by the composite High Court in Saddam’s case (referred to supra) that there is no absolute bar on the Court to grant bail. In this context, it may be necessary to refer to Section 43-D (5) of the Unlawful Activities (Prevention) Act, which reads as under:

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“Notwithstanding anything contained in

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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”.

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It is very much lucid from the above provision of law that there is no complete bar imposed by the legislature to grant bail by the Court. In this context, it may be appropriate to refer to the judgment of the Honourable Apex Court cited by the learned counsel for the petitioner (1^st cited supra), wherein the Honourable Apex Court, at paragraph Nos.3, 7, 8 and 9, held as under:

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3. The prosecution case is that the respondent gave medical aid to one of the wounded accused in pursuance of a previous plan that if and when any of the assailants got injured in the attack on Prof. Jacob then immediate medical treatment would be given by the respondent to the injured. The respondent stitched the back of an assailant, which is not the job of a dentist. The respondent, along with the other accused is a member of the Popular Front of India, a Muslim organization, and was head of its medical committee. Certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad' were allegedly seized from his house and car. The prosecution has placed reliance on the proviso to Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 which states that the accused shall not be released on bail if the Court, on perusal of the case diary or the report under Section173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

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7. At this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations :

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8. We are presently only considering the bail matter and are not deciding whether the respondent is guilty or not. Evidence has yet to be led and the trial

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yet to commence. Hence the prosecution is yet to establish by proof beyond reasonable doubt that the respondent was part of a conspiracy which led to the attack on Prof. Jacob. The case against the respondent is very different from that against the alleged assailants. There is no allegation that the respondent was one of the assailants. We are of the opinion that at this stage there is no prima facie proof that the respondent was involved in the crime. Hence the proviso to Section 43D (5) has not been violated.

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9. The respondent, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defend an accused, so also it is the duty of a doctor to heal. Even a dentist can apply stitches in an emergency. Prima facie we are of the opinion that the only offence that can be leveled against the respondent is that under Section 202 I.P.C., that is, of omitting to give information of the crime to the police, and this offence has also to be proved beyond reasonable doubt. Section 202 IPC is a bailable offence”.

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In this case also, it is not the stand of the prosecution at all that the appellant herein was one of the assailants who participated in the commission of the offence.

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Having regard to the above observations, it cannot be said that the appellant herein failed to make out a case in his favour for grant of bail. For the aforesaid reasons and the ratio laid down in the above referred judgment of the Honourable Apex Court, this Court is of the opinion that the appellant is entitled for bail.

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In the result, Criminal Appeal is allowed, setting aside the order, dated 23.12.2019, passed by the learned

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Metropolitan Sessions Judge-cum-Special Judge for trial of N.I.A.Act Cases at Vijayawada in Crl.M.P.No.1831 of 2019, in Rc.No.2/2018/NIA/ Hyd, which is now numbered as S.C.No.119 of 2019, on the file of the learned Metropolitan Sessions Judge-cum-Special Judge for trial of NIA Act Cases, Vijayawada. Consequently, it is ordered that the accused No.84-appellant herein shall be released on bail on condition of his executing personal bond for a sum of Rs.25,000/(rupees twenty five thousand only) with two sureties for the like sum each to the satisfaction of the learned Metropolitan Sessions Judge-cum-Special Judge for trial of NIA Act Cases, Vijayawada. Accused No.84-Appellant herein shall report before the Dumbriguda Police Station, Visakhapatnam on every Sunday between 10.00 and 11.00 a.m. until further orders.

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As a sequel thereto, miscellaneous petitions, if any pending in this appeal, shall stand closed.

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A.V.SESHA SAI, J

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K.SURESH REDDY, J

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15^th December, 2020. Tsy

Vanthala Dharmayya v. Union of India

Case brief

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Vanthala Dharmayya v. Union of India

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