APHC010483262024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3517] FRIDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR CRIMINAL APPEAL NO: 678/2024 Between: Dongari Devendra ...APELLANT AND The National Investigation Agency ...RESPODENT Counsel for the Apellant: 1. U D JAI BHIMA RAO Counsel for the Respodent: 1. Pasala Ponna Rao,DEPUTY SOLICITOR GENERAL OF INDIA The Court made the following: 2 APHC010505592024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3517] FRIDAY ,THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR CRIMINAL APPEAL NO: 705/2024 Between: Chukka Shilpa ...APELLANT AND The National Investigation Agency ...RESPODENT Counsel for the Appellant: 1. U D JAI BHIMA RAO Counsel for the Respondent: 1. Pasala Ponna Rao, DEPUTY SOLICITOR GENERAL OF INDIA The Court made the following: 3 HON'BLE SRI JUSTICE K.SURESH REDDY AND HON’BLE SRI JUSTICE T.C.D.SEKHAR CRIMINAL APPEALS No. 678 of 2024 and 705 of 2024 COMMON JUDGMENT:(per Hon'ble Sri Justice K.Suresh Reddy) Since both the Criminal Appeals arise out of the same Crime, they are heard together and being disposed of by way of this common judgment. 2. Accused No.3 in FIR RC No.02/2022/NIA/HYD is the appellant in Criminal Appeal No.678 of 2024; whereas A5 in the above said Crime filed Criminal Appeal No.705 of 2024. Aggrieved by the common order, dated 29.5.2024, passed in Criminal Miscellaneous Petitions No. 689 and 690 of 2024 in S.C.No. 14 of 2024 by the learned III Additional District and Sessions Judge – cum – Special Judge for SPE & ACB Cases, Visakhapatnam, A3 and A5 filed the above appeals. The learned Special Judge, vide common order, dismissed the above Miscellaneous Petitions filed by the appellants/accused Nos. 3 and 5 seeking to enlarge them on bail. 3. Heard Sri A. Satya Prasad, learned Senior Counsel, appearing for Sri U.D. Jai Bhima Rao, learned counsel for the appellants in both the Criminal Appeals and Sri Pasala Ponna Rao, learned Deputy Solicitor General, appearing for the respondents. 4 4. Facts succinctly which led to file these Criminal Appeals are thus: A case in Crime No.1 of 2022 of Peddabayalu Police Station was registered for the offences under Sections 365, 346, 143, 144, 147 and 120-B IPC and under Sections 16, 18, 18-B, 20, 38, 39 of the Unlawful Activities (Prevention) Act, 1967 (for short 'the Act 1967') on 03.01.2022, based on a report given by the de facto complainant by name Pallepati Pochamma W/o Balayya to the Superintendent of Police, Visakhapatnam. It is stated by the de facto complainant in her report that while her younger daughter by name Radha @ Neelso was pursuing Nursing Course, the leaders of Chaitanya Mahila Sangham (for short ‘CMS’) used to visit her daughter’s college and radicalising her daughter using the ideology of Maoism and in the month of November, 2017 her daughter has been forcibly taken under the guise of providing medical treatment to someone and her daughter did not return and after about nine (9) months later, the de facto complainant came to know that her daughter joined in Proscribed CPI (Maoist) Organization. (ii) Subsequently, considering the gravity of the offence and other factors involved in the case, the Government of India, Ministry of Home Affairs, CTCR Division, North Block, New Delhi, vide Order F.No.11011/43/2022/NIA, dated 31.5.2022 entrusted investigation to National Investigation Agency (for short ‘NIA’). Thereafter, NIA, 5 Hyderabad took up investigation by re-registering the crime as FIR RC No.02/2022/NIA/HYD of NIA Police Station, Hyderabad on 03.6.2022 under the very same provisions. (iii) The allegations made against A3 is that she is main active leader and A5 is the General Secretary of CMS. The accused Nos.3 and 5/ appellants herein along with A4 used to visit the college, where the de facto complainant’s daughter was studying and radicalising her daughter using the ideology of Maoism and they along with A4 took the daughter of the de facto complainant forcibly on 26.12.2017 under the guise of providing medical treatment to someone at Gadwal. After eight (8) or nine (9) months, an unknown person came to the house of the de facto complainant and informed her stating her daughter was a member of Moist party and warned her not to ask anything about her daughter and not to cause any trouble to them. 5. Sri A. Satya Prasad, learned Senior Counsel, strenuously contends that though the daughter of the de facto complainant was said to be forcibly taken by the appellants on 26.12.2017, she gave report to the police on 27.12.2021 i.e., after four years. On the basis of the same, Crime No.1 of 2022 was registered by Peddabayalu Police. Thereafter, NIA re-registered the case vide FIR RC No.02/2022/NIA/HYD on 03.6.2022. There is any amount of delay in lodging the report by the de facto complainant and it is only four years after her daughter was 6 alleged to be forcibly taken away by the appellants. Hence, no credence could be given to the said report. Learned Senior Counsel further contends that according to the prosecution, the appellants are members of CMS, which is not a banned organisation. The CMS is a Progressive Women Organisation and it works within the parameters of the Constitution of India and for the emancipation of women from all sorts of oppression, violence and cultural discrimination. He also contends that even according to the Investigating Agency, the said CMS is not a banned organisation and the said CMS is nothing to do with Proscribed Moist outfit or its ideology and CMS is not any frontal organisation to Scheduled Proscribed Organisation CPI (Moist). He further contends that ingredients of the offences under Act 1967 are not made out in the circumstances of the case. He also contends that there is no material to show that the appellants are members of Proscribed Organisation CPI (Moist). Hence, he requests this Court to enlarge the appellants/accused on bail. 6. Learned Deputy Solicitor General, appearing for the respondents, opposed for grant of bail to the appellants contending that the appellants have active role in Proscribed Organisation CPI (Moist). He further contends that the Investigating Agency has gathered lot of material to connect the appellants with the Proscribed Moist Organisation. He further contends that though CMS is not a banned 7 organisation, the appellants are actively involved in Proscribed Organisation CPI (Moist). He also contends that the Investigating Agency has already filed a charge sheet and charges also have been framed by the trial Court in S.C.No.14 of 2024. 7. We have perused the entire material available on record. The present case involves the charges under Act 1967 along with other charges under IPC. It is therefore apt to consider the bail provision envisaged under Section 43-D (5) of Act 1967 before we delve upon to analyze the facts. Section 43-D (5) of the Act 1967 is extracted hereunder for easy reference: "Section 43 D – Modified application of certain provisions of the Code (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." A bare reading of Sub-section (5) of Section 43-D shows that it bars the Special Court from releasing an accused on bail without 8 affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail. The proviso to Sub- section (5) of Section 43-D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the Act 1967 is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43-D (5) of the Act 1967. In that sense, the language of bail limitation adopted therein remains unique to Act 1967. 8. As seen from the charge sheet allegations made against A3 and A4 are as follows; “A3 has been the Joint Secretary of Chaitanya Mahila Sangham (CMS), an affiliate organisation of the Proscribed Organisation CPI (Moist), since 2017. She was married to PKM Prabhakar, an underground Maoist. Prabhakar was killed during an exchange of fire at Ramaguda in AP in 2016. Subsequently, in 2022, she got married to D.Satyam, a journalist in Nigha TV, a Telugu Channel. Being a leader of CMS, A3 has made an impressionable impact on young minds 9 and radicalized them, in order to recruit them to CPI (Moist). Investigation revealed that, Dongari Devandra (A-3) had played a key role in recruiting Radha to CPI (Moist). Further, she had taken Radha to the forests to join her in the party, i.e., CPI (Moist). Evidence against Dongari Devendra (A-3) a) The statement of complainant Pochamma (Mother of Radha) and Surya Prakash (brother of Radha) have stated that Dongari Devendra (A-3) had taken Radha along with her. Both of them have also stated that subsequently Dongari Devendra (A-3) had informed them that Radha was working in the party. b) Protected witness "A" had also mentioned that he has seen Dongari Devendra (A-3), Dubasi Swapna (A-4) and Chukka Shilpa (A-5) among others coming to the forest to meet the leaders of CPI (Maoist) party regularly. And that he saw Radha being brought by Dongari Devendra (A-3) in the forests for treatment of CPI Maoists. c) Protected witness "B" in the statement mentioned that the leaders of CMS Devendra, Shilpa and Swapna used to regularly motivate the young girls to work for the poor, downtrodden, and forced the witness to join the cadres of CPI (Maoist). However, the witness did not join as it was illegal. But the witness has clearly mentioned that Radha (one of the witnesses' friends) succumbed to the pressure applied by the above three accused persons and joined the proscribed organization. d) Protected witness "C" has also reiterated the statement of protected witness "B" that the accused Dongari Devendra (A-3) motivated the witness to join the proscribed CPI (Maoist) 10 organization. However, the witness had high ambitions of passing group A or Group B service of Telangana State and did not yield to the pressure applied by the above accused persons. e) The protected witness 'A' had identified the accused Dongari Devendra(A-3) and Chukka Shilpa (A-5) during TIP. Further, from the statement of the witness it is revealed that the Dongari Devendra (A-3) used to visit the forests of Peddabayalu and had met the top leaders of CPI (Maoist) including Akkiraju Haragopal @ RK. f) Copy of hand written Letter dated 03.01.2019 by Hema @ Devendra (A-3) to Gopal @ Narasimha Reddy, a member of SZCM, recovered in Cr. No. 48/2022, Peddabayalu PS, dtd. 27.6.22, reveals about an amount of one lakh rupees which was sent by the party and for distribution thereof. Further it discusses about the arrest of one Yangzi, after coming out of the party. It is mentioned that this has happened because of the leakage of information due to carelessness. g) It was also revealed during investigation that Yangzi @ Anusha was arrested during December 2018. Thus, this letter proves the association and financial transactions between Appellant/accused Devendra (A-3) with proscribed organization CPI (Maoist). h) The Copy of handwritten Letter by Hema@ Devendra (A-3) to comrade Bhumika@ Vijayalakshmi, a cadre member of CPI (Maoist) was also recovered. This letter addressed to Bhumika is mainly for motivating Bhumika to take up good work for the party. Hema, in the letter also advises Bhumika to take care of her health and informs that medicines are being sent. 11 i) Protected Witness A has stated that Vijayalaxmi @ Bhumika is presently an underground Maoist. This letter reveals the close association of Devendra @ Hema with the underground cadres. Based on evidences collected during investigation, it is revealed he Appellant/accused Dongari Devendra (A-3) in conspiracy with Co-accused and as part of the terror gang had recruited Radha to cadres of proscribed organization CPI (Maoist), thus furthering and supporting banned CPI (Maoist), and has committed offences Under Sections 120-B, 365 of IPC and Sections 18,18-B, 20, 38 and 39 of UA (P) Act, 1967. “A5 is the General Secretary of the Chaitanya Mahila Sangam (CMS). She is an active member of CMS and closely associated to the proscribed organisation CPI (Moist). She has played an active role in indoctrinating the missing girl and recruiting her to the proscribed organisation CPI (Maoist). The photographs recovered during the social media extraction has proved that A5 has been a member of CMS. The complainant Pochamma and Surya Prakash have stated that A4 has met the missing girl Radha, many a times in Radha’s house and have indoctrinated Radha. Further, the Protected witness-A has stated that the said witness had seen the accused Chukka Shilpa (A5) in the forests, when she had come to meet the Moist leaders for collecting financial assistance for the purpose of activities outside. The protected Witness –A has also identified the accused Chukka Shilpa during the Test Identification Proceedings conducted in the Special Prison for Women, Rajahmundry” 12 Evidence against Chukka Shilpa (A-5): a) The complainant Pochamma (Mother of Radha) and Surya (brother of Radha) have stated that Chukka Shilpa (A-5) among others had brain washed her daughter Radha @ Neelso to join the proscribed CPI (Maoist). b) This statement of the mother and brother of victim is further corroborated by the statements of protected witnesses "B" and "C" who clearly state the role of the above accused in radicalizing not just the victim but also themselves to join the proscribed CPI(Maoist) organization. c) Social media extraction proves that she has been a leader of CMS. d) The protected witness A had identified the accused Dongari Devendra A-3) and Chukka Shilpa (A-5) in the jail during TIP. Further from the statement of the witness it is made known that the above mentioned accused persons used to visit the forests of Peddabayalu and had met the top leaders of CPI (Maoist) including Akkiraju Haragopal @ RK. e) In the letters seized from Vanthala Ramakrishna @ Ashok during his arrest in crime No 48/2022 of Peddabayalu PS the following documents are relevant. f) One photocopy of handwritten letter dated 25.02.2015 written by Sruthi @ Chukka Shilpa (A-5) addressed to Bhumika @ Vijayalakshmi, an underground Maoist clearly brings out her association with the organization. In this letter A-5 praises the revolutionary poems written by other cadres. g) One copy of typed letter dated July, 2019 addressed to Shilpa (A-5) by UG Cadre, Uday (A-1) contains recruitment of cadres and giving study classes, and Uday directs A-5 to meet parents of Bhumika and Neelso. 13 h) In another copy of typed letter dated May, 2021 written by Uday (A-1) to Shilpa (A-5) also discuss certain strategies of running the organization, CMS in Hyderabad. Based on evidence collected during investigation accused Chukka Shilpa (A-5) in conspiracy with other co-accused and as part of the terror gang had recruited Radha thus furthering and supporting banned CPI (Moist), and has committed offences under Section 120B IPC and Sections 18, 18B, 20, 38, 39 of UA (P) Act, 1967.” 9. Further, the statement of the de facto complainant clearly indicates that the appellants brainwashed her daughter Radha @ Neelso to join Proscribed Organisation CPI (Moist) and the statement of the brother of the victim also available on record to show that the appellants forcibly took the daughter of the de facto complainant and joined her in proscribed organisation CPI (Moist). Apart from the statements of the mother and brother of Radha @ Neelso, the statements of the protected witnesses ‘B’ and ‘C’ are also available on record who have stated not only about the role of the appellants in radicalising Radha @ Neelso but also they made Radha @ Neelso join in proscribed organisation CPI (Moist). The statement of Protected witness-‘A’ also shows that he identified the appellants in the jail during the Test Identification Parade. It is also alleged that the appellants used to visit the forests of Peddabayalu and met the top leaders of CPI (Moist) including Akkiraju Haragopal @ RK. Apart from the above 14 witnesses, letters seized from one Vanthala Rama Krishna @ Ashok during his arrest in Crime No.48 of 2022 of Peddabayalu Police Station. Letters dated 25.2.2025 written by A5 addressed to Bhumika @ Vijayalakshmi, an underground Moist is available on record. Another typed letter dated July, 2019 addressed to A5 by UG Cadre, contains recruitment of cadres and giving study classes, directing A5 to meet parents of Bhumika and Radha @ Neelso. Another letter dated May, 2021 is also available to connect the appellants to discuss certain strategies of running organisation, CMS in Hyderabad. All those letters have already been filed along with charge sheet. 10. Apart from the above provisions and as seen from the charge sheet allegations, in the instant case, we are satisfied from the charge sheet and other material/documents relied upon by the Investigating Agency that there are reasonable grounds for believing that the accusations against the appellants-accused Nos. 3 ad 5 are prima facie true and that the mandate contained in the proviso to Section 43-D (5) of Act 1967 would be applicable for not releasing the appellants- accused Nos. 3 and 5 on bail. Having regard to the seriousness and gravity of the alleged offences, the severity of punishment prescribed for the alleged offences and prima facie material collected during the course of investigation, the impugned order passed by the trial Court need not be interfered with. 15 11. For the aforementioned reasons, both the Criminal Appeals are dismissed. Needless to say that any observation made hereinabove is only for the purpose of deciding the present Criminal Appeals and the same shall not be construed as an expression on the merits of the matters before the trial Court. Pending miscellaneous applications, if any, shall stand dismissed in consequence. ________________________ JUSTICE K. SURESH REDDY _____________________ JUSTICE T.C.D.SEKHAR Date: 07.03.2025 GR 16 HON'BLE SRI JUSTICE K.SURESH REDDY AND HON’BLE SRI JUSTICE T.C.D.SEKHAR CRIMINAL APPEALS No. 678 of 2024 and 705 of 2024 (Judgment of the Division Bench delivered by Hon'ble Sri Justice K.Suresh Reddy) GR Date: 07.03.2025