Social activist Teesta Setalvad, in custody since June 26 over alleged fabrication of documents to file cases in relation to 2002 Gujarat riots, was granted interim bail by the Supreme Court (SC) on Friday. She was ordered to surrender her passport till the matter is considered by the Gujarat High Court (HC).
The noted activist had appealed to the apex court against the HC’s refusal to grant her interim bail after her arrest by the Gujarat Anti-Terrorism Squad for offences under Sections 468, 194, 211, 218 r/w 120B of the Indian Penal Code (IPC). Setalvad was arrested a day after the SC dismissed Zakia Jafri’s petition challenging the Special Investigation Team’s (SIT) clean chit to high-ranking state functionaries and then chief minister Narendra Modi in the alleged larger conspiracy behind the riots.
Teesta is being taken by the Gujarat ATS officers- there are 6 of them, 2 lady officers. She is being taken to Santa Cruz police station and then is likely to be taken to Ahmedabad.
Senior Gujarat ATS officer Jasmin Rosia came later. pic.twitter.com/dgtIjse5YF
— Ashlin Mathew (@ashlinpmathew) June 25, 2022
A Bench comprising Chief Justice of India (CJI) UU Lalit and Justices S Ravindra Bhat and Sudhanshu Dhulia had questioned the HC on Thursday as to why it had listed Setalvad’s bail plea for hearing six weeks later, on September 19, after it had sent a notice to the Gujarat government seeking a response to her interim bail application and posted the plea for further hearing on Friday.
Orally observing that the offences against Setalvad are normal IPC offences, which don’t bar the grant of bail, an apparently displeased CJI had said: “Give us instances where a lady accused in such cases has got such dates from High Court. Either this lady has been made an exception. How can the court give this date? Is this standard practice in Gujarat?”.
Keeping in view that Setalvad has completed two months of custody, the CJI had asked: “What material have you found in past two months? Have you filed charge sheet or is the investigation going on?”
Considering that the essential ingredients of Setalvad’s investigation on Friday, the same Bench observed that the relief of interim bail was evidently made out, LiveLaw reported.
The top court further observed that Setalvad, a woman, has been in custody since two months and the investigative machinery has had the advantage of custodial interrogation for a period of seven days. Besides, the charges against her, the Bench noted, pertain to 2002 and at the concerned documents were sought to be presented till 2012 at best.
“In our view, the appellant is entitled to the release on interim bail. It must be stated that as argued by solicitor general, the matter is still pending consideration before High Court. We are, therefore, not considering whether appellant be released on bail or not. That to be considered by the High Court,” the court observed.
Considering “only from the standpoint whether the custody of the appellant must be insisted upon during the consideration of matter”, the SC observed: “We shall not be taken to have expressed anything on the merits of the submission advanced on behalf of the appellant. The entire matter on merits shall be considered by the High Court independently and uninfluenced by any observations made by this court.”
Clarifying that the order considering facts, including that Setalvad is a woman, the court ruled that it “shall not be used by other accused and submissions of other accused be considered purely on their merits”.
Appearing for Setalvad, senior advocate Kapil Sibal argued that facts mentioned in the FIR against her are nothing but repetition of proceedings which ended with SC’s June 24 judgement and that the offence alleged against her is “not even made out”.
On August 22, an SC Bench headed by CJI Lalit had issued a notice to the Gujarat government on Setalvad’s plea seeking bail.
Mentioning that Sibal had “invited” the court’s “attention to the contents of FIR”, the Bench had observed: “It is submitted that the allegations in the FIR are pure recitation of the proceedings which had happened and culminated in the judgement of this court and beyond such recitation, nothing has been alleged against the petitioner.”
On Friday, solicitor general (SC) Tushar Mehta, appearing for the Gujarat government, argued that Setalvad’s bail application must be allowed to be considered by the HC rather than entertaining the instant challenge since it is pending consideration before the HC.
“There is a doctrine of elections—where if a litigant has two remedies and he voluntarily elects once is stopped from taking second,” Mehta said.
There is sufficient material apart from whatever is mentioned in the FIR pointing towards her involvement in the alleged offence, Mehta further contended.
When CJI Lalit asked that for how many days Setalvad was interrogated, Mehta replied, “Seven days. But she has refused to answer.”
Regarding the matter of the HC posting the activist’s bail plea six week later, Mehta said: “The High Court uniformly did what High Court does with everyone” referring to certain orders in August where the next date of hearing was fixed in October.
“What happened on August 3? In my submission, the High Court rightly continued with the uniform practice adopted in view of the number of matters listed. It gave a reasonable date,” the SG said. The CJI remarked: “It does not appear to be any matter of a lad.”
Countering Mehta, Sibal said that he has a list of 28 matters where the same Judge who adjourned Setalvad’s case had granted bail in a few days.
Objecting to Sibal’s intervention, Mehta said: “He is one of the finest judges. Don’t say anything behind his back … he did not rightly deviate from a uniform practice.”
The SG submitted that several people had approached the SIT with some “pre-typed statements” allegedly distributed by Setalvad. “There was some conspiracy. We have materials … Who were the part of the conspiracy? What was the motive for the conspiracy? That is being investigated right now. We have two statements under [Section] 164 which prima facie show it was a conspiracy—not some misunderstanding but a calculated conspiracy to achieve something particular.”
Furnishing Section 161 witness statements before the SC, Mehta submitted: “It is not that it is a case of no evidence. Would your lordships need to make an exception? There is a conspiracy. And the investigation is at a very-very crucial stage.”
Sibal had denied the allegations of forgery on Thursday and had argued that all the documents were filed by the SIT. He had also contended that the FIR is not maintainable and cognizance can be taken only on the basis of a complaint made by the court concerned as per Section 195 r/w 340 of the Code of Criminal Procedure (CrPc).
Responding to Sibal’s contention, Mehta claimed that since the “falsification happened outside the court”, the bar under Section 340 of the CrPC won’t apply. “I have decision from Iqbal Singh Marwa. If falsification was before Court’s custody, the bar will not come.”
Asking the SG whether Setalvad had tried to influence the witnesses, the CJI observed: “If the man testifies on oath in trial, which concluded in 2014, is there any allegation that this lady put pressure on the witness? These considerations are worthy so far as bail.”