Commenting on the High Court order, the bench said “the order passed by the learned judge running into more than 100 pages makes an interesting reading. On one hand, the learned judge has spent pages to observe… how it is not necessary, rather not permissible, at the stage of consideration of grant of bail to consider… whether a prima facie case is made out or not.”

“Learned judge has interestingly observed that since the petitioner after filing of an FIR and filing of a chargesheet has neither challenged the same in a proceeding under Section 482 CrPC or Articles 226 before the High Court or under Article 32 before this court, it is not permissible for her to say that a prima facie case is not made out,” the bench said.

It said “the limited understanding of law we have, the considerations which are required to be taken into consideration at the stage of grant of bail are (1) prima facie case, (2) the possibility of the accused tampering the evidence or influencing the witnesses and (3) fleeing away from the justice. No doubt, the gravity and seriousness of the offence also need to be taken into consideration.”

It said “if the observations, as recorded by the learned judge are to be accepted, then no application for bail at the pre-trial stage could be entertained unless the accused files an application for quashing the proceedings under Section 482 CrPC or Articles 226 or 32 of Constitution. To say the least, the findings are totally perverse”.

The bench noted that “on the other hand, the learned judge goes on to discuss the statements of some witnesses and observes that a prima facie case is made out. The findings are totally contradictory, to say the least”.

It said “taking into consideration that most of the evidence in the present case is documentary, which is already in possession of the investigating agency and further the chargesheet has been filed, we do not find that her custodial interrogation would be necessary”.

On the state’s apprehension that the accused may influence witnesses, the bench said that can be taken care of by directing her not to do so.

“Appellant shall not make any attempt to influence the witnesses and shall remain away from them,” it said, adding that “if prosecution feels that any such attempt is made, they would be entitled to move application for modification of the order directly before this court”.

The bench clarified that “none of the observations made in the impugned order or any of the the observations made by us in in our order will influence the trial court at the stage of the trial”.

Setalvad was arrested by the Gujarat Police on June 25, 2022 on an FIR filed by the Ahmedabad Detection of Crime Branch (DCB) for allegedly conspiring to falsely implicate innocent persons in connection with the 2002 Gujarat riots.

She was arrested, along with co-accused R B Sreekumar, a former IPS officer, a day after the Supreme Court dismissed a plea by Zakia Jafri, wife of former Congress MP Ehsan Jafri who was killed in the Gujarat riots, against the SIT’s clean chit to then Chief Minister Narendra Modi and others over allegations of conspiracy in the riots.

In its order on the Zakia Jafri ruling, the Supreme Court had noted that “intriguingly, the present proceedings have been pursued for the last 16 years… to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law”.

Appearing for Setalvad, Senior Advocate Kapil Sibal said that in the proceedings which led to the ruling in the Zakia Jafri matter, though Setalvad had filed an application to be joined as petitioner No. 2, the state had vehemently opposed it.

He said that on the opposition of the state government, the Supreme Court did not wish to dilate on the issue of the locus of the petitioner and kept the preliminary objection open to be decided in the appropriate case and therefore, in the absence of the petitioner being made party to the proceedings, the observations made in para 88 of the judgement could not have been used against her.

Though the court orally asked some questions regarding the comments in the Zakia Jafri ruling, it said in the order that “on applicability of observations in para 88, judicial propriety would not permit us to dwell into those issues”.

Sibal also contended that the offences charged against her, except those under Section 194 and Section 468 of IPC, are all bailable. He said that even if the allegations in the FIR are taken at its face value, a case under Section 194 is not made out.

He said the allegations are that Setalvad influenced certain citizens to swear false affidavits which were used as a part of investigation. Section 194, he said, only deals with evidence recorded before the court.

On this, the Supreme Court said “though Sibal argued that case is not made under Section 194, we refrain from observing anything on that issue as we are already held that detailed elaboration of evidence has to be avoided at this stage. Any observation in that regard will adversely affect the case of either of the parties”.

Additional Solicitor General S V Raju, who appeared for the state, opposed the application for bail and said Setalvad is involved in a “very heinous crime of trying to get conviction of persons, who are totally unconnected, by forging the evidence”.

He said a large number of persons have deposed that the appellant forced them to give affidavits to implicate higher-ups in the state government at that time, and there was an attempt to destabilise an elected government.