The Supreme Court asked if it was standard practice in the Gujarat high court to post a bail petition after 6 weeks. “Give us a case where a lady has been charged with offences like these and notice has been made returnable after 6 weeks,” the bench said

NEW DELHI: The Supreme Court on Thursday told the Gujarat government to produce the material against social activist Teesta Setalvad to back up the charge of fabricating false evidence in the 2002 Gujarat riots case, observing that the first information report (FIR) registered against her was “nothing but what has happened in the Supreme Court”.

“What has struck us is the fact that your complaint does not state anything more than the judgment of the Supreme Court. Within a day of the judgment, the FIR is filed (on June 25),” noted the bench led by Chief Justice of India (CJI) Uday Umesh Lalit.

“You had the advantage of subjecting her to custodial interrogation. These are not offences of murder or under special law where bail is to be denied,” the bench, also comprising justices S Ravindra Bhat and Sudhanshu Dhulia said.

The top court will take up Teesta Setalvad’s petition again on Friday. The bench told solicitor general Tushar Mehta, appearing for the Gujarat government, that it wished to know the “direction” of the probe, and indicated that it was considering grant of interim bail till September 19 when the high court is to take up the matter.

“She is a woman and under the mandate of Section 437 of Code of Criminal Procedure (CrPC) for grant of bail in non-bailable offences, a lady is entitled to favourable treatment,” noted the bench, also comprising justices S Ravindra Bhat and Sudhanshu Dhulia. “We want to know, what is the material against her?”

Mehta, however, told the court that the case against Setalvad was “more serious than murder” and said he will demonstrate it on Friday. The solicitor general claimed that there were statements of witnesses who have testified how a conspiracy was hatched at the petitioner’s behest to malign the accused and charge them in riots cases based on false and fabricated evidence.

A first information report (FIR) against Setalvad along with sacked IPS officer Sanjiv Bhat and former DGP RB Sreekumar was filed by the Gujarat government on June 25, a day after the Supreme Court dismissed the petition filed by riot victim Zakia Jafri who sought a fresh probe against several government officials, bureaucrats and police officers over inaction that led to deaths during riots. Jafri was supported by Setalvad in fighting the court case.

“All those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law,” the top court said in its June 24 judgment, which paved the way for the FIR and Setelvad’s arrest.

On July 30, a court in Ahmedabad refused bail to her and RB Sreekumar. She appealed to the Gujarat high court, which issued notice on August 3 but posted the matter for September 19. Meanwhile, the social activist approached the top court seeking bail and accusing the state of acting with vengeance.

In the Supreme Court on Thursday, Tushar Mehta objected to the court entertaining the petition directly challenging the trial court’s bail dismissal order without awaiting the decision of the high court. “The state would not give any special treatment to any person. It is not that for any pleasure she has been arrested. It is in accordance with law based on what we have found against her,” Mehta told the court.

“Would any citizen be allowed to take such a remedy pending the decision of the high court?” he asked. “Whatever she is submitting here should be submitted before the high court since she has chosen to first approach there. Courts treat all accused in the state similarly. No special treatment should be given to the petitioner.”

To this the bench replied, saying: “You are making an exception in the case of this lady. But sometimes we have to interfere based on the facts and circumstances of the case. Are we to close the file just because the high court is hearing the matter?”

The court also wondered if it was standard practice in the high court dealing with bail matters to issue notice and post a case after six weeks.

“Give us a case where a lady has been charged of offences like these and notice has been made returnable by the high court after six weeks,” the bench asked Mehta. “Is this the standard practice in the high court? In matters of bail, we make it returnable as early as possible.”

Mehta said the high court was justified in keeping the matter after six weeks as it felt there are other accused prior to her in jail whose cases had to be heard.

Senior advocate Kapil Sibal, appearing for Setalvad along with advocate Aparna Bhat, said, “We have made enquiries. This is not the practice at all followed in the high court. We want this court to see if any of the charges in the FIR are made out.”

The FIR against Setalvad has been lodged under sections 468 (offences of forgery), 471 (fraudulently using forged document as genuine), 120B (criminal conspiracy), and 194 (fabricating false evidence to procure conviction) among other provisions of the Indian Penal Code (IPC).

“What have I forged? The FIR makes no mention. The documents I produced before the Supreme Court were SIT reports. I filed nothing of my own,” Sibal told the court. “In one day after the judgment, they could have made no investigation. How could there be an FIR to find out if an offence is committed.”

The senior lawyer alleged that the only purpose for adding the offence of forgery in the FIR was to make the case non-bailable as all other offences were bailable.

The judges agreed on that point and said, “The FIR is nothing but what has happened in the Supreme Court… Obviously the writer of the complaint did not have anything beyond the judgment. Within a day (of the judgment), the complaint was filed.”

“We would like to know if, during her custodial interrogation, you have been able to elicit something,” the bench asked Mehta.

Since it has been more than two months since her arrest on June 25, the court also asked about the progress made.

“Suppose we grant her interim bail till September 19,” the court suggested. Mehta responded: “I will oppose it. This case is more serious than Section 302 (murder).”

“All accused are not powerful to generate a perception of innocence as they cannot afford to directly approach this court,” Mehta further said. “I have raised a preliminary objection. If the court is not inclined, have it tomorrow. I cannot give up on my case.”

The bench said as a matter of principle, there are past cases where an accused has approached SC directly against a trial court order. “We are not rejecting the state’s objection… At present, we want to see the tenor and direction of your investigation.”