New Delhi The Supreme Court on Wednesday granted bail to social activist Teesta Setalvad, and quashed an order passed by the Gujarat high court on July 1 denying her relief, calling it “perverse” and “contradictory”.

Setalvad has been accused of fabricating evidence and tutoring witnesses to secure the convictions of top officials in Gujarat over the 2002 communal riots cases.

Coming down hard on observations made by the single judge of the high court against Setalvad, a three-judge Supreme Court bench headed by justice BR Gavai felt that the state had not made out a logical case for her custodial interrogation, as she was not once called for interrogation after the top court granted her interim bail on September 2.

“After release of petitioner on interim bail (on September 2), admittedly she has not been called for investigation. Considering the fact that most of the evidence is documentary evidence and charge sheet has been filed, we do not find that custodial interrogation of the appellant is necessary,” the bench, also comprising justices AS Bopanna and Dipankar Datta, said.

Even the state’s claim that she was a habitual offender with criminal antecedents was rejected by the court, which asked: “Has there been a conviction yet? What are the criminal antecedents? Is she involved in a case of murder?”

The court went on to order: “The impugned order (of the high court) is quashed and set aside. The appellant is directed to be continued on bail granted on September 2. The passport of the appellant already surrendered shall continue to remain in custody of the sessions court.”

Setalvad was arrested on June 25 last year, a day after a Supreme Court gave judgment denied any larger conspiracy behind the 2002 riots. The judgment, which came on a petition filed by Gujarat riots victim Zakia Ehsan Jafri said: “All those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

This became the basis for the Gujarat police to begin a probe against Setalvad and others, and the judgment was quoted in the FIR lodged against her for forgery (IPC Section 468), giving false evidence with purpose to secure conviction of capital offence (IPC Section 194), and criminal conspiracy (Section 120B), among other provisions of the penal code.

On July 30, Setalvad approached the Gujarat high court after her bail plea was rejected by a city court in Ahmedabad. The Gujarat high court issued a notice on her appeal on August 3, but refused to grant her interim bail till the matter is finally decided, following which the activist approached the Supreme Court where she was granted an interim bail.

This top court bench, on July 1, stayed the high court order passed earlier in the day by convening a sitting late in the evening and protected Setalvad from arrest till her challenge to the order was finally decided.

The bench on Wednesdaysaid it was “at pains” to note how the high court dealt with the matter. Referring to a portion in the high court order where the single judge held that a prima facie case was found against Setalvad as she had not filed any proceeding before the high court or Supreme Court to quash the FIR, the top court said, “If the observation as recorded by the judge is accepted, no application for bail at pre-trial stage could be entertained unless the petitioner files proceedings for quashing of the case under Section 482 of Code of Criminal Procedure (CrPC) or moving a petition under Articles 226 or 32 before the high court or Supreme Court. To say the least, the findings are totally perverse.”

Finding a contradiction in the high court judgment, the bench said: “On one hand, the judge says it is beyond his jurisdiction to find out whether there is a prima facie case unless accused challenges the charge sheet and on the other hand, the judge says there is statements of witnesses such as Rais Khan (a former employee of Setalvad) to come to a prima facie conclusion that she is guilty under Section 194 IPC. The order is self-contradictory.”

The court also noted that the conditions that prevailed with the court while granting interim bail on September 2 were still relevant. The top court had given special consideration to the fact she is a woman under Section 437 of CrPC (providing exception for grant of bail to women), most evidence was documentary in nature, and that her custodial interrogation was already over.

Opposing the grant of bail, the Gujarat police, represented by additional solicitor general (ASG) SV Raju, called Setalvad’s alleged crimes “heinous”, arguing that she had attempted to secure the wrongful conviction for offences punishable with death or life imprisonment. He said that the special investigation team (SIT) constituted by the top court which probed the riots cases found several witnesses who came with typed statements and confessed that these were given to them by Setalvad.

Noting the fact that the alleged false evidence by witnesses was given to SIT between 2008 and 2011, the bench asked the state: “What were you doing till now? What investigation have you done within a day after the judgment (of June 24) that you decided she has done something heinous to warrant her arrest?”

The court further asked the ASG if it was fair to rely on the observations made in the Supreme Court judgment of June 24 on the larger conspiracy after Setalvad’s request to be made a party to defend the allegations against her was vehemently opposed by the state and disallowed by the court.

Arguing for Setalvad, senior advocate Kapil Sibal pointed out flaws in the high court order denying bail. “You are turning the entire jurisprudence on bail on its head. Bail is refused on the ground that we have not sought quashing of FIR. It is rejected even when there is no prima facie finding on my guilt.”

Taking the court through the evidence gathered by the state police, Sibal said, “There is no finding against me (Setalvad) in the June 24 judgment. Who is to plead that the affidavits are fabricated, certainly not the Gujarat police. It has to be a case between the proponent of that affidavit and the court if it is fabricated. How does it become a case between me and the state?”

The charge sheet filed by the Gujarat police against Setalvad alleged that she had conspired to implicate the then Gujarat chief minister Narendra Modi, now India’s Prime Minister, and other higher officials of the state government and top leaders of the ruling party for the casualties during the riots — in which over a thousand people died — and accused her of destabilising an elected government by tutoring witnesses and falsifying evidence. She has denied all charges.

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