21, Jul 2023 | Awstika Das
The Supreme Court on Wednesday granted regular bail to human rights activist Teesta Setalvad in the Gujarat police case over alleged fabrication of evidence in the 2002 riots cases.
A bench comprising Justices BR Gavai, AS Bopanna and Dipankar Datta quashed the Gujarat High Court’s order which denied her regular bail after opining that the High Court’s observations were “perverse” and “contradictory”.
Regarding the contradictory approach taken by the High Court, the bench observed as follows :
“We are at pains to say that the order passed by the learned judge makes an interesting reading. On one hand, the learned judge has spent pages to observe as to how it is not necessary rather nor permissible at the stage of bail to consider whether a prima facie case is made out or not. Learned judge interestingly observed that since the petitioner has neither challenged the FIR or chargesheet in proceedings under Section 482 CrPC or Articles 226 or 32 of the Constitution, it is not permissible for her to say that a prima facie case is not made out. The limited understanding of law we have is that the considerations which are required to be taken into consideration for grant of bail are (1)prima facie case, (2) the possibility of the accused tampering the evidence or influencing the witness, (3) fleeing away from the justice. The other considerations are gravity and seriousness of the offence.
If the observation of the learned judge are to be accepted, no application for bail can be accepted unless the accused files an application for quashing the proceedings…To say the least, the findings are totally perverse.
On the other hand, the learned judge goes on to discuss the statements of some witnesses and finds that prima facie case is made out. The findings are totally contradictory, to say the least”.
The Court held that custodial interrogation of the petitioner is not necessary since chargesheet in the case has already been filed. The Court quashed the Gujarat High Court’s order and granted her bail subject to the condition that she should not attempt to influence or intimidate the witnesses.
It was on July 1 that the Gujarat High Court rejected her bail application and directed her to surrender immediately. On the same day itself, the Supreme Court stayed the order in a special 9 PM sitting on Saturday, July 1.
Arguments of Kapil Sibal on behalf of Teesta
Teesta was represented by Senior Advocate Kapil Sibal, CU Singh, Mihir Desai and Advocate Aparna Bhat.
Sibal started by saying that the judgment of the Supreme Court in Zakia Jafri vs State of Gujarat did not enter any finding against Teesta Setalvad. He pointed out that the SIT did not make any arguments against Teesta too. The argument that Teesta had tutored witnesses was made by Solicitor General on behalf of the State of Gujarat. On June 25, 2022, the very next day of Zakia Jafri judgment, the FIR was registered. Sibal wondered on what investigation the FIR was registered. “Somebody should say that the documents were fabricated. They record the statements after registering the FIR”, he stated.
“What was the haste that you arrest her on the next day of the judgment based on the statement of the Solicitor General?”, he asked.
He then apprised the bench that Teesta was given interim bail by the Supreme Court on September 2, 2022 and the chargesheet was filed on September 20. He stated that Setalvad was not interrogated in judicial custody and the investigation is now complete. She has not violated any bail condition too. Out of the offences invoked, only Sections 468 and 194 IPC are non-bailable.
Sibal said that the allegation is that false affidavits were filed. “If that is the case, why only Setalvad is singled out and the persons who actually filed the affidavits are left out?”, he asked.
“What happened is that a trial was going on in the Best Bakery case. Then Zahira Sheikh came to Teesta Setalvad and said they forced me to sign an affidavit. Teesta Setalvad files the complaint to the Human Rights Commission. The National Human Rights Commission then filed a petition in the Supreme Court saying transfer all cases out of Gujarat. The affidavits were given to us by the victims”, he said.
“Barring one particular case, there are convictions in all cases. And not on basis of my affidavit but on eyewitness accounts. They have also stood by these affidavits. For 20 years, there has been no complaint”, Sibal added.
He highlighted that the Gujarat High Court has adopted a “strange reasoning” that the offences alleged are to be presumed to be admitted since the petitioner did not institute any proceedings to quash the chargesheet.
“What law is this? What logic is this? I am deemed to have admitted because I did not challenge in S 482 proceedings?It is turning the entire jurisprudence on its head”, he exclaimed.
“The issue relates to affidavits filed in Courts; but none of those persons who have filed the affidavits have come forward to say that they are fabricated in the last twenty years. Only the Gujarat police is saying that the affidavits are fabricated”, he said. If the matter was relating to a false affidavit filed in Court, then it is for the Court to initiate the proceedings and police FIR is not the proper remedy.
Sibal then questioned the credibility of the witness in the Gujarat police case, Raees Khan. He said that Khan was previously an employee of Setalvad, who became disgruntled after his service was terminated in January 2008 and has since then filed several false cases against Setalvad. There was a defamation suit filed by Setalvad against Raees Khan in which there is a decree passed against him. This person is projected as a “star witness” by the Police, who now says that Ahmed Patel gave Rs 30 lakhs to Teesta Setalvad in 2002 to destabilize the Gujarat Government. But the reference to Ahmed Patel, who is now no more, was never there in any of the previous complaints filed by Raees Khan. “And the judge chooses to believe this man!”, Sibal exclaimed.
Next, Sibal questioned the observations made by the High Court that the release of the petitioner can lead to “communal polarisation” and also the comments made against her NGO ‘Citizens for Justice and Peace’.
Sibal also said that the the observations made in the Zakia Jafri case were made without hearing Teesta Setalvad. He pointed out that Supreme Court had refused to hear the special leave petition at the instance of Teesta, after Solicitor General objected to her locus and only the petition of Zakia was heard. Therefore, the adverse observations are unfair.
Bench points out “self-contradiction” in High Court’s order; quizzes Gujarat police
Additional Solicitor General SV Raju, for the State of Gujarat, submitted that the petitioner had fabricated evidence and tutored witnesses with an attempt to implicate high state functionaries in Gujarat riots cases and that she had taken money from opposition parties to destabilise the elected government.
The bench pointed out that there was a “self-contradiction” in the High Court’s order, as the High Court almost entered findings of guilt despite saying that it cannot consider the tenacity of allegations while deciding bail.
“One the one hand, the learned judge says that whether to decide a prima facie case is made out is beyond his jurisdiction under Section 439 CrPC. On the other hand, he says that there are affidavits of Raees Khan and other witnesses and almost holds her guilty. This is the self-contradiction in the order. One one hand he says he will not consider. But on other hand….”, Justice Gavai said.
When ASG said that the other findings in the judgment can be taken into account, the bench asked how can it ignore one part of the order and consider only other parts.
“How can we ignore it? How can we be asked to consider one part and ignore another? Every student of law knows what are the relevant considerations for bail. You have to see whether prima facie case is made out… if flight risk is there and if the person can tamper evidence..”, Justice Gavai said.
“What were you doing till 2022?”, Justice Gavai asked. To this, the ASG replied that since the matter was pending in the Supreme Court, the State did not want to precipitate.
“What investigation you have done from 24th of June to 25th of June to arrest her within 24 hours?”, Justice Gavai further asked. ASG replied that the FIR was based on the SIT’s findings.
Justice Gavai also pointed out that the observations were made by the Supreme Court in Zakia Jafri case without hearing Teesta Setalvad and this was against the principles of natural justice.
“In a petition in which she wanted to intervene & her request was rejected. Rule of law also includes principles of natural justice…Observations made without letting her respond to allegations….”
ASG replied that the validity of those observations are not an issue in this matter and they are not challenged here. “Unfortunately. You tell us why you need custody of her now?”, Justice Gavai said.
ASG replied that the offence under Section 194 IPC is very grave and heinous. “In our view, only Section 193 may be applicable. But the punishment for that offence is only three years”, Justice Gavai pointed out. Justice Datta asked if any of the deponents of the alleged false affidavits have been proceeded against.
“Mr. ASG we are putting you on guard. If you delve further into it, then we will be forced to interpret the scope of Section 194 and make observations”, Justice Gavai warned ASG.
“Initially we were feeling that there was a case made out under Section 194. But now even 194 is suspect. For that you want to keep a person undertrial?”, Justice Datta asked.
When ASG said that the the petitioner has criminal antecedents, Justice Gavai asked if she was involved in any 302 (murder) case.
As the bench was inclined to pass an order granting bail, ASG requested that the bail be granted on the ground that she was a lady. But the bench said that after arguing on merits, it cannot pass an order like that. Justice Gavai pointed out that on the first day, he had asked the Solicitor General if he was making any concession and that was refused.
Civil rights activist and secretary of NGO ‘Citizens for Justice and Peace’ Teesta Setalvad is under the scanner for allegedly fabricating evidence and instituting false proceedings in relation to the Gujarat riots conspiracy case. A first information report (FIR) was lodged against Setalvad in 2022, one day after the apex court dismissed a petition filed by Zakia Ehsan Jafri alleging a larger conspiracy during the 2002 Gujarat riots. In this plea, Setalvad along with Zakia Ehsan Jafri had challenged the closure report filed by a special investigation team (SIT) discarding the allegations of a larger conspiracy by high state functionaries including the then-chief minister Narendra Modi and 63 others in the communal violence that broke out in the western state of Gujarat in February 2002.
A three-judge bench headed by Justice AM Khanwilkar observed that the petition was filed with ‘ulterior motives’ to ‘keep the pot boiling’. The top court further said that action should be taken against those who abused the process of law. In its order, the court also observed that a ‘coalesced effort’ of disgruntled officials from Gujarat and others was to make false sensational revelations, which the Gujarat SIT ‘exposed’. The bench remarked:
“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.”
Pursuant to these observations, an FIR was registered against retired state DGP RB Sreekumar, Setalvad, and former IPS Officer Sanjiv Bhatt charging them with criminal conspiracy, forgery, and other offences under the Indian Penal Code. The FIR in question quoted extensively from the Supreme Court’s order. On June 25, the Gujarat Police’s Anti-Terrorism Squad took Setalvad into custody from her residence in Mumbai. Her bail plea was rejected by a lower court in Ahmedabad on July 30, which was challenged before the Gujarat High Court. When the matter travelled in appeal to the Supreme Court, a bench headed by Chief Justice UU Lalit granted Setalvad interim bail in September of last year, noting that she had been in custody for two months and the investigative machinery had the advantage of custodial interrogation for a period of seven days.
In November, Justice Samir J Dave of the Gujarat High Court recused from hearing the matter.
On July 1, the Gujarat High Court rejected Setalvad’s application for regular bail and directed her to surrender immediately. The order was passed by a single-judge bench of Justice Nirzar S Desai. The high court observed that the social activist had an “intention to tarnish the image of the then-chief minister (Narendra Modi) and thereby to send him to jail and compel him to resign” and accused her of polarising people of a ‘particular community’. The single judge remarked:
“She formed an NGO in the name of Citizen for Justice and Peace, but she never worked in the direction of securing justice and peace…She polarised the people of a particular community.”
The Supreme Court heard an urgent appeal against the high court’s order at 6:30 PM on the same day. However a division bench comprising Justices AS Oka and PK Mishra could not reach a consensus on granting her interim protection, although the former was in favour of granting relief.
Within hours, a three-judge bench composed of Justices BR Gavai, AS Bopanna, and Dipankar Dutta was constituted to decide the appeal referred to it by the smaller bench and in a special sitting on Saturday night, the said bench granted interim relief to social activist Teesta Setalvad by staying the Gujarat High Court’s order for a period of one week.
Noting that the earlier bench had acknowledged that the petitioner – being a woman – was entitled to special protection under Section 437 of the Code of Criminal Procedure, 1973, the Justice Gavai-led bench held that the single bench of the high court ought to have granted her time to comply with, and possibly appeal, the order to surrender. The bench observed:
“In that view of the matter, without considering anything on merits of the matter, finding that the learned Single Judge was not correct in granting even some protection, we grant stay of the impugned order passed by the High Court for a period of one week from today.”
When the matter was taken up again after the summer break, on July 5, the top court issued notice and extended the interim protection granted to Setalvad till further orders.
Teesta Atul Setalvad v. State of Gujarat | Special Leave Petition (Criminal) No. 8503 of 2023
The original piece may be read here: