Earlier this month, Setalvad had been asked to “surrender immediately” by the Gujarat high court, which also rejected her bail plea. The Supreme Court’s interim bail to her had protected her from arrest until then.
The Supreme Court’s bench of Justices B.R. Gavai, A.S. Bopanna, and Dipankar Datta said today that this order was “perverse”.
“We are at pains to say that the order passed by the learned judge makes an interesting reading,” the bench said, according to LiveLaw.
The bench noted that on the “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,” and then criticised the fact that the Gujarat high court had observed that since Setalvad had not challenged the FIR against her, she could not be permitted to say whether the case against her was made out or not.
“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,” the bench said.
The bench highlighted that the three considerations during the granting of bail are what the case looks like, prima facie case, what possibility of the accused tampering with evidence or influencing the witness exists and the chance of the accused fleeing from justice, along with the gravity of her offence.
“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 bench said.
Shortly after the Gujarat high court’s order earlier this month, in a late night sitting on July 1, the Supreme Court had granted interim relief to Setalvad, with Justice B.R. Gavai asking, “Will the skies fall if interim protection is granted for some days?”
Later, a three-judge bench of the Supreme Court extended her interim bail until July 19, today.
Last year, Setalvad was arrested from her Mumbai home by the Gujarat Anti-Terror Squad soon after the Supreme Court’s controversial judgment in the Zakia Jafri case. Jafri and Setalvad’s appeal had centred around the closure report of the special investigation team which probed the murder of Jafri’s husband, Ehsan, in the 2002 riots.
The SC not only disposed the appeal, but claimed that Setalvad was among “those who had kept the pot boiling” with an “ulterior motive” for the past 16 years. It added that she should be in the dock and be “proceeded with in accordance with the law”.
Setalvad spent around 70 days in jail. Former SC judge Justice Madan B. Lokur had written in an analysis for The Wirethat the “implications [of the SC’s observations] were horrendous.”
Advocate Indira Jaising noted on Twitter in the aftermath of the bail order that “she should never have been arrested in the first place.”