05, Sep 2022
The Supreme Court on Friday granted interim bail to social activist Teesta Setalvad, who is under custody since June 25 over alleged fabrication of documents to file cases in relation to 2002 Gujarat riots. She has been asked to surrender her passport till the matter is considered by the Gujarat High Court.
On her lawyer Senior Advocate Kapil Sibal submitting that local sureties might not come forward for her, the bench allowed the concerned court to accept cash security.
“In our view, the appellant is entitled to the release on interim bail. It must be stated that as argued by Solicitor General the matter is still pending consideration before High Court. We are therefore not considering whether appellant be released on bail or not. That issue is to be considered by the High Court. We are considering only from the standpoint whether the custody of the appellant must be insisted upon during the consideration of matter.
We have considered the matter only from the standpoint of interim bail and we shall not be taken to have expressed anything on the merits of the submission advanced on behalf of the appellant. The entire matter on merits shall be considered by the High Court independently and uninfluenced by any observations made by this court.
It is clarified that the order passed considering facts including that she is a lady and shall not be used by other accused and submissions of other accused be considered purely on their merits.”
Senior Advocate Kapil Sibal appearing for Teesta argued that facts narrated in the FIR against her are nothing but repetition of proceedings which ended with Supreme Court’s judgment dated June 24 and that the offence alleged against Teesta is not even made out.
Solicitor General Tushar Mehta appearing for the Gujarat government argued that the application for bail is pending consideration before the High Court and as such the matter must be allowed to be considered by the High Court rather than entertaining the instant challenge. He added that there is sufficient material apart from whatever is adverted in FIR, pointing towards Teesta’s involvement in the alleged offence.
ASG SV Raju also appearing for the government submitted that even if the forgery complaint has to be filed under Section 340 CrPC, the bar under Section 195 would apply at the stage of cognizance and not at the stage of FIR.
Teesta had approached the Supreme Court against the Gujarat High Court’s refusal to grant her interim bail. She was arrested on June 26 from Mumbai by the Gujarat ATS for offences under 468, 194, 211, 218 r/w 120B IPC, a day after the Supreme Court dismissed the petition filed by Zakia Jafri challenging the SIT’s clean chit to high-ranking State functionaries and the then Gujarat Chief Minister Narendra Modi in the alleged larger conspiracy behind the 2002 riots.
Yesterday, the bench had expressed it inclination to grant interim bail to Teesta. It also pointed out the following features of the matter that, according to it, are bothersome:
1. The petitioner has been under custody for over 2 months. No chargesheet has been filed.
2. The FIR was registered on the very next day of the Supreme Court dismissing Zakia Jafri’s case and the FIR does not recite much anything other than the SC observations.
3. The Gujarat High Court while issuing notice on Teesta’s bail plea on August 3 granted a long adjournment, making the notice returnable by 6 weeks.
4. The offences alleged are not serious like murder or bodily injury but pertain to alleged forging of documents filed in court.
5. There are no offences which bar the grant of bail.
The Solicitor General has raised a preliminary objection to the maintainability of the petition, stating that having elected a remedy before the High Court, Teesta cannot now approach the Supreme Court under Article 136 of the Constitution.
“There is a doctrine of elections- where if a litigant has two remedies and he voluntarily elects once is estopped from taking second,” the SG said.
On Teesta’s Custodial Interrogation
Yesterday, the CJI had asked the Gujarat Government about the progress made in the case, keeping in view the fact that Teesta has completed two months of custody.
“What material have you found in past two months? Have you filed charge sheet or is the investigation going on?” the CJI had asked.
The SG today submitted that Teesta has not cooperated with the agency.
“How many days she was interrogated?” the CJI asked.
“7 days. But she has refused to answer,” the SG responded.
On long adjournment of Teesta’s bail plea by Gujarat High Court
Yesterday, the CJI had expressed concern over adjournment of Teesta’s bail plea by the Gujarat High Court for a period of 6 weeks, without granting any interim relief.
“In a matter like this, High Court issues notice on August 3 and makes it returnable on September 19? So, 6 weeks a bail matter is made returnable? Is this the standard practice in Gujarat High Court? Give us a case where a lady has been involved in a case like this and HC has made it returnable by 6 weeks?” the CJI had orally remarked yesterday.
The Solicitor General today informed the bench that he had enquired into this aspect and submitted that “High Court uniformly did what High Court does with everyone.”
He referred to certain orders of August where the next date of hearing was fixed in October.
“What happened on August 3? In my submission, the High Court rightly continued with the uniform practice adopted in view of the number of matters listed, it gave a reasonable date,” the SG said.
“It does not appear to be any matter of a lady,” CJI Lalit remarked.
Sibal then said that he has a list of 28 matters where the same judge, who adjourned Teesta’s case, had granted bail in just few days.
However, the SG raised strong objection to Sibal’s intervention and urged him not to “malign” the State or the judiciary.
“He is one of the finest judges, don’t say anything behind his back… he did not rightly deviate from a uniform practice,” the SG said.
On contents of FIR
The SG submitted that several people approached the SIT, that was probing the incident, with some “pre-typed statements”, allegedly distributed by Teesta.
“There was some conspiracy, we have materials…Who were the part of the conspiracy? What was the motive of the conspiracy? That is being investigated right now. We have two statements under 164 which prima facie show it was a conspiracy, not some misunderstanding, but a calculated conspiracy to achieve something particular.”
The SG furnished Section 161 witness statements before the Court and submitted,
“It is not that it is a case of no evidence. Would your lordships need to make an exception? There is a conspiracy. And the investigation is at a very-very crucial stage.”
He added that they have also obtained Section 164 statement recorded by the Judicial Magistrate, in a sealed cover, for the Court’s perusal.
On allegations of Forgery
Yesterday, Sibal had denied the allegations against Teesta of forging documents filed in the case and had argued that all the documents were filed by the SIT.
He had also contended that the FIR is not maintainable and cognizance can be taken only on the basis of a complaint made by the Court concerned as per Section 195 r/w 340 CrPC.
Responding to this, the SG claimed that the falsifications happened outside the Court. And thus, the bar under Section 340 CrPC won’t apply. “I have decision from Iqbal Singh Marwa. If falsification was before Court’s custody, the bar will not come.”
The CJI asked the SG if the concerned witness has given a statement that he was pressurised by Teesta.
“If the man testifies on oath in trial which concluded in 2014, is there any allegation that this lady put pressure on the witness? These considerations are worthy so far as bail,” the CJI said.
“We are investigating,” the SG responded.
ASG SV Raju also submitted that prima facie, there is evidence to show signatures were obtained by deception.
“If signatures are obtained by deception, then it is forgery… Even if complaint has to be filed under Section 340, investigation is not barred. It is settled law. Bar under 195 applies at the stage of cognizance and not at the stage of FIR. That is settled position.”
Sibal submitted that the alleged witness is a former employee of Teesta, who has been giving statements against her for long. “Right from 2010 the witness has been giving statements against her, and every court has been rejected. This is all motivated. He is a former employee of mine who I threw out”, Sibal said.
“All these cases, they have targeted me, from the very beginning. I am the number one enemy of the State. And he talks about I am a powerful person? Who can be more powerful than the state? She is a 60 year old lady. What can she do?”, Sibal said during the hearing.
The hearing witnessed certain intense exchanges between Sibal and Solicitor General. Live-account of the hearing can be read here.
Case Title: Teesta Atul Setalvad versus State of Gujarat | SLP(Crl) No.7413/2022
The original piece may be read here