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- Special issues
The single-judge Bench, while rejecting the bail application of Teesta Setalvad, observed that all her close associates and riot victims who were used by her to file false and fabricated evidence have spoken unequivocally against her and that she used them as a ladder to ultimately become a member of the Planning Commission.
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ON July 1, a single-judge Bench of the Gujarat High Court of Justice Nirzar S. Desai dismissed the bail application of civil rights activist and journalist Teesta Setalvad. Stating that there is a prima facie case of a larger conspiracy against her, the Bench directed her to surrender immediately.
However, on the same day, a three-judge Bench of the Supreme Court presided by Justice B.R. Gavai and comprising Justices A.S. Bopanna and Dipankar Datta put a stay on the Order of the Gujarat High Court for a week.
Setalvad was seeking bail in connection with a first information report (FIR) registered against her on charges of alleged falsification of evidence to implicate innocent persons in the 2002 Gujarat riots.
As per the chargesheet, which runs into around five thousand pages, she has been arrested for offences under Sections 468 (forgery for purpose of cheating), 471 (using as genuine a forged document or electronic record), 194 (giving or fabricating false evidence with intent to procure conviction of capital offence), 211 (false charge of offence made with intent to injure), 218 (public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) and 120B (punishment of criminal conspiracy) of the Indian Penal Code, 1860 (IPC).
Setalvad was first detained by the anti-terrorism squad on June 25, 2022, and arrested the next day. On September 2, 2022 the Supreme Court granted her interim protection.
The FIR against Setalvad was lodged after a three-judge Bench of the Supreme Court comprising Justices A.M. Khanwilkar, Dinesh Maheswari and C.T. Ravikumar in Zakia Ahsan Jafri versus State of Gujarat & Anr had made certain observations on June 24, 2022.
The court, in paragraph 88 of its judgment, observed: "At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the state of Gujarat, along with others, was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation."
"Intriguingly, the present proceedings have been pursued for the last 16 years (from submission of complaint dated June 8, 2006 running into 67 pages and then by filing protest petition dated April 15, 2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the special investigation team, 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 against in accordance with the law", the court had further observed.
In this judgment, the Supreme Court had dismissed the plea of Zakia Jafri, widow of Indian National Congress leader and former member of Parliament, Ehsan Jafri, who had alleged that the Gujarat government played a role in hatching a larger conspiracy which led to the post-Godhra carnage.
During the post-Godhra carnage, Ehsan Jafri was pulled out of his house by a riotous mob and hacked to death in Meghani Nagar, Ahmedabad. His limbs were dismembered and mutilated and his body was set on fire in front of his wife. He, along with 69 others who had taken refuge in his house, were massacred in what came to be known as the Gulbarg society massacre.
Zakia Jafri made accusations against 63 persons, including the then chief minister of Gujarat and the current Prime Minister of India, Narendra Modi, several ministers of Gujarat government, high-ranked police officials and other bureaucrats of a larger conspiracy and abetment of crime that resulted in the post-Godhra carnage.
She alleged deliberate and wilful dereliction of duty on the part of state officials in preventing the pogrom. She complained of bureaucratic inaction, police complicity, hate speech and a "conspired unleashing of violence".
As per the FIR, there is an accusation against Setalvad under Section 194 of the IPC that she fabricated facts, documents and evidence and also tutored witnesses, for taking their deposition on pre-typed affidavits.
The FIR further stated that Zakia Jafri's cross-examination finds an indication that she was also tutored by Setalvad.
At the outset, the high court clarified that the application of bail has to be determined without taking the September 2 Order of the Supreme Court into consideration.
The high court considered whether bail should be granted as per the provisions laid down in Section 437 (when bail may be taken in case of non-bailable offence) of the Code of Criminal Procedure, 1973 (CrPC)
A proviso to Section 437(1)(ii) provides for a grant of bail to a person, who is under the age of sixteen years or is a woman or is sick or infirm. Further, Section 437(3) provides for granting of bail in respect of offences punishable with imprisonment which may extend to seven years or more of an offence under Chapters VI (of offence against the state), XVI (of offence affecting life) or XVII (of offence against property) of the IPC.
When the Supreme Court granted interim protection, it relied upon Section 437 and took into consideration the fact that the accused is a lady.
The high court first clarified that Section 437 uses the term "may" and not "shall". Thus, the Section does not make it mandatory to grant bail based on the grounds mentioned in it.
The court further stated that despite the accused being a lady, it will have to consider the application on the basis of the overall material on record and the gravity of the nature of the offence committed by her.
After considering the material on record, the court found that there is ample evidence against Setalvad.
One such piece of evidence on which the court relied is the testimony of defendant witness Raees Khan Pathan. He worked at Setalvad's non-governmental organisation (NGO) Citizens for Peace and Justice from 2002 to 2008, when he was removed from services.
The court acknowledged that Raees Khan knew Setalvad since 1992 when she was a reporter in an English newspaper and worked in relief camps after the Bombay riots of 1992.
The court stated that, "The present applicant [Setalvad] told witness Raees Khan to send photographs of the relief camp in the manner in which the relief camp work was being done … when she came to Ahmedabad, present applicant introduced him to … co-accused Sanjeev Bhatt … thereafter the present applicant introduced him to a leader of a political party, i.e., late Ahmad Patel.
"Where present applicant alleged to have discussed about the riots in Gujarat with that political leader… that the late political leader expressed his happiness over the way she had worked in the past at Bombay and insisted her to work in Gujarat in such a manner that the establishment in power at the relevant point of time and the then chief minister are sent behind the bars and [the chief minister's] reputation is tarnished."
Further, the court found that when the applicant informed the political leader Patel that performing such activities that may cause "disrepute" to the then chief minister would require huge funds and that she does have those funds, Patel introduced her to one Narendra Brahmbhatt. Brahmbhatt then helped arrange a fund of ₹5 lakh.
The court also noted that "thereafter a further amount of ₹25 lakh was also given to the present application by Narendra Brahmbhatt at the instance of Late Ahmad Patel."
The high court acknowledged that the statement of Raees Khan also reveals how Zakia Jafri became a part of the conspiracy.
The court noted that as per the statement of Raees Khan, one Vitthal Pandya was approached to file an affidavit. But upon learning that he will have to file an affidavit implicating certain innocent persons as well as some ministers, and upon perusal of the draft affidavit, Pandya got angry and refused to sign the affidavit.
Therefore, Zakia Jafri was approached through her son Tanvir Jafri.
"Thereafter Tanvir Jafri took Zakia Jafri to Ahmedabad and press conferences were held and Tanvir Jafri and Zakia Jafri addressed those press conferences in the manner [in which] they were tutored," the statement of Raees Khan read, as acknowledged by the court.
The court further noted that, "The statement under Section 164 CrPC [recording of statements and confessions] given by Raees Khan is a very lengthy statement but it gives an idea about how the present applicant collected money just to unsettle the establishment and to defame and disapprove the then chief minister and ultimately parted ways with said Raees Khan since the year 2008."
"The affidavit also throws lights on the present applicant who was a journalist in the year 1992 and though was never into social services, registered an NGO, i.e., Citizen for Justice and Peace, collected funds for unsettling the establishment, and ultimately went on to become a member of the National Planning Commission," the court observed.
It was further observed by the court that Raees Khan's statement also denotes that Setalvad made false allegations about how "minorities in Gujarat are tortured, oppressed and [denied] justice."
The court also acknowledged the statement of Narendra Brahmbhatt recorder under Section 164 and noted that while performing his duty to provide necessary things to the riot victims in the relief camps, he found Setalvad "ear-poisoning the victims" against the government.
After perusing the statements of various witnesses, the court observed that "prima facie it seems that those persons were not actually helped by the application but only with a view to gain personal and political benefits, the present applicant used them and collected huge funds in their names."
"Ultimately a person who started as a journalist in an English newspaper by passage of time conveniently projected herself to a social leader and ultimately became a member of the Planning Commission," the court observed.
Further, it noted that the false affidavits filed by the applicant "were far from the truth" as they mention names of innocent persons. Those affidavits were filed "just to fulfil the person or political agenda of present application and of the later leader of the political party".
With regard to the FIR registered pursuant to the Zakia Jafri judgment, the high court observed that "each and every close associate" of Setalvad and even the riots victims "who were used" by Setalvad by "influencing them to file false and fabricated affidavits" to "unsit the establishment and to tarnish the image of establishment and the then chief minister" have unequivocally given statements against her.
The single-judge noted that Setalvad became a part of a larger conspiracy just for money and to fulfil her personal ambition. She played with the sentiments of two wounded communities, collected money for herself and did not help the victims as promised. Thus, no leniency should be shown towards such a person, as there is "strong possibility that in future also, we may see many more persons coming out openly to help any entity in fulfilling their agenda in an illegal and unlawful manner".
Thus, the court concluded that if Setalvad is enlarged on bail, it will deepen and widen communal polarisation and stated that even though she seems to have formed an NGO, "she has never worked in the direction of securing justice and peace".
