The Supreme Court upheld last year’s Order of the Supreme Court which granted interim bail to journalist and civil rights activist Teesta Setalvad in the alleged fabrication of evidence to implicate innocent persons in connection with the 2002 Gujarat riots case after the Gujarat High Court on July 1 rejected her bail application and ordered her to surrender immediately. The court observed that the Order of the high court is self-contradictory and should be quashed.
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TODAY, a three-judge Bench of the Supreme Court granted bail to journalist and civil rights activist Teesta Setalvad in the case of alleged fabrication of evidence to implicate innocent persons in connection with the 2002 Gujarat pogrom.
The Bench led by Justice B.R. Gavai and comprising Justices A.S. Bopanna and Dipankar Datta quashed the July 1 Order of the Gujarat High Court, under which the bail application of Setalvad was rejected and she was ordered to surrender immediately.
In the July 1 Order by Justice Nirzar S. Desai, it is stated that there was a prima facie case of a larger conspiracy against Setalvad in connection with the alleged fabrication of statements, documents and evidence, and also tutoring witnesses, making them depose on pre-typed affidavits while trying to destabilise an elected government.
The Supreme Court called the 127-page Order of the high court an “interesting reading” which was nevertheless “self-contradictory”.
The Bench made these remarks in the context of the observations made by Justice Desai in his Order, to the effect that while it is “improper” for the court to form any opinion, even regarding the applicability of any provision of law, based merely on the testimonies of a few persons, the alleged offences against Setalvad are prima facie made out.
According to the chargesheet, Setalvad was 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).
The Supreme Court pointed out another observation of the high court that since Setalvad has not challenged the applicability of any statutory provisions even after a first information report (FIR) or chargesheet was filed against her, venturing into the applicability of such statutory provisions in the bail application is impermissible.
The high court had stated that Setalvad had other remedies available to her, such as filing an application under Section 482 (inherent powers of the high court) of the Code of Criminal Procedure for quashing the FIR or chargesheet against her, but she did not avail those remedies.
The high court went on to observe that since she has not challenged the applicability of the offences made out against her, she has prima facie accepted the offences made out against her.
The Supreme Court termed this observation as “perverse”. The court averred that if such observations were to be taken into consideration, no bail application can be entertained at the pre-trial stage unless an application under Section 482 of CrPC is filed first.
The bail granted by the Supreme Court to Setalvad is, however, conditional. She has already surrendered her passport.
According to the Order of the Supreme Court, she should not make an attempt to influence the witnesses and if she is found to be in violation of any bail condition, the State can directly approach the Supreme Court in this regard.
What has happened so far?
Setalvad was arrested on June 25, 2022 on a FIR registered by the Gujarat police against her on the basis of a complaint filed by D.B. Barad, a police inspector of the Ahmedabad Crime Branch.
The FIR was registered based on the observation made by a three-judge Bench of the Supreme Court comprising Justices A.M. Khanwilkar, Dinesh Maheswari and C.T. Ravikumar, in its June 24, 2022 judgment in Zakia Ahsan Jafri versus State of Gujarat & Anr.
While observing that the 2002 Gujarat pogrom happened spontaneously and the allegations of a larger conspiracy were unfounded, the Bench said that those who abused the process of law “need to be in the dock”.
Her bail application was rejected by the additional principal judge, City Court, Ahmedabad on July 30, 2022. She challenged the sessions court’s Order in the Gujarat High Court. On August 3, 2022, the high court issued a notice to the Gujarat government but listed the matter to be heard only on September 19, 2022.
Setalvad approached the Supreme Court challenging the Order of the sessions court as well as the delay by the Gujarat High Court in hearing her bail plea. On August 22, 2022, the Supreme Court issued a notice to the Gujarat government.
On August 25, 2022 the Gujarat government sought an adjournment stating that there was nothing special about Setalvad’s plea that merits an immediate hearing.
On September 2, 2022 a three-judge Bench of the Supreme Court comprising the former Chief Justice of India Uday Umesh Lalit, and Justices S. Ravindra Bhat and Sudhanshu Dhulia granted her interim bail, while expressing concern over the delay in the high court regarding her bail plea.
On July 1, when the high court rejected her bail application she immediately moved Supreme Court.
A two-judge Bench comprising Justices Abhay S. Oka and Prashant Kumar Mishra could not mutually agree on the issue of granting Setalvad interim bail.
On the same day, a special three-judge Bench presided by Justice B.R. Gavai and comprising Justices A.S. Bopanna and Dipankar Datta was constituted by the Chief Justice of India Dr D.Y. Chandrachud.
In a late-night hearing, the Bench stayed the Order of the high court and extended the interim protection for a week.
While observing that the high court was unjustified in not granting even a week’s time for her to surrender, the Bench also opined that the Supreme Court in its June 24 judgment used “quite harsh words”.
The same Bench extended her interim protection till July 19.
About the judgment which led to the arrest of Setalvad
Setalvad, Sanjiv Bhatt, a former Indian Police Service officer of the Gujarat-cadre, and R.B. Sreekumar, a former director-general of police in the Gujarat police, were arrested immediately based on the observations made by the Supreme Court in Zakia Ahsan Jafri and the subsequent statement of Union Home Minister Amit Shah, who claimed that her non-governmental organisation Citizen for Justice and Peace gave baseless information about the 2002 Gujarat pogrom to the police.
In this judgment, the court had dismissed the plea of Zakia Jafri, widow of Indian National Congress leader and former member of Parliament, Ehsan Jafri, who had alleged the role of the Gujarat government in hatching a larger conspiracy leading to the post-Godhra carnage.
In paragraph 88 of the judgment, the court 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 SIT), 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.”
During the post-Godhra carnage, Ehsan Jafri was pulled out of his house by a riotous mob and was 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”.
The FIR against Setalvad stated that Zakia Jafri’s cross-examination indicated that she was tutored by Setalvad.
What were the observations made by the court today?
At the outset, the court questioned how the observations of the Supreme Court made in another case, can be used against Setalvad when she was not even a party to the proceedings.
Setalvad had filed a special leave petition to become a party to the Zakia Ahsan Jafri case. However, her pleadings were refused by the court, as her intervention was vehemently opposed by the State.
Justice Gavai in this context observed: “One of the first principles of law is the rule of law which contemplates natural justice.”
He asked how it can be inferred that the observations were made against her or were intended to be related to her when she was not made a part of the proceedings.
Further, when Additional Solicitor General S.V. Raju emphasised the applicability of Section 194 as he claimed that Setalvad forged affidavits used in the investigation, the court added a warning. The court stated that the solicitor general should not dwell on this or else, the court will be compelled to examine the scope of the applicability of section 194.
Out of the offences Setalvad is alleged to have committed, section 194 is non-bailable.
Interestingly, although the court did not make any observations on the applicability of Section 194 in the final order being conscious of not turning a bail hearing into a mini-trial, the court orally observed that the same may not be applicable in this case.
The Bench pointed out that the affidavits may not be considered as evidence for the purpose of Section 194 as the term “evidence” defined under the Indian Evidence Act requires that the document must be filed before the court.
Justice Datta remarked: “Initially we were that there is a case made out under section 194. Now even section 194 is suspect”.
When Additional Solicitor General S.V. Raju stated that the court should look at the statements of the witnesses who have disposed of that Setalvad fabricated evidence, Justice Gavai intervened and said: “Statements cannot be equated as evidence!”
