Noting that Setalvad’s custodial interrogation stands completed, the Supreme Court found no reason to deny her relief in the form of interim bail, and held that she is entitled to it. The court refused to be drawn into the merits of the case against her, as the same was not required at this stage.
THE Supreme Court earlier today granted interim bail to civil rights activist and journalist, Teesta Setalvad, arrested for allegedly fabricating evidence to frame “innocent people” in the 2002 Gujarat riots/Zakia Jafri case. Although the Gujarat government vehemently opposed any relief to Setalvad, the fact that she had already spent two months in custody weighed heavily in the court’s decision.
A three-judge bench comprising the Chief Justice of India (‘CJI’) Uday Umesh Lalit, and Justices S. Ravindra Bhat and Sudhanshu Dhulia, observed that the Gujarat High Court ought to have considered her plea for interim bail.
The bench directed Setalvad to surrender her passport in the trial court till the high court decides on her regular bail application.
The bench noted that the petitioner is a lady, who has been in custody since June 25, and that the offence was alleged against her for the period from 2002 to 2012. Besides, it said that the investigative agency had the advantage of custodial interrogation of seven days, and the judicial custody of the petitioner thereafter. It also directed Setalvad to cooperate with the investigation.
On September 1, the bench had expressed concerns over Setalvad’s arrest and detention. It conveyed its dismay over the Gujarat high court extending an “exceptionally long” notice period of six weeks to the state government of Gujarat to respond to Setalvad’s bail application. “Is this the standard practice in Gujarat?”, the CJI had asked Solicitor General of India, Tushar Mehta, representing the Gujarat government.
Today, Mehta sought to persuade the bench that the impression that the Gujarat high court deliberately delayed hearing Setalvad’s bail application, by giving the Gujarat government an unusually long period of six weeks to respond to her plea, was erroneous. “It is not as if the petitioner was singled out”, Mehta submitted, and argued that the high court did not deviate from uniform practice. Mehta produced documents containing the returnable dates of a matter concerning a ‘lady’ accused before the Gujarat high court to substantiate his view that the high court has continued with a uniform practice with respect to returnable dates.
When Mehta referred to what he alleged as Setalvad’s maligning campaign against the state, the CJI reminded him to confine himself to the facts of the case.
Mehta, however, told the bench that the position of the high court judges is precarious, and that they have no forum where they can justify themselves. He told the bench that he had no difficulty, if the bench directed the high court to hear her bail plea earlier than it had scheduled. “The date of hearing [by the high court] can be advanced, but don’t make an exception in her case”, Mehta pleaded before the bench.
He sought to refute the suggestion from the bench that except the Supreme Court’s judgment in the Zakia Jafri case, there is nothing in the first information report (‘FIR’) against Setalvad.
On September 1, senior advocate Kapil Sibal argued that the grounds for her arrest were baseless. He submitted that the police failed to conduct an independent investigation to undertake the arrest since Setalvad was arrested only a day after the Supreme Court’s Zakia Jafri judgment. The facts stated in the FIR were a mere recitation of the observations made in the judgment, Sibal argued.
Mehta contended that since the bail application is presently pending consideration by the Gujarat high court, the present special leave petition of Setalvad should not be entertained by the Supreme Court. He stressed that Setalvad must be treated like any other citizen.
The bench highlighted that Setalvad was entitled to a ‘favoured treatment’ under the mandate of Section 437 of the Code of Criminal Procedure (‘CrPC’) since she is not charged with offences that mandate the non-granting of bail. It was pointed out that Setalvad is charged with offences pertaining to the forgery of documents, for which custody is bound to end after the initial period of a police investigation.
Further, on the question of the nature of the ongoing investigation, Mehta submitted that the allegation of a larger conspiracy against Setalvad is under investigation. He suggested that there was sufficient material, apart from the FIR, that pointed to her involvement in the allegations. Statements recorded under Sections 161 and 164 of the CrPC were produced on behalf of the Gujarat government to prove the falsification of evidence by Setlavad. The petitioner has been on a maligning campaign against all institutions since 2002 and should not be granted interim bail, Mehta contended.
In response to CJI Lalit’s query as to what the investigative agency found from her custodial interrogation, Mehta responded that she is an intelligent person. “I don’t think she has divulged anything. She has been non-cooperative”, Mehta added.
Sibal, on the contrary, told the bench that statements recorded under sections 161 and 164 of the CrPC had no bearing on the forgery alleged against her. “Is any of this stated in the FIR?”, Sibal asked. He vehemently stated that there is no proof to indicate that any evidence was tampered with.
Sibal also questioned why the aggrieved party did not file an FIR, instead of the state government. “This is a matter of not only of prosecution but also persecution”, he added.
The Supreme Court clarified that its present order has been passed in light of the peculiar facts of the case; more importantly, since the petitioner is a woman. Any applications preferred by her co-accused (for bail) shall be decided on their own merit, the bench added. It directed the concerned trial court to release her on interim bail, subject to conditions, by tomorrow, that is, September 3.
On June 25, the Gujarat Police Crime Branch, Ahmedabad lodged an FIR against Setalvad, as well as former Gujarat police officers R.B. Sreekumar and Sanjiv Bhatt, 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 (‘IPC’).
The accusation against Setalvad, inter alia, states that there is material in the final report submitted by the Supreme Court-appointed Special Investigation Team (‘SIT’), set up to inquire into the allegations that state government functionaries and officials had conspired to give effect to the 2002 Gujarat pogrom, which indicates that she had conjured, connected, forged and fabricated facts and documents and/or evidence; that she was also involved in the tutoring of witnesses and making them depose on pre-typed affidavits; and that Zakia Jafri, the widow of one of the victims of the pogrom, who had challenged the SIT’s clean chit to government functionaries before the Supreme Court had, in her cross-examination, stated that she knew her.
The FIR further states that Jafri’s cross-examination indicated that she was tutored by Setalvad and she followed the instruction given by Setalvad, and that Bhatt, Sreekumar and Setalvad, among others, had conspired to abuse the process of law by fabricating false evidence in order to get several persons convicted for offences punishable with the capital sentence, thereby committing an offence under section 194 of the IPC. This FIR immediately followed the Supreme Court’s judgment in Zakia Ahsan Jafri versus State of Gujarat & Anr.,whereby it had upheld the clean chit given by the SIT to the then Chief Minister of Gujarat, and now Prime Minister, Narendra Modi, in the conspiracy allegations in the Gujarat riots.
Setalvad was arrested on June 25. Her bail application was rejected by the Additional Principal Judge, City Court, Ahmedabad on July 30. She challenged the Sessions Court order in the Gujarat High Court. The high court, on August 3, issued notice to the state government, but listed the matter to be heard only on September 19, showing no urgency.