The top court said a charge sheet has been filed in the case against Setalvad and her custodial interrogation was not necessary.
Teesta Setalvad. (Creative Commons)
The Supreme Court on Wednesday, 19 July, granted regular bail to activist Teesta Setalvad in a case of alleged fabrication of evidence to frame innocent people in the 2002 post-Godhra riots cases.
A three-judge bench of Justices BR Gavai, AS Bopanna and Dipankar Datta set aside the order of the Gujarat High Court rejecting her plea for regular bail, saying that the high court’s observations were “perverse” and “contradictory”.
The top court also said a charge sheet had been filed in the case against Setalvad and her custodial interrogation was not necessary.
“The passport of the appellant already surrendered will be in the custody of session court. The appellant shall not make any attempt to influence witnesses and shall stay away from them,” the bench said.
The bench also granted the Gujarat Police liberty to directly move the apex court if an attempt is made to influence witnesses in the case.
“We are at pains to say that the order passed by the learned judge makes an interesting reading. On 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,” said the bench as reported by LiveLaw.
“Learned judge interestingly observed that since the petitioner has neither challenged the FIR or chargesheet in proceedings under Section 482 CrPC or Articles 226 or 32 of the Constitution, it is not permissible for her to say that a prima facie case is not made out,” the bench added.
“The limited understanding of law we have is that the considerations which are required to be taken into consideration for the grant of bail are (1) prima facie case, (2) the possibility of the accused tampering the evidence or influencing the witness, (3) fleeing away from the justice. The other considerations are gravity and seriousness of the offence,” it further said.
“If the observation of the learned judge is to be accepted, an application for bail can only be accepted if the accused files an application for quashing the proceedings…To say the least, the findings are totally perverse,” it observed.
“On the other hand, the learned judge goes on to discuss the statements of some witnesses and finds that a prima facie case is made out. The findings are totally contradictory, to say the least,” added the bench.
Senior Advocate Kapil Sibal, the petitioner’s lawyer, said the argument that Teesta had tutored witnesses was made by the Solicitor General on behalf of the state of Gujarat.
He also contended that the FIR against her was registered a day after the Zakia Jafri judgement and questioned the registration of the FIR.
“Somebody should say that the documents were fabricated. They record the statements after registering the FIR. What was the haste that you arrest her on the next day of the judgment based on the statement of the Solicitor General?”, he asked.
Sibal said the Gujarat High Court had adopted a “strange reasoning” to presume that the allegations against her were admitted as she did not institute any proceedings to quash the chargesheet.
Additional Solicitor General SV Raju, for the state of Gujarat, submitted that the petitioner had fabricated evidence and tutored witnesses in an attempt to implicate high state functionaries in Gujarat riots cases and that she had taken money from opposition parties to destabilise the elected government.
The bench pointed out that there was a “self-contradiction” in the high court order, as the high court almost entered findings of guilt despite saying that it cannot consider the tenacity of allegations while deciding bail.
Justice BR Gavai questioned the motives and timing of Ms Setalvad’s arrest.
“What were you doing till 2022? What investigation have you done from June 24 and June 25 that you decided she has done something so heinous as to warrant her arrest?” he asked.
In especially sharp comments, he pointed out that if the authorities’ contentions were to be accepted, the Definition of Evidence Act would be rendered moot.
Following the statement, Justice Dipankar Datta criticised the notion of holding someone in custody until a verdict is pronounced.
“Initially, we were feeling that there was a case under [Section] 194. Now we think the case under Section 194 is suspect. And you want someone to be undertrial and in custody, till verdict is pronounced,” he said.
Setalvad was taken into custody on 25 June last year along with former Gujarat Director General of Police RB Sreekumar and ex-IPS officer Sanjiv Bhatt in a case registered by the Ahmedabad Crime Branch police for allegedly fabricating evidence to frame innocent people in the post-Godhra riots cases.
An Ahmedabad sessions court had on 30 July, 2022 rejected the bail applications of Setalvad and Sreekumar, saying their release would send a message to wrongdoers that a person can level allegations with impunity and get away with it.
The high court had on 3 August 2022, issued a notice to the state government on the bail plea of Setalvad and fixed the matter for hearing on 19 September.
Meanwhile, she moved the Supreme Court for interim bail after the high court refused to consider her plea.
The apex court, on 2 September last year, granted her interim bail and asked her to surrender her passport with the trial court till the time the Gujarat High Court decided her regular bail plea.
(With PTI inputs)
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