With the Supreme Court bench, comprising Justices BR Gavai, AS Bopanna and Dipankar Datta, quashing the order of the Gujarat High Court that denied regular bail to Teesta Setalvad and observing that the findings of the High Court were perverse and contradictory, it has opened another can of judicial worms. Setalvad is accused of indulging in a larger conspiracy surrounding the 2002 Gujarat riots and purportedly making efforts to implicate the then Gujarat CM Narendra Modi and other individuals in the riots.
The bench further said that the order passed by the learned judge of the High Court made interesting reading. It observed that the learned judge had interestingly observed that since the petitioner had 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.
While questioning the High Court’s reasoning, the apex court said that “the limited understanding of law we have, the considerations which are required to be taken into consideration at the stage of grant of bail are (1) prima facie case, (2) the possibility of the accused tampering the evidence or influencing the witnesses and (3) fleeing away from the justice. No doubt, the gravity and seriousness of the offence also need to be taken into consideration.”
The bench further said that “if the observations, as recorded by the learned judge are to be accepted, then no application for bail at the pre-trial stage could be entertained unless the accused files an application for quashing the proceedings under Section 482 CrPC or Articles 226 or 32 of Constitution. To say the least, the findings are totally perverse.”
The bench held that custodial interrogation of the petitioner was not necessary since the chargesheet in the case had already been filed. The Court quashed the High Court’s order and granted bail to Setalvad, subject to the condition that she should not attempt to influence or intimidate the witnesses. “Appellant shall not make any attempt to influence the witnesses and shall remain away from them,” it said, adding that “if prosecution feels that any such attempt is made, they would be entitled to move application for modification of the order directly before this court”.
Earlier, the top court on July 5 had extended interim protection granted to Setalvad from arrest to July 19.
On July 1, the Gujarat High Court had rejected Setalvad’s application for regular bail and directed her to surrender immediately. The order was passed by a single-judge bench of Justice Nirzar S Desai. The High Court observed that the social activist had an “intention to tarnish the image of the then-chief minister (Narendra Modi) and thereby to send him to jail and compel him to resign” and accused her of polarising people of a “particular community”. The single judge also remarked: “She formed an NGO in the name of Citizen for Justice and Peace, but she never worked in the direction of securing justice and peace… She polarised the people of a particular community.”
The Supreme Court thereafter heard an urgent appeal against the High Court’s order at 6:30 pm on the same day, during which Justice AS Oka emphasised multiple times that it would be fair if the accused was provided “breathing time” to surrender after her bail was rejected by the High Court at the end of the week, especially since there was no breach of the conditions of interim bail. After Solicitor General Tushar Mehta persisted in his arguments that the Court ought to reject the appeal against the High Court’s ruling, the division bench ultimately referred it to the chief justice of India to be placed before a larger bench in light of lack of consensus between the two judges, Justice AS Oka and PK Mishra, with respect to the question whether Setalvad should be granted interim protection. While Justice Oka was in favour of granting interim protection to Setalvad, Justice Mishra disagreed.
Within hours, a three-judge bench, comprising Justices BR Gavai, AS Bopanna and Dipankar Dutta, was constituted to decide the appeal referred to it by the smaller bench, and in a special sitting on Saturday night, the bench granted interim relief to Setalvad by staying the High Court’s order for a period of one week.
Noting that the earlier apex court bench of September 2022 had acknowledged that the petitioner—being a woman—was entitled to special protection under Section 437 of the Code of Criminal Procedure, 1973, the Justice Gavai-led bench held that the single-judge bench of the High Court ought to have granted her time to comply with, and possibly appeal, against the order to surrender. The bench observed: “In that view of the matter, without considering anything on merits of the matter, finding that the learned Single Judge was not correct in granting even some protection, we grant stay of the impugned order passed by the High Court for a period of one week from today.”
The Gujarat Police had arrested Setalvad on June 25, 2022, on alleged charges that she fabricated documents to frame high-ranking officials, including the then Gujarat chief minister Narendra Modi in cases related to violence that took place in Gujarat after the Godhra train burning incident in 2002. Setalvad, who is also the secretary of Citizens for Justice and Peace, an organisation formed to fight for the victims of 2002 Gujarat riots, was kept in police remand for seven days and sent to judicial custody on July 2.
On September 2, 2022, the Supreme Court granted interim bail to Setalvad, directing her to surrender her passport till the matter was taken up by the High Court and ensure complete cooperation in the investigation. The bench of then Chief Justice of India UU Lalit and Justice Ravindra Bhat and Justice Sudhanshu Dhulia further directed the Gujarat Police to release Setalvad on conditions, which the Court deemed appropriate. The bench observed that Setalvad, a lady, has remained in custody since two months and the investigative machinery has had the advantage of custodial interrogation for a period of seven days. The top court noted that the offences alleged against Setalvad pertained to 2002, and at best, the concerned documents were sought to be produced by 2012.
Thus, the essential ingredients of investigation, including custodial interrogation having been completed, the matter assumed a complexion where the relief of interim bail was evidently made out, noted the apex court and granted interim bail to Setalvad.
On September 1, 2022, the Court had pulled up the Gujarat High Court over its order to list Setalvad’s bail plea for hearing on September 19, almost six weeks after issuing notice in the case. Stating whether this was the “standard practice in Gujarat”, the top court had asked the government of Gujarat about the material they had gathered in the past two months against Setalvad. The then CJI-led bench further noted that there was no grave offence, such as Prevention of Terrorism Act (POTA), 2002, or the Unlawful Activities (Prevention) Act, 1967, meaning that there was no statutory mandate against the grant of bail. The top court added that a lady was entitled to “favoured treatment” in normal offences under Section 437 of the India Penal Code, thus granting her interim bail.
Congress leader Rahul Gandhi has sought a stay from the Supreme Court on his conviction and the two-year jail term imposed on him by a Gujarat court in a criminal defamation case for his remark, “all thieves have Modi surname”. Justices BR Gavai and Prashant Kumar Mishra has sought responses from the complainant, Purnesh Ishwarbhai Modi, and the State of Gujarat after hearing the appeal filed by the former Wayanad MP, challenging the Gujarat High Court’s refusal to stay his conviction and two-year jail term imposed on him by a magistrate court in Gujarat. The single-judge bench of Justice Hemant Prachchhak had refused relief to Rahul on July 7, stating that staying conviction is not a rule and the same must only be exercised in rare cases.
It is also pertinent to note that in April this year, the Supreme Court had questioned the Gujarat government about the reasons for its decision to allow premature release of 11 life convicts in the Bilkis Bano case. The bench, comprising Justices KM Joseph and BV Nagarathna, said when remission is considered in such heinous crimes affecting the society at large, the power must be exercised keeping in mind public interest. Bilkis Bano, pregnant at the time of crime, was gang-raped and her three-year-old daughter and 13 others were killed by a mob on March 3, 2002, in Dahod during violence that broke out in Gujarat after the Sabarmati Express was attacked in Godhra and 59 kar sevaks were burnt to death.
—By Shivam Sharma and India Legal Bureau