In a setback to Gujarat police, Supreme Court on Thursday directed it not to arrest social activist Teesta Setalvad and her husband in a case of alleged embezzlement of funds for a museum at Ahmedabad's Gulbarg Society that was devastated in the 2002 riots.
The order came with a caveat that Setalvad and her husband Javed Anand would provide all required documents, vouchers and the list of donors to NGOs -- Sabrang Trust and Citizen for Justice and Peace and their failure to cooperate in the probe would give liberty to Gujarat police to seek cancellation of their bail.
"It is directed that the petitioners (Setalvad and her husband) will not be arrested in connection with the case," a bench comprising justices Dipak Misra and Adarsh Kumar Goel said while reserving its judgement on their plea seeking anticipatory bail.
The bench further said that the interim order of stay on their arrest, which was earlier extended by a bench of justices S J Mukhopadhyaya and N V Ramana, would continue.
The hearing in the matter was taken away from the bench headed by Justice Mukhopadhya and Chief Justice of India H L Dattu and listed before a new bench headed by Justice Misra without assigning any reason.
"You can file an application before us for cancellation of bail if they don't cooperate," the bench said when senior advocate Mahesh Jethmalani, appearing for Gujarat government, said the matter should not be disposed of and be kept pending as there was no surety that the accused were going to cooperate in the investigation.
At the fag end of two-hour-long hearing, senior advocate Kapil Sibal, appearing for Setalvad and her husband, took the liberty to say that the Gujarat government should ask for documents instead of going for custodial interrogation.
However, his comment did not go down well with the bench which said, "Don't act smart Mr Sibal. You provide all the documents. You also provide the list of donors."
"I have never played smart with the judges in my 42-year long career," Sibal shot back, adding, "whatever documents they ask me, I will give them in one week."
The bench declined to give any commitment to Sibal whether the inquiry would be limited to post-2007 donations received by the two trusts for setting up a museum in memory of the riot victims or would it cover the activities of NGOs since 2002.
The bench replied "who are we to say. You are only on anticipatory bail qua FIR."
Further, it did not give its response to a submission that instead of Gujarat, the accused should be probed in Mumbai. This demand was opposed by Jethmalani who said how can the police go all the way to Mumbai to carry out the investigation.
His reply evoked sharp reaction from some activist lawyers, including former Additional Solicitor General Indira Jaising, who said if Gujarat Police could rush to the doorstep of Setalvad immediately after rejection of her anticipatory bail plea, why can't they go to Mumbai.
Senior advocate Dushyant Dave, who was also appearing in the matter for Setalvad, made remarks about the Gujarat Police by referring to the Soharabuddin Sheikh fake encounter case.
However, the bench accepted the request of Sibal that their accountant would be allowed to represent along with them before the Gujarat Police during the inquiry.
Unlike the hearing before previous bench headed by Justice Mukhopadhya where Setalvad had to face the heat, it was now the turn of Gujarat police to face some tough questions
It had to satisfy the court that the case in hand was one of custodial interrogation as it was the case of "rank non-cooperation and tampering with witness".
Observing that personal liberty cannot be "bartered", the bench at the outset said it seemed it was a case of anticipatory bail and onus was on Gujarat police to argue "why there is a need for custodial interrogation."
"No one will ever barter his liberty for all the teas in China, for all the pearls in the sea and for all the stars in the sky. Liberty is that paramount... for me give me liberty or give me death. Personal liberty is paramount," the bench observed and asked, "is this a case where the liberty should be taken away or curtailed?"
"It can be a case of irregularity of funds in the trust used for sheer personal purpose but what is there for personal interrogation," the bench said making it clear that it was not going to deal with the concept of "malafide" prosecution when dealing with the anticipatory bail unless the custodial interrogation is required.
"We accept that custodial interrogation has its own value but this is just a case of mismanagement of accounts. Personalities do not become protagonists. A case is a case having a human face and a case rests on its own facts," the bench said.
"Why should these people (Setalvad and her husband) be taken into custody," the bench asked Jethmalani who said there was complaint of cheating, criminal breach of trust, forgery and section 72 A of the Information Technology Act, besides "rank non-cooperation and tampering with the witness."
"We have given them maximum opportunity to come for interrogation," he said and added that they have been giving "stock replies/stock answers" to questions in the case in which the names of riots victims were exploited and used for collecting donations from India and abroad.
However, the bench said, "even in custodial interrogation, can you compel them to answer".
"There must be a balance and they must provide all documents and data and they are bound to provide. However, you cannot expect a particular manner a person will answer," the bench said.
The bench, which minutely scrutinised penal provisions of forgery, criminal breach of trust, cheating and conspiracy levelled against Setalvad and her husband on several occasions, said such investigation could be done on the basis of documents "without putting the liberty of a person on ventilator or putting a person in intensive care unit (ICU)."
Jethmalani said even if there was an agreement with the bench that the case in hand was not of forgery and criminal breach of trust, the couple could still be quizzed in custody for the offence of section 420 (cheating) of the IPC.
However, the bench said, "in such situation what is the requirement for custodial interrogation".
"The question is purely a question of law and liberty. The question is can the liberty be put on the ventilator or in the ICU," the bench said, adding, "you require documents from them and they are obliged to provide documents under law."
However, Jethmalani took exception to the remarks which virtually indicated the mind of the bench by saying "it appears that you (bench) have made up your mind, but it is a case of custodial interrogation."
"We have to interrogate and find whether the money has gone. Can't police entitle to go into the money trail," Jethmalani asked, but the bench said the accused can show the accounts book and other documents about the donors.
