In a big relief to activist Teesta Setalvad, the Supreme Court on Wednesday granted her regular bail in a case of alleged fabrication of documents to frame innocent people in the 2002 post-Godhra riot cases while terming as "perverse" and "contradictory" the Gujarat high court order denying her bail.
Quashing the July 1 order of the high court, a three-judge bench of Justices B R Gavai, A S Bopanna and Dipankar Datta held her custodial interrogation was not necessary since the charge sheet in the matter has been filed and most of the evidence are documentary in nature.
The bench directed that Setalvad's passport, which she has already surrendered, will be in the custody of the sessions court, and she shall not make any attempt to influence the witnesses and stay away from them.
It also granted Gujarat police the liberty to directly move the apex court if attempt is made to influence the witnesses in the case.
"Taking into consideration the fact that most of the evidence is documentary in nature and is in custody of prosecuting agency, we do not find that her custodial interrogation is needed," the apex court said enlarging the social activist on bail.
The bench said it is at pains to say that the high court order running into hundreds of pages makes an "interesting reading".
"On the one hand, the judge has spent pages to observe as to how it is not necessary, rather not permissible, at the stage of bail to consider whether a prima facie case is made out.
"But, on other hand, the high court judge has interestingly observed that since the petitioner has neither challenged nor sought quashing of the FIR or charge sheet in proceedings under section 482 CrPC or Article 226 or 32 of the Constitution, it is not permissible for her to say that a prima facie case is not made out," the top court said.
It said at the time of considering bail, it needs to be taken into account whether a prima facie case is made out, whether there is possibility of the accused tampering with evidence or influencing witnesses and whether there is possibility of accused fleeing from the hands of justice.
The court said other consideration which can be taken into account is the gravity of the offence.
"If the observations made are to be accepted, then no bail at the pre-trial stage can be granted unless the accused files an application for quashing of the proceedings against him under section 428 CrPC or Article 226 before the high court or Article 32 before this court. To say the least, these finding are totally perverse," the bench said in the order.
It added the high court relied on the statements of some witnesses to hold that a prima facie case of section 194 of IPC (giving or fabricating false evidence with intent to procure conviction of capital offence) is made out.
The bench noted the submission of senior advocate Kapil Sibal, appearing for Setalvad, that the FIR against her was lodged following a judgment by the top court on June 24, 2022, in the case of Zakia Jafri, who has alleged a larger conspiracy behind the 2002 communal riots and challenged the Gujarat high court's October 5, 2017, order rejecting her petition against the finding of the Supreme Court-appointed Special Investigation Team (SIT).
Zakia Jafri is the widow of former Congress MP Ehsan Jafri who was among those killed at Gulberg housing society during the 2002 communal riots.
Sibal said the top court had made certain observations in the Zakia Jafri judgment while dismissing her plea without hearing Setalvad and there was no mention of her name.
The bench said judicial propriety demands that it should not go into that judgment.
It noted Sibal's submission that no offence under section 194 of IPC was made out in Setalvad's case.
Additional Solicitor General SV Raju opposed Setalvad's bail plea, saying she has been accused of a grave offence in which she tried to implicate innocent persons and destabilise the politically elected government.
He claimed Setalvad may tamper with evidence and so she should not be enlarged on bail.
The bench referred to its September 2, 2022, order granting her interim bail and said the considerations that weighed with the court at that time included that she was a lady and that the offences alleged against her related to 2002.
Raju said the June 2022 judgment was taken into consideration by the police after which FIR against Setalvad was lodged.
Setalvad was arrested a day after the Supreme Court judgment in the Zakia Jafri case upholding the clean chit given to Prime Minister Narendra Modi in the Gujarat riots which had taken place when he was the chief minister.
The FIR against Setalvad and two others -- former IPS officer Sanjiv Bhatt and former DGP RB Sreekumar -- followed the apex court's observation that some people kept ”the pot boiling” of the case ”for ulterior design” and ”all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with the law."
The bench said observations were made in the 2022 verdict without hearing Setalvad as the Gujarat government had opposed her intervention in the matter.
When Raju persisted with his submission opposing grant of bail, the bench warned him saying, "We are putting you on guard. If you delve more into this, then we will be forced to interpret the scope of section 194 of IPC and make some harsh observations."
On July 5, the top court had extended Setalvad's interim protection from arrest in the case till July 19, while issuing notice to the state on her appeal against the July 1 order of the high court.
The apex court had, in a late night hearing on July 1, protected Setalvad from arrest and stayed for a week the high court order rejecting her plea for regular bail and asking her to surrender immediately.
During the hearing, the three-judge bench had questioned the denial of time to Setalvad to appeal against the high court's order, saying even an ordinary criminal is entitled to some form of interim relief.
She was taken into custody on June 25 last year along with Sreekumar and 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 July 30, 2022, rejected the bail applications of Setalvad and Sreekumar, saying their release will send a message to wrongdoers that a person can level allegations with impunity and get away with it.
