Supreme Court Posts Teesta Setalvad's Bail Plea For Hearing On July 19; Extends Stay Of Gujarat HC Order

A bench of Justices BR Gavai, AS Bopanna, and Dipankar Datta was hearing Setalvad’s plea against the Gujarat High Court’s decision to deny her regular bail in connection with an FIR lodged against her by Gujarat police for allegedly fabricating documents to implicate high government functionaries in relation to the 2002 Gujarat riots. Earlier, this order – directing the social activist to surrender immediately – was stayed by the top court for a period of one week in a special 9 PM sitting on Saturday, July 1.

Senior Advocate Kapil Sibal appeared for Setalvad and Additional Solicitor General SV Raju appeared for the State of Gujarat.

Background

Civil rights activist and secretary of NGO ‘Citizens for Justice and Peace’ Teesta Setalvad is under the scanner for allegedly fabricating evidence and instituting false proceedings in relation to the Gujarat riots conspiracy case. A first information report (FIR) was lodged against Setalvad in 2022, one day after the apex court dismissed a petition filed by Zakia Ehsan Jafri alleging a larger conspiracy during the 2002 Gujarat riots. In this plea, Setalvad along with Zakia Ehsan Jafri had challenged the closure report filed by a special investigation team (SIT) discarding the allegations of a larger conspiracy by high state functionaries including the then-chief minister Narendra Modi and 63 others in the communal violence that broke out in the western state of Gujarat in February 2002.

A three-judge bench headed by Justice AM Khanwilkar observed that the petition was filed with ‘ulterior motives’ to ‘keep the pot boiling’. The top court further said that action should be taken against those who abused the process of law. In its order, the court also observed that a ‘coalesced effort’ of disgruntled officials from Gujarat and others was to make false sensational revelations, which the Gujarat SIT ‘exposed’. The bench remarked:

“Intriguingly, the present proceedings have been pursued for the last 16 years… to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

Pursuant to these observations, an FIR was registered against retired state DGP RB Sreekumar, Setalvad, and former IPS Officer Sanjiv Bhatt charging them with criminal conspiracy, forgery, and other offences under the Indian Penal Code. The FIR in question quoted extensively from the Supreme Court's order. On June 25, 2022 the Gujarat Police's Anti-Terrorism Squad took Setalvad into custody from her residence in Mumbai. Her bail plea was rejected by a lower court in Ahmedabad on July 30, 2022,which was challenged before the Gujarat High Court. When the matter travelled in appeal to the Supreme Court, a bench headed by Chief Justice UU Lalit granted Setalvad interim bail in September of last year, noting that she had been in custody for two months and the investigative machinery had the advantage of custodial interrogation for a period of seven days.

In November, Justice Samir J Dave of the Gujarat High Court recused from hearing the matter.

Last Saturday, i.e., on July 1, the Gujarat High Court 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 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.”

A division bench of the Supreme Court heard an urgent appeal against the high court's order at 6:30 PM on the same day, during which Justice Oka emphasised multiple times that it would be fair if the accused were 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 the interim bail. However, Justice PK Mishra did not agree on granting interim protection. Following the difference, the matter was referred to a larger bench.

Within hours, a three-judge bench composed of 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 said bench granted interim relief to social activist Teesta Setalvad by staying the Gujarat High Court’s order for a period of one week.

Noting that the earlier bench 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 bench of the high court ought to have granted her time to comply with, and possibly appeal, 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.”