Supreme Court Grants Interim Protection To Teesta Setalvad For 7 Days ; Stays HC Order After Special Night Sitting

The Supreme Court at a special sitting on Saturday night granted interim relief to social activist Teesta Setalvad 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. While staying the Gujarat High Court's order which dismissed her bail application and directed Setalvad to immediately surrender, the 3-judge bench took note of the earlier order passed by the Supreme Court in September 2022 which granted her interim bail. 

The bench noted that while passing the September 2022 order, the earlier bench led by the then CJI UU Lalit had taken into account the fact that the petitioner was a lady who was entitled to special protection under Section 437 of the Code of Criminal Procedure. Taking this factor into consideration, the bench opined, the single bench of the High Court ought to have granted some protection to the petitioner so that she can challenge the order before the Supreme Court. The bench directed that the High Court's order be stayed for a week. While doing so, the bench clarified that it has not gone into the merits of the matter and was only concerned with the High Court's rejection of interim relief.

"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", observed the bench.

This urgent hearing was conducted by a three-judge bench comprising Justices BR Gavai, AS Bopanna, and Dipankar Dutta after Justices Abhay S Oka and Prashant Kumar Mishra differed with respect to granting Setalvad bail earlier today. The smaller division bench was hearing an appeal against a ruling of the Gujarat High Court in the morning, declining the activist's request for normal regular bail. While Justice Oka was in favour of granting interim protection to Setalvad, Justice Mishra disagreed. Owing to the lack of consensus between the member judges, the bench ultimately directed the matter to be placed before the Chief Justice of India to be assigned to a larger bench.

Courtroom Exchange

Before the three-judge bench, Senior Advocate CU Singh, appearing for Teesta Setalvad, pointed out that the a 3-judge bench of the Supreme Court in September 2022 had granted interim bail to Setalvad till the High Court decided her bail application.

He argued that no case was made out that Setalvad had breached any condition of the interim bail granted to her by the top court last year. He added, "The high court also refused to stay the operation of the order for 30 days, but no reasons were given to explain the rejection. Immediate surrender was ordered". He pointed out that chargesheet in the case was filed in September last year and the trial is yet to begin.

Solicitor-General Tushar Mehta, representing the State of Gujarat, urged the court to mete out the same treatment to Setalvad as received by any ordinary citizen. "I would expect Your Lordships to do the same thing which will be done in the case of a common man who has been rejected bail since she is a common criminal," the law officer argued.

However, the bench expressed its disapproval over the 'alarming' urgency exhibited by the high court in asking Setalvad to immediately surrender, after being enlarged on interim bail for ten months. "What is the urgency in taking her into custody? Will the skies fall if interim protection is granted for some days? We are taken by surprise by what the high court has done. What is the alarming urgency?" "Even common criminals are granted interim relief," Justice Gavai added, countering the solicitor-general's argument about preferential treatment.

To emphasise the seriousness of the offences against Setalvad, Mehta said:

"She started a campaign making false allegations. The riot did take place, and people from both communities were killed. But, she saw an opportunity and came to this court with false allegations. A special investigation team was constituted by the Supreme Court and operated under its monitoring. This SIT has received pre-typed and pre-signed statements. The witnesses later told the SIT that they were unaware of the contents and were given the statements by this same petitioner...The petitioner has filed false affidavits, and tutored witnesses. She also started collecting money for riots victims. The entire nation was maligned, not only inside the country but outside the country, by the petitioner. It is not a question of one individual. These offences are against the integrity of the nation."

However, this argument did not find favour with the bench, which emphasised that where there was a difference of opinion, the court must rule in favour of liberty. Justice Datta said:

"Mr Solicitor, her conduct might be reprehensible. The only question is whether the person is not entitled to interim bail."

The law officer attempted to convince the bench to not grant interim relief to the applicant by relying on the observations made by a three-judge bench of the apex court last year while rejecting a petition filed by Setalvad and Zakia Ehsan Jafri alleging the involvement of Prime Minister Narendra Modi (who was then the chief minister of the state) and other functionaries in the larger conspiracy during the 2002 Gujarat riots. The court had observed that the petition was filed with 'ulterior motives' to 'keep the pot boiling', and that all those involved in such an 'abuse of process' ought to be 'in the dock' and proceeded against, in accordance with the law. However, Justice Gavai objected, saying "It was understandable if the court had merely said the conduct of the petitioner was not worthy..but to directly say they should be put in the dock..."

"Are we hearing an appeal against the three-judge bench judgment of this Court?" Mehta shot back. "Perceptions differ, we would leave it at that," Justice Gavai replied.

Mehta continued, "This is not an ordinary case. This is somebody who takes every institution for a ride. Somebody who writes to international organizations in Geneva, maligning the country."

"We are sorry to say the single judge was totally wrong in not granting interim protection even for one week. When this Court has granted interim bail, extending it by a week would have been ideal," Justice Gavai firmly said, before pronouncing an order staying the high court's direction to take Setalvad into custody, for a week.

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, 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, which was challenged before the Gujarat High Court. When the matter travelled in appeal to the Supreme Court, it 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.

Earlier today, 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 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 heard an urgent appeal against the high court's order at 6:30 PM today, in 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. After Solicitor-General Tushar Mehta persisted in arguing that the court ought to reject the appeal against the high court's ruling, the division bench ultimately referred it to the chief justice to be placed before a larger bench, in light of a lack of consensus between the two judges with respect to the question of whether Setalvad should be granted bail.

The three-judge bench headed by Justice Gavai was constituted to decide the appeal referred to it by the division bench. 

Case Title : Teesta Atul Setalvad vs State of Gujarat SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 25725/2023

Click here to read the order