[Teesta Setalvad bail plea] Has Gujarat High Court given such long adjournment before or has she been made an exception: Supreme Court to Gujarat

In the bail plea filed by activist Teesta Setalvad, the Supreme Court on Thursday asked the State of Gujarat to produce details of cases/ precedents in which the Gujarat High Court has given long adjournments as was done in this case [Teesta Atul Setalvad and Another vs State of Gujarat]..A Bench of Chief Justice of India Uday Umesh Lalit and Justices S Ravindra Bhat and Sudhanshu Dhulia made some strong observations against the Gujarat High Court's order of adjournment, noting that the High Court had issued notice on Setalvad's plea on August 2 but posted the matter for further hearing after 6 weeks on September 19."Give us a case where a lady is in confinement on charges like this and the High Court has given a date like this. What is normal pattern in bail cases like this," the bench asked Solicitor General (SG) Tushar Mehta who was representing the State government.The apex court then posted the case for hearing tomorrow."We will hear this case tomorrow at 2 pm. Give us instances where lady accused in such cases have got such dates from High Court. Either this lady has been made an exception. How can the court give this date? Is this standard practice in Gujarat," the CJI repeated. "Ladies or gents, the dates are same," the SG replied. Pertinently, the bench during the hearing made an inclination to grant bail but did not pass any order in that regard."These are not offences like murder or bodily injury but these are based on documents like forgery etc. In these matters normal idea is after normal police custody is over, there is nothing for the police to insist on custody and over and above that, she is a lady. If I grant an interim bail and list the matter for September 19...." CJI Lalit said."I strongly oppose, I would argue it is more serious than a murder case. If it is that strong, then I will argue right now," the SG replied..Background.The Court was hearing a bail plea filed by Setalvad after she was arrested for allegedly fabricating documents to frame high-ranking officials including then Gujarat Chief Minister Narendra Modi in the 2002 Godhra riots cases.The top court had issued notice to the Gujarat government on August 22, seeking its response.Setalvad moved the Supreme Court seeking bail after she was arrested earlier this year.Setalvad's arrest came after a three-judge bench of the Supreme Court had made adverse remarks against her on June 24 while dismissing the plea by Zakia Jafri, wife of slain Congress MP Ehsan Jafri who was killed during the 2002 Gujarat Riots. Zakia Jafri had challenged the Gujarat High Court’s decision of 2017 upholding the magistrate's decision to accept the closure report filed by the SIT in the case.While dismissing the plea, the top court had made observations against Setalvad and former DGP Sreekumar, terming them "disgruntled".The Court said that there was a coalesced effort by them to create a sensation by making revelations that were false to their own knowledge.Subsequently, Setalvad was arrested by the Gujarat Anti-Terrorism Squad from Mumbai and taken to Gujarat. Sreekumar was also arrested from Gujarat.On July 30, an Ahmedabad sessions court refused to grant bail to Setalvad, noting that she and other accused appeared to have aimed to “destabilise” the Gujarat government and defame the State for ulterior motives.Setalvad then moved the Gujarat High Court for bail. On August 2, the Gujarat High Court had issued notice to the Special Investigation Team (SIT), asking it to respond to bail applications filed by Setalvad and former Gujarat Director General of Police (DGP) RB Sreekumar. The matter is slated to be heard by the High Court on September 19.It is this long gap for the next hearing date that Setalvad took objection to, in her appeal before the top court.She submitted that as per the judgment of the Supreme Court in Satendar Kumar Antil v. CBI, bail matters must be heard expeditiously."Despite the same, the first date fixed by Hon'ble High Court in the present case is after one and a half months," her plea said.In its response, the State government contended that the ocular and documentary evidence collected by the SIT during its investigation provide ample grounds to support the allegation of larger conspiracy by Setalvad others."The same clearly established a prima facie case against the petitioner for an offence which serious enough and entails maximum punishment for life," the reply stated.Witnesses have stated that to further ends of the larger conspiracy, Setalvad generated false evidence and made false charges invoking the names of persons other than those stated by the victims and various riot cases, it was further contended..Hearing today.When the matter was taken up for hearing today, SG Tushar Mehta raised preliminary objection to the maintainability of the plea."I have a preliminary objection to the maintainability. What happened in some other court may not be raked up here," he said. "What is your objection," the CJI asked."The matter and the remedy is still pending before the High Court. If she resorts to election of remedy and comes here it is different but since she has approached the sessions court, she ought to have followed the process. He approached High Court and High Court gave her equal treatment. Now against that if she comes in Supreme Court there are some Supreme Court judgments I would like to cite," Mehta responded.The Court said that it will hear the petitioner first and then examine the SG's objection..Senior Counsel Kapil Sibal, appearing for Setalvad, then proceeded to make his arguments. "It is said (by prosecution) that Teesta Setalvad tutored witnesses and fabricated evidences which had been submitted in court and thus they claim I committed perjury. But the question remains I filed no affidavit or filed any documents. FIR does not contain any other material. So the FIR is to find out elements behind the conspiracy. So cognisable offence has been committed, and the FIR is to find out offences,?" Sibal asked..He then relied up Section 195 of the Code of Criminal Procedure which provides for prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence."Please see Section 195 CrPC.. no court shall take cognisance of any offence from Section 191 to 196 unless there is a written complaint by the officer," Sibal said."Going by SC judgment earlier, if document is in court and it has been forged earlier need not wait for court order and it can independently be taken up as a FIR. But here there are no allegations beyond annals of the court," the bench remarked.."They just quote the Supreme court judgment and they move forward. All documents were filed by the SIT and I had no filed any documents. There has to be a prima facie case against me," Sibal contended.SG Mehta said that these arguments can be made before the High Court."All these points can be raked up in High Court," he said"How can bail be denied?" Sibal demanded..The Court then asked SG Mehta what are the specific offences alleged to have been committed by Setalvad."Please tell me how were the specific offences committed?" the Court asked. Mehta then said that he will argue on merits."Please reject my preliminary objection (on maintainability)," Mehta said."We have taken it into account. We are looking this into in our appellate jurisdiction," the Court said.The bench then asked whether the police has gathered any material during the last two months of custodial interrogation."She has completed 2 months custody, what has come out of custodial interrogation. FIR is nothing except what has happened in Supreme Court. She is in jail since last 2 months what kind of material have you gathered in the last 2 months," the CJI asked.A lady is also entitled to a favorable view, he added.The CJI also said that there is no statutory bar on grant of bail in the offences for which Setalvad has been booked."Going by Section 167 CrPC mandate you are running close to this. What have you elicited in custodial interrogation. There is no statutory bar against grant of bail in these IPC offences," the CJI remarked.The SG, however, maintained that Setalvad has to follow the procedure and not jump the queue and rush to Supreme Court when her bail plea was still pending before the Gujarat High Court. "I ask myself if any other normal litigant would have rushed to Supreme Court to seek this remedy.There are thousands of people who can argue on such conditions for bail. They have approached HC and now they are here under Article 136. If I don't show the cases, then state will fail in its duty to show no one deserves special treatment," the SG said.The SG, therefore, vehemently argued that Setalvad cannot come rushing to the top court when her bail plea continues to remain pending before the High Court."She goes to the High Court. High Court slots the case for September 19. Now since she is before the High Court, can she come here now. The policy of this court has been that 136 petitions against a sessions court verdict is not normally entertained," the SG submitted.."What are the material against her?" the CJI queried."It shows conspiracy took place and forgery was indeed done," SG replied."We want to know direction of probe. There are 164 statements. How many others are in custody," the bench further asked. "Yes, there are two (others)," Mehta said..The Supreme Court also proceeded to question the rationale behind High Court adjourning a bail matter for six weeks."High Court issues notice on August 3 and makes it returnable on September 19. Six weeks in bail matter made returnable? In Gujarat, there is 6 weeks for bail matters," the bench asked.It also said that the complaint which trigged the probe was nothing but the judgment of the top court of June 24."Your complaint is nothing but judgment of supreme court. Verdict is on June 24 and that day is the complaint. So he is not privy to anything apart from the judgment," the Court remarked..The Court made it clear that the case is not of murder or bodily injury but only forgery. That apart the accused is a lady, it was underscored."Within one day of Supreme Court judgment complaint was filed, you as investigators subjected the lady to custodial interrogation and you were given liberty to do so. These are not offences like murder or bodily injury but these are based on documents like forgery etc. In these matters normal idea is after normal police custody is over, there is nothing for the police to insist on custody and over and above that, she is a lady. So the matter is pending in HC so we just shut our files because it is to be heard on September 19," the CJI said..The CJI then asked SG to give precedents on whether such long adjournments have been granted before by the Gujarat High Court in bail matters relating to forgery."Justice PN Bhagwati had observed that every order is in light of facts and circumstances of the case. Give us a case where a lady is in confinement on charges like this and the High Court has given a date like this," the bench said..[Follow our coverage of today's hearing]

[Teesta Setalvad bail plea] Has Gujarat High Court given such long adjournment before or has she been made an exception: Supreme Court to Gujarat

Debayan Roy

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