"A dissenting view or expression cannot be always said to be against sovereignty of the nation.The terms 'against the nation' and 'against the government' are two different terms.”
In a relief to Teesta Setalvad and her husband Javed Anand, Justice Mridula Bhatkar of the Bombay High Court has granted anticipatory bail to the couple, in connection with the case of alleged violation of the Foreign Contribution Regulation Act, 2010.
Observing that prima facie, it is unable find any threat to sovereignty and integrity of India or threat to the security strategic or economic interest of the State or public interest, the Court observed, “Undoubtedly, an Act which is seditious in nature and dangerous to the security of India, cannot be tolerated under the law. However, a citizen may conduct social activities and may hold a different philosophy or view which may not be liked by the government. However, in a democratic state, a citizen has right to have different ideology, belief and different point of view and it is a duty of the State to protect the said right to have freedom of expression to the same. A dissenting view or expression cannot be always said to be against sovereignty of the nation. The terms 'against the nation' and 'against the government' are two different terms.”
If arrested, the duo can be released on a surety of Rs. 20,000 each. They have to take the court’s permission to travel abroad and have to intimate the CBI if they leave Mumbai
It was alleged that the couple had misappropriated the funds for their NGO. Their Company, Sabrang Communication and Publishing Private Limited had, as alleged, received donations from Ford Foundation, to the tune of 290000 USD from 2004 by way of two agreements i.e., 2004 and 2006. It alleged that these funds were misused for their personal requirements.
Prosecution was initiated against the couple, pursuant to a letter written by the Government of Gujarat, dated March 10, 2015 to the Ministry of Home Affairs and Ministry of Finance, Government of India.
An application for pre-arrest bail was rejected by the Special Judge, CBI, on July 27, 2015 and therefore, they had approached the High Court.
Setalvad submitted before the High Court that the two agreements between Ford Foundation and her Company had been misinterpreted, as the same were for consultancy services and not in the nature of donation.
CBI had argued the application for anticipatory bail on three grounds- firstly, there is a violation of law; secondly, it is dangerous to the national safety and security and public interest and thirdly, that the custodial interrogation of the applicants/accused is necessary as they are not cooperating with the investigating agency.
The Court found a prima facie violation of the Act, observing,
“However, prima facie, after hearing the submissions of the learned Additional Solicitor General and after going through the documents placed before the Court, it appears that there is some misuse of amount they received from the Foundation for which the applicants accused are undoubtedly answerable. As per the case of prosecution, at this initial stage, it is accepted that the money received is a contribution and therefore the acceptance and utilization of the said amount requires regulation under the Act and therefore there is violation of the provisions of the Act.”
“While deciding the applications for anticipatory bail, when the prosecution comes out with a case, it is necessary for the Court to view the circumstances, facts and allegations made therein objectively and judiciously and to form its own legal opinion to use discretion. This can be explained through metaphor that when the prosecution alleges that it is a snake, it needs to be seen whether it is a snake or a rope and if it is confirmed that it is a snake, then it is to be verified whether it is poisonous or not and if it is poisonous, then it needs to be examined whether poison is fatal or not. After considering all these facts and circumstances, the Court has to use its discretionary power and reject or allow the anticipatory”
The Court however, rejected the need for custodial interrogation, as the case is based on the accounts and documents which can be procured without custodial interrogations.
Read the Judgment here.