19 July 2023 4:14 PM GMT
In a significant development, not only was social activist Teesta Setalvad’s bail application allowed by the Supreme Court on Wednesday, but a three-judge bench of Justices BR Gavai, AS Bopanna, and Dipankar Datta also asked a number of incisive and critical questions during the hearing. Here is a compilation of certain pressing questions posed by the top court during the hearing...
In a significant development, not only was social activist Teesta Setalvad’s bail application allowed by the Supreme Court on Wednesday, but a three-judge bench of Justices BR Gavai, AS Bopanna, and Dipankar Datta also asked a number of incisive and critical questions during the hearing.
Here is a compilation of certain pressing questions posed by the top court during the hearing that ultimately led to the quashing of a Gujarat High Court order denying the activist bail.
How can we ignore one part of order which is self-contradictory, and only consider another?
Right at the outset, Justice Gavai flagged that the order of the Gujarat High Court was ‘contradictory’ because the High Court, on the one hand, said that it cannot consider the question of whether a prima facie case at the stage of bail, but at the same time, it elaborately discussed the chargesheet evidence to “almost holds [Setalvad] guilty. “There is self-contradiction in this order,” the judge said.
“The witness statements point towards the existence of an offence under Section 194 of the Indian Penal Code, and the judge has considered that,” Additional Solicitor-General SV Raju replied.
Justice Gavai exclaimed, “How can the learned judge consider the statements after saying that he will not consider them?”
“He has said that,” the law officer replied, “But let us ignore it for the time being.”
“How can we ignore one part of the order and consider only another part? Then we will have to ignore the entire order,” Justice Gavai shot back. In the order, the apex court pronounced:
“On one hand, the learned judge has spent pages to observe how it was unnecessary – rather not permissible – at the stage of granting bail, to consider whether a prima facie case has been made out. On the other hand, the judge observes that a prima facie case under Section 194 of the Indian Penal Code is made out. The findings are totally contradictory, to say the least.”
How can non-initiation of proceedings to quash FIR be basis for prima facie guilt?
The Supreme Court was bemused to note the High Court's approach in holding that the offences should be presumed to be admitted since the petitioner did not file any petition to quash the chargesheet.
Senior Advocate Kapil Sibal, appearing for Teesta, vehemently questioned the High Court's reasoning, saying, “What law is this? What logic is this? She is deemed to have admitted because she did not seek to quash the FIR under Section 482 of the Code of Criminal Procedure?”
Deprecating this reasoning, the top court pronounced:
“Our limited understanding of law [tells us] that the factors that should be considered at the stage of the grant of bail are prima facie case, the possibility of the accused tampering with evidence or influencing witnesses, and fleeing away from the ends of justice. Other considerations include the gravity and seriousness of the offence. If the observations of the judge are to be accepted, then no bail application at the pre-trial stage could be entertained unless the accused has filed an application for quashing the proceedings under Section 482 CrPC or moved the high court or the Supreme Court under Articles 226 and 32. To say the least, the findings are totally perverse.”
Was Teesta Setalvad heard before the Supreme Court made observations relating to her role in earlier judgement?
The bench also seemed critical of the adverse observations made by the Supreme Court in the Zakia Jafri case against Teesta, which formed the foundation for the Gujarat police FIR.
Principle of natural justice is a fundamental tenet of rule of law, said Justice Gavai, after noting that Teesta Setalvad was not heard in the Zakia Jafri case, after the State of Gujarat objected to her locus standi.
“A party seeks to intervene, but her application is rejected accepting the opposition by the State. Then the court goes to make those observations! However, we are not going into that aspect because we are not sitting in appeal over the judgement."
However, the bench refrained from making any observations against the Zakia Jafri judgment remarks in the order.
“Though Mr Sibal has questioned the applicability of the observations in this(Zakia Jafri) judgement, judicial propriety would not permit us to delve into those issues", the bench stated in the order.
‘What was the State doing between for twenty years and how was the arrest made a single day after FIR was lodged?”
ASG SV Raju alleged that Teesta attempted to fabricate evidence to implicate innocent persons in riots cases which were punishable with even death.
“What were you doing between 2002 and 2022?” Justice Gavai asked.
“The matter was pending. The trials were pending. We did not want to precipitate,” the law office responded. He also told the bench that the discrepancies noted by the Supreme Court-constituted special investigation team (SIT), which was the basis of the FIR, were found in statements given by witnesses between 2008 and 2011.
“What were you doing since then?” Justice Gavai asked.
“It was submitted to the SIT, which then prepared a report. This is what the FIR was based on,” Raju explained.
The bench also asked why – after such a long delay – an FIR was registered against Setalvad one day after the Supreme Court, while dismissing Zakia Ehsan Jafri’s plea, made certain observations on June 24, and within 24 hours of the FIR being lodged, the activist was also taken into custody. “What investigation were you able to do between June 24 and June 25 – within 24 hours – that made you conclude that it was necessary to arrest her?” Justice Gavai asked.
Would Section 194 IPC apply and was anyone other than Teesta Setalvad named as an accused?
The additional solicitor-general told the bench that the interim report of the Supreme Court-constituted special investigation team (SIT) formed the foundation of the FIR lodged by the Gujarat police against Setalvad. In this report, it was alleged that several witnesses had typed and prepared statements when summoned by the investigating officer (IO). The officer explained to them that they had to be questioned and examined, and on the basis of this exercise, their statements would be reduced in writing by the officer. When questioned, the witnesses allegedly took the names of different people, when compared with those mentioned in the prepared statement. “There were discrepancies and contradictory statements relating to names of accused, etc.,” the law officer told the bench.
“What are these statements?” Justice Datta asked, before adding. “These are not affidavits, but mere statements.”
“Yes,” ASG Raju said, explaining that these were statements recorded by the SIT under Section 160 of the Code of Criminal Procedure. “These statements were prepared by Teesta Setalvad, who wanted to implicate certain people.”
Notably, the bench also raised concerns about the charges brought under Section 194 of the Indian Penal Code, 1860 by reading it with the second explanation appended to Section 193 which states that an investigation directed by law preliminary to a proceeding before a court is a stage of a judicial proceeding, though that investigation may not take place before the court itself. “This explanation is under Section 193, the punishment for which extends up to three years. You cannot use this for the purpose of Section 194 (prescribes a longer term of imprisonment),” Justice Datta told the additional solicitor-general.
“This entire chapter is for false evidence and offences under public justice,” Raju attempted to defend the interpretation.
“Section 194 would not be applicable according to the definition of evidence in the Indian Evidence Act, otherwise it would have to be thrown into the dustbin if your contention is accepted,” Justice Gavai rejoined.
When Raju relied on the requirement of swearing an oath under Section 191, the judge pointed out that witnesses did not need to swear an oath before providing a statement before an investigating officer. “Our case is that the affidavits are fabricated. These affidavits are on oath,” the additional solicitor-general argued.
“Against whom has the State proceeded? The deponents of those false affidavits?” Justice Datta asked the senior counsel, “Is a single deponent an accused in this FIR?”
In his defence, Raju invoked Sections 463 and 464 of the Indian Penal Code which made forgery and falsifying a document penal offences. The judge quickly pointed out that the offences under those provisions were bailable, in response to which ASG Raju clarified that the main thrust of his argument was with respect to Section 194 of the Indian Penal Code.
"Initially we were feeling that there was a case made out under Section 194. But now even 194 is suspect. For that you want to keep a person undertrial?", Justice Datta asked.
“We are only putting you on guard. If you delve more into this, we will be required to examine the scope of Section 194 and make certain observations,” Justice Gavai cautioned. Ultimately, since the law officer did not press his contention in greater detail, the bench categorically stated in its order that it was making no binding observations with respect to the applicability of Section 194:
“With regard to the applicability of Section 194, though Mr Sibal has strenuously argued that a case is not made out, we refrain from observing anything on that issue since a detailed elaboration of evidence has to be avoided at this stage. Any observations with that regard would adversely affect the interests of the parties.”
In the end, the apex court concluded that there was no possibility of Setalvad tampering with evidence if the order for custodial interrogation was set aside and she is enlarged on bail.
Raju had remonstrated during the hearing, saying, “The entire allegation is of tampering.”
However, the bench quickly shot down this contention, noting “All statements are there on record and all evidence – including the affidavit – has been seized by the investigating agency. There is only a possibility of influencing the witness.” In order to address the apprehensions raised by the State that Setalvad may attempt to influence witnesses, the court directed her to ‘keep away’ from the witnesses and not make any attempts to influence them.
In its order, the bench noted that the considerations that weighed with the Supreme Court when it granted Setalvad interim bail, were “still available at this stage”.
“The consideration that the appellant is a lady does not change. The fact that the offence related to 2002 and that the FIR pertained to documents which were sought to be presented or relied upon in 2022 also does not change. The fact that custodial interrogation of the petitioner was available for seven days and thereafter she was in continuous judicial custody also does not change. Another factor that deserves to be taken into consideration is that even after being released on interim bail, she has admittedly not been called for investigation even on a single occasion. Taking into consideration that most of the evidence in the present case is documentary evidence already in possession of the investigating agency and further, the charge sheet has been filed, we do not find custodial interrogation would be necessary.”
Senior Advocate Kapil Sibal, assisted by Advocate Aparna Bhat, appeared for Teesta Setalvad. ASG SV Raju appeared for the State.
Teesta Atul Setalvad v. State of Gujarat | Special Leave Petition (Criminal) No. 8503 of 2023
Click Here To Read/Download Judgment