1 Sep 2022 11:20 AM GMT
The Supreme Court on Thursday posed several questions to the State of Gujarat regarding the case against social activist Teesta Setalvad, who is under custody since June 25 over alleged fabrication of documents to file cases in relation to 2002 Gujarat riots.A bench led by Chief Justice of India UU Lalit at one point of the hearing even indicated that it will grant interim bail to Teesta...
The Supreme Court on Thursday posed several questions to the State of Gujarat regarding the case against social activist Teesta Setalvad, who is under custody since June 25 over alleged fabrication of documents to file cases in relation to 2002 Gujarat riots.
A bench led by Chief Justice of India UU Lalit at one point of the hearing even indicated that it will grant interim bail to Teesta Setalvad but ultimately adjourned the hearing to tomorrow at 2 PM at the repeated requests made by Solicitor General of India Tushar Mehta
The bench consisting of CJI, Justice S Ravindra Bhat and Justice Sudhanshu Dhulia, which was hearing Teesta's petition challenging the Gujarat High Court's refusal to grant her interim bail, said that "four or five features of the case bothers us".
The bench pointed out following features :
The hearing witnessed extensive interactions between CJI Lalit, Senior Advocate Kapil Sibal (appearing for Teesta) and SG Tushar Mehta.
Chief Justice of India UU Lalit also orally remarked that the offences alleged against Teesta are normal IPC offences, having no bar on grant of bail.
"There is no offence in this case which comes with a rider that bail cannot be granted, like UAPA, POTA. These are normal IPC offences…These are not offences of bodily offences, these are offences of documents filed in court. In these matters, normal idea is, after the initial period of police custody, there is nothing which stop the investigators from conducting investigation without custody…And as per Section 437 mandate, a lady is entitled to favourable treatment."
The CJI continued,
"FIR as it stands is nothing more of what happened in the Court. So, is there any additional material apart from what was in Supreme Court judgement? In last two months, have you filed chargesheet or is the investigation going on?
What material have you found in past two months? Number one, lady has completed two months of custody. Number 2, you have had custodial interrogation. Is there anything you have elicited out of that?"
"In a matter like this, High Court issues notice on August 3 and makes it returnable on September 19? So, 6 weeks a bail matter is made returnable?" the CJI wondered.
The CJI asked if this is the standard practice in Gujarat High Court. "Give us a case where a lady has been involved in a case like this and HC has made it returnable by 6 weeks?".
"No lady to my knowledge has committed similar type of offences," Solicitor General Tushar Mehta responded.
The bench made the remark about the long adjournment given by the High Court in response to the Solicitor General's argument that this was not an exceptional case where the Supreme Court should intervene.
It also expressed inclination to grant interim bail and continue to hear the matter on merits.
The CJI also asked the SG about exact "tenor and direction" of the investigation.
"What struck us is, your complaint doesn't recite anything more than SC judgement. So, if the judgement is out on 24th June, 25th complaint is out. The officer who made the complaint, he was not privy to knowledge other than that. Within one day a complaint came to be filed…There are four or five features that bother us"
SG's comments on recourse to Article 136 for Bail
The Solicitor General raised a preliminary objection to the Supreme Court entertaining Teesta's bail plea under Article 136 jurisdiction.
"My first contention is that all this must go before the High Court, like any other ordinary accused would…I feel very strongly about it so pardon me for saying this. In a fact situation of this nature, if any other normal litigant had rushed to this court, would they have got entertained? There are thousands or thousands other litigants are waiting… For large number of accused, these dates are given. But all accused are not powerful enough to generate this kind of perception."
"There is no case where an accused has rushed to this court under 136 and relief granted. State wants no special treatment for any accused. No special treatment needs to be given to the petitioner…State would like to follow the rule of law, the equality of law."
Teesta has approached the Supreme Court against the Gujarat High Court's refusal to grant her interim bail. She was arrested on June 26 from Mumbai by the Gujarat ATS, a day after the Supreme Court dismissed the petition filed by Zakia Jafri challenging the SIT's clean chit to high-ranking State functionaries and the then Gujarat Chief Minister Narendra Modi in the alleged larger conspiracy behind the 2002 riots.
While dismissing Zakia Jafri's petition on June 24, a bench led by Justice AM Khanwilkar had blamed the petitioners for "keeping the pot boiling" and showing the "audacity" to question the integrity of the Special Investigation Team and observed that "all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law".
The very next day, the Gujarat ATS lodged the FIR and on June 26 arrested Teesta Setalvad, RB Sreekumar and Sanjiv Bhatt (who is already serving imprisonment in another case) in a case taken alleging filing of false proceedings using forged documents in relation to the 2002 riots.
Arguments by Kapil Sibal
"Supreme Court judgment came on 24th (June), FIR came on 25th (June). Within one day they could not have investigated," Senior Advocate Kapil Sibal appearing for Teesta argued.
He denied the allegations of forgery and argued that all the documents were filed by the SIT. "I did not file anything."
Sibal further said that the FIR could not have been registered in the matter when all the proceedings are in relation to the Court. When allegations are relating to forgery or perjury in relation to judicial proceedings, FIR is not maintainable and cognizance can be taken only on the basis of a complaint made by the Court concerned as per Section 195 r/w 340 CrPC.
"Of the offences 471 (IPC) is cognizable, rest are non-cognizable. The question is all the documents are filed in court. If there is an perjury or forgery, it is that Court which can file the complaint. No FIR can be filed. That is settled law...Kindly see CrPC Section 195. It starts with no court shall take cognizance of offences in relation to proceeding of court except on a complaint in writing by that court. So how can an FIR be filed?"
Referring to offence under Section 194 (Giving or fabricating false evidence with intent to procure conviction of capital offence) IPC, Sibal argued that "this can be done only by the Court. No FIR can be lodged under 194."
Other offences alleged against Teesta include Section 211 (False charge with intent to injure) IPC which is non-cognizable, bailable and punishable with 3 years. Section 218 (Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) is punishable with 3 years jail term.
The Solicitor General has however raised a preliminary objection to the maintainability of the petition, stating that having elected a remedy before the High Court, Teesta cannot now approach the Supreme Court under Article 136 of the Constitution.
"High Court entertains, does not give any special treatment to her. Other citizens are also similar in jail. High Court fixes a particular remedy. Having elected that remedy, would this court exercise (power under Article) 136?"
Reliance was placed on a Constitution Bench judgment of the Supreme Court where it was held that in regular cases, High Courts must become final authority, even if they are wrong. Apex Court must intervene only in extraordinary cases...is not intended to be a regular court of appeal against sessions court or High Court.
"So even after failing in the High Court, if the petitioner comes, the law laid down is, the High Court must be the final arbiter. Here, this court has no benefit of High Court order. She has rushed to this court without waiting for High Court decision."
However, the CJI responded, "To say High Court is the final authority for bail is not an inviolable principle...we have to see facts and circumstances of each case."
Case Title: Teesta Atul Setalvad versus State of Gujarat | SLP(Crl) No.7413/2022
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