Teesta Setalvad's Plea : FIR Doesn't Say Anything More Than SC Judgment, Why HC Listed Bail After 6 Weeks? Supreme Court To Gujarat Police

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 :

1. The petitioner has been under custody for over 2 months. No chargesheet has been filed.
2. The FIR was registered on the very next day of the Supreme Court dismissing Zakia Jafri's case and the FIR does not recite much anything other than the SC observations.
3. The Gujarat High Court while issuing notice on Teesta's bail plea on August 3 granted a long adjournment, making the notice returnable by 6 weeks.
4. The offences alleged are not serious like murder or bodily injury but pertain to alleged forging of documents filed in court.
5. There are no offences which bar the grant of bail.

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.

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

Click Here To Read/Download Order