New Delhi: The Supreme Court Thursday questioned the conduct of the Gujarat High Court in deferring social activist Teesta Setalvad’s bail petition by six weeks, after issuing notice on it.
“Is this the standard practice in Gujarat?” a three-judge bench led by Chief Justice of India U.U. Lalit asked Gujarat government counsel Tushar Mehta. The bench was hearing Setalvad’s plea for bail in a forgery and perjury case registered against her in connection with the Ehsan Jafri murder incident from the 2002 Gujarat riots. She has been accused of trying to frame “innocent persons”.
Also comprising Justices Ravindra Bhat and Sudhanshu Dhulia, the bench further asked Mehta if the high court has given such a long adjournment in any other matter, particularly one in which a woman had been “confined” on charges similar to those invoked against Setalvad.
“What is the normal pattern in bail cases like this?” the bench asked Mehta. “Give us instances where a lady accused in such cases has got such dates from the high court. Either this lady has been made an exception. How can the court give this date?” the court wondered.
Even as Mehta said the dates were the same for both women and men, the bench demanded the data from him by Friday 2 pm, when the court will reassemble to hear the matter.
Setalvad moved the SC for bail after the HC did not give her an early hearing date on her bail petition. While the HC issued notice on the petition on 3 August, it fixed 19 September for further hearing. Setalvad had approached the HC for bail following the Ahmedabad sessions court’s refusal to grant it to her.
An FIR was registered against Setalvad on 25 June, a day after the SC dismissed a petition filed by Jafri’s wife Zakia, and Setalvad, challenging the clean chit given to then Gujarat chief minister and now Prime Minister Narendra Modi and other high-ranking state officials in the alleged larger conspiracy behind the 2002 riots. She was arrested on the same day that the FIR was registered.
In its judgement in the riots case, an SC bench led by Justice AM Khanwilkar, who has since retired, had criticised the petitioners for “keeping the pot boiling” and showing the “audacity” to question the integrity of the Special Investigation Team (SIT) that was entrusted to probe selected Gujarat riots cases. The SC had in its verdict said “all those involved” who abused the process of law “need to be in the dock and proceed in accordance with law.”
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‘What are the materials against her?’
The SC bench, during its hour-long hearing on Thursday, put forth probing questions to the Solicitor General in the bail case. The queries indicated the bench’s inclination to grant bail to Setalvad. However, no order was passed in this regard.
The questions revolved around the status of investigation, nature of allegations and whether the police were still proceeding with their probe.
The court mentioned five points related to the case that have struck it. The first, it said, pertained to the tenure of Setalvad’s custody, which has been for over two months now. The fact that the FIR against Setalvad does not “recite much” anything other than the SC observations in the riots case was a matter of concern as well.
The Gujarat HC’s order to adjourn the hearing of her bail petition by six weeks bothered the SC bench. Apart from this, the bench said, the offences alleged in the FIR were not serious, such as murder or inflicting bodily injury, where there was a bar on the grant of bail. The charges, it observed, were of fabricating documents filed in court and this did not prohibit the court from giving bail to an accused.
“In these matters the normal idea is that 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,” CJI Lalit told Mehta, who objected vociferously.
“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,” Mehta said.
At the outset, the Solicitor General had raised a technical objection to Setalvad’s petition. He argued that it was not maintainable because her petition was still pending before the HC. In his view, she could not have approached the apex court directly against a sessions court order. Countering Setalvad’s arguments, Mehta said she could rake up all the points before the HC.
But the apex court was unwilling to look into this opposition without hearing Setalvad’s lawyer, senior advocate Kapil Sibal, who claimed the charges against her were baseless because she never filed any document or affidavit in court. Hence, he argued, there was no instance of any fabrication, as alleged by the police.
“They just quote the Supreme Court judgment and move forward. All documents were filed by the SIT and I had not filed any documents. There has to be a prima facie case against me,” Sibal contended.
When Mehta got up to air his objection, the court asked him to explain how the “specific offences were committed”. In response, the Solicitor General maintained that Setalvad could argue her points in the high court, but CJI Lalit remained persistent in his queries.
“She has completed two months’ custody, what has come out of custodial interrogation… what are the materials against her?” he asked Mehta, adding that the court wanted to know the “direction of the probe”.
He further said that the police complaint was nothing but the SC judgement (in the riots case). “So, she is not privy to anything apart from the judgement,” the CJI remarked, noting that the FIR was registered within a day of the SC verdict.
(Edited by Nida Fatima Siddiqui)
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