Pulling no punches, the Supreme Court on Thursday wanted to know the reason for the delayed listing of activist Teesta Setalvad's bail plea by the Gujarat high court, wondering whether "this lady has been made an exception", and asked the state government to furnish information about any such precedent.
It wondered why the high court listed the bail prayer for hearing on September 19, six weeks after it sent a notice to the state government seeking a response to her application.
Referring to the case against Setalvad, which was registered days after the June 24 verdict of the apex court in the Zakia Jafri case, the bench headed by Chief Justice Uday Umesh Lalit said, ”Today as the case stands, the FIR is nothing but whatever has happened in the (supreme) court (judgment).”
He was apparently referring to the verdict by the apex court bench led by Justice (since retired) AM Khanwilkar who had blamed the petitioners in the Zakia Zafri case 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".
Setalvad was arrested a couple of days after the verdict was pronounced.
”The high court has made it returnable after six weeks. You (state government) have said that we are making an exception in favour of this lady and that is the reason why we want to know... We are actually thinking on this as how could the high court can make it returnable after six weeks,” said the bench, which also comprised justices S Ravindra Bhat and Sudhanshu Dhulia.
They posted Setalvad's plea for further hearing on Friday.
”We heard you say that we are making an exception as if she is a special case. That is the reason we said so (about date in HC). We will hear it tomorrow at 2 O' clock,” the court said.
Setalvad was arrested for allegedly fabricating evidence to frame "innocent people" in the 2002 Gujarat riots cases.
The Gujarat high court had on August 3 issued a notice to the state government on the bail plea of Setalvad and fixed the matter for hearing on September 19.
"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? Is this standard practice in Gujarat?” an apparently displeased CJI said.
Solicitor General Tushar Mehta, appearing for the state government, said the state does not make any exception for anybody, man or woman, and that the dates are given by the high court without any discrimination.
”Kindly pardon me for saying so because I feel very strongly about it. So, therefore I am opposing it,” the law officer said and referred to the sequence of events involving the case and the alleged role of Setalvad.
The special bench, which assembled at 3 pm for hearing the plea, referred to the nature of offences alleged against Setalvad and the period of custody, while hinting that it could grant her interim bail.
”One thing, she has been in custody since June 25. So, it has been more than two months... Therefore, what kind of material you have gathered during this period, number one. The lady has completed more than two months in custody, number two. You must have had the benefit of her custodial interrogation at some stage... Today as the case stands, the FIR is nothing but whatever has happened in the court," the bench noted.
The bench posed queries to the state government about the probe and the reasons it had for opposing the bail plea of the activist.
”Is there any additional material apart from whatever has been recited in the Supreme Court judgment...that is question number one. Have you found something beyond that in the custodial interrogation? Have you actually filed the charge sheet or something?” it asked.
Referring to the timeline for filing the charge sheet, the bench said the period for submitting probe reports is ”actually running close”.
”So, therefore, there is no offence which casts with a rider that something like say POTA (The Prevention of Terrorism Act, 2002 ), something like you say UAPA (The Unlawful Activities (Prevention) Act) which comes with a statutory rider or mandate that the bail cannot be granted,” it observed.
There is no such thing and these are normal IPC offences, it said, adding under the Code of Criminal Procedure a woman is definitely entitled to favourable treatment.
"What struck us is, your complaint doesn't recite anything more than SC judgment. So, if the judgment is out on June 24, the June 25 the 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,” it said.
These are not offences like murder or bodily injury but these are based on documents like forgery, the bench noted.
”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. If I grant an interim bail and list the matter for September 19.....,” the bench said.
The state government opposed the idea and raised objections, saying Setalvad came straightway to the Supreme Court which does not have the benefit of a high court verdict on her bail plea like in other usual cases.
On being inquired about listing the case after six weeks by the high court, the law officer said the hearing may be advanced there.
Senior advocate Kapil Sibal appeared for Setalvad and referred to the facts of the case, saying the FIR was lodged just a day after the SC verdict and insisting, ”Within one day they (Gujarat police) could not have investigated (the case against Setalvad)."
He said the allegations of forgery cannot stand legal scrutiny as the documents of the SIT alone were filed by the activist.
So far as the offence of perjury for allegedly filing false documents was concerned, the real forum is the court which can take its cognizance. It falls beyond the power of the state police, he said.
While dismissing Jafri's petition challenging the clean chit given by the Supreme Court-appointed SIT to then Gujarat Chief Minister Narendra Modi and others, a bench led by Justice Khanwilkar had on June 24 blamed the petitioners for "keeping the pot boiling" and showing the "audacity" to question the integrity of the SIT.
It had observed that "all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law".
Zakia Jafri is the widow of former Congress MP Ehsaan Jafri who was killed in Ahmedabad during the 2002 riots, triggered by the torching of a coach of Sabarmati Express by a mob near Godhra station on February 27 that year.
Fifty-nine passengers, mostly Hindu kar sevaks returning from Ayodhya, were charred to death in the incident.
An Ahmedabad sessions court had on July 30 rejected the bail applications of Setalvad and former Gujarat Director General of Police R B Sreekumar in the case, saying their release will send a message to wrongdoers that a person can level allegations with impunity and get away with it.
Setalvad and Sreekumar have been accused of fabricating evidence to frame "innocent people" in the post-Godhra riots cases.
They are lodged in the Sabarmati central jail. Sreekumar has also moved the high court for bail.
Former IPS officer Sanjiv Bhatt, the third accused in the case, has not applied for bail. Bhatt was already in jail for another criminal matter when he was arrested in this case.
They were arrested by the Ahmedabad city crime branch in June after a First Information Report (FIR) was registered against them under Indian Penal Code sections 468 (forgery for cheating) and 194 (fabricating false evidence with intent to procure conviction for capital offences).
Mumbai-based Setalvad and Sreekumar were arrested within a couple of days after the Supreme Court dismissed Jafri's petition.
