SC Allows Teesta Setalvad to Challenge FIR in Mass Graves Case in Lower Court

The rights activist was named as an “absconding accused” in the case relating to the exhumation of 21 victims who were killed by Hindutva mobs during the 2002 Gujarat riots.

New Delhi: In what may help social activist Teesta Setalvad challenge the Gujarat police in the lower courts in the Pandharwada mass graves case, in which she has been named as an “absconding accused,” the Supreme Court on July 10 allowed her to approach the high court or the appropriate trial court to get the FIR quashed.

The case relates to the illegal exhumation of 21 victims who were killed by Hindutva mobs during the 2002 Gujarat riots. It was alleged by a few survivors that dead bodies of their relatives were illegally buried by the state authorities without keeping them in the loop. After the state police failed to take any action in the case for almost four years, the survivors moved the high court, which then ordered the CBI to match the DNA samples of the survivors and those who were buried.

Around the same time, the Gujarat police filed a case against the survivors, charging them with digging up the graves. Despite the fact that the CBI found the DNA samples matching, the survivors were arrested by the police.

However, the high court intervened and stayed the proceedings in the case against the survivors. In 2010, the bodies of eight victims were handed over to their kin, following which the survivors withdrew their petition. It took a SC order in February 2008 and a subsequent order of the trial court in December 2008 for a proper burial to be accorded to the victims, eight years after the massacre.

But the case took a controversial turn in 2010 when one of the accused in the case and Setalvad’s former aide, Rais Khan, surrendered before the police and made several allegations against Setalvad, one of which was that Setalvad prompted the survivors to dig up the graves.

Setalvad dismissed the allegations and applied for anticipatory bail. She also moved the Supreme Court to quash the FIR, which the police had filed on the basis of Khan’s statements, against her.

Setalvad has also pointed out that Khan was the one who informed her about the mass graves and his statements regarding the illegal role of state authorities have been recorded by the police several times.

It was also alleged by several civil society activists that Khan, who had joined the BJP in 2010, had turned hostile under the influence of the state government.

Setalvad had expressed surprise that she had been named as an “absconding accused” in the the chargesheet despite the fact that she has been in constant touch with the police.

As Setalvad senses vindictive action by state police for her role in facilitating the riot survivors with legal aid, she and the organisation Citizens for Justice and Peace (CJP), filed a petition at the high court opposing the chargesheet.

On May 27, 2011, the high court in a terse order called the chargesheet illegal and malafide.

Setalvad had moved the Supreme Court to get the FIR quashed but on July 10, the court refused to intervene in the matter and asked her to approach the lower court.

“The SC bench said that now that the chargesheet has been filed, she has the liberty to either approach the trial court or the high court which can dispose off the matter without getting influenced by the observations of the Supreme court,”  Kamini Jaiswal, Setalvad’s counsel, told The Wire.

Speaking to The Wire, Setalvad said, “My prayer was for the quashing of the FIR but the event [mass graves case] overtook the entire proceedings. The FIR was lodged in 2006 against those survivors who we had helped. They could give a proper burial to their relatives only after eight years of the incident. The police action against me is plain vindictive.”

She added that Khan launched a state of actions against her and CJP with the help of state BJP unit.

“Khan heard about the illegal burial and I requested him (he was the field co-ordinator at the CJP then) to go there after the survivors started digging on their own. He was also accused along with the survivors. There is a whole video that showed he reached there later. All his recorded statements before 2010 clearly shows that we have nothing to do with it. Then after 2010, he changed his statements. He went voluntarily to the cops and accused us in several matters,” Setalvad said.

She said that she was happy with the hearing at the SC on July 10 as the court did not dismiss the appeal, and rather allowed her to challenge the FIR at the lower courts.