New Delhi: The bail hearing of human rights activist Teesta Setalvad in the Gujarat high court is in progress as she seeks permanent bail in the case alleging she submitted false evidence. She currently has interim protection from the Supreme Court (till September 2, 2023) after spending almost 70 days in prison in Gujarat.While the applicant has already made her submission, the state is in the process of making submissions. The applicant’s counsel, senior advocate Mihir Thakore, made elaborate submissions before the bench of Justice Nirzar Desai on June 12 and 13.BackgroundSetalvad was arrested from her Mumbai home by the Gujarat ATS in a rather hurried manner soon after the Supreme Court’s judgement in the Zakia Jafri case last year. She was booked under sections 468 (forgery), 471 (using as genuine a forged document or electronic record), 194 (giving or fabricating false evidence with intent to procure conviction of capital offence, 211 (false charge of offence made with intent to injure), 218 (public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) and 120 B (criminal conspiracy) of the IPC.Zakia Jafri, along with Setalvad (through Citizens for Justice and Peace or CJP) as second appellant, had filed this appeal against the Gujarat high court judgment confirming the trial court order dismissing the protest petition filed by Jafri. Jafri had filed the protest petition against the closure report of the SIT which was given the task of looking into Jafri’s 2006 complaint alleging a larger conspiracy behind the 2002 Gujarat pogrom in which Jafri’s husband, former MP Ehsan Jafri, was mercilessly killed, along with many others.The Supreme Court while disposing the appeal, made adverse remarks against Setalvad and others, stating that “those who had kept the pot boiling” with an “ulterior motive” for the past 16 years should be in the dock and be “proceeded with in accordance with the law”.Teesta Setalvad’s submissionsThe affidavits were before SCThe counsel articulated each charge invoked against Setalvad in the FIR and took the bench through the definition of each offence invoked against her under the IPC to emphasise how none of the charges were made out against her. The counsel underscored before the bench that the affidavits that the police are claiming to be forged or false were in fact filed before the Supreme Court and not the police. These affidavits were filed in a transfer petition by the National Human Rights Commission (NHRC) four years before the complaint filed by Jafri in 2006. Thus, under section 195 of CrPC, “except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate”, no proceedings can be initiated against her.More pertinently, none of the statements recorded by the SIT or the affidavits filed before SIT were referred to in Jafri’s complaint (2006) or the protest petition. The affidavits were not used in Jafri’s special leave petition before the apex court and were only filed to support NHRC’s claim in its transfer petition, which was way before Jafri’s 2006 complaint.Her counsel said the procedure laid down by the Supreme Court in Iqbal Singh Marwah and anr vs Meenakshi Marwah (2005) – on how to initiate proceedings in cases involving alleged false evidence – was not followed.No prima facie case made outThe counsel then went through an elaborate reading of sections 467,469 and 194 of IPC and said, “these offences would be applicable if it had been alleged that Setalvad had persuaded Zakia to file the complaint in 2006. But that complaint was filed by Zakia and not me.” He then alleged that sections 467, 469, 471 were invoked against Setalvad only to keep the case out of the purview of section 195 CrPC because not a single document except the petition in Supreme Court has been signed by Setalvad.The counsel stated that to invoke sections 194 and 211 of the IPC it would be necessary that a complaint from the Supreme Court is forthcoming which is not the case and thus no prima facie case is made out against Setalvad.The counsel then took the court through the provisions of section 437 [4When bail may be taken in case of non-bailable offence] and 439 [Special powers of High Court or Court of Session regarding bail] of CrPC to assert why bail need be granted in this case.The counsel for the Gujarat state government opposed Setalvad’s bail application. As per The Indian Express, the state submitted before the Gujarat high court that Setalvad’s potential to tamper with evidence is the “most important feature” weighing against her. The state also insisted the charges she is facing are in relation to the fabrication of false evidence, adding that she “was paid Rs 30 lakh by Ahmed Patel of the Congress to unseat the Narendra Modi government following the 2002 Gujarat riots.”The state of Gujarat, represented by public prosecutor Mitesh Amin, also submitted before the court of Justice Nirzar Desai that Setalvad was a “tool in the hands of certain politicians of certain political party”, referring to Congress’ veteran leader and MP, Ahmed Patel, who died in 2020. In turn, he stressed, Setalvad made two police officers, namely her co-accused former IPS Sanjiv Bhatt and retired DGP RB Sreekumar, “tools”, with the motive “to see (to it)Earlier allegations have fallen flatSources speaking in defence of Teesta Setalvad cite a chronological list demonstrating her hounding by the regime, as well as a point by point rebuttal of “all baseless allegations levelled against her.” They cite New YorkTimes and the BBC and organisations like Frontline Defenders which have also reported on her constant persecution. In the past, the courts themselves have thrown out baseless charges of ‘tutoring’ witnesses amongst other allegations.In the Sardarpura Special Sessions Court judgement (during which proceedings in the trial a former employee of CJP, Raees Khan had made allegations of tutoring), the Court held, “The witnesses have specifically denied that, Teesta Setalvad has told them as to what evidence was to be given in a case. Considering the evidence and fact in this regard when we consider this fact mere discussion about the case would not necessarily indicate tutoring.” The court elaborated, “It is not an accepted proposition that the witnesses are never to be contacted by any one or spoken to about the matter regarding which they are to depose. A number of things can be told to the witnesses such as not to be nervous, carefully listen to the question put to them, state the facts before the Court without fear, therefore it does not appear any objectionable morally or legally.”The court clarified, “Tutoring a witness is quite different from guiding him as to his behaviour. In the present case, the injured witnesses were in such a state of mind that without the active support of someone they might not have come before the court to give evidence at all. The encouragement and the advice if provided by Citizen for Peace and Justice that cannot be considered as tutoring and simply because of that, we cannot infer that the witnesses are tutored.”Citizens for Justice and Peace (CJP) that Setalvad is Secretary of has assisted survivors of the carnage of 2002 to battle as many as 68 cases in courts. As many as 174 perpetrators were accorded punishment and 124 of these to life imprisonment in these cases.Previous vendettaSetalvad has faced eight previous FIRs and has had to take Anticipatory Bail on all occasions first from a Mumbai Court where she resides and thereafter from Gujarat. In all except one she has been granted bail even in Gujarat’s courts. The first one was after the Best Bakery case was transferred to Maharashtra and the prime witness, Zahira Shaikh turned hostile and made allegations of kidnapping etc. on Setalvad. Setalvad had herself then approached the Supreme Court of India to order a high level inquiry into the truth and falsity of the claims. A high level Registrar General of SC Inquiry conducted (BM Gupta) submitted in August 2004 exonerated Setalvad, held CJP’s accounts to be in order and in fact held both Zahira Shaikh guilty of perjury and Madhu Srivastava, MLA of the BJP of inducing a star victim witness with Rs 18 lakhs, Zahira Shaikh was thereafter convicted to one year’s simple imprisonment for perjury.In the case of the Gulberg Memorial FIR (filed in January 2014) after the Sessions Court refused anticipatory bail and thereafter even the Gujarat High Court rejected bail for Setalvad and her husband Javed Anand, the Supreme Court has accorded them both protection. For nine years since, despite their having submitted over 20,000 pages in evidence (entire accounts, vouchers etc) their personal bank accounts and the organisations (Citizens for Justice and Peace) remain frozen! No charge sheet has been filed in the nine years in this or any other case.When the Gulberg Memorial matter came up in April 2023, the Gujarat counsel told the court requesting time that the couple has cooperated in the investigation.