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'No Offence Bars Grant of Bail': SC Pulls Up Gujarat Govt on Teesta Setalvad's Incarceration

The Supreme Court questioned the state government on the lack of progress in the case and the fact that the activist is still behind bars despite her offences not being of a grave nature.

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New Delhi: The Supreme Court on Thursday, September 1, asked several questions of the Gujarat government regarding the continued detention of jailed activist Teesta Setalvad in a case of conspiracy pertaining to the 2002 Gujarat riots.

The court was hearing a petition by Setalvad seeking interim relief even as her plea for bail is pending before the Gujarat high court. The activist has been in custody since June 26.

The bench of Chief Justice of India (CJI) U.U. Lalit and Justices S. Ravindra Bhat and Justice Sudhanshu Dhulia raised five points to the Gujarat government, according to Live Law:

  1. The petitioner (Setalvad) has been in jail for two months without a chargesheet being filed in the case.
  2. The first information report (FIR) was filed the day after the Supreme Court judgment dismissing Zakia Jafri’s plea questioning the clean chit given to Narendra Modi in the Gujarat riots case. The FIR does not add anything other than the top court’s observations.
  3. The Gujarat high court made notice returnable on Setalvad’s bail plea in six weeks; a long adjournment period.
  4. The offences Setalvad was charged with do not pertain to serious matters such as murder or bodily injury.
  5. None of the offences Setalvad has been charged with bar the grant of bail.

According to the LiveLaw report, the bench had also expressed an inclination to grant Setalavad’s bail plea, but after pleas by solicitor general Tushar Mehta, the court posted the matter for further hearing at 2 pm today (September 2).

Background of the case

On June 24, the Supreme Court had dismissed Zakia Jafri’s plea. The judgment had alleged a conspiracy to “keep the pot boiling” in the Gujarat riots case and had come under criticism from commentators and activists alike.


The next day, the Gujarat police filed an FIR against Setalvad, whose NGO, Citizens for Justice and Peace (CJP) had worked to provide legal support to victims of the riots.

The FIR cites various provisions of the Indian Penal Code including 468 (forgery for the purpose of cheating), 471 (using as genuine a forged document or electronic records), 120(B) (criminal conspiracy), 194 (giving or fabricating false evidence with the intent to procure conviction of capital offence), and 211 (false charge of offence made to injure).

Notably, the FIR had quoted a section of the top court’s judgment in Zakia Jafri:

“At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge … Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

Thereafter, Setalvad had moved the Gujarat high court seeking bail. On August 3, the high court issued notice to the state government in the matter and listed the matter to be heard after an inordinately long period of six weeks, on September 19.

Seeking interim relief, Setalvad moved the Supreme Court.

The present case

Appearing for Setalvad, senior advocate Kapil Sibal questioned the police filing an FIR against the activist only one day after the Supreme Court judgment in the matter, saying that the could not have investigated the matter in one day.

He further argued that apart from the offence of forgery, under IPC Section 471, none of the offences Setalvad has been charged with deny her bail. With respect to the forgery case, Sibal denied the charges, saying that all documents submitted through the course of the Zakia Jafri case were submitted by the special investigation team.

Meanwhile, SG Mehta raised preliminary objections to the Supreme Court’s jurisdiction in hearing the bail plea, citing Article 136 of the Constitution to say that the plea should be heard by the high court.

“In a fact situation of this nature, if any other normal litigant had rushed to this court, would they have got entertained? There are thousands [of] other litigants waiting. For a large number of accused, these dates are given. But all accused are not powerful enough to generate this kind of perception,” LiveLaw quoted him as saying.

He went on to say Setalvad should not get special treatment.

Here, however, the bench highlighted the fact that the adjournment period in the case was six weeks, which it argued was an exceptional circumstance.

The bench also pulled up the Gujarat police for its failure to file a chargesheet or elicit anything from the custodial interrogation of the activist.

“What material have you found in past two months? Number one, lady has completed two months of custody. Number 2, you have had custodial interrogation. Is there anything you have elicited out of that?” The bench asked.

“There is no offence in this case which comes with a rider that bail cannot be granted, like UAPA, POTA. These are normal IPC offences…These are not offences of bodily offences, these are offences of documents filed in court. In these matters, normal idea is, after the initial period of police custody, there is nothing which stop the investigators from conducting investigation without custody…And as per Section 437 mandate, a lady is entitled to favourable treatment,” the court further observed.