CJI questions delayed listing of Setalvad bail plea: Is this standard practice in Gujarat?

Questioning the Gujarat High Court’s decision to list Teesta Setalvad’s bail plea for hearing on September 19, the Supreme Court on Thursday wondered whether it was “standard practice in Gujarat” and asked the state government “to which Kind of how much material have you collected against him in the last two months”.

Posting the matter for further hearing on Friday, Chief Justice of India U U Lalit, comprising Justices S Ravindra Bhat and Justice Sudhanshu Dhulia, told the Gujarat government that its intervention in a case is based on the facts and circumstances of each. Depends on none and there is no violative principle that the High Court should be the last court for bail.

Setalvad was arrested on June 25 for allegedly fabricating evidence to implicate “innocent people” in the 2002 Gujarat riots cases.

Solicitor General Tushar Mehta, appearing for the state, submitted that no such case has ever come before him where the Supreme Court has considered the petition of an accused, who had gone to the High Court where the petition was pending.

“Thousands and thousands of people are waiting for a hearing on their bail applications. They too have similar objections to raise. There are cases where, for certain reasons, the orders of the Court of Session are challenged before Your Lordship. But there is no case where the accused chooses the remedy to go before the HC directly, comes under (Article) 136 (Special leave for appeal by the Supreme Court) and your Lordship has entertained,” Mehta told the Supreme Court. Referring to the Bench’s decision on the subject.

CJI Lalit said, “Though what is observed in these judgments” is certainly a guiding principle, at times, we have to intervene in the matter based on the facts and circumstances of the case. Therefore, to say that the HC should be the last court for bail is not a violation. It is not something cast in stone. We have to see in the light of facts and circumstances.”

Noting that Setalvad was arrested on June 25 and was already in custody for more than two months, the CJI said, “We want to know what kind of material you have collected in the last two months. No. 1, the woman has completed more than 2 months of custody. No. 2, you must have gotten the benefit of custodial interrogation at some point. So, is there anything that came out of such custodial interrogation because The things that are there today, nothing is in the FIR, but whatever has happened in the Supreme Court?

“So is there any additional material apart from what was heard in the Supreme Court judgment? In the custodial interrogation, have you been able to achieve anything beyond this? And in the last two months, have you filed a charge sheet or something, or is the investigation still going on,” he said.

The CJI said, “There is no offense … like POTA, or UAPA … which comes with a rider or which comes with the statutory mandate that bail should not be granted. Nothing like that.

Mehta said that the state would not like to have any special treatment for any accused.

To this, the CJI said, “It is not the state which is giving any special treatment. It is the court that has to live up to this. We are considering it in our appellate jurisdiction. What you say is correct, they have gone to the High Court, and a petition is pending. But at the same time, he was taken into custody on June 25. So it has been almost two months and a bit more.

Mehta said he was arrested “what we have found… it is not for pleasure… people are arrested and people are released on bail”.

The CJI told him: “We know that… we are not saying it was for anyone’s happiness or anything.”

When asked by the bench what material was available against the accused, Mehta said, “There are 164 statements, 161 statements show that conspiracy was hatched somewhere else, forgery took place somewhere else… I will show everything.”

The CJI said, “We just wanted to know what is the duration and direction of investigation…we are not going into the depth of it…how many other co-accused have been detained?”.

Mehta said there were two more accused but forgery charges were leveled against Setalvad.

The CJI said, “We will go by that, that according to you, there is some material which may be prima facie justified… Still, your custodial interrogation part and all is over.”

“We are at a point. If such a matter comes up before the HC, the HC issues notice on 3 August 2022, making it refundable in the bail case on 19 September! Hence, effectively it means That the bail case can be returned in six weeks,” he said.

Mehta replied that it can happen “if the HC feels that there are other accused if the HC is closed if the HC feels that I will not give any special treatment to anyone.” He said that the SC can move the hearing before the HC.

But the CJI said, “What we felt is this. First, your complaint says nothing more or less than the Supreme Court’s decision. So if the Supreme Court’s judgment comes on June 24, then on June 25. The complaint is filed. The person who is the author of the complaint had nothing greater than what the Supreme Court had said… He had no information other than the information emanating from the judgment.

“So these are some of the points that have come to haunt us. Came to file the complaint within a day. It may or may not be serious, but at the same time as investigators, you have to take this woman into custody and interrogate her. Gained the benefit of doing… It is also done… These are not offenses like 302, or 307 or offenses like bodily injury These are offenses that are committed specifically based on documents or according to you, certain documents There are forgeries associated with the offenses that have either been filed or have not been filed in court. In these cases, the general view is that after the initial period of the police investigation, the custody is over. Then there is nothing that can deter investigators from further investigating and insisting that the person should still be in custody. That’s the second part. The third part is that she is a woman. And if HC is not aware of this and makes it refundable after six weeks, should we close the file and say because the matter is pending in HC, we should not touch it?

Opposing the grant of interim bail, the SG said the offense against Setalvad was far more serious than that under Section 302 of the IPC. “I will not differentiate between any other accused and I think this is more serious than 302,” he said.

CJI told SG, “Give us a case where a woman has been imprisoned on such charges and the HC makes the case refundable after six weeks… we have heard you say That please don’t make exceptions, as if this is a special case. That’s why we said… so we want to know… we are following the principle that how the High Court can return the case after six weeks Is this standard practice in Gujarat?”

Mehta said, “No woman has committed an offense of this nature in such situations” and he will give an affidavit that no discrimination has been shown by the HC.

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