TEESTA ATUL SETALVAD versus STATE OF GUJARAT on 19 July 2023

1. Leave granted.

2. The appeal is taken up for final hearing.

3. The appeal challenges the judgment and order dated 1[st] JulyC2023, passed by the learned Single Judge of the High Court of Gujarat,thereby rejecting the bail application filed by the present appellant.

4. The facts in the present matter are not in dispute.

5. A judgment came to be delivered by this Court, on 24[th] JuneD2022, in the case of Zakia Ahsan Jafri v. State of Gujarat andanother[1], wherein at paragraph 88, this Court observed thus:- “88. While parting, we express our appreciation for theindefatigable work done by the team of SIT officials in thechallenging circumstances they had to face and yet, we find thatEthey have come out with flying colours unscathed. At the end ofthe day, it appears to us that a coalesced effort of the disgruntledofficials of the State of Gujarat alongwith others was to createsensation by making revelations which were false to their ownknowledge. The falsity of their claims had been fully exposed bythe SIT after a thorough investigation. Intriguingly, the presentFproceedings have been pursued for last 16 years (from submissionof complaint dated 8.6.2006 running into 67 pages and then byfiling protest petition dated 15.4.2013 running into 514 pages)including with the audacity to question the integrity of everyfunctionary involved in the process of exposing the deviousGstratagem adopted (to borrow the submission of learned counselfor 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 withlaw.”

H1 2022 (9) SCALE 385

H1 2022 (9) SCALE 385

6. Immediately on the next day i.e. on 25[th] June 2022, an FIRcame to be registered for offences punishable under Sections 468, 469,471, 194, 211, 218 and 120B of the Indian Penal Code, 1860 (for short“IPC”). The appellant came to be arrested on the same day after lodgingof the FIR. On 26[th] June 2022, the appellant came to be produced beforethe learned Magistrate, who granted police remand for a period of sevendays. After the completion of the police remand of seven days, theappellant was sent to judicial custody on 03[rd] July 2022.

7. Thereafter, the appellant filed an application for bail before thelearned Trial Judge i.e. Sessions Judge. The said application was rejectedvide order dated 30[th] July 2022.

8. The appellant thereafter approached the High Court by filingCriminal Miscellaneous Application No.14435 of 2022. The High Courtvide its order dated 03[rd] August 2022 issued rule and made it returnableon 19[th] September 2022.

9. Being aggrieved by the order of the High Court of not consideringthe interim relief in bail application, the appellant approached this Court,by way of Criminal Appeal Nos.1417-1418 of 2022. This Court, vide itsorder dated 2[nd] September 2022, after considering various factors, whichwe will be referring to hereinafter, directed the appellant to be releasedon interim bail, subject to certain conditions as could be found in the saidorder.

10. This Court had further observed that the applications, whichwere pending before the High Court, should be considered by the HighCourt independently and uninfluenced by any of the observations madeby this Court in the instant order.

11. Pursuant to the aforesaid order passed by this Court, the matterwas heard by the learned Single Judge on various dates, and finally videorder dated 01[st] July 2023, which is impugned herein, the High Courtrejected the application. Hence the present appeal.

12. Initially, this matter was listed before the Vacation Benchconsisting of two Hon’ble Judges on 1[st] July 2023. However, since thetwo learned Judges on the Bench differed on the question, as to whetherthe appellant was entitled to interim protection or not, the Hon’ble theChief Justice of India constituted a Bench consisting of three of us, todecide the issue.

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13. Vide the order of the even date, we had stayed the impugnedorder passed by the High Court for a period of one week therefrom. Wehad also directed the Registrar (Judicial) to obtain orders from Hon’blethe Chief Justice of India and place the matter before an appropriateBench for considering the Special Leave Petition.

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14. Thereafter, the matter was listed before us on 5[th] July 2023.On the said date, we had issued notice, returnable today and directedthe parties to complete the pleadings before that. Accordingly, the matteris listed before us today.

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15. We have heard Shri Kapil Sibal, learned senior counselCappearing for the appellant and Shri S.V. Raju, learned Additional SolicitorGeneral of India, appearing for the respondent-State of Gujarat at length.

16. Shri Kapil Sibal, learned senior counsel for the appellant, submitsthat out of the offences registered against the appellant, only Sections194 and 468 IPC are non-bailable. Shri Sibal submits that even if theDallegations made in the FIR are taken on its face value, the case underSection 194 and 468 IPC is not made out.

17. Shri Sibal submits that the allegations made against the appellantare that she influenced certain citizens to swear false affidavits, whichwere used as a part of investigation. He submits that Section 194 IPCEonly deals with the evidence recorded before the Court. Shri Sibal wouldsubmit that since there is no material to show that the appellant hasfabricated false evidence intending thereby to cause or knowing it to belikely that she will thereby cause any person to be convicted of an offence,which is capital, the case taken at its face value would not bring it underthe purview of Section 194 IPC. He further submits that even theFingredients of section 468 IPC are not made out in the present case.

18. Shri Sibal further submits that in the proceedings which led tothe judgment in the case of Zakia Ahsan Jafri (supra), though theappellant had filed an application to be joined as petitioner No.2, the saidapplication was vehemently opposed by the State. It is submitted that onGthe opposition of the State Government, the Court did not wish to dilateon the issue of locus of the appellant herein and kept the preliminaryobjection open to be decided in an appropriate case. It is, therefore,submitted that in the absence of the appellant being made party in theproceedings the observations made in paragraph 88 of Zakia AhsanJafri (supra) could not have been used against her.H

19. Shri S.V. Raju, learned Additional Solicitor General of India,with usual vehemence at his command, strenuously opposes the appeal.He submits that the appellant is involved in a very heinous crime oftrying to get conviction of totally unconnected persons by forging theevidence. He submits that a number of persons have deposed that theappellant had forced them to give affidavits so as to implicate the higherups in the State Government at that time. He submits that the attemptwas to destabilize a democratically elected Government. Shri Raju submitsthat the appellant, by accepting huge sums of money, has indulged insuch heinous activities and thus, is not entitled for bail.

20. Shri Raju submits that the considerations which weigh withthe Court for grant or refusal of bail to an ordinary litigant would differwith the considerations that will weigh while considering an applicationof a person who is involved in a serious crime of attempting to convictinnocent citizens for offences punishable with capital punishment anddestabilize the democratically elected Government.

21. Shri Raju further submits that the learned Single Judge, uponappreciation of the materials placed on record, has prima facie foundthat the ingredients to constitute an offence under Section 194 IPC arepresent and a prima facie case has been made out and, therefore, theHigh Court has rightly rejected the bail application.

22. As held by this Court in a catena of cases right from NiranjanSingh and Another v. Prabhakar Rajaram Kharote and Others[2], adetailed elaboration of evidence at the stage of bail has to be avoided.This is neither in the interest of the prosecution nor the accused. Assuch, we would be avoiding any detailed elaboration of evidence at thisstage.

23. The order passed by the learned Judge, running into morethan a hundred pages, makes for an interesting reading. On one hand,the learned Judge has spent pages after pages to observe as to how it isnot necessary, rather not permissible at the stage of consideration of grantof bail to consider as to whether a prima facie case is made out or not.

24. Having made the aforesaid observation on the one hand,the learned Judge, on the other hand, goes on to discuss the statementsof some witnesses and observes that a prima facie case under 2 (1980) 2 SCC 559

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ASection 194 IPC is made out. The findings are totally contrary, to saythe least.

25. The learned Judge has further observed that since the appellant,after filing of an FIR and filing of a charge-sheet, has neither challengedthe same in a proceeding under Section 482 of the Code of CriminalBProcedure, 1973 (“Cr.P.C.” for short) or under Article 226 of theConstitution of India before the High Court or under Article 32 of theConstitution of India before this Court, it is not permissible for her tocontend that a prima facie case is not made out.

26. In the limited understanding of law that we have, the factorsCwhich are required to be taken into consideration at the stage of grant ofbail are - (i) prima facie case, (ii) the possibility of the accused tamperingwith the evidence or influencing the witnesses, and (iii) the possibility ofthe accused fleeing away from the hands of justice.

27. No doubt, the gravity and the seriousness of the offence is yetDanother factor that has to be taken into consideration.

28. If the observations, as recorded by the learned Judge, are tobe accepted then no application for bail at a pre-trial stage could beentertained unless the accused files an application for quashing theproceedings under Section 482 Cr.P.C., or Articles 226 or 32 of theEConstitution of India.

29. To say the least, such findings are totally perverse.

30. Though Shri Sibal has made submission with regard toapplicability of the observations made in paragraph 88 of the judgment inFZakia Ahsan Jafri (supra), judicial propriety would not permit us todelve into those issues.

31. Similarly, though Shri Sibal has strenuously argued that thecase is not made out for offence under Section 194 IPC, we refrainfrom observing anything on that issue, as we have already heldhereinabove that a detailed elaboration of evidence has to be avoided atGthis stage. Any observations in that regard would adversely affect theinterest of either of the parties.

32. We find that the considerations which were available whenthe order was passed by this Court on 02[nd] September 2022 are stillHavailable even at this stage.

33. It will be apposite to reproduce certain observations from thesaid order:- “We need not go into the rival contentions advanced by the learnedcounsel for the parties touching upon the merits of the matter. Forthe present purposes, in our considered view, following aspects ofthe matter, which emerge from the record, are of some significance.

a.The appellant – a lady has been in custody since25.06.2022.

b.The offences alleged against her relate to the year 2002and going by the assertions in the FIR pertain todocuments which were sought to be presented and/orrelied upon till the year 2012.

c.Investigating machinery has had the advantage of custodialinterrogation for a period of seven days whereafter judicialcustody was ordered by the concerned Court xxx xxx xxx The essential ingredients of the investigation including thecustodial interrogation having been completed, the relief ofinterim bail till the matter was considered by the High Courtwas certainly made out.”

34. The consideration which weighed with the Court whilepassing the aforesaid order that the appellant is a lady has not changed.The fact that the offence alleged against her relates to the year 2002and that the FIR pertains to documents which are sought to be presentedor relied upon till the year 2012 has also not changed. The fact that theappellant was available for custodial interrogation for a period of sevendays and thereafter she was in continuous judicial custody has also notchanged.

35. Another factor that needs to be taken into consideration isthat after she was released on interim bail by this Court, she has admittedlynot been called for investigation even on a single occasion.

36. Taking into consideration that most of the evidence in thepresent case are documentary evidence, which are already in possessionof the Investigating Agency and, further, that the charge-sheet has beenfiled, we find that she is entitled for bail.

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A37. Another factor that needs to be taken into consideration isthat at the time of pronouncing the impugned order, the learned Judge,though noticing that on account of order of this Court dated 2[nd] September2022 passed in Criminal Appeal No. 1417 and 1418 of 2022 the appellantwas on interim bail, directed her to surrender immediately. The appellantprayed for stay of the said order for thirty days. However, the saidBprayer was also rejected. We fail to understand as to what was thealarming urgency to direct the appellant to surrender immediately,particularly, when the appellant was enjoying the interim protection underthe orders of this Court from 2[nd] September 2022.

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38. Insofar as the apprehension of the prosecution that she mayCinfluence the witnesses is concerned, the concern of the prosecutioncan be taken care of by directing her not to make any attempt to influencethe witnesses.

39. In that view of the matter, we are inclined to allow the appeal.

D40. The impugned order is quashed and set aside and the appealis allowed.

41. The appellant is directed to be continued on bail, which wasgranted to her in terms of the order dated 02[nd] September 2022. Theappellant has already surrendered her passport, which shall continue toEbe in the custody of the Sessions Court.

42. We make it clear that the appellant would not make any attemptto influence the witnesses and shall remain away from them. If theprosecution feels that any such attempt is made by the appellant, theywould be entitled to move this Court directly for modification of ourorders.F

43. We clarify that none of the observations made in the impugnedorder and any of the observations made by us in our order would influencethe trial court at the stage of the trial.

44. Pending application(s), if any, shall stand disposed of.

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Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal allowed.

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