Teesta Atul Setalvad vs State Of Gujarat

2023 INSC 637 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 2022/2023 (@ SLP (CRL) NO.8503/2023)

TEESTA ATUL SETALVAD APPELLANT(S)

VERSUS

STATE OF GUJARAT RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. The appeal is taken up for final hearing.

3. The appeal challenges the judgment and order dated 1st July

2023, 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 24th June

2022, in the case of Zakia Ahsan Jafri v. State of Gujarat and Signature Not Verified Digitally signed by Narendra Prasad Date: 2023.07.21 18:36:14 IST Reason: 1 another1, wherein at paragraph 88, this Court observed thus:-

“88. While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat alongwith others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. 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.”

6. Immediately on the next day i.e. on 25th June 2022, an FIR

came 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 lodging of the FIR. On 26th June 2022, the appellant

1 2022 (9) SCALE 385

2 came to be produced before the learned Magistrate, who granted

police remand for a period of seven days. After the completion of

the police remand of seven days, the appellant was sent to judicial

custody on 03rd July 2022.

7. Thereafter, the appellant filed an application for bail before

the learned Trial Judge i.e. Sessions Judge. The said application

was rejected vide order dated 30th July 2022.

8. The appellant thereafter approached the High Court by filing

Criminal Miscellaneous Application No.14435 of 2022. The High

Court vide its order dated 03rd August 2022 issued rule and made

it returnable on 19th September 2022.

9. Being aggrieved by the order of the High Court of not

considering the interim relief in bail application, the appellant

approached this Court, by way of Criminal Appeal Nos.1417-1418

of 2022. This Court, vide its order dated 2nd September 2022,

after considering various factors, which we will be referring to

hereinafter, directed the appellant to be released on interim bail,

subject to certain conditions as could be found in the said order.

10. This Court had further observed that the applications, which

were pending before the High Court, should be considered by the

High Court independently and uninfluenced by any of the

3 observations made by this Court in the instant order.

11. Pursuant to the aforesaid order passed by this Court, the

matter was heard by the learned Single Judge on various dates,

and finally vide order dated 01st July 2023, which is impugned

herein, the High Court rejected the application. Hence the present

appeal.

12. Initially, this matter was listed before the Vacation Bench

consisting of two Hon’ble Judges on 1st July 2023. However,

since the two learned Judges on the Bench differed on the

question, as to whether the appellant was entitled to interim

protection or not, the Hon’ble the Chief Justice of India

constituted a Bench consisting of three of us, to decide the issue.

13. Vide the order of the even date, we had stayed the impugned

order passed by the High Court for a period of one week therefrom.

We had also directed the Registrar (Judicial) to obtain orders from

Hon’ble the Chief Justice of India and place the matter before an

appropriate Bench for considering the Special Leave Petition.

14. Thereafter, the matter was listed before us on 5th July 2023.

On the said date, we had issued notice, returnable today and

directed the parties to complete the pleadings before that.

Accordingly, the matter is listed before us today.

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15. We have heard Shri Kapil Sibal, learned senior counsel

appearing for the appellant and Shri S.V. Raju, learned Additional

Solicitor General of India, appearing for the respondent-State of

Gujarat at length.

16. Shri Kapil Sibal, learned senior counsel for the appellant,

submits that out of the offences registered against the appellant,

only Sections 194 and 468 IPC are non-bailable. Shri Sibal

submits that even if the allegations made in the FIR are taken on

its face value, the case under Section 194 and 468 IPC is not made

out.

17. Shri Sibal submits that the allegations made against the

appellant are that she influenced certain citizens to swear false

affidavits, which were used as a part of investigation. He submits

that Section 194 IPC only deals with the evidence recorded before

the Court. Shri Sibal would submit that since there is no material

to show that the appellant has fabricated false evidence intending

thereby to cause or knowing it to be likely 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 under the

purview of Section 194 IPC. He further submits that even the

ingredients of section 468 IPC are not made out in the present

5 case.

18. Shri Sibal further submits that in the proceedings which led

to the judgment in the case of Zakia Ahsan Jafri (supra), though

the appellant had filed an application to be joined as petitioner

No.2, the said application was vehemently opposed by the State.

It is submitted that on the opposition of the State Government,

the Court did not wish to dilate on the issue of locus of the

appellant herein and kept the preliminary objection open to be

decided in an appropriate case. It is, therefore, submitted that in

the absence of the appellant being made party in the proceedings

the observations made in paragraph 88 of Zakia Ahsan Jafri

(supra) could not have been used against her.

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 of trying to get conviction of totally unconnected

persons by forging the evidence. He submits that a number of

persons have deposed that the appellant had forced them to give

affidavits so as to implicate the higher ups in the State

Government at that time. He submits that the attempt was to

destabilize a democratically elected Government. Shri Raju

6 submits that the appellant, by accepting huge sums of money,

has indulged in such heinous activities and thus, is not entitled

for bail.

20. Shri Raju submits that the considerations which weigh with

the Court for grant or refusal of bail to an ordinary litigant would

differ with the considerations that will weigh while considering an

application of a person who is involved in a serious crime of

attempting to convict innocent citizens for offences punishable

with capital punishment and destabilize the democratically

elected Government.

21. Shri Raju further submits that the learned Single Judge,

upon appreciation of the materials placed on record, has prima

facie found that the ingredients to constitute an offence under

Section 194 IPC are present and a prima facie case has been made

out and, therefore, the High Court has rightly rejected the bail

application.

22. As held by this Court in a catena of cases right from

Niranjan Singh and Another v. Prabhakar Rajaram Kharote

and Others2, a detailed elaboration of evidence at the stage of

2 (1980) 2 SCC 559

7 bail has to be avoided. This is neither in the interest of the

prosecution nor the accused. As such, we would be avoiding any

detailed elaboration of evidence at this stage.

23. The order passed by the learned Judge, running into more

than 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 is not necessary, rather not permissible at the stage

of consideration of grant of 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

statements of some witnesses and observes that a prima facie case

under Section 194 IPC is made out. The findings are totally

contrary, to say the 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 challenged the same in a proceeding under Section 482 of

the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) or

under Article 226 of the Constitution of India before the High

Court or under Article 32 of the Constitution of India before this

Court, it is not permissible for her to contend that a prima facie

8 case is not made out.

26. In the limited understanding of law that we have, the factors

which are required to be taken into consideration at the stage of

grant of bail are - (i) prima facie case, (ii) the possibility of the

accused tampering with the evidence or influencing the witnesses,

and (iii) the possibility of the accused fleeing away from the hands

of justice.

27. No doubt, the gravity and the seriousness of the offence is

yet another factor that has to be taken into consideration.

28. If the observations, as recorded by the learned Judge, are to

be accepted then no application for bail at a pre-trial stage could

be entertained unless the accused files an application for

quashing the proceedings under Section 482 Cr.P.C., or Articles

226 or 32 of the Constitution of India.

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

30. Though Shri Sibal has made submission with regard to

applicability of the observations made in paragraph 88 of the

judgment in Zakia Ahsan Jafri (supra), judicial propriety would

not permit us to delve into those issues.

31. Similarly, though Shri Sibal has strenuously argued that the

case is not made out for offence under Section 194 IPC, we refrain

9 from observing anything on that issue, as we have already held

hereinabove that a detailed elaboration of evidence has to be

avoided at this stage. Any observations in that regard would

adversely affect the interest of either of the parties.

32. We find that the considerations which were available when

the order was passed by this Court on 02nd September 2022 are

still available even at this stage.

33. It will be apposite to reproduce certain observations from the

said order:-

“We need not go into the rival contentions advanced by the learned counsel for the parties touching upon the merits of the matter. For the present purposes, in our considered view, following aspects of the matter, which emerge from the record, are of some significance.

a. The appellant – a lady has been in custody since 25.06.2022.

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

c. Investigating machinery has had the advantage of custodial interrogation for a period of seven days whereafter judicial custody was ordered by the concerned Court

10 xxx xxx xxx

The essential ingredients of the investigation including the custodial interrogation having been completed, the relief of interim bail till the matter was considered by the High Court was certainly made out.”

34. The consideration which weighed with the Court while

passing the aforesaid order that the appellant is a lady has not

changed. The fact that the offence alleged against her relates to

the year 2002 and that the FIR pertains to documents which are

sought to be presented or relied upon till the year 2012 has also

not changed. The fact that the appellant was available for

custodial interrogation for a period of seven days and thereafter

she was in continuous judicial custody has also not changed.

35. Another factor that needs to be taken into consideration is

that after she was released on interim bail by this Court, she has

admittedly not been called for investigation even on a single

occasion.

36. Taking into consideration that most of the evidence in the

present case are documentary evidence, which are already in

possession of the Investigating Agency and, further, that the

charge-sheet has been filed, we find that she is entitled for bail.

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37. Another factor that needs to be taken into consideration is

that at the time of pronouncing the impugned order, the learned

Judge, though noticing that on account of order of this Court

dated 2nd September 2022 passed in Criminal Appeal No. 1417

and 1418 of 2022 the appellant was on interim bail, directed her

to surrender immediately. The appellant prayed for stay of the

said order for thirty days. However, the said prayer was also

rejected. We fail to understand as to what was the alarming

urgency to direct the appellant to surrender immediately,

particularly, when the appellant was enjoying the interim

protection under the orders of this Court from 2nd September

2022.

38. Insofar as the apprehension of the prosecution that she may

influence the witnesses is concerned, the concern of the

prosecution can be taken care of by directing her not to make any

attempt to influence the witnesses.

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

appeal.

40. The impugned order is quashed and set aside and the appeal

is allowed.

41. The appellant is directed to be continued on bail, which was

12 granted to her in terms of the order dated 02nd September 2022.

The appellant has already surrendered her passport, which shall

continue to be in the custody of the Sessions Court.

42. We make it clear that the appellant would not make any

attempt to influence the witnesses and shall remain away from

them. If the prosecution feels that any such attempt is made by

the appellant, they would be entitled to move this Court directly

for modification of our orders.

43. We clarify that none of the observations made in the

impugned order and any of the observations made by us in our

order would influence the trial court at the stage of the trial.

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

..............................J ( B.R. GAVAI )

..............................J ( A.S. BOPANNA )

..............................J ( DIPANKAR DATTA )

NEW DELHI;

JULY 19, 2023

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