“How could the Gujarat High Court simultaneously grant anticipatory bail, and allow the police the liberty to take activists Teesta Setalvad and her husband Javed Anand into custody?” an astounded CJI Ranjan Gogoi-led bench asked the Gujarat government on Monday.
"If investigating officer is given liberty for (seeking) police custody and anticipatory bail is granted, can they co-exist? The moment the investigating officer gets police custody, the anticipatory bail goes," said the bench.
The bench comprising Justices Deepak Gupta and Sanjiv Khanna apart from Gogoi, said it was asking a question to itself as to whether such an order can be passed.
"How do you pray for police remand? We are asking it to ourselves," the bench said.
The apex court was dealing with two petitions – one for expunging the Gujarat High Court’s “damaging” remarks in its February 8 , 2019 judgement, and the other for granting anticipatory bail to Setalvad and her husband.
Setalvad and Anand were represented by Senior Advocate Chandar Uday Singh, Aparna Bhat and Huzefa Ahmadi, while Solicitor General Tushar Mehta and his team represented the State of Gujarat and Gujarat Police.
Pleas of petitioners
In their petition, drafted and filed by Advocate on Record Aparna Bhat, Setalvad and Anand have made the following plea:
“The Petitioners are also aggrieved by one direction granted to the Police which states that “shall not preclude the Investigating Officer to pray for police remand if during the course of the investigation it is found that custodial interrogation is necessary on any particular aspect of the matter.”
Seeking remand of the petitioners as against applying for cancellation of anticipatory bail, as is ordinarily granted, will limit the liberty of the petitioners and give unbridled discretion to the police and thus render the anticipatory bail meaningless.
The following observations from the judgment are in question in the present Petition:
There is prima facie materials as reflected from the papers of the investigation to indicate that the applicants obtained the grant by practicing fraud. The matter does not rest over here. There are allegations that the amount received by the trust by way of grant was not used in the project but the same came to be misappropriated by the applicants herein for their personal use. This seems to be the crux of the allegations against the applicants. Therefore, in my view, the applicants are not entitled to seek anticipatory bail only by levelling allegations of mala fides and political bias.
I was inclined to reject this application only on the ground of the criminal antecedents of the applicants as pointed out by the State in its affidavit, duly affirmed by the Addl. Deputy Commissioner of Police, Crime Branch, Ahmedabad.
The grant of anticipatory bail to the applicants shall not preclude the Investigating Officer to pray for police remand if during the course of the investigation it is found that custodial interrogation is necessary on any particular aspect of the matter.”
How could the High Court have arrived at a tentative conclusion about the guilt of the accused when the trial had not really begun, asked Senior Advocate C U Singh. He also submitted a detailed chart on the tranche of evidence Setalvad and Anand had already provided to the investigating agencies to prove their innocence.
On the urging of counsel, the Supreme Court said that the aforementioned comments of the high court should not be given effect to.
Tagging of Matters
Tushar Mehta, appearing for the Gujarat Police, said there are other matters pending in the apex court relating to Setalvad and her husband, and all those can be heard together.
Taking note of the submission, the bench issued notice on the cross-appeals in the case, and tagged them with the matter in which the couple is accused of embezzlement of funds collected for the victims of the riots of Gulbarga society in Ahmedabad, that is, with Criminal Appeal No.338 of 2015.
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Setalvad and her husband in the past have denied all allegations, contending that they have been targeted by the state government for fighting the cause of the victims of post-Godhra riots.
The apex court on Monday was dealing with the case in which FIR was registered on March 31, 2018, against Setalvad and her husband for allegedly securing central government funds worth Rs 1.4 crore "fraudulently" for their NGO Sabrang between 2010 and 2013.
While allowing their anticipatory bail plea, Justice J B Pardiwala of the High Court on February 8 had directed Setalvad and Anand to cooperate with the probe and appear before the investigating agency, the city crime branch.
The judge had also said that the state government can approach the court to get their bail cancelled if the couple does not cooperate in the investigation.
The case was filed against Setalvad and Sabrang trustees by Ahmedabad Crime Branch on the basis of a complaint lodged by her former close associate Raees Khan Pathan, who has accused that the grant for educational purposes was allegedly misused and materials were printed and distributed that could cause communal disharmony.
Pathan had alleged that Setalvad and Sabrang Trust tried to "mix religion with politics", and were spreading disharmony through the curricular material prepared for the erstwhile UPA government which had given it a grant of about Rs 1.4 crore.
The complaint had taken into account the report of a panel of the Ministry of Human Resource Development which in its finding has claimed that a prima facie case existed against her under section 153A and 153B of the IPC for promoting enmity on grounds of religion and making imputations and assertions, prejudicial to the national integration.
Pathan had alleged that a large amount from the HRD funding was used during 2008-14 on 'Khoj' project of the Sabrang Trust under the scheme of 'National Policy on Education' in Maharashtra and Gujarat as well as on the 'Peace building and conflict resolution' project.
The project was launched by Setalvad's NGO in some districts of Maharashtra and Gujarat.
The case will now be heard along with the other case in which Gujarat Police has filed an affidavit in the apex court, alleging that the funds collected by them for setting up of a museum in memory of the riots victims of Gulberg Society was spent on personal use.
In a 2015 piece, this writer had presented the case for and against Setalvad, her husband and Sabrang Trust, and asked:
“Does public interest demand Teesta Setalvad and Javed Anand’s custodial interrogation? Can the power of arrest be exercised merely because the police claim there is prima facie evidence to justify it?
Should civil society organisations, especially human rights NGOs, be subjected to more stringent government regulation and control to prevent them from exploiting those, whose rights they claim to espouse?”
Now it is over to the Supreme Court to decide in the interests of justice.
Saurav is an independent journalist based out of Delhi, and specialises in reporting on legal, human rights and gender issues. He earlier used to teach media law and jurisprudence in Bombay and in Pune. He tweets @SauravDatta29.
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