No prima facie case, none of the sections are applicable to Setalvad: HRD’s counsel submits in Guj HC

The bail hearing of human rights activist Teesta Setalvad in Gujarat High Court has been in progress as she seeks permanent bail in the case alleging she submitted false evidence.

Teesta Setalvad

Rights Defender and journalist, Teesta Setalvad was arrested on June 25, 2022, a day after the Supreme Court judgement disposing the appeal of ZakiaJafri seeking re-investigation into Jafri’s claims of larger conspiracy behind 2002 Gujarat pogrom.

The bail hearing of human rights activist Teesta Setalvad in Gujarat High Court has been in progress as she seeks permanent bail in the case alleging she submitted false evidence. She currently has interim protection from the Supreme Court (September 2, 2023) after spending 70 days in prison in Gujarat.

While the applicant has already made her submissions on June 12 and 13, the state is in process of making submissions. The applicant’s counsel Senior Advocate Mihir Thakore made elaborate submissions before the bench of Justice Nirzar Desai on June 12 and June 13.

Background

It was only about a year ago that Ms Setalvad was arrested from her Mumbai home by Gujarat ATS in a rather hurried fashion soon after the Supreme Court’s judgement in the Zakia Jafri case. She was booked under sections 468 (forgery), 471 (using as genuine a forged document or electronic record), 194 (giving or fabricating false evidence with intent to procure conviction of capital offence, 211 (false charge of offence made with intent to injure), 218 (public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) and 120 B (criminal conspiracy) of the IPC.

Zakia Jafri, along with Ms Setalvad (through Citizens for Justice and Peace) as second appellant, had filed this appeal against the Gujarat High Court judgment confirming the trial court order dismissing the protest petition filed by Ms Jafri. Ms Jafri had filed the protest petition against the closure report of the SIT which was given the task of looking into Ms Jafri’s 2006 complaint alleging a larger conspiracy behind the 2002 Gujarat pogrom in which Ms’ Jafri husband Mr Ehsan Jafri was mercilessly slain, along with a genocide of a large Muslim population.

The Supreme Court while disposing the appeal, made some adverse remarks against “those who had kept the pot boiling” with an “ulterior motive” for the past 16 years should be in the dock and be “proceeded with in accordance with the law”.

The counsel articulated each charge invoked against Setalvad in the FIR and took the bench through the definition of each offence invoked against her under the IPC to emphasize how none of the charges were made out against her.

The counsel stressed emphatically before the bench that the affidavits that the Gujarat police are claiming to be forged or false were in fact filed before the Supreme Court and not the police. These affidavits were filed in a transfer petition where CJP had intervened. The case had been originally filed by the National Human Rights Commission (NHRC) three years before the complaint filed by Ms Jafri in 2006.

Therefore, under section 195 of CrPC, “except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate”, no proceedings can be initiated against her.

More pertinently, none of the statements recorded by the SIT or the affidavits filed before SIT were referred to in Ms. Jafri’s complaint (2006) or the protest petition. The affidavits were not used in Ms Jafri’s special leave petition before the apex court and were only filed to support NHRC’s claim in its transfer petition, which was way before Ms Jafri’s 2006 complaint.

Besides, counsel cited Iqbal Singh Marwah and anrvs Meenakshi Marwah (2005) 4 SCC 370, in which the Supreme Court had held that that a complaint is maintainable before the document is in the custody of the law and has been filed in court, but after it is filed in court the procedure specified in 195- 340 CR.P.C has to be followed will not apply to cases which fall into 195(1)(b)(i).

What this necessarily means that whether the false evidence has been given or fabricated before or after it is produced in court, or in judicial proceedings, the only way to initiate proceedings is by the competent court filing a complaint as stipulated by section 195 and section 340 of the CR.P.C.

However, instead of following this laid down procedure, the Gujarat ATS had simply arrived at Setalvad’s home without warrant and forcibly taken her to Ahmedabad where she was thereafter remanded to police custody on June 26. Thereafter on July 2, 2022 she was sent to judicial custody in the Sabarmati Mahila Jail, Ahmedabad. Setalvad has also made serious allegations of violence by the ATS when they forcibly entered her home that day.

No prima facie case made out

The counsel then went through an elaborate reading of sections 467,469 and 194 of IPC and said, “these offences would be applicable if it had been alleged that Setalvad had persuaded Zakia to file the complaint in 2006. But that complaint was filed by Zakia and not me.”
Senior counsel Mihir Thakore then pointed out that sections 467, 469, 471 were invoked against her only to keep the case out of the purview of section 195 CrPC because not a single document except the petition in Supreme Court has been signed by Setalvad.

The counsel stated that to invoke sections 194 and 211 of the IPC it would be necessary that a complaint from the Supreme Court is forthcoming which is not the case and thus no prima facie case is made out against Ms Setalvad.

The counsel then went on to discuss the provisions of section 437 [4When bail may be taken in case of non-bailableoffence] and 439 [Special powers of High Court or Court of Session regarding bail] of CrPC to assert why bail need be granted in this case.

Cases cited pressing for bail

Thakore then cited Kalyan Chandra Sarkar vs Rajesh Ranjan Alias Pappu Yadav (Appeal (crl.) 324 of 2004; decided on March 12, 2004) whereby the Supreme Court had held, “The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course…It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge

Appealing to the court to take a humanitarian approach towards the bail of Ms Setalvad, the counsel cited Satender Kumar Antil vs Central Bureau Of Investigation (Miscellaneous Application No.1849 of 2021; decided on July 11, 2022) whereby the Supreme Court held, “It is high time that our Parliament realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing… other relevant considerations such as family ties, roots in the community, job security, membership of stable organisations etc., should be the determinative factors in grant of bail and the accused should in appropriate cases be released on his personal bond without monetary obligation…If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond.”

It further held that under section 437 CrPC, “in a case pertaining to women, the court is expected to show some sensitivity.”

The counsel also stressed that in the cases filed against her till date, she has never misused the liberty granted to her by courts by way of bail, and many of these have even been quashed.

Earlier allegations have fallen flat

It must be noted that this is not the first time that an elaborate attempt is being made to harass Ms Setalvad. Here’s a chronological list showcasing how Setalvad has been hounded by the regime, as well as a point by point rebuttal of all baseless allegations levelled against her. In fact, many international publications such as the New YorkTimes and the BBC and organisations like Frontline Defenders have also reported on her constant persecution by a vengeful regime.

In fact, in the past, the courts themselves have thrown out baseless charges of ‘tutoring’ witnesses amongst other allegations.

In the Sardarpura Special Sessions Court judgement (during which proceedings in the trial a former employee of CJP, Raees Khan had made allegations of tutoring, the Court held, “The witnesses have specifically denied that, Teesta Setalvadhas told them as to what evidence was to be given in a case. Considering the evidence and fact in this regard when we consider this fact mere discussion about the case would not necessarily indicate tutoring.” The court elaborated, “It is not an accepted proposition that the witnesses are never to be contacted by any one or spoken to about the matter regarding which they are to depose. A number of things can be told to the witnesses such as not to be nervous, carefully listen to the question put to them, state the facts before the Court without fear, therefore it does not appear any objectionable morally or legally.”

Most importantly, the court clarified, “Tutoring a witness is quite different from guiding him as to his behaviour. In the present case, the injured witnesses were in such a state of mind that without the active support of someone they might not have come before the court to give evidence at all. The encouragement and the advice if provided by Citizen for Peace and Justice that cannot be considered as tutoring and simply because of that, we cannot infer that the witnesses are tutored.”

Gujarat 2002

Citizens for Justice and Peace (CJP) that Setalvad is Secretary of has assisted survivors of the carnage of 2002 to battle as many as 68 cases in courts, from the trial courts right up to the Supreme Court. In an unprecedented record in terms of communal violence, as many as 174 perpetrators were accorded punishment and 124 of these to life imprisonment.

Previous Vendetta

Setalvad has over the past 21 years, faced faced eight previous FIRs and has had to take Anticipatory Bail on all occasions first from a Mumbai Court where she resides and thereafter from Gujarat. In all except one she has been granted bail by the Gujarat’s courts. The very first one was after the famed Best Bakery case was transferred to Maharashtra and the prime witness, ZahiraShaikh turned hostile and made allegations of kidnapping etcon Setalvad. At the time, Setalvad had herself then approached the Supreme Court of India to order a high level inquiry into the truth and falsity of the claims. A high level Registrar General of SC Inquiry conducted (BM Gupta) submitted in August 2004 exonerated Setalvad, held CJP’s accounts to be in order and in fact held both Zahira Shaikh guilty of perjury and Madhu Srivastava, MLA of the BJP of inducing a star victim witness with Rs 18 lakhs, Zahira Shaikh was thereafter convicted to one year’s simple imprisonment for perjury.

In the case of the Gulberg Memorial FIR (filed in January 2014) after the Sessions Court refused anticipatory bail and thereafter even the Gujarat High Court rejected bail for Setalvad and her husband Javed Anand, the Supreme Court has accorded them both protection. For nine years since, despite their having submitted over 20,000 pages in evidence (entire accounts, vouchers etc) their personal bank accounts and the organisations (Citizens for Justice and Peace) remain frozen! No charge sheet has been filed in the nine years in this or any other case.

When this matter came up in April 2023, the Gujarat counsel told the court requesting time that the couple has cooperated in the investigation.

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