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

Posting the matter for further hearing Friday, Chief Justice of India U U Lalit, heading a bench that included Justices S Ravindra Bhat and Sudhanshu Dhulia, told the Gujarat government that its intervention in a case depends on the facts and circumstances of each and there is no inviolable principle that the High Court should be the final court for bail.

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

Solicitor General Tushar Mehta, appearing for the state, said he had never come across any case where the Supreme Court had entertained a plea from an accused who had gone to the High Court where the plea was pending.

“There are thousands and thousands of people waiting for their bail applications to be heard. They have similar contentions to be raised. There are cases where for some special reasons, the sessions court orders are challenged before Your Lordships. But there is no case where the accused first selects the remedy of going before the HC, comes directly under (Article) 136 (special leave to appeal by the Supreme Court) and Your Lordships have entertained,” Mehta told the bench, citing Supreme Court decisions on the subject.

CJI Lalit said “though what has been observed” in these judgments “is definitely a guiding principle, but at times, we have to interfere in the matter depending upon the facts and circumstances of the case. Therefore, to say that the HC should be the final court for bail is not an inviolable principle. It’s not something cast in stone. We have to see in the light of the facts and circumstances”.

Noting that Setalvad was arrested on June 25 and had already spent more than two months in custody, the CJI said “we want to know what kind of material have you gathered in the last two months. Number 1, the lady has completed more than 2 months of custody. Number 2, you must have had the benefit of custodial interrogation at some stage. So therefore, is there anything which has actually been elicited out of such custodial interrogation because today as the things stand, the FIR has nothing but whatever has happened in Supreme Court”.

“So is there any additional material apart from what has been recited in the judgment of the SC? In the custodial interrogation, have you been able to elicit something beyond that. And in the last two months, have you actually filed a chargesheet or something or is the investigation still on,” he said.

The CJI said “there is no offence… like say POTA, or UAPA… which comes with the rider or which comes with the statutory mandate that bail should not be granted. There is no such thing. These are normal IPC offences… then under Section 437 (when bail may be taken in case of non-bailable offence) mandate, a lady is definitely entitled to a favoured treatment”.

Mehta said the state would not want to give any special treatment to any accused.

To this, the CJI said, “It’s not the state which is giving any special treatment. It is the court which has to be alive to that. We are considering it in our appellate jurisdiction. What you say is right, they have gone to the HC, and there is a petition pending. But at the same time, she was taken into custody on June 25. So it has been almost two months and something above.”

Mehta said she was arrested “for something we have found… it’s 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 somebody’s pleasure or something.”

To a query from the bench on what was the material available against the accused, Mehta said “there are 164 statements, 161 statements showing that conspiracy was hatched somewhere, forgery took place somewhere else… I will show everything”.

The CJI said, “We just wanted to check what is the tenor and direction of investigation… We are not going deeper into that… How many other co-accused have been taken into custody?”.

Mehta said there were two more accused but the charge of forgery was alleged against Setalvad.

“We will go by that, that according to you, there is some material which may prima facie justify… Even then, your custodial interrogation part and everything is over,” the CJI said.

“We are on a point. If a matter like this comes before the HC, the HC issues notice on August 3, 2022, makes it returnable on September 19 in a bail matter! So, effectively it means the bail matter being returnable in six weeks,” he said.

Mehta responded that it may be so “if HC feels that there are other accused, if the HC is clogged, if the HC feels I will not give any special treatment to anyone.” He saidt the SC could advance the hearing before the HC.

But the CJI said “what actually struck us is this. First, your complaint does not recite anything greater than or more than what the judgment of the Supreme Court said. So if the judgment of the SC is out on June 24, on June 25 the complaint is filed. Obviously the person who is the author of the complaint has not had anything greater than what the Supreme Court had said… He was not privy to any knowledge other than that emanating from the judgment”.

“So these are some points that came to bother us. Within one day the complaint came to be filed. It may or may not be serious, but at the same time you as investigators had the advantage of subjecting this lady for custodial interrogation… That is also done… These are not offences where something, say like 302, or 307 or bodily injury kind of offences. These are offences which are particularly on the basis of documents or according to you, the forgery connected with certain documents which are either filed or not filed in court. In these matters, the normal idea is that yes, after the initial period of police investigation, custody is over. Then there is nothing which actually can stop the investigators from conducting further course of investigation and insisting that the man still must be in custody. That’s the second part. The third part is that she happens to be a lady. And if the HC is not cognizant of this and makes it returnable after six weeks, are we to sort of just close the file and say because the matter is pending in the HC, we should not touch it.””

Opposing the grant of interim bail, the SG said the offence against Setalvad was far more serious that the one under IPC section 302. “I would not make any distinction between any other accused and I would feel it’s more serious than 302,” he said.

The CJI told the SG to “give us a case where a lady has been actually in confinement on charges like this and the HC has made the matter returnable after six weeks… We heard you say that please don’t make an exception, as if this is a special case. That is the reason why we said… That’s why we want to know… We are actually going on this theory that how could the High Court make the matter returnable after six weeks. Is this the standard practice in Gujarat?”

Mehta said “no lady in similar situations has committed offence of this nature” and he will put in on affidavit that no discrimination has been shown by the HC.