TEESTA ATUL SETALVADversusSTATE OF GUJARAT

             [2023] 10 S.C.R. 1147 : 2023 INSC 637                       1147


                    TEESTA ATUL SETALVAD                                 A
                                  v.
                       STATE OF GUJARAT
               (Criminal Appeal No(s). 2022 of 2023)
                           JULY 19, 2023                                 B
[B. R. GAVAI, A. S. BOPANNA AND DIPANKAR DATTA, JJ.]
       Bail– Appellant was on interim bail on account of order dtd.
02.09.2022 passed by Supreme Court – By the impugned order,
High Court rejected the bail application filed by the appellant and
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directed the appellant to surrender immediately – Legality of – Held:
There was no alarming urgency to direct the appellant to surrender
immediately when she was enjoying the interim protection under
the orders of Supreme Court – The considerations which were
available when the order dtd.02.09.2022 was passed are still
available even at this stage – Most of the evidence in the present       D
case are documentary evidence already in possession of the
Investigating Agency and the charge-sheet has been filed – Appellant
entitled for bail – Impugned order quashed and set aside – Appellant
would not make any attempt to influence the witnesses and shall
remain away from them – Penal Code, 1860 – ss.468, 469, 471,
                                                                         E
194, 211, 218 and 120B.
      Zakia Ahsan Jafri v. State of Gujarat and another 2022
      (9) SCALE 385; Niranjan Singh and Another v.
      Prabhakar Rajaram Kharote and Others (1980) 2 SCC
      559 : [1980] 3 SCR 15 – referred to.
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                       Case Law Reference
2022 (9) SCALE 385               referred to              Para 5
[1980] 3 SCR 15                  referred to              Para 22
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.               G
2022 of 2023.
      From the Judgment and Order dated 01.07.2023 of the High Court
of Gujarat at Ahmedabad in CRLMA No. 14435 of 2022.
      Kapil Sibal, Chander Uday Singh, Mihir Thakore, Mihir Desai, Sr.
Advs., Ms. Aparna Bhat, Ms. Karishma Maria, Nizam Pasha, Adit            H
                                1147
1148               SUPREME COURT REPORTS                          [2023] 10 S.C.R.


 A     Subramaniam Pujari, Ms. Rupali Samuel, Rishabh Parikh, Ms. Bidya
       Mohanty, Ms. Sumedha Sarkar, Advs. for the Appellant.
            S.V. Raju, A.S.G., Rajat Nair, Ms. Swati Ghildiyal, Kanu Agrawal,
       Ms. Devyani Bhatt, Madhav Sinhal, Advs. for the Respondent.
                The Judgment of the Court was delivered by
 B
                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
 C
       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
 D     2022, in the case of Zakia Ahsan Jafri v. State of Gujarat and
       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
 E              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
 F              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
 G              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.”
       1
 H         2022 (9) SCALE 385
        TEESTA ATUL SETALVAD v. STATE OF GUJARAT                               1149
                     [B. R. GAVAI, J.]

       6. Immediately on the next day i.e. on 25th June 2022, an FIR           A
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 came to be produced before
the learned Magistrate, who granted police remand for a period of seven
                                                                               B
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.
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       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    D
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.                                                                         E

       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 observations made
by this Court in the instant order.
                                                                               F
       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
                                                                               G
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.
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1150             SUPREME COURT REPORTS                           [2023] 10 S.C.R.


 A           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.
 B             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.
             15. We have heard Shri Kapil Sibal, learned senior counsel
 C     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
 D     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
 E     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
 F     ingredients of section 468 IPC are not made out in the present 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
 G     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.
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          TEESTA ATUL SETALVAD v. STATE OF GUJARAT                             1151
                       [B. R. GAVAI, J.]

       19. Shri S.V. Raju, learned Additional Solicitor General of India,      A
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
                                                                               B
ups in the State Government at that time. He submits that the attempt
was to destabilize a democratically elected Government. Shri Raju 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    C
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       D
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      E
Singh and Another v. Prabhakar Rajaram Kharote and Others 2, a
detailed elaboration of evidence at the stage of 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.                                                                         F
       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.       G
       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

2
    (1980) 2 SCC 559                                                           H
1152             SUPREME COURT REPORTS                           [2023] 10 S.C.R.


 A     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
 B     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 case is not made out.
              26. In the limited understanding of law that we have, the factors
 C     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
 D     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
 E     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
 F     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
       from observing anything on that issue, as we have already held
 G     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
 H     available even at this stage.
        TEESTA ATUL SETALVAD v. STATE OF GUJARAT                                1153
                     [B. R. GAVAI, J.]

       33. It will be apposite to reproduce certain observations from the       A
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.       B
          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             C
                 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
                                                                                D
                                  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.”
                                                                                E
       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
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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.                    G

       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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1154              SUPREME COURT REPORTS                        [2023] 10 S.C.R.


 A            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
 B
       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
 C     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.

 D            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
       granted to her in terms of the order dated 02nd September 2022. The
       appellant has already surrendered her passport, which shall continue to
 E     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
 F     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.
 G
       Divya Pandey                                                 Appeal allowed.
       (Assisted by : Roopanshi Virang, LCRA)




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