Full Judgment Text
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)
J U D G M E N T
B.R. GAVAI, J.
1. Leave granted.
2. The appeal is taken up for final hearing.
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3. The appeal challenges the judgment and order dated 1 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.
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5. A judgment came to be delivered by this Court, on 24 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:
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another , 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.”
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6. Immediately on the next day i.e. on 25 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
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day after lodging of the FIR. On 26 June 2022, the appellant
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2022 (9) SCALE 385
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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
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custody on 03 July 2022.
7. Thereafter, the appellant filed an application for bail before
the learned Trial Judge i.e. Sessions Judge. The said application
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was rejected vide order dated 30 July 2022.
8. The appellant thereafter approached the High Court by filing
Criminal Miscellaneous Application No.14435 of 2022. The High
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Court vide its order dated 03 August 2022 issued rule and made
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it returnable on 19 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
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of 2022. This Court, vide its order dated 2 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
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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,
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and finally vide order dated 01 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
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consisting of two Hon’ble Judges on 1 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.
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14. Thereafter, the matter was listed before us on 5 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
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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
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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
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and Others , a detailed elaboration of evidence at the stage of
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(1980) 2 SCC 559
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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
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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
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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
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the order was passed by this Court on 02 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
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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
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dated 2 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
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protection under the orders of this Court from 2 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
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granted to her in terms of the order dated 02 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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