Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 338 OF 2015
[Arising out of S.L.P. (Crl.) No.1512 of 2015
(D.No. 5077/2015]
Teesta Atul Setalvad and Anr. ... Appellant
Versus
State of Gujarat ... Respondent
O R D E R
Dipak Misra, J.
The present appeal, raises the seminal issue
whether the appellants, the wife and husband, trustees of
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two trusts, namely, “Citizens for Justice and Peace” (CJP)
and “Sabrang Trust”, should be taken into custody for
custodial interrogation on the bedrock of allegations
made by one Ferozkhan Saeedkhan Pathan, alleging that
the trustees along with others had raised few crores of
rupees as donations from certain donors from India and
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abroad by projecting the plight of the affected persons of
Gulbarga Society and by entering into a conspiracy, and
has promised that they would build a “museum” in
honour of the 2002 riot victims and also told them not to
sell their land with the assurance that the trustees would
arrange funds for the same, but they neither built the
museum as promised nor spent the amount for the
benefit of the members of the Gulbarga Society nor did
they fulfil the assurance made to the victims as regards
the sale of their properties but expended on themselves
by benumbing and comatosing their liberty by asking
them to face custodial interrogation or regard being had
to the nature of the offences, for which a crime
punishable under Sections 420, 406, 468, 120B of the
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Indian Penal Code (‘IPC’ for short) and Section 72(A) of
the Information and Technology Act, 2000 (for brevity
‘the Act’), has been registered should they be extended
the benefit of anticipatory bail, as envisaged under
Section 438 of the Criminal Procedure Code (CrPC) that
has been refused by the Court of Session as well as by
the High Court.
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2. Regard being had to the aforesaid issue, the
question that arises for consideration is whether liberty
on the one hand and fair and effective investigation on
the other, make out a case for extending the benefit
under Section 438 CrPC.
3. Needless to say “Liberty is to the collective body,
what health is to every individual body. Without health,
no pleasure can be tasted by man; without liberty, no
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happiness can be enjoyed by society.” Thus spoke
Bolingbroke.
4. In this context, a passage from Edmund Burke which
pertains to societal control is also apt to quote:
“Men are qualified for civil liberty, in exact
proportion to their disposition to put moral
chains upon their own appetites; in
proportion as their love to justice is above
their rapacity; in proportion as their
soundness and sobriety of understanding is
above their vanity and presumption; in
proportion as they are more disposed to
listen to the counsel of the wise and good, in
preference to the flattery of knaves. Society
cannot exist unless a controlling power upon
will and appetite be placed somewhere and
the less of it there is within, the more there
must be without. It is ordained in the eternal
constitution of things that men of
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The Works of Lord Bolingbroke with a Life, Vol.2 (Carey and Hart, 1841) 391
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intemperate minds cannot be free. Their
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passions forge their fetters.”
5. In this context, it is also seemly to reproduce what
John Adams, future second President of the United States
of America, while speaking about the definition of a
Republic, had said:
“The true and only definition is a
Government, in which all men, rich and poor,
Magistrates and subjects, officers and people,
masters and servants, the first citizen and the
last, are equally subject to the laws.”
The aforesaid passage clearly makes out that every
citizen is subject to the laws of the country. No one is
above law.
6. Having stated about the value of liberty, the concept
of regulated freedom, the societal restriction, the
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supremacy of the law, the concept of anticipatory bail
and the assertion of the prosecution about the non-
cooperation of the appellants in the investigation, and the
asseverations made by the appellants, we think it
appropriate that the matter should be heard by a larger
Bench.
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Alfred Howard, The Beauties of Burke (T. Davison, London) 109
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7. Accordingly, the Registry is directed to place the
matter before the Hon’ble Chief Justice for constitution of
appropriate larger Bench.
8. A three-Judge Bench of this Court, on 12.02.2015,
had granted interim protection till 13.02.2015, which was
extended by the next order passed on 13.02.2015 till
19.02.2015. When this Bench had heard the matter and
reserved the judgment on 19.2.2015, it had passed the
following order:-
“As an interim measure, it is directed that the
appellants shall not be arrested in connection
with FIR being C.R. No. 1 of 2014, registered
with D.C.P., Crime Branch, Ahmedabad,
Gujarat.”
9. As we are referring the matter to a larger Bench, the
interim order passed on 19.02.2015 shall remain in force
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till the larger Bench takes up the matter.
........................................J.
[DIPAK MISRA]
.........................................J.
[ADARSH KUMAR GOEL]
NEW DELHI
MARCH 19, 2015.
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