The Grant of Bail to Teesta Setalvad: A Legal Examination

 

The legal trajectory of the Teesta Setalvad bail case stands as a landmark in Indian criminal jurisprudence, particularly regarding the discretionary powers of the judiciary in granting bail. Emerging from the volatile aftermath of the 2002 Gujarat riots, this case transitioned through various levels of the Indian judicial system, from the Magistrate’s Court to the Supreme Court of India. The proceedings offer a profound insight into how the judiciary balances the personal liberty of an individual against the state’s interest in investigating alleged criminal conspiracies involving the fabrication of evidence.

The Genesis of the Prosecution and Registration of FIR

The legal troubles for Teesta Setalvad intensified significantly following the Supreme Court’s judgment in Zakia Ahsan Jafri v. State of Gujarat on June 24, 2022. In that ruling, the court observed that certain individuals had engaged in a “coalesced effort” to keep the “pot boiling” for ulterior motives. Promptly after these observations, the Ahmedabad City Detection of Crime Branch (DCB) registered an FIR on June 25, 2022. The charges were severe, involving Sections 468 (forgery for purpose of cheating), 469 (forgery for purpose of harming reputation), 471 (using as genuine a forged document), 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), and 120B (criminal conspiracy) of the Indian Penal Code (IPC).

The core of the prosecution’s case rested on the allegation that Setalvad, along with former police officers Sanjiv Bhatt and R.B. Sreekumar, conspired to fabricate evidence and tutor witnesses to implicate high-ranking government officials in the 2002 riots. The state contended that Setalvad had influenced victims to sign pre-prepared, stereotyped affidavits that contained false information. Following the registration of this FIR, Setalvad was arrested and placed in police remand for seven days before being shifted to judicial custody on July 3, 2022.

The High Court’s Divergence and the Gravity of Offences

When the matter reached the Gujarat High Court, the focus shifted toward the “gravity of the offence.” The High Court, in its detailed assessment, rejected the bail application on July 1, 2023. The presiding judge emphasized that the allegations suggested a deep-rooted conspiracy to malign the image of the then-state administration and to mislead the Special Investigation Team (SIT) appointed by the Supreme Court.

The High Court’s reasoning was built on the premise that while personal liberty is a fundamental right under Article 21 of the Constitution, it is not absolute. The court argued that the seriousness of the charges—particularly Section 194 of the IPC, which carries a potential sentence of life imprisonment—necessitated continued custody to prevent any interference with witnesses. Furthermore, the High Court noted that the petitioner had not sought to quash the FIR, which the court interpreted as a prima facie acknowledgement of the case’s merit. This specific interpretation later became a point of contention during the Supreme Court’s review.

Supreme Court Intervention and the Principle of Interim Protection

The Supreme Court’s involvement in the Teesta Setalvad bail case was characterized by a push for procedural fairness and the protection of individual liberty. Initially, the apex court granted Setalvad interim bail in September 2022. The bench noted that the FIR related to events that occurred between 2002 and 2012 and that the investigation had already seen seven days of custodial interrogation.

When the High Court eventually rejected the regular bail and ordered Setalvad to “surrender immediately,” the Supreme Court convened an extraordinary late-night session to stay that order. The justices questioned the urgency of the High Court’s demand for immediate surrender, given that Setalvad had been out on interim bail for months without any reported violation of bail conditions. This highlighted a significant tension between the High Court’s emphasis on the “seriousness of the crime” and the Supreme Court’s focus on “procedural propriety” and the “necessity of incarceration.”

Legal Doctrines: Bail is the Rule, Jail is the Exception

The final resolution by the Supreme Court reaffirmed the foundational doctrine of Indian criminal law: “Bail is the rule, and jail is the exception.” This principle, famously articulated by Justice Krishna Iyer in State of Rajasthan v. Balchand, serves as a safeguard against the arbitrary use of the state’s power to arrest.

In Setalvad’s case, the Supreme Court meticulously evaluated whether continued detention was necessary for the investigation. The bench observed that the entire case against her was primarily based on documentary evidence—affidavits, court records, and SIT reports—which were already in the possession of the Investigating Agency. Since the charge sheet had been filed, the court found no justification for keeping her in custody. The court also invoked the proviso to Section 437 of the Code of Criminal Procedure (CrPC), which allows for special consideration in the grant of bail to women, sick, or infirm persons.

Analyzing Section 194 of the Indian Penal Code

A pivotal legal question in this case was the applicability of Section 194 of the IPC. This section states:

“Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by the law for the time being in force… shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years.”

The prosecution argued that by fabricating evidence in the riot cases, Setalvad intended to procure capital punishment for innocent persons. However, the defense countered that for Section 194 to apply, there must be a clear link between the fabricated evidence and an actual conviction or a trial where such evidence was the deciding factor. The Supreme Court expressed skepticism regarding the immediate applicability of such heavy charges at the bail stage, suggesting that these are matters for trial and should not be used as a tool to deny liberty indefinitely.

Judicial Propriety and Natural Justice

The Supreme Court also addressed the concept of judicial propriety. It criticized the High Court’s approach of discussing the evidence in a manner that almost resembled a final conviction. The apex court noted that at the stage of bail, the court should only look for a “prima facie” case and not conduct a “mini-trial.”

The principle of Natural Justice was also central to the discussion. Setalvad’s counsel argued that the observations made in the Zakia Jafri judgment—which triggered the FIR—were made without Setalvad being a party to those specific proceedings in a capacity where she could defend her personal conduct against such allegations. The Supreme Court emphasized that while those observations could trigger an investigation, they could not be treated as a final verdict of guilt to bypass the standard requirements of bail.

The Role of Documentary Evidence in Bail Considerations

One of the most practical aspects of the Supreme Court’s decision was the nature of the evidence. In criminal cases, the risk of “tampering with evidence” is a primary reason for denying bail. However, the court pointed out that when a case is built on “documentary evidence” that is already part of the court record or the police’s case diary, the risk of the accused destroying that evidence is virtually non-existent.

By the time the regular bail was heard, the SIT had already filed a comprehensive charge sheet. This meant the investigation was effectively “complete” for the purposes of the bail application. The Supreme Court highlighted that once the charge sheet is filed, the “need” for custodial detention diminishes unless there is a proven risk of the accused fleeing or threatening witnesses.

Implications for Future Civil Rights Litigation

The Teesta Setalvad bail case has broader implications for activists and journalists in India. It raises questions about the threshold at which legal advocacy becomes “criminal conspiracy.” The state’s argument was that Setalvad crossed the line from being an advocate for victims to becoming a creator of false narratives. The Supreme Court’s intervention suggests that even in cases involving serious allegations against the state, the standard protections of the criminal justice system—specifically the right to bail—must remain intact.

The case also serves as a reminder of the “High Court’s duty” to protect the liberty of citizens. The Supreme Court’s decision to quash the High Court’s order was a subtle reminder that the lower courts must not be swayed by the “gravity of the allegations” alone, but must focus on the “necessity of detention.”

Conclusion: A Victory for Procedural Fairness

The grant of bail to Teesta Setalvad by the Supreme Court was not a verdict on her innocence or guilt, but a reaffirmation of the “due process of law.” The court balanced the scales by imposing strict conditions: she must not influence witnesses, she must surrender her passport, and she must cooperate with the trial.

The Teesta Setalvad bail case reinforces the idea that the power to arrest is not a power to punish. In the absence of a flight risk or a tangible threat to the integrity of the evidence, the judiciary must lean toward the protection of personal liberty. The Setalvad judgment will likely be cited for years to come as a definitive guide on how courts should handle high-profile bail applications where the state and civil society activists are in direct conflict.

References and Citations

1. Supreme Court of India, Teesta Atul Setalvad vs. State of Gujarat, (2023) 8 SCC 1. 
2. Supreme Court of India, Zakia Ahsan Jafri vs. State of Gujarat, (2022) SCC OnLine SC 773.
3. Indian Penal Code, 1860, Section 194: Giving or fabricating false evidence with intent to procure conviction of capital offence. 
4. Code of Criminal Procedure, 1973, Section 437: When bail may be taken in case of non-bailable offence. 
5. Constitution of India, Article 21: Protection of life and personal liberty. 
6. Supreme Court of India, State of Rajasthan vs. Balchand, (1977) 4 SCC 308. 
7. Gujarat High Court, Teesta Atul Setalvad vs. State of Gujarat, R/Criminal Miscellaneous Application No. 14435 of 2022.
8. Supreme Court of India, Satender Kumar Antil vs. Central Bureau of Investigation, (2022) 10 SCC 51. 
9. Indian Penal Code, 1860, Section 120B: Punishment of criminal conspiracy. 
10. Supreme Court of India, P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC 24.

Published and Authorized by Dhruvil Kanabar