One Case, Two Court Orders: Parsing the Documents in the Teesta Setalvad Case

On July 19, a three-judge bench of the Supreme Court granted regular bail to social activist Teesta Setalvad, setting aside the Gujarat high court’s 'perverse’ order denying her bail in the alleged evidence fabrication case. The following day, on July 20, a city sessions court in Ahmedabad rejected her application seeking discharge from the same case.

Additional Sessions Judge A.R. Patel dismissed her plea with the observation, “It is my clear opinion that there is enough prima facie evidence to frame charges against the accused persons looking at the accusations levelled by the prosecution and the material supplied to substantiate the accusations”.

The judge also asked the prosecution and defence to ‘open the case’ (start trial proceedings) from July 24.

Much has been written about the Supreme Court’s indictment of the Gujarat high court’s perverse reasoning in dismissing Setalvad’s bail application. The Supreme Court held that if the high court’s reasoning in rejecting her bail is 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 CrPC or Articles 226 or 32 of the Constitution. That Setalvad did not use these remedies before seeking bail was used against her by the high court.

But the oral observations of the Supreme Court during the hearing of her appeal against the high court’s dismissal suggest that the prosecution case against her is equally vulnerable.

It is true that the Supreme Court bench, in Paragraph 43 of its order, clarified that none of the observations made in the impugned high court order and any (sic for none) of the observations made in the July 19, 2023 order would influence the trial court at the stage of the trial. Therefore, the ASJ could not be faulted for rejecting most of Setalvad’s contentions which found resonance before the Supreme Court.

The Supreme Court observed so in Paragraph 43 of its July 19, 2023 order as a matter of routine, in order to avoid the impression of influencing the trial court to follow its reasoning which it applied in the bail order.  Yet, the dissonance between the apex court and the trial court while deciding similar issues suggests that the rot afflicting the lower judiciary is much deeper than what it appears to be.

In its affidavit before the sessions court opposing her plea, the Gujarat government had stated that the accused could not be discharged because she abused the trust of the victims of the 2002 riots by creating forged documents in their name and attempted to implicate innocent people using forged papers.

The Gujarat government cited the statements of Rais Khan Pathan, who once worked with Setalvad’s NGO Citizens for Justice and Peace (CJP). Pathan had alleged that all the affidavits of riot victims were prepared by her while the victims were asked to sign on blank papers.

The state government also relied on another affidavit filed by Narendra Brahmbhattm, who alleged that the late Congress leader Ahmed Patel had paid Rs 30 lakh to Setalvad.

The Supreme Court bench, in its July 19, 2023 order, however, refrained from observing anything on that issue, as in its view, a detailed elaboration of evidence must be avoided at the stage of consideration of grant of bail.

But the bench noted some aspects, which emerge from the record, which are of significance. Apart from noting her gender which merited grant of bail, the bench noted that the offences alleged against her relate to 2002 and going by the assertions in the FIR, pertain to documents which were sought to be presented and/or relied upon till 2012.

But what the Supreme Court bench orally observed during the hearing makes it far more significant than what it had explicitly mentioned in its order. “Section 194 would not be applicable according to the definition of evidence in the Indian Evidence Act, otherwise, it would have to be thrown into the dustbin if your contention is accepted,” Justice B.R. Gavai, who presided over the bench, was quoted as observing.

The Supreme Court bench had, keeping propriety in view, refrained from pronouncing on the merits of applicability of Section 194 to this case. However, the bench had recorded the submission of senior counsel Kapil Sibal, who argued on behalf of Setalvad, which was not contradicted by the Additional Solicitor General, S.V. Raju.

Sibal submitted that Section 194 IPC only dealt with the evidence recorded before the court. Sibal contended that since there is no material to show that Setalvad had fabricated false evidence intending thereby to cause or knowing it to be likely that she would thereby cause anyone 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.

Setalvad’s discharge application before the Ahmedabad sessions court further substantiates the case for non-applicability of Section 194 IPC.

As the Supreme Court’s July 19, 2023 order makes clear, Raju had no specific answer to this contention, apart from his fanciful claim that Setalvad was involved in a “serious crime” of attempting to convict innocent citizens for offences punishable with capital punishment and destabilise the democratically elected government.

The single judge of the Gujarat high court, Justice Nirzar S. Desai, on July 1 refrained from examining the prosecution’s case for applicability of Section 194 IPC on the ground that there was no need to deal elaborately  with the evidence at the stage of considering bail, and also because Setalvad, by not availing the legal remedies to challenge the FIR, could not do so later at the time of seeking bail.

Curiously, however, as revealed by the Supreme Court’s July 19, 2023 bail order, ASG Raju submitted during the hearing that the single judge of the high court prima facie found that the ingredients to constitute an offence under Section 194 IPC were present and a prima facie case had been made out, and therefore, the high court had rightly rejected her bail application (Paragraph 21).

Raju’s claims were apparently incorrect, as the single judge had expressly refrained from reaching a finding on the applicability of Section 194 IPC, to avoid examination of evidence at the stage of considering bail application.

Merits of discharge application

Setalvad filed her discharge application under Section 227 of the CrPC. Under this provision, if upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution, the judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for the same.

The FIR against Setalvad, former State Director-General of Police R.B. Sreekumar and former IPS officer Sanjiv Bhatt was registered by a police officer with the Crime Branch Police Station, Ahmedabad city pursuant to the judgment and order passed by the Supreme Court on June 24, 2022.  In paragraph 88 of this judgment, the Supreme Court observed that a coalesced effort of disgruntled officers of the State of Gujarat, along with others, was to create sensation by making revelations which were false to their knowledge and pursuing the proceedings for 16 years to keep the pot boiling for ulterior motive. The Supreme Court observed: “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.”

The Supreme Court’s above observation resulted in the state filing a detailed FIR the very next day, June 25, 2022,  alleging that Setalvad and the two other accused had conjured, concocted, forged and fabricated documents, including fabrication of documents by persons who are prospective witnesses and also tutoring the witnesses.

The affidavits, which are alleged to be forged by the FIR and the charge sheet, are filed by different witnesses before the Supreme Court in Transfer Petitions filed by the National Human Rights Commission. The Supreme Court noted this submission by Sibal during Setalvad’s bail hearing, but refrained from commenting on this aspect, for reasons of propriety.

In its July 19 bail order, the Supreme Court noted Sibal’s submission that in the absence of Setalvad being made party in the proceedings, the Supreme Court’s observations in paragraph 88 of the Zakia Ahsan Jafri case could not have been used against her. The bench tersely observed: “Judicial propriety would not permit us to delve into those issues.”

In her discharge application, Setalvad had argued that no grounds exist against her even prima facie to connect her to the alleged offences, much less to proceed further or to face rigours of trial as there is nothing to connect with the alleged substantive offences for which chargesheet has been filed.

Setalvad has contended in her discharge application that to be convicted under Sections 468, 469 or 471 of the Indian Penal Code (IPC), it is essential that the accused should have committed forgery as defined under Section 463 IPC.

Relying on Section 463 IPC, she submitted that unless one makes a false document, it cannot be alleged that she has committed any forgery even if she has intent to cause damage or injury to public or any person.

Making of a false document is defined in Section 464 IPC. Setalvad pointed out in her application for discharge that under Section 464 IPC, a person is said to make a document if it is either signed by her as if it is signed by the other or executed by her as if it is executed by the other. Consequently, when all the affidavits presented before the Supreme Court in 2003 were signed and affirmed before a Notary Public by the respective persons, and when none of them had alleged that they did not sign them, there was no question of any false document being created.

More significantly, Setalvad underlined that none of the affidavits could be said to be false documents under the first part of Section 464 IPC, and that even the prosecution had not laid any emphasis on the first part of Section 464 IPC.

Setalvad also explained in her application for discharge how the third part of Section 464 IPC would not apply to her.  It is an essential ingredient for invocation of the third part of Section 464 IPC that one person should act dishonestly or fraudulently as defined under the IPC.

Relying on Sections 23 and 24 of IPC, Setalvad  submitted that there has to be gain of property to the person acting dishonestly or loss of property to the person who is deceived. “Property cannot mean reputation or image; it only means either immoveable or moveable property,” she underlined.

Damage to the reputation or image cannot be termed as wrongful gain or wrongful loss, as it is separately covered as an offence under Chapter 21 of IPC. The offences against property are covered in Chapter 17 of IPC commencing from Sections 378 to 462, all of which only deal with either moveable or immoveable property.

Setalvad submitted that there is not an iota of allegation that any person who has filed affidavits in 2003 had wrongfully lost any property, whether moveable or immoveable, or that she, as an accused, had gained any property.  Therefore, she claimed that even the third part of Section 464 IPC would have no application in the case against her.

The word “fraudulently” is defined under Section 25 of IPC as follows: “A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise” (emphasis supplied).

Section 194

Setalvad highlighted serious violations of legal requirements for invoking Section 194 against her before the high court as well as in her discharge application before the sessions court. Giving false evidence and fabricating false evidence – offences under Section 194 – are defined under Sections 191 and 192 of the IPC. Section 191 can be applied only when the applicant is required by oath or by any express provision of law to state the truth, which was not alleged against her. None of the illustrations listed under Section 192 apply to Setalvad.

Besides, the offence under Section 194 IPC falls under Section 195(1)(b)(i) of the CrPC and no court shall take cognisance of such offence except on a complaint in writing of that court, or by such officer of that court as the court may authorise in writing in this behalf, or some other court to which that court is subordinate. Setalvad had pointed out this jurisdictional flaw before the high court as well as in her application for discharge before the sessions court, but in vain.

Setalvad had raised several other contentions as well substantiating  her case for discharge in her application before the sessions court.

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