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The files for & against Teesta Setalvad: New SC bench to decide [today] if Guj HC was fair to both & right on arrest laws [Read SLP, judgments, affidavit]

Teesta Setalvad: Prosecution decidedly malafide
Teesta Setalvad: Prosecution decidedly malafide
Saurav Datta presents the case against Teesta Setalvad and Javed Anand, as well as their defence, and looks into the case law and arguments that’ll lie before the Supreme Court tomorrow (Thursday).

Does public interest demand Teesta Setalvad and Javed Anand’s custodial interrogation? Can the power of arrest be exercised merely because the police claim there is prima facie evidence to justify it?

Should civil society organisations, especially human rights NGOs, be subjected to more stringent government regulation and control to prevent them from exploiting those, whose rights they claim to espouse?

The Gujarat High Court agreed on all three grounds on 12 February, when it refused to grant anticipatory bail to the two activists, Setalvad and Anand, who, through their organisations Sabrang and Citizens for Justice and Peace (CJP), also happened to have been a perennial thorn in the Gujarat government’s side.

The Gujarat Government’s affidavit before the Gujarat high court contended that the duo used this money to splurge on foreign trips, liquor, and other personal luxuries.

The prosecution alleged that a good deal of the expenses were incurred in lavish shopping trips in Pakistan, Kuwait, the US, Canada and Europe, which casts considerable doubt on the nature of “social work” that CJP and Sabrang were claiming to be doing.

Moreover, the police alleged that Setalvad and Anand never cooperated with the investigation, and have even prohibited their auditors from handing over necessary documents to the investigators.

Special public prosecutor Mahesh Jethmalani told the Gujarat high court that the allegations were very serious. According to the judgment, Jethmalani said that the “documentary evidence on record would suggest that [Setalvad and Anand] have not been able to satisfactorily account” for the donations received, and that they had “misappropriated” the money “for their own materialistic pleasure and comfort [and] huge amount has been used for the purchase of items like wine, shoes, holiday resorts, air-tickets, etc”.

Case history

In January 2014 Setalvad and Anand, fearing that they were being set up and that arrest was imminent, approached the Bombay high court seeking anticipatory bail because they felt that the Gujarat high court didn’t appear to offer much hope as a venue.

(They had some precedent for that fear: nearly 11 years ago, the Supreme Court had delivered a stinging indictment of the Gujarat judiciary and prosecution in the Best Bakery case. It was Setalvad who had first taken up cudgels for Zaheera Sheikh, and in 2012, the Bombay High Court convicted four who participated in that gory carnage.)

On 31 January 2014, the Bombay High Court cited grounds of jurisdiction and declined to entertain the application. Setalvad and Anand then moved the Supreme Court which also decided not to interfere with the Bombay High Court Order.

The Supreme Court, while keeping open the question of law regarding jurisdiction, directed the Gujarat High Court to decide the case independently, without being prejudiced in any manner by the observations of its Bombay counterpart.

After a rejected anticipatory bail application before an Ahmedabad city sessions court on 25 March 2014, the ball returned to the Gujarat high court, which had to make a choice between the prosecution’s accusations, and the defendant’s claim to fundamental right to equal justice before the law.

But it wasn’t any ordinary anticipatory bail application: the applicants claimed that they were up against a powerful state that was determined to crush any voice that could tarnish its reputation.

A Supreme Court bench of justices Sudhansu Jyoti Mukhopadhaya and NV Ramana had momentarily stayed their arrest, with the activists having been represented by senior counsel Kapil Sibal.

A new bench of justices Dipak Misra and Adarsh Goel will hear their special leave petition (SLP) tomorrow (Thursday).

@Spread_law had tweeted:

Some lawyers objected discreetly to earlier bench saying PM @narendramodi attended reception of Justice Ramanna's daughter on 15th February


According to the high court, Seetalvad and Anand’s counsel Mihir Thakore:

submitted that the entire matter relates to accounts. It is for the Investigating Officer to look into the accounts with the help of any expert and find out whether any amount has been misappropriated or not. For that purpose, arrest of the applicants and custodial interrogation is not necessary.

Setalvad in her affidavit, claimed that those who had filed a complaint against them, were led by a disgruntled former CJP employee, who had “fallen prey to powerful vested interests” and whom the activists had sued for Rs 5 crores defamation in 2012.

Setalvad cited a resolution by other purported beneficiaries of the NGOs, which appeared to rubbish the claims against them, and issued public statements in their defence.

She alleged that the police deliberately went “out of its way to ‘question’” donors in order to intimidate them and cut off the NGOs’ funding.

Both Setalvad and Anand contended that all their representations to the police were accompanied by voluminous documentary evidence of expenditure incurred, which were also available to the Gujarat high court.

They also claimed that the Ahmedabad police deliberately ignored their evidence that several trial courts in Gujarat had ordered criminal proceedings against their former employee, for trying to mislead and obstruct the course of justice.

Did the high court ignore Setalvad’s counter-evidence?

Gujarat high court Justice Pardiwala on 12 February went with the Gujarat government’s line that Setalvad and Anand were strenuously stonewalling the investigation’s every attempt to arrive at the truth, while dismissing that the alleged malafides of the prosecution was relevant.

contended that the high court “completely ignores over 1500 pages of documentary evidence filed by” them

Writing in his judgment that he “would like to quote few paragraphs of the averments made in the affidavit-in-reply filed by the State of Gujarat”, Pardiwala proceeded to cite the state’s case across the next 20 pages (pages 13 – 33). 

In their Special Leave Petition (SLP), Setalvad and Anand have contended that the high court “completely ignores over 1500 pages of documentary evidence filed by” them, and have annexed a point-by-point rebuttal of each of the prosecution’s charges which the court has agreed with.

High court not impressed with ‘malafide’ allegation

The high court also held that merely citing, or even proving that there was a strong possibility of prosecutorial vindictiveness would not be sufficient to grant anticipatory bail.

The offences alleged were grave, and organisations collecting funds in the name of the poor and then embezzling those funds, deserve neither leniency nor indulgence, wrote Pardiwala.

Proving prosecutorial malice isn’t easy, and allegations of political persecution are doubly difficult to prove in a court of law, especially when opinions on both sides are severely polarised.

But there’s more to the case than mere alleged mala fide, which the court ignored according to the two activists.

What’s wrong with ‘custodial interrogation’?

Were Setalvad and Anand’s apprehensions regarding arrest and custodial interrogation totally misplaced?

Not quite, for the implications of arrest and “custodial interrogation” could be severe.

Section 167(2) of the Code of Criminal Procedure empowers a magistrate to extend custody for 15 days, if the prosecution can convince the court that it is a bona fide requirement.

the section allows an extension even beyond 15 days

And then, the proviso to the section allows an extension even beyond 15 days, if the magistrate is convinced that there are adequate grounds for doing so.

When is custodial interrogation permitted?

The Supreme Court has been clear in its 2014 decision in Km Hema Mishra vs State Of Up & Ors: custodial interrogation can be permitted only if a genuine need is established.

For this, a court has to go beyond agreeing with the police’s charge of a prima facie offence, it has to provide reasons for such agreement.

The existence of the power to arrest is one thing. The justification for the exercise of it is quite another.

Furthermore, the apex court also pointed out that arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person and therefore no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. The court pointed out that it would be “prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest”.

Stressing that denying a person of his or her liberty was a serious matter, the SC said:

A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. […]

No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so.

The Supreme Court then pointed out that arrest and custodial interrogation that follows should be only in the following circumstances: (i) if the accused persons will flee justice, or (ii) tamper with evidence, or (iii) intimidate witnesses.

In fact, these stipulations were incorporated into the CrPC by Section 41, which was enacted by the 2010 amendment.

When the Supreme Court hears the matter tomorrow, it may have to contend with much more than allegations and counter-allegations of malice.

The key questions of legality and fundamental rights should be foremost on its agenda.

Saurav Datta teaches media law and jurisprudence in Bombay and Pune.

The case files

Photo by Jaffar Theekkathir

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