NEW DELHI: Supreme Court today granted protection from arrest to social activist Teesta Setalvad and her husband for another six days in a case of alleged embezzlement of funds for a museum at Ahmedabad's Gulbarg Society that was devastated in the 2002 riots.
The apex court said it would independently examine on the basis of FIR whether it is a case for granting anticipatory bail or not which has been denied to Setalvad and her husband.
"We are not going to quash the FIR," a bench comprising justices S J Mukhopadhaya and N V Ramana said.
Senior advocate Kapil Sibal, appearing for the Setalvads, said "we are also only for anticipatory bail" and all documents would be placed to satisfy that "it is not the case of custodial interrogation."
After hearing for half an hour during which Additional Solicitor General Tushar Mehta opposed the plea, the bench deferred the matter for February 19, asking the parties to place before it the Gujarat High Court judgement and other additional documents.
In the mean time, the order passed yesterday granting them interim protection, shall continue till then, the bench said.
"We will look into the allegations in the FIR mainly. Let it be very clear, we will be looking at the case not by names but like the case of any ordinary individual," it observed.
The apex court was hearing the appeal filed by the Setalvads against the yesterday's judgement of the High Court by which their plea for anticipatory bail was rejected for not co-operating with the investigation.
The High Court had also observed that Setalvads were not cooperating in the probe and that "they cannot be armoured with full fledged anticipatory bail when applicant did not cooperate with the investigation."
Setalvad and her husband have been booked by the Crime Branch of Gujarat Police on charges of cheating, breach of trust and under the IT Act, in a matter relating to the construction of "Museum of Resistance" in the Gulbarg society in Ahmedabad which was hit by communal riot in 2002.
On February 28, 2002, in the aftermath of the Godhra train burning incident, armed rioters had swooped on the Gulbarg society and killed 69 people, including former Congress MP Ehsan Jafri.
When Sibal argued against the high court judgement and accused the state government of settling personal scores against the social activist, the bench asked "is it a case of where crores of rupees have been used for personal purpose in the name of religion".
Interrupting Sibal, the bench said "since you are arguing without the judgement in hand, we are independently considering whether it is a case of anticipatory bail or not."
The senior advocate said Setalvad and her husband were left with no option but to approach this court as the state government with its full might was hell-bent to arrest them. "We are a few left in this country to have the courage to fight with the state," said Sibal.
However, the bench said that "we are not going into the politics. We are treating it like a case of an ordinary citizen. We are not going by the name and this petition we heard like any other individual."
The senior advocate said the allegations of collection of crores of rupees in the name of two NGOs are also not correct and they were ready to place all documents for scrutiny and contended that the high court had passed the order without going into those documents running into 1500 pages.
Raising certain questions about the reference of bank accounts and other averments made in the FIR, the bench said "it is not a case of quashing FIR."
To this, Sibal said "we are also here only for anticipatory bail."
However the bench said "you have done everything to collect the money. You have taken undue advantage of the riot victims and you have showed the photographs of the victims to foreigners and used them to collect money."
Sibal said even if that is the case, there was no complaint from the donors.
The bench shot back saying the allegations were grave and a matter of investigation and victim's FIR cannot be dealt with like that.
Sibal said Setalvad was ready for investigation but court cannot go without providing protection to them as "the might of the state is looming large."
The bench said "FIRs like this can't be ignored. You have taken money in the name of the victims." At one point during the hearing, the bench asked "why don't the petitioners surrender and go for regular bail."
To this, Sibal said, "We can't do that. ... You don't arrest her, we will give you the documents." ASG Tushar Mehta, appearing for the Gujarat government, said there were "certain shocking facts" against Setalvad which required to be looked into by the apex court as those have been considered by the High Court in its judgement.
When Sibal countered it by saying that every fact is against the judgement, the bench made it clear, "Let us hear it independently on the basis of FIR only."
"We know you are not satisfied with the judgement. You pursue it with FIR," the bench observed.
The bench said, "We still do not want go by the judgement. We don't want to be biased. We want to hear you independently on the basis of the FIR. And we are not reading the High Court judgement."
The bench also questioned the manner in which Sibal argued for the anticipatory bail of Setalvad, saying it does not want to set a precedent like this as others would also cite this order.
The high-voltage hearing also saw some activist-advocates passing remarks to the dislike of the bench.
In one such incident when the former ASG Indira Jaising made some comments, the bench said, "We will not be swayed by the sentiments."
"This is not the way to address the court. We will consider this case like any other case. Please don't do like this," the bench said, adding "allow the counsel concerned to address the bench."
The judges also asked her to maintain decorum of the court.