NEW DELHI: In a setback to Gujarat police, Supreme Court today directed it not to arrest social activist Teesta Setalvad and her husband in a case of alleged embezzlement of funds for a museum at Ahmedabad's Gulbarg Society that was devastated in the 2002 riots.
The order came with a caveat that Setalvad and her husband Javed Anand would provide all required documents, vouchers and the list of donors to NGOs -- Sabrang Trust and Citizen for Justice and Peace and their failure to cooperate in the probe would give liberty to Gujarat police to seek cancellation of their bail.
"It is directed that the petitioners (Setalvad and her husband) will not be arrested in connection with the case," a bench comprising justices Dipak Misra and Adarsh Kumar Goel said while reserving its judgement on their plea seeking anticipatory bail.
The bench further said that the interim order of stay on their arrest, which was earlier extended by a bench of justices S J Mukhopadhyaya and N V Ramana, would continue.
The hearing in the matter was taken away from the bench headed by Justice Mukhopadhya and Chief Justice of India H L Dattu and listed before a new bench headed by Justice Misra without assigning any reason.
"You can file an application before us for cancellation of bail if they don't cooperate," the bench said when senior advocate Mahesh Jethmalani, appearing for Gujarat government, said the matter should not be disposed of and be kept pending as there was no surety that the accused were going to cooperate in the investigation.
At the fag end of two-hour-long hearing, senior advocate Kapil Sibal, appearing for Setalvad and her husband, took the liberty to say that the Gujarat government should ask for documents instead of going for custodial interrogation.
However, his comment did not go down well with the bench which said, "Don't act smart Mr Sibal. You provide all the documents. You also provide the list of donors."
"I have never played smart with the judges in my 42-year long career," Sibal shot back, adding, "whatever documents they ask me, I will give them in one week."
The bench declined to give any commitment to Sibal whether the inquiry would be limited to post-2007 donations received by the two trusts for setting up a museum in memory of the riot victims or would it cover the activities of NGOs since 2002.
The bench replied "who are we to say. You are only on anticipatory bail qua FIR."
Further, it did not give its response to a submission that instead of Gujarat, the accused should be probed in Mumbai. This demand was opposed by Jethmalani who said how can the police go all the way to Mumbai to carry out the investigation.
His reply evoked sharp reaction from some activist lawyers including former Additional Solicitor General Indira Jaising, who said if Gujarat Police could rush to the doorstep of Setalvad immediately after rejection of her anticipatory bail plea, why can't they go to Mumbai.
Senior advocate Dushyant Dave, who was also appearing in the matter for Setalvad, made remarks about the Gujarat Police by referring to the Soharabuddin Sheikh fake encounter case.
However, the bench accepted the request of Sibal that their accountant would be allowed to represent along with them before the Gujarat Police during the inquiry.
Unlike the hearing before previous bench headed by Justice Mukhopadhya where Setalvad had to face the heat, it was now the turn of Gujarat police to face some tough questions from the new bench headed by Justice Misra.
It had to satisfy the court that the case in hand was one of custodial interrogation as it was the case of "rank non- cooperation and tampering with witness".
Observing that personal liberty cannot be "bartered", the bench at the outset said it seemed it was a case of anticipatory bail and onus was on Gujarat police to argue "why there is a need for custodial interrogation."
"No one will ever barter his liberty for all the teas in China, for all the pearls in the sea and for all the stars in the sky. Liberty is that paramount... for me give me liberty or give me death. Personal liberty is paramount," the bench observed and asked, "is this a case where the liberty should be taken away or curtailed?"
"It can be a case of irregularity of funds in the trust used for sheer personal purpose but what is there for personal interrogation," the bench said making it clear that it was not going to deal with the concept of "malafide" prosecution when dealing with the anticipatory bail unless the custodial interrogation is required.
"We accept that custodial interrogation has its own value but this is just a case of mismanagement of accounts. Personalities do not become protagonists. A case is a case having human face and a case rests on its own facts," the bench said.
"Why should these people (Setalvad and her husband) be taken into custody," the bench asked Jethmalani who said there was complaint of cheating, criminal breach of trust, forgery and section 72 A of the Information Technology Act, besides "rank non-cooperation and tampering with the witness."
"We have given them maximum opportunity to come for interrogation," he said and added that they have been giving "stock replies/stock answers" to questions in the case in which the names of riots victims were exploited and used for collecting donations from India and abroad.
However, the bench said, "even in custodial interrogation, can you compel them to answer".
"There must be a balance and they must provide all documents and data and they are bound to provide.
However, you cannot expect a particular manner a person will answer," the bench said.
The bench, which minutely scrutinised penal provisions of forgery, criminal breach of trust, cheating and conspiracy levelled against Setalvad and her husband on several occasions, said such investigation could be done on the basis of documents "without putting the liberty of a person on ventilator or putting a person in intensive care unit (ICU)."
Jethmalani said even if there was an agreement with the bench that the case in hand was not of forgery and criminal breach of trust, the couple could still be quizzed in custody for the offence of section 420 (cheating) of the IPC.
However, the bench said, "in such situation what is the requirement for custodial interrogation".
"The question is purely a question of law and liberty. The question is can the liberty be put on the ventilator or in the ICU," the bench said, adding, "you require documents from them and they are obliged to provide documents under law."
However, Jethmalani took exception to the remarks which virtually indicated the mind of the bench by saying "it appears that you (bench) have made up your mind, but it is a case of custodial interrogation."
"We have to interrogate and find whether the money has gone. Can't police entitle to go into the money trail?," Jethmalani asked, but the bench said the accused can show the accounts book and other documents about the donors.
Jethmalani said it was like "nipping the investigation in the bud" and "since you have made up your mind to give them a leeway then hear us for a while."
Maintaining that it was looking at the nature of the offence, the bench said barring the contention that "they have not cooperated", there was nothing more to justify custodial interrogaton.
It asked whether this case be equated with any of the chit-fund scam or any other scam involving huge amounts if money and requiring custodial interrogation.
Jethmalani took the opportunity to submit that Setalvad and her husband have shown "arrogance and contempt" towards the Gujarat government which no other person would have shown.
"They have not been answering any question and there is a stock answer and stock replies," he said, adding that they used the money of Sabrang Trust and CJP to pay dues of credit cards used for personal purposes like beauty saloons, wines, branded clothes, shoes, jewellery and watches.
He said the FIR was based on the RTI information and it was clear that they had received huge donations from both national and international donors to the tune of Rs 80 lakhs in Sabrang Trust and Rs 63 lakhs in (Citizens for Justice and Peace) CJP. There was no audit of the accounts of the two trusts for six years and accounts were not lodged with the Charity Commissioner.
The senior advocate contended that scrutiny of their bank accounts showed they had more money than what was given by the auditors in their reports.
Jethmalani countered Sibal's claim that the amount involved was only Rs 4.60 lakhs and not in crores, saying the two NGOs -- Sabrang Trust received Rs 3.66 crore and CJP had Rs 3.25 crore in its account. He said Setalvad was not providing the statement about foreign funds received by Sabrang Trust under FCRA route.
However, this argument invited a remark from the bench whether such questions required during the preliminary enquiry or should it be put to the accused during the trial under section 313 of the CrPC.
He also said that one of the NGOs received around Rs 1.2 crore as donation from the Human Resources Development Minister when Sibal was the HRD minister.
At the outset, Sibal said no one was above law and anyone committing any wrong, whoever he or she may be, cannot get away with the law and this "I am saying with all humility". At the same time, the state can also not commit any wrong against people who have been fighting against it.
He said there have been six FIRs against them in which they were provided protection by the courts and the case at hand was the seventh FIR, in which "wrong" facts have been made the basis for booking them. He said the two NGOs only collected Rs 4.60 lakh and it was wrong that they had raised crores of rupees through donations. Any investigation can be done and they are ready for scrutiny of each and every entry of the accounts book.
"I challenge even one entry in entire record shows that I have used a paise from charity funds for personal use, I am out of this court," he said.
The apex court was hearing the appeal filed by Setalvad and her husband against the judgement of the Gujarat High Court which rejected their plea for anticipatory bail for not cooperating with the investigation.
The High Court in its February 12 judgement had observed that Setalvad and her husband were not cooperating in the probe and that "they cannot be armoured with full-fledged anticipatory bail when applicants 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 riots 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. One of the riot victims from Gulbarg Housing Society, which was burnt during the 2002 post-Godhra riots, had lodged a complaint with the Ahmedabad Police against Setalvad, Anand and two NGOs run by them - Citizens for Justice and Peace and Sabrang Trust - alleging misappropriation of funds to the tune of Rs 1.51 crore.
According to the complaint, the accused persons had collected funds in the name of converting part of the Gulbarg Society into a museum and had allegedly misappropriated funds worth Rs 1.51 crores.
The accused had contended that they have been implicated in the case and were victims of political vendetta. They claimed that they were being targeted by the perpetrators of the riots.
In 2006, the social activists decided to build the 'Museum of Resistance' at the site of the Gulbarg Society. Accordingly in 2009, a part of the plot was sold to Sabrang Trust.
However in 2012, the idea of the museum was dropped as the prices escalated. The same was communicated to the society.
But, according to the complaint filed against Setalvad, funds were collected by her despite the idea being dropped.