IN THE SUPREME COURT OF INDIA

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. OF 2015(Arising out of the final judgement and order dated 12.2.2015 passed by the High Court of Gujarat in Criminal Miscellaneous Application No. 4677 of 2014)

SYNOPSISThis special leave petition is being filed against the order dated February 12, 2015 passed by the High Court of Gujarat by which anticipatory bail has been denied to the Petitioners, Teesta Setalvad and her husband Javed Anand.Petitioners have been actively involved in espousing the cause of the victims of Gujarat communal violence in 2002 and ensuring that a fair investigation is conducted regarding the carnage. This consistent and painful work has ensured a) over 117 life imprisonments to powerful perpetrators owing allegiance to the ruling dispensation; b) an ongoing case where criminal conspiracy, abetment of a high order is still being agitated against the high and mighty in the state; c) this has made Petitioner No. 1 and the organisation she represents the victim of careful vendetta to the extent that she has had to seek Anticipatory Bail (prevention from arrest) in three instances before this; d) on these earlier occasions, Anticipatory Bail has been sought and obtained from courts in Gujarat. The activities of Petitioner No. 1 representing her organisation, Citizens for Justice and Peace, includes mainly providing day to day, handy legal aid to over 570 Survivors who are also eye-witnesses in the critical cases currently afoot. This constitutional activity requires persistence, perseverance and resources. Even after the historic conviction of 117 persons to life imprisonment, pernicious efforts are being made to turn witnesses/survivors hostile, in order to a) either facilitate easy bail or b)reverse the convictions awarded. Till the appeals against these convictions are not disposed off and the convictions are not confirmed by the higher courts, the struggle of the Petitioners continues. However, attempts are being made constantly by the communal political outfits and the State machinery to curtail the movement and freedom of the Petitioners and also to arrest their activities, so as to cynically reverse the successes of the difficult struggle for reparation and justice. There have been numerous false allegations against the Petitioners even in the past and the Petitioners were exonerated by two trial court judgements where, too, the proceedings were sought to be disrupted by similar tactics. Central to these disruptions was a former employee of the Petitioner No. 1 s organisation who is being carefully propped up by political outfits. The Petitioner No. 1 for one reason or the other had to approach the Gujarat Courts for grant of Anticipatory Bail in connection with earlier instances of false and malafide allegations as mentioned above. The details of which are as follows:a) November, 2004: Best Bakery Re-Trial when the star witness turned hostile for the second time and was given Commando protection by the Gujarat police the day before her evidence was to be recorded in the re-trial in Maharashtra;b) February/March, 2011: Pandharwada Mass graves case from the Godhra Sessions Court, Gujarat.c) August 2011: Naroda Gaam case from Ahmedabad Sessions Court. Gulbarg Society in Ahemedabad was one of the worst locations of the carnage wherein 69 persons including women and children were butchered before being burnt alive. To commemorate the loss of the people of the Society, the Petitioners in collaboration with the members of the Society were considering setting up a museum at the land of the Society. However, the idea could not be materialized in view of the escalating prices of the land. The whole process was totally transparent and at no point of time did the Petitioners take or demand any money from the members of the Society or made any false promises. There was also no written agreement that any member or the society executed in favour of the Petitioners. The Petitioners or their trust and anybody representing them did not take possession of the property either. In fact when rates of the land escalated, it was communicated to the Society members that it would not be possible for the Petitioners organization to be able to purchase the properties and hence the proposal for the museum was cancelled as far back as in November 2012. For a whole period while the critical Zakia Jafri case against Narendra Modi and 59 others was being heard before the Magistrate in Ahmedabad pursuant to an order of this Honble Court dated 12.9.2011, the authorities were silent. Only after the Magistrate rejected the Protest Petition filed by Smt Jafri on 26.12.2013 did the authorities revive this old malafide complaint and file an FIR against the Petitioners. This FIR, at the instance of one of the residents of the Society, has been clearly filed at the behest of a political party and based on wrong assumptions, against the Petitioners and the office bearers of Gulbarg Society alleging that they had misappropriated funds collected in the name of opening the museum. The Petitioners trust is registered in Mumbai, their Bank accounts are located in Mumbai, their Income Tax returns are filed before the authorities in Mumbai and the Chartered accountants are located in Mumbai.

The animosity and the revengeful nature of the particular fraction has gone to the extent of lodging false cases in Gujarat in order to harass the Petitioners.

The scope of Section 438, Criminal Procedure Code, 1973 has been discussed in the Constitution Bench judgment, Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 and also in various other judgments. Following parameters for invoking jurisdiction under Section 438 have been laid down by this Honble court in these judgments- Since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that Section. The applicant must show that he has reason to believe that he may be arrested for a non-bailable offence. The Court has to consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him/her. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case.

That the Petitioners originally approached the High Court of Bombay as the cause of action if any had infact arose only in Mumbai. The High Court of Bombay had granted interim protection to the Petitioners which was extended by this Honble Court in SLP (crl) No. 1770 of 2014 giving liberty to the Petitioners to apply before the appropriate court in Gujarat. Following this order, the Petitioners approached the learned Sessions Judge who rejected the application at a time when the protection granted by this Honble Court was about to expire. The Petitioners filed a petition in the High Court of Gujarat immediately and were given protection and the protection continued till today. The petition for anticipatory bail itself was heard over ten months during which time the protection continued but unfortunately despite requests made by the Counsel for the Petitioners, that protection was not extended. The denial of anticipatory bail by the Gujarat High Court is on the face of it unsustainable and contrary to the law laid down by this Honble Court in various judgement in relation to anticipatory bail. As mentioned above the Petitioners were granted protection initially by the Bombay High Court which was continued by this Honble Court and has continued till today when the impugned order was passed. The Petitioners have been co-operating with the police and given all the information/documents which were relevant and necessary.

The Petitioners are responsible and respected citizens of this Country. The Petitioner no.1s grandfather was the first attorney general of the Country and her father was a respected senior advocate. There is no likelihood of them not co-operating with the law enforcement agencies and hence custodial interrogation is not required.

Under these circumstances the Petitioners are filing the present petition under the following set of facts and circumstances which are set out chronologically hereunder

POSITION OF PARTIES

TRIAL COURTHIGH COURT IN THIS COURT

BETWEEN1. Teesta Atul SetalvadSecretary,Citizens for Justice and PeaceNirant, Juhu Tara Road,Mumabi-400049 Applicant No. 1 Applicant No. 1 Petitioner No. 1

2. Javed AnandNirant, Juhu Tara Road,Mumabi-400049 Applicant No. 2 Applicant No. 2 Petitioner No. 2

VERSUSState of GujaratThrough the Chief SecretaryGovernment of Gujarat Block No.1, 3rd floor New Sachivalaya Complex Gandhinagar-382010 Respondent No. 1 Respondent No. 1Respondent No.1

A PETITION UNDER ARTICLE 136 OF THECONSTITUTION OF INDIAToThe Honble Chief Justice of Indiaand his companion justices of the Honble Supreme Court of IndiaThe humble Petition of theabove named Petitioner

MOST RESPECTFULLY SHOWETH:1. The Petitioners are filing the present Special Leave Petition in this Honble Court under Article 136 of the Constitution of India against the impugned judgment and final order dated 12.2.2015 passed by the Honble High Court of Gujarat rendered in Criminal Miscellaneous Application No. 4677 of 2014 whereby the Honble High Court has refused to grant Anticipatory Bail to the Petitioners under Section 438 of Criminal Procedure Code, 1973.

2. Questions of Law-The present petition raises the following important questions of law that needs interpretation of this Honble Court.A. Whether in a case where the dispute is clearly of civil nature, can anticipatory bail be rejected on the ground that custodial interrogation is necessary?B. Whether in the present case, the Honble High Court has considered the parameters laid down by this Honble Court in the case of SiddharamSatlingappaMhetre v. State of Maharashtra &Ors., (2011) 1 SCC 694 while granting Anticipatory Bail as these parameters have clearly not been taken into consideration while dealing with the anticipatory bail:i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

3. DECLARATION IN TERMS OF RULE 4 (2):The Petitioners state that they have not filed any other petition seeking Leave to Appeal in this Honble Court against the impugned judgment and final order dated February, 2015 passed by the Honble High Court of Gujarat rendered in Criminal Miscellaneous Application No. 4677 of 2014.

4. DECLARATION IN TERMS OF RULE 6:The Annexures produced along with the Special Leave Petition are true and correct copies of the pleadings/documents which form part of the record of the case in the Court/Tribunal below against whose order the leave to appeal is sought for in this petition.

5. GROUNDS

That being aggrieved by the impugned judgment and final order dated February 12, 2015, passed by the Honble High Court of Gujarat rendered in Criminal Miscellaneous Application No. 4677 of 2014, the Petitioners are filing the present Special Leave Petition on the following, amongst other grounds which are being raised without prejudice to one another: -

A. Because the Honble High Court erred in law as well as in fact in not granting Anticipatory Bail to the Petitioners. It ought to have been considered that the FIR has been registered against the Petitioners solely with the purpose to harass them and that there is absolutely no merit in the allegations.

B. Because the FIR filed against the Petitioners is based on a false and mala-fide complaint, solely for the purpose of harassing and torturing the Petitioners. The Petitioners have been actively involved in rehabilitation work in Gujarat after the communal riots in 2002 and also striving to ensure that a fair investigation is carried out regarding the carnage. As the carnage was motivated and supported by communal political outfits of the party in power, the State Government is not appreciative of the efforts of the Petitioners and are constantly trying to dissuade and disrupt the activities of the Petitioner. The present FIR is also lodged at the behest of the political outfits and has absolutely no merit in it.

C. Because the Honble High Court ought to have considered that even earlier numerous complaints and allegations have been made against the Petitioners with a mala fide intention and none of them had any truth in them. The Petitioners were exonerated of all the charges made against them and infact an enquiry was ordered against the complainant who made those allegations.

D. Because the Honble High Court ought to have considered that the Petitioners are actively involved in supporting the cause of the victims of communal violence in Gujarat and because of that are themselves victims of political vendetta. This Honble Court by its order dated April 21, 2004 had taken notice of the threats being issued to the Petitioner No. 1 and had directed adequate protection for her. This security arrangement continues till date and Petitioner No.1 is under constant protection and surveillance of CISF. It is humbly submitted that this fact itself rules out any possibility of Petitioner No. 1 absconding.

E. Because the Honble High Court erred in law as well as in fact in not considering that the complaint filed by the complainant does not establish any co-relation between the Petitioners and the alleged offence. Moreover, no loss has been caused to the complainant and he has initiated action against the Petitioners with a mala fide intention and wrong assumptions, making false and baseless allegations.

F. Because the allegations, assuming whilst denying them, would clearly constitute cause of action under the Foreign Contribution (Regulation) Act, 2010 and no prosecution can be initiated without due sanctions thereunder as a prerequisite. Therefore, it is humbly submitted that the complaint itself is liable to be quashed and the Petitioners be granted protection by way of Anticipatory Bail.

G. Because the Honble High Court erred in law as well as in fact in not considering that the accounts of the Trust of the Petitioners were regularly and statutorily audited and there was no question of misappropriating any funds. It is humbly submitted that the Sabrang Trust was considering setting up a Museum at the plot of the Gulbarg Society and the office bearers of the Society were supportive of the idea. The Society had passed a resolution approving the proposal that the said plot would be sold to the Trust for the museum. However, the same could not be materialized due to rise in the price of the land. At no point of time, was any demand made of any money or land from any member of the Society; the entire process was transparent and the complainant without any basis made the present complaint.

H. Because the Honble High Court ought to have appreciated that the Complainant has failed to establish any case against the Petitioners or provide any document or evidence in support of his allegations. There is no question of criminal breach of trust as the Petitioners were never in possession of any property or money belonging to the complainant or for that matter any member of the Gulbarg Society. It is humbly submitted that the present complaint is baseless and unfounded and the chances of conviction of the Petitioners after a trial are very bleak.

I. Because the Honble High Court ought to have granted protection to the Petitioners as by a mere perusal of the FIR filed by the complainant, it becomes evident that there is no merit in his allegations. The same is politically motivated solely for the purpose of harassing the Petitioners and disrupting their bona fide efforts for espousing the cause of the communal-riot victims of Gujarat.

J. Because the Honble High Court erred in law as well as in fact in not considering that the Petitioners are Journalists by profession and are responsible citizens of the society. There is no reason to believe that the Petitioners would not co-operate with the investigation and administration of justice. The present case does not warrant custodial interrogation as the matter is based on documentary evidence and the Petitioners are ready and willing to participate in the investigation.

K. Because the Honble High Court ought to have considered that grave injustice would be caused to the Petitioners in case Anticipatory Bail is not granted to them as the allegations made out against them are false and baseless and there is no reason to take them in custody. Their arrest would cause an irreparable injury with regard to their reputation and unnecessary harassment which is the sole intention of the complainant.

L. Because this is a fit case for granting Anticipatory Bail to the Petitioners as not only are the Petitioners being falsely implicated in the complaint which has been made with a mala fide intention, but there is also no reason for disbelieving that the Petitioners would interfere in any manner with the administration of justice or the investigation.

M. The Honble Supreme Court in SiddharamSatlingappaMhetre v. State of Maharashtra &Ors., (2011) 1 SCC 694, has laid down certain guidelines for granting Anticipatory Bail and the present matter satisfies all the criterion for being granted protection from this Honble Court.

6. GROUND FOR INTERIM RELIEFA. Because the Petitioners liberty at stake and they are likely to be arrested any point in time;B. Because the Petitioners have a good case on merits and the petition would become infructuous in case immediate protection is not granted;C. Because the Petitioners are likely to be physically harassed and abused under the hands of the police of the State of Gujarat and there is an apprehension that Petitioner No.1 could be bodily harmed given the history with the police which has warranted this Honble Court to grant her protection;D. Because the Petitioners family are currently being harassed and this harassment would continue if an ex parte interim order is not granted;

7. MAIN PRAYER

It is respectfully prayed that this Honble Court may be pleased to:

(a)grant special leave to appeal against the impugned judgment and final order dated February 12, 2015 passed by the Honble High Court of Gujarat in Criminal Misc. Application No.4677 of 2014; and(b)pass such other/further order, as this Honble Court may deem fit and proper in the facts and circumstances of the present case.

8. PRAYER FOR INTERIM RELIEF: It is respectfully prayed that this Honble Court may be pleased to:

a) grant stay of arrest of the Petitioners in the FIR being C.R.No. 1 of 2014 registered by DCP, Crime Branch, Ahmedabad.b) pass such other/further order, as this Honble Court may deem fit and proper in the facts and circumstances of the present case.

DRAWN AND FILED BY:-

(APARNA BHAT) Advocate for the Petitioners

Drawn on; 12.2.2015Filed on: 12.2.2015New Delhi

IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONSPECIAL LEAVE PETITION (CRIMINAL) NO. OF 2015

(Against the Final Order and Judgment dated February 12, 2015 passed by the Honble High Court of Gujarat rendered in Criminal Miscellaneous Application No. 4677 of 2014.)

IN THE MATTER OF:Teesta Atul Setalvad & Anr.Petitioners

Versus

Stateof GujaratRespondent

PAPER BOOK

Along with

Crl.M.P No. of 2015Application for exemption from filing certified or ordinary copy of the impugned order

with

Crl.M.P No. of 2015Application for Exemption from Filing Official Translation

(FOR DETAILED INDEX: KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONERS: MS. APARNA BHAT

IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONSPECIAL LEAVE PETITION (CRIMINAL) NO. OF 2015

(Against the Final Order and Judgment dated February 12, 2015 passed by the Honble High Court of Gujarat rendered in Criminal Miscellaneous Application No. 4677 of 2014.)

IN THE MATTER OF:Teesta Atul Setalvad & Anr.Petitioners

Versus

Stateof GujaratRespondent

CERTIFICATE

Certified that the special leave petition is confined to the pleadings before the Court whose order is challenged and no other document/documents are relied upon in those proceedings. It is further certified that the copies of the documents/annexures annexed to the special leave petition are necessary to answer the questions of law raised in the petition or to make out grounds urged in the special leave petition for consideration of this Honble Court. This certificate is given on the basis of instruction given by the person authorized by the petitioner whose affidavit is filed in support of the special leave petition.

FILED BY:

Aparna BhatAdvocate for the Petitioners12.2.2015New Delhi