The Supreme Court late Saturday night protected social activist Teesta Setalvad from arrest and stayed for a week the Gujarat High Court order rejecting her plea for regular bail and asking her to surrender immediately in a case of alleged fabrication of evidence to frame innocent people in 2002 post-Godhra riot cases.

In a special late-night hearing, a rarity on holidays and during vacations, a bench of Justices B R Gavai, A S Bopanna and Dipankar Datta questioned the denial of time to Setalvad to appeal against the HC order, saying even an ordinary criminal is entitled to some form of interim relief.

"In ordinary circumstances, we would not have considered such a request. However, it is to be noted that after FIR was registered on June 25, 2022, and the petitioner was arrested, this court considered the prayer for grant of interim bail and granted the same on certain conditions on September 2, 2022. One of the factors which weighed with this court was that the petitioner is a woman and entitled to special protection under section 437 of CrPC.

"We find that taking into consideration this fact, the learned single judge ought to have granted some protection so that the petitioner has sufficient time to challenge the order passed by the single judge. In that view of the matter without going into the merits, finding that learned single judge was not correct in granting even some protection, we stay the impugned order for a period of 1 week," the bench said after a 37-minute hearing.

The apex court said the registry shall obtain orders from the CJI for listing Setalvad's bail plea before an appropriate bench.

As the hearing commenced before the three-judge bench, senior advocate C U Singh, appearing for Setalvad, submitted that the top court had on September 2, 2022 granted interim protection to the activist till the high court decided her bail application.

Singh stated it is nobody's case that she has violated any condition of the interim bail granted to her.

"The Gujarat high court refused to stay the operation of the order for 30 days, but no reasons were given to explain the rejection in its order and immediate surrender was ordered," he said.

Solicitor General Tushar Mehta, appearing for the Gujarat government, urged the court to mete out the same treatment to Setalvad as to any ordinary citizen.

"I would expect your lordships to do the same thing which will be done in the case of a common man who has been rejected bail since she is a common criminal," the law officer said.

At this juncture, the bench observed," A person is on bail for the last 10 months under the orders of this court. What is the urgency that a person should not be granted even 7 days to challenge the order? Are the skies to fall? We fail to understand the approach of the high court. What is the alarming urgency?" Mehta said here is an individual who thinks she is not supposed to be treated like an ordinary criminal. "She is an ordinary criminal," he said.

"Even common criminals are granted interim relief," Justice Gavai observed.

Mehta submitted that Teesta started a campaign making false allegations against everyone.

"The riot did take place, and people from both communities were killed. But she saw an opportunity and came to this court with false allegations. A special investigation team was constituted by the Supreme Court and operated under its monitoring.

"The petitioner has filed false affidavits, and tutored witnesses. She also started collecting money for riot victims. The entire nation was maligned, not only inside the country but outside the country, by the petitioner. It is not a question of one individual. These offences are against the integrity of the nation," he said.

Responding to Mehta's contention, Justice Dutta observed," Mr Solicitor, her conduct might be reprehensible. The only question is whether the person is not entitled to interim bail." The three-judge bench heard the matter in a special sitting after a two-judge vacation bench differed on granting interim protection from arrest to Setalvad.

Facing impending arrest, Setalvad promptly moved the apex court seeking protection from arrest but a two-judge vacation bench could not reach a consensus on granting her interim relief.

The vacation bench of Justices Abhay S Oka and Prashant Kumar Mishra referred the matter to Chief Justice D Y Chandrachud, who swiftly put together a bench of three judges to hear Setalvad's petition challenging the high court order at 9:15 PM.

"After having heard this Special Leave Petition for some time, we are unable to agree while deciding the prayer for interim relief. Therefore, it will be appropriate if, under the orders of the Hon'ble the Chief Justice of India, this petition is placed before the appropriate larger Bench.

"The Registrar (Judicial) is directed to place this order immediately before the Hon'ble the Chief Justice of India," the two-judge bench of Justices Abhay S Oka and Prashant Kumar Mishra said earlier in the evening.

Earlier in the day, Justice Nirzar Desai of the Gujarat High Court directed her to surrender immediately as she was out of jail after having secured interim bail from the apex court in September last year.

The court observed Setalvad made attempts to unsettle a democratically elected government and sully the image of the then chief minister and current Prime Minister Narendra Modi, and tried to send him to jail.

Setalvad was arrested in June last year along with former Gujarat Director General of Police R B Sreekumar and ex-IPS officer Sanjiv Bhatt in an offence registered by Ahmedabad crime branch police for allegedly fabricating evidence to frame “innocent people” in the post-Godhra riots cases.

In its judgment, the high court observed that prima facie Setalvad used her close associates and riot victims to file “false and fabricated affidavits before the Supreme Court with a view to unseat the establishment and to tarnish the image of establishment and the then chief minister (Modi)”.

If today some political party gave her the task to unsettle the (then) government, tomorrow “some outside force may utilise and convince a person to make efforts in a similar line causing danger to the nation or to a particular state by adopting the same modalities”, it said.

Enlarging her on bail will send a false signal that everything in a democratic country is so lenient that “even if a person goes to the extent of making efforts to unseat the then establishment and disrepute the image of the then chief minister to see that he is sent to jail”, the person can be released on bail, the court said, in severe indictment of the Padma Shri awardee and former member of the erstwhile Planning Commission.

She helped the riot victims with the intention to gain personal and political benefits by collecting huge funds and projecting herself as a social leader and eventually becoming a member of the Planning Commission, it said.

The statement of witnesses indicate that she had prepared false affidavits and convinced the victims to file them before the Supreme Court and other forums and name innocent persons just to fulfil her own and that of Congress leader late Ahmed Patel’s personal and political agenda, the court said in its order.

As the apex court is closed for summer vacation and today being Saturday, a court holiday, there were just the judges, a few lawyers and court staff in courtroom 12 where the three judges heard the case.