Hours after she was denied regular bail and asked to surrender by the Gujarat High Court, social activist Teesta Setalvad moved the Supreme Court where a three-judge bench will on Saturday night hear her plea for interim protection in a case of alleged fabrication of evidence to frame innocent people in 2002 post-Godhra riots cases.

A bench of justices Abhay S Oka and Prashant Kumar Mishra, which first heard the matter in a special hearing, urged the Chief Justice of India to assign the plea to a larger bench as the two judges were unable to agree on a decision.

"'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 bench said.

A three-judge bench will now hold a special hearing at 9.15 pm today (July 1).

At the outset, Justice Oka told Solicitor General Tushar Mehta, appearing for the Gujarat government, the high court could have granted some time to surrender.

"She has been on interim bail since September 2022. Was there a breach?" Justice Oka asked.

"Mr Mehta, you may have a case or not. This order is passed on Saturday. She was on interim bail since September last year. We haven't seen the order. Why insist on immediate surrender? Heavens will not fall," Justice Oka said.

Solicitor General Tushar Mehta, appearing for the Gujarat government, submitted that the entire State was maligned and a "sinister design" was employed by Setalvad.

Mehta contended that Setalvad did not deserve even interim bail as she had "forged documents, tutored witnesses and influences the justice delivery system" to make sensational allegations against the state government.

"For all that she has done...She may go to jail. If Your Lordships find that she has been wrongly taken into custody, she can always be released. That is the rule of law," he said.

As Solicitor General continued to make his arguments against the grant of protection and Justice Mishra appeared to be disinclined to consider relief at this stage, the bench directed that the matter be placed before CJI for the constitution of a larger bench.

Senior advocate CU Singh, appearing for Teesta, urged that the matter be listed immediately.

The bench, however, said it was for the CJI to decide.

Earlier in the day, the Gujarat High Court had rejected Setalvad's regular bail plea. Justice Nirzar Desai directed her to surrender immediately as she is out of jail after securing interim bail from the apex court in September last year.

As the applicant is out on interim bail granted by the Supreme Court, she is directed to surrender immediately," the court said in its order.

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 high court said.

This will encourage others also to act in a similar manner, it said.

Setalvad instituted litigations without any basis and made witnesses file false affidavits before various forums including the Supreme Court with the intention to implicate innocent persons and to unsettle the government and with an intention to tarnish the image of the then Hon'ble Chief Minister and thereby to send him to jail and compel him to resign, the high court said.

Showing her any leniency will encourage people to openly help an entity fulfil its agenda in an illegal and unlawful manner by playing with the sentiments of the community and changing the mindset of people in order to see to it that a particular political party gets a sufficient swing in their favour, it said.

Prima facie, this court is of the view that, today, if the applicant like this is enlarged on bail, that will deepen and widen the communal polarisation, the high court observed.

The court is also of prima facie view that Setalvad - a very influential person - can go to any extent to achieve her agenda as she did in the past by influencing the witnesses and by aggressively propagating against the government and its machinery as well as the then chief minister, the HC said.

The accused also showed courage in the past to threaten the witnesses, tamper with the evidence and influence the people, it said.

Setalvad was taken into custody on June 25 last year along with former Gujarat Director General of Police R B Sreekumar and ex-IPS officer Sanjiv Bhatt in a case registered by Ahmedabad crime branch police for allegedly fabricating evidence to frame innocent people in the post-Godhra riots cases.

An Ahmedabad sessions court had on July 30, 2022, rejected the bail applications of Setalvad and Sreekumar in the case, saying their release will send a message to wrongdoers that a person can level allegations with impunity and get away with it.

The High Court had on August 3, 2022, issued a notice to the state government on the bail plea of Setalvad and fixed the matter for hearing on September 19.

Meanwhile, she moved the Supreme Court (SC) for interim bail after the high court refused to consider her plea.

The apex court, on September 2 last year, granted her interim bail and asked her to surrender her passport with the trial court till the time the Gujarat High Court decided her regular bail plea.

The top court also asked her to cooperate with the probe agency in the investigation of the case.

Setalvad walked out of jail on September 3.