R/CR.

MA/14435/2022 CAV JUDGMENT DATED: 01/07/2023

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 14435 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIRZAR S. DESAI

==========================================================

1 Whether Reporters of Local Papers may be allowed YES

to see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy NO

of the judgment ?

4 Whether this case involves a substantial question NO

of law as to the interpretation of the Constitution
of India or any order made thereunder ?

==========================================================

TEESTA ATUL SETALVAD

Versus
STATE OF GUJARAT

==========================================================
Appearance:

MR MIHIR THAKORE SR ADVOCATE with

MR S M VATSA(6000) ADVOCATE for the Applicant(s) No. 1

MR MINTESH AMIN PUBLIC PROSECUTOR assisted by

MR MANAN MEHTA ADDL. PUBLIC PROSECUTOR and
MR RONAK RAVAL ADDL. PUBLIC PROSECUTOR for the Respondent
==========================================================

CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 01/07/2023

CAV JUDGMENT

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1. By way of this application preferred under Section

439 of the Code of Criminal Procedure, 1973
[‘Cr.P.C.’, for short] , the applicant is seeking her
release on regular bail in respect of FIR being 1ST
C.R.No. 11191011220087 of 2022 registered with DCB
Crime Branch Police Station, Ahmedabad City for
offences punishable under Sections 468, 469, 471, 194,
211, 218 and 120B of the Indian Penal Code.

2.1 The matter was extensively heard on 12.06.2023,

13.06.2023, 14.06.2023, 16.06.2023, 19.06.2023,
20.06.2023 and 21.06.2023 for at least 1 ½ hrs on
each day.

2.2 Learned senior advocate Mr.Mihir Thakore with

learned advocate Mr.S.M.Vatsa made submissions on
behalf of the applicant and learned Public Prosecutor
Mr.Mitesh Amin with learned Additional Public
Prosecutor Mr.Manan Mehta and learned Additional
Public Prosecutor Mr.Ronak Raval made submissions on
behalf of respondent State.

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2.3 As the record in the form of charge-sheet papers

of this application runs into almost around five
thousands pages and though both the learned counsels
appearing for respective parties were directed to file
brief written submissions, however, learned counsels
appearing for both the sides filed lengthy written
submissions and therefore, despite the Court knowing
fully well that in a bail application the judgment
should not be normally lengthy and usually must not
discuss evidence on record, considering the lengthy
submissions, the Court could not keep the judgment as
short as it should have been and as the learned
counsel for the applicant has touched certain aspects
relating to certain evidence and though the Court is
conscious about the fact that at the stage of bail, the
evidence need not be discussed, I am constrained to
consider certain aspects in this judgment as the
submissions made by either sides were such that the
Court was required to at least touch those aspects.

3. The brief facts giving rise to filing of the present

application are stated as under:

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3.1 In the FIR registered by one Mr.D.B.Barad serving

as Police Inspector of Crime Branch, Ahmedabad City
it is noted that the Hon’ble Supreme Court, in its
judgment pronounced on 24.06.2022 in Diary
No.34207.2018 (Zakia Ahsan Jafri vs. State of Gujarat
and Anr.) inter alia, in para:88, has observed as under:

“88. …. At the end of the day, it appears to

us that a coalesced effort of the disgruntled
officials of the State of Gujarat alongwith
others was to create sensation by making
revelations which were alse to their own
knowledge. The falsity of their claims had been
fully exposed by the SIT after a thorough
investigation. Intriguingly, the present
proceedings have been pursued for last 16
years (from submissions of complaint dated
8.6.2006 running into 67 pages and then by
filing protest petition dated 15.04.2013 running
into 514 pages) including with the audacity to
question the integrity of every functionary
involved in the process of exposing the devious
stratagem adopted (to borrow the submission of
learned counsel for the SIT), to keep the pot
boiling, obviously, for ulterior design. As a
matter of fact, all those involved in such abuse
of process, need to be in the dock and
proceeded with in accordance with law.”

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3.2 The said matter pertains to the complaint

submitted by Smt.Jakia Nasim Ahsan Jafri dated
08.06.2006 to the Director General of Police, Gujarat
State, Police Bhavan, Gandhinagar for the registration
of FIR under Section 302 read with Section 120(B) of
the Indian Penal Code and Section 193 read with
Section 114 of the Indian Penal Code, under Sections
186 and 153A, 186 and 187 of the Indian Penal Code
and under Section 6 of the Commission of Inquiry Act,
The Gujarat Police Act and the Protection of Human
Rights Act, 1951 wherein the allegations were
regarding the incidents which took place in Gujarat as
an aftermath of Godhra Train burning incident.

3.3 As per the FIR, after the killing of kar sevaks

travelling in Sabarmati Express Train took place at
Godhra railway station on 27.02.2002, a call for
Gujarat Bandh was given by Vishwa Hindu Parishad
and other Hindu Organizations on 28.02.2002 and on
28.02.2002, a huge mob indulged in attack on the
properties, shops and houses of Muslims as well as
Madarasa, mosques of Gulberg society located at

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Meghaninagar, Ahmedabad City took place which

resulted into the death of 39 muslims including Ex-
M.P. Late Ahesan Jafri. It is also noted in the FIR that
said Late Ahesan Jafri fired from his private licensed
weapon in self defense causing injuries to 15 persons
in the mob for which an offence registered at
Meghaninagar Police Station commonly known as
‘Gulberg Society case’ for that offence.

3.4 Meanwhile the National Human Right Commission

approached the Hon’ble Supreme Court by way of a
Writ Petition (Cri.) No.109 of 2003 and pursuant to the
same trial of Sessions Case No.152 of 2002 and other
eight Godhra Riots cases were stayed on 21.11.2003 by
the Hon’ble Supreme Court. Vide order dated
26.03.2008 the Hon’ble Supreme Court directed the
State Government to constitute a five members Special
Investigation Team (‘SIT’, for short) to undertake
inquiry and investigation including further investigation
in the nine cases stated therein. The SIT filed three
supplementary charge sheets before the concerned
Metropolitan Magistrate in this case.

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3.5 One Smt Jakia Nasim Ahesan Jafri submitted a

complaint on 08.06.2006 i.e. almost after more than
four years for the incident to Director General of
Police, Gujarat State, Police Bhavan, Gandhinagar for
registration of FIR under Section 302 read with Section
120(B) of IPC and Section 193 read with Section 114
of IPC, 186 and 153A, 186 and 153A, 186, 187 of IPC
and under Section 6 of Commission of Inquiry Act, the
Gujarat Police Act and the Protection of Human Rights
Act, 1951. On receipt of the complaint, the Director
General of Police entrusted the matter to Additional
Director General of Police (Intelligence) Gujarat to
inquire into the same who took up the complaint and
fixed dates to record the statement of Smt.Jakia
Naseem Ahesan Jafri. However, Smt Jafri insisted that
complaint given by her may be treated as FIR.

3.6 Smt. Jafri, on 01.03.2007, with the support of

Ms.Teesta Setalwad, who happens to be Secretary,
Citizens of Justice and Peace, filed an application
before this Court seeking direction from this Court to
direct the Director General of Police to register an FIR

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and further direct the same to be investigated by an

independent agency i.e. CBI.

3.7 The aforesaid petition was dismissed by this

Court on 02.11.2007 stating that the petitioner did not
adopt the procedure to file the complaint under Section
190 read with Section 200 of the Code of Criminal
Procedure and this Court directed the petitioner to file
appropriate private complaint if she wished to do so.

3.8 Being aggrieved by the aforesaid order,

Smt.Jakia Jafri and Citizens for Justice and Peace
through its Secretary Ms.Teesta Setalvad filed a Special
Leave Petition (Cri.) No.1088 of 2008 on 18.12.2007
before the Hon’ble Supreme Court of Indian and the
Hon’ble Supreme Court of India passed an order dated
27.04.2009 directing that the complaint dated
08.06.2006 sent by Smt.Jafri shall be examined by the
Special Investigation Team constituted pursuant to the
orders of this Court and the Special Investigation Team
was directed to take steps as required in law and give
its report to this Court within three months.

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3.9 Once the investigation was done by SIT and

inquiry and further inquiry was conducted by SIT,
periodical reports were submitted before the Hon’ble
Supreme Court of India, the Hon’ble Supreme Court of
India directed the Amicus Curiae to scrutinize all these
reports and to give opinion on the same.

3.10 After final report was submitted by learned

Amicus Curiae on 12.09.2011 the Chairman, SIT was
directed to forward final report along with entire
material collected by SIT to the Court which had taken
cognizance of Crime Report No.67 of 2002 as required
under Section 173(2) of the Cr.P.C. Ultimately, final
report under Section 173(2) of the Cr.P.C. was
submitted on 08.02.2012 in two volumes before the
Metropolitan Magistrate, Court No.11 by the SIT and
in the said closure report it was concluded by SIT that
there is no prosecutable material available against any
of the accused person and all the documents collected
and statements recorded during the course of inquiry
and investigation along with reports of learned Amicus
Curiae were submitted before the concerned Court

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against which the complainant preferred protest

petition before the learned Magistrate which was not
entertained and hence Revision Application being
Criminal Revision Application No.205 of 2014 was
preferred before this Court which was rejected vide
order dated 05.10.2017.

3.11 Smt.Jafri and Ms.Teesta Setalwad i.e. present

applicant thereafter filed Special Leave Petition before
the Hon’ble Supreme Court on 12.09.2018 having Diary
No.34207.2018 against the said judgment and order
dated 05.10.2017 wherein vide order dated 24.06.2022
the prayers of the petitioners were rejected by giving
elaborate reasons and in that context as the accused
persons found involved individually, collectively and or
in collusion with other individuals entities and
organizations in other offences, in this backdrop of the
case, FIR was registered against the present applicant
and other accused persons.

3.12 The present FIR is filed mainly against three

persons viz. (i) Sanjiv Bhatt, the then DIG, (ii)
R.B.Sreekumar retired IAS and Teesta Setalvad i.e.

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present applicant wherein it is stated that all these

three accused have conspired to abuse the process of
law by fabricating false evidence to make several
persons to be convicted for an offence that is
punishable with capital punishment and thereby
committed offence punishable under Section 194 of the
Indian Penal Code. They have also instituted false and
malicious criminal proceedings against innocent persons
with an intention cause injury which is an act
punishable under Section 211 of the Indian Penal Code.
The accused had at the time of their acts of
commission and omission were public servants and
they had framed incorrect records with intent to cause
injury to several persons for which they are culpable
under Section 218 of the Indian Penal Code and they
had also conspired and had prepared false record and
dishonestly used those records as genuine with an
intention to cause damage and injury to several
persons.

3.13 As far as present applicant is concerned, in the

FIR it was stated that in the final report submitted by

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SIT the present applicant had conjured, concocted,

forged and fabricated facts and documents and / or
evidence including fabrication of documents by persons
who were prospective witnesses of the complainant. It
is not just a case of fabrication of documents but also
influencing and tutoring the witnesses and making
them depose on pre-typed affidavits as has been noted
in the judgment of this High Court dated 11.07.2011
rendered in Criminal Miscellaneous Application
No.1692 of 2011.

3.14 Even Smt.Jakia Jafri, during her cross

examination, in Gulberg Society case being CR No.67
of 2002 as Prosecution Witness No.337 had conceded
that she knew Teesta Setalvad for some time and she
was tutored by Teesta Setalvad and that she had given
statement on 22.08.2003 before Nanavati Commission
and after giving statement she had no occasion to read
copy of that statement. All throughout she had
followed instructions of Teesta Setalvad and in the
final supplementary report filed by SIT in Gulberg
Society Case it was categorically stated that 19

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witnesses insisted to take on record their prepared

signed statements which according to them were
prepared by Teesta Setalvad and one advocate
Mr.M.M.Tirmizi. The statements so prepared were
stereotyped copies and were computerized prepared
statements given to them by Teesta Setalvad and
advocate Mr.M.M.Tirmizi and they had merely signed
those prepared statements prepared by them and they
did not show their willingness to show their own
statements to them.

3.15 For the aforesaid act of the present applicant,

an FIR was registered against her along with two other
co-accused viz. Sanjiv Bhatt and R.B.Sreekumar.

3.16 Once the FIR was registered, the applicant

herein preferred an application under Section 439 of
the Cr.P.C. for bail before the City Civil and Sessions
Court at Ahmedabad being Criminal Miscellaneous
(Regular) Application No.4617 of 2022 and the same
was rejected vide common order dated 30.07.2022 by
the learned Additional Principal Judge, Court No.2,
City Civil and Sessions Court, Ahmedabad. The

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aforesaid order of rejection was passed by way of a

common order in respect of three bail applications
being Criminal Miscellaneous (Regular) Application
No.4617 of 2022, Criminal Miscellaneous (Regular)
Application No.4646 of 2022 and Criminal
Miscellaneous (Interim) Application No.4869 of 2022.

3.17 In this application, the coordinate Bench of

this Court vide order dated 03.08.2022 issued Rule
making it returnable on 19.09.2002. The aforesaid
order was challenged by the present applicant along
with the order dated 30.07.2022 passed by the Sessions
Court, Ahmedabad in Criminal Miscellaneous
Application No.4617 of 2022 and allied matters and the
present applicant was released on interim bail by the
Hon’ble Supreme Court of India vide order dated
September 2nd, 2022 in Criminal Appeal No.1417 AND
1418 of 2022.

3.18 While passing the order dated 02.09.2022

allowing the appeal preferred by the applicant, the
Hon’ble Supreme Court has observed as under:

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“We hasten to add that the relief of interim

bail is granted to the appellant in the peculiar
facts including the fact that the appellant
happens to be a lady. This shall not be taken to
be a reflection on merits and shall not be used
by the other accused. As and when such occasion
arises, the submissions on behalf of the
concerned accused shall be considered purely on
their own merits.

We, therefore, direct as under:

a. The appellant shall be produced before the

Sessions Court tomorrow i.e. on 03.09.2022 and
the Sessions Court shall release the appellant on
interim bail, subject to such conditions as the
Sessions Court may deem appropriate to impose,
to ensure the presence 7 and participation of the
appellant in the pending proceedings. It shall be
open to the Sessions Court to grant the relief of
interim bail on submission of cash security or
bond rather than insisting upon local surety.

b. The appellant shall surrender her Passport

forthwith and the Passport which shall be kept in
custody by the Sessions Court till the matter is
considered by the High Court in Miscellaneous
Criminal Application No.14435 of 2022.

c. The appellant shall render complete

cooperation in the pending investigation.

At the cost of repetition, we may observe

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that we have considered the matter from the

standpoint of considering interim bail and we
shall not be taken to have expressed any view
touching upon the merits of the submissions
advanced on behalf of the appellant. The pending
applications before the High Court shall be
considered by the High Court independently and
uninfluenced by any of the observations made by
this Court in the instant order.

8 The appeals are allowed to the extent indicated

above.”

3.19 While passing the aforesaid order, the

Hon’ble Supreme Court categorically observed that the
pending application before the High Court shall be
considered by the High Court independently and
uninfluenced by any of the observations made by this
Court in the instant order and, therefore, both the
learned counsel appearing for the respective parties
made lengthy submissions based on merits of the
matter.

3.20 In view of above, the matter was heard at

length as stated in forgoing paragraphs and both
learned counsels appearing for the respective parties
had submitted written submissions which are

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reproduced as it is as under:

4.1 WRITTEN SUBMISSIONS ON BEHALF OF THE

APPLICANT SUBMITTED BY LEARNED SENIOR
ADVOCATE MR.MIHIR THAKORE:

“1. Before going into the submissions in law, it would be

pertinent to highlight that the Supreme Court, in Diary
No.34207 of 2019, pronounced its judgment on
24.06.2022, inter alia, observing in Para 88 that a
coalesced effort of disgruntled officers of the State of
Gujarat, along with others, was to create sensation by
making revelations which were false to their knowledge
and pursuing the proceedings for 16 years to keep the
pot boiling for ulterior motive. The Supreme Court
observed “As a matter of fact, all those involved in such
abuse of process, need to be in the dock and proceeded
with in accordance with law.” This observation resulted
in the State filing the FIR the very next day i.e.
25.06.2022. It is claimed that the Applicant had
conjured, concocted, forged and fabricated documents,
including fabrication of documents by persons who are
prospective witnesses and also tutoring the witnesses. The
affidavits, which are alleged to be forged in the FIR and
the charge sheet, are filed by different witnesses before
the Supreme Court in Transfer Petitions filed by National
Human Rights Commission. These affidavits are all dated
between 06.11.2003 and 17.11.2003 (Please see, Item
No.17 in the List of Dates furnished by the Applicant to
the Court. It gives the page numbers of the Supreme
Court affidavit, Court evidence, statements under Section
161 of the CrPC before the State appointed SIT and the
details in respect of which case they are witnesses).

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2 The Applicant is seeking regular bail from this Hon'ble

Court in respect of the above-referred FIR, where the
Applicant was accused No.3 and charge sheet, where the
Applicant is accused No.1. The Sessions Court, in
Criminal Miscellaneous Application No. 4617 of 2022, by
order dated 30.07.2022, rejected the bail application filed
by the Applicant. The High Court, in the present
Criminal Miscellaneous Application, on 03.08.2022, issued
rule making it returnable on 19.09.2022. The Applicant
approached the Supreme Court in Criminal Appeals No.
1417 and 1418 of 2022. The Supreme Court, considering
that –

(i) the Appellant is a lady;

(ii) the Appellant has been in custody since 25.06.2022;
(iii) the offences alleged against her relate to the year
2002 till 2012;
(iv) and the investigating machinery has had the
advantage of the custodial interrogation which is
completed,

while clearly observing that the High Court shall consider

the bail application independently and uninfluenced by
any observation made by the Supreme Court in the said
order, granted interim bail till the matter is considered
by the High Court by its order dated 02.09.2022. The
Applicant was, accordingly, enlarged on bail since
03.09.2022. The Applicant has never been called by the
investigating agency till the filing of charge sheet or even
thereafter for investigation. There is not an iota of
allegation against the Applicant that the Applicant has
tried to influence any witness or even approach any
witness during the last 9 months. Even before the
Supreme Court, there was not even a whisper that the
Applicant has influenced or is likely to influence any
witness or has tampered or is likely to tamper with
evidence. It is in this background that the present

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application is required to be considered.

3. The relevant provisions for grant of bail in the Criminal

Procedure Code, 1973 are Sections 437 (by Court, other
than High Court or Court of Session) and 439 (High
Court or Court of Session). They are reproduced below:

“437. When bail may be taken in case of non-bailable

offence. -[(1) When any person accused of, or suspected
of, the commission of any non-bailable offence is arrested
or detained without warrant by an officer in charge of a
police station or appears or is brought before a Court
other than the High Court or Court of Session, he may
be released on bail, but -

(i) such person shall not be so released if there

appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or
imprisonment for life;

(ii) such person shall not be so released if such

offence is a cognisable offence and he had been
previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for
seven years or more, or he had been previously
convicted on two or more occasions of [a cognisable
offence punishable with imprisonment for three
years or more but not less than seven years]:

Provided that the Court may direct that a person referred

to in clause (i) or clause (ii) be released on bail if such
person is under the age of sixteen years or is a woman
or is sick or infirm:

Provided further that the Court may also direct that a

person referred to in clause (ii) be released on bail if it
is satisfied that it is just and proper so to do for any

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other special reason:

Provided also that the mere fact that an accused person

may be required for being identified by witnesses during
investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on
bail and gives an undertaking that he shall comply with
such directions as may be given by the Court].

[Provided also that no person shall, if the offence alleged

to have been committed by him is punishable with
death, imprisonment for life, or imprisonment for seven
years or more, be released on bail by the Court under
this sub-Section without giving an opportunity of hearing
to the Public Prosecutor.]

(2) If it appears to such officer or Court at any stage of

the investigation, inquiry or trial, as the case may be,
that there are no reasonable grounds for believing that
the accused has committed a non-bailable offence, but
that there are sufficient grounds for further inquiry into
his guilt, [the accused shall subject to the provisions of
Section 446-A and pending such inquiry, be released on
bail], or, at the discretion of such officer or Court, on
the execution by him of a bond without sureties for his
appearance as hereinafter provided.

(3) When a person accused or suspected of the

commission of an offence punishable with imprisonment
which may extend to seven years or more or of an
offence under Chapter VI, Chapter XVI or Chapter XVII
of the Indian Penal Code (45 of 1860) or abetment of, or
conspiracy or attempt to commit, any such offence, is
released on bail under sub-section (1), [the Court shall
impose the conditions,-

(a) that such person shall attend in accordance with

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the conditions of the bond executed under this

Chapter,

(b) that such person shall not commit an offence

similar to the offence of which he is accused, or
suspected, of the commission of which he is
suspected, and

(c) that such person shall not directly or indirectly

make any inducement, threat or promise to any
person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the
Court or to any police officer or tamper with the
evidence,and may also impose, in the interests of
justice, such other conditions as it considers
necessary.]

(4) An officer or a Court releasing any person on bail

under sub-section (1) or sub-section (2), shall record in
writing his or its [reasons or special reasons] for so
doing.

(5) Any Court which has released a person on bail under

sub-section (1) or sub-section (2), may, if it considers it
necessary so to do, direct that such person be arrested
and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a

person accused of any non-bailable offence is not
concluded within a period of sixty days from the first
date fixed for taking evidence in the case, such person
shall, if he is in custody during the whole of the said
period, be released on bail, to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing,
the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a

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person accused of a non-bailable offence and before

judgment is delivered, the Court is of opinion that there
are reasonable grounds for believing that the accused is
not guilty of any such offence, it shall release the
accused, if he is in custody, on the execution by him of
a bond without sureties for his appearance to hear
judgment delivered. (emphasis supplied)

439. Special powers of High Court or Court of Session

regarding bail.- (1) A High Court or Court of Session
may direct-

(a) that any person accused of an offence and in custody,

be released on bail, and if the offence is of the nature
specified in sub-section (3) of Section 437, may impose
any condition which it considers necessary for the
purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when

releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session

shall, before granting bail to a person who is accused of
an offence which is triable exclusively by the Court of
Session or which, though not so triable, is punishable
with imprisonment for life, give notice of the application
for bail to the Public Prosecutor unless it is, for reasons
to be recorded in writing, of opinion that it is not
practicable to give such notice.

[Provided further that the High Court or the Court of

Session shall, before granting bail to a person who is
accused of an offence triable under sub-section (3) of
section 376 or section 376AB or section 376DA or section
376DB of the Indian Penal Code, give notice of the
application for bail to the Public Prosecutor within a
period of fifteen days from the date of receipt of the

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notice of such application.]

[(1A) The presence of the informant or any person

authorised by him shall be obligatory at the time of
hearing of the application for bail to the person under
sub-section (3) of section 376 or section 376AB or section
376DA or section 376DB of the Indian Penal Code.]

(2) A High Court or Court of Session may direct that any

person who has been released on bail under this Chapter
be arrested and commit him to custody.” (emphasis
supplied)

From the aforesaid emphasized provisions, it would

become evident that certain offences are treated
differently and considerations for releasing a person on
bail is different if he is under the age of 16 years, or is
a woman, or is sick, or infirm.

4. The following general principles, as enunciated by the

Supreme Court in different judgments, are required to be
considered while granting or refusing bail:

(i) The Court has to presume innocence of the accused

while considering a bail application.
(ii) Denial of bail amounts to deprivation of personal
liberty, and grant of bail is the rule and refusal is
exception.
(iii) Object of detention or imprisonment of the accused
is to secure his appearance and submission to the
jurisdiction and judgment of the Court. Primary
inquiry is whether bond would effect that end.
Object of detention is never punishment before
trial.
(iv) Whether the accused is likely to abuse the
discretion granted in his favour by tampering with
evidence or influencing witnesses or threatening the

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complainant. Mere apprehension of tampering with

evidence or influencing witnesses or threatening the
complainant without anything else is not ground for
refusal of bail.
(v) The nature of accusations and the severity of
punishment in the case of conviction and the nature
of materials relied upon by the prosecution.
(vi) Character behaviour and standing of the accused.

The aforesaid principles are laid down in various

judgments of the Supreme Court which are enumerated
below:

(i) Gurbux Singh Sibbiya vs. State of Punjab, (1980) 2

SCC 565 (Para 26 to 30)
(ii) Bhagirathsinh Mahipatsinh Jadeja vs. State of
Gujarat, (1984) 1 SCC 284 (Para 7)
(iii) State of UP vs. Armani Tripathi, (2005) 8 SCC 21
(Para 18 to 23)
(iv) Ranjitsinh Brahmajitsinh Sharma vs. State of
Maharashtra, (2005) 5 SCC 294 (Para 35 to 49)
(matter arising under MCOCA with more stricter
provisions for granting bail)
(v) P. Chidambaram vs. Central Bureau of Investigation,
(2020) 13 SCC 337 (Para 21 to 26, 30 to 33)
(vi) P. Chidambaram vs. Directorate of Enforcement,
(2020) 13 SCC 791 (Para 16 to 31)

5. The Supreme Court, in a recent decision in Satender

Kumar Antil vs. Central Bureau of Investigation and
another, (2022) 10 SCC 51, after categorizing the various
offences and after referring to Arnesh Kumar vs. State of
Bihar, (2014) 8 SCC 273, has laid down various principles
for grant and refusal of bail. The Hon'ble Court would be
pleased to consider the following relevant paragraphs 2,
12, 14 to 19, 27, 51, 66, 68, 69, 71 and 78 of the said
judgment.

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6. Considering the above principles, the following would

become evident:

(i) It would be pertinent to highlight that while

considering the bail application, the Court has to
presume innocence in respect of the accused not
only for the present proceedings, but all the earlier
proceedings which are being referred to by the
prosecution.

(ii) It would be pertinent to highlight that every

accused is entitled to personal liberty and
deprivation of bail to the Applicant would amount
to pretrial detention which is contrary to the
principles laid down in various judgments.

(iii) The Applicant is not a flight risk and would

certainly be available to the Court and the police
whenever required. It is pertinent to point out that
the investigation agency has never called the
Applicant, even once, since her release on interim-
bail order dated 3/09/2022. It would be pertinent
to highlight and as would be evidence from the
documents produced by the Applicant, that the
Applicant has been granted bail and anticipatory
bail in various proceedings by the Trial Court, High
Court and the Supreme Court. A factor which
would weigh while granting such orders, would be
whether the Applicant is flight risk or would not be
available for interrogation or trial. The fact that
these courts have granted orders itself shows that
the Applicant has never been flight risk and would
be always available for interrogation and the Court
during trial. The object of detention can never be
punishment and, therefore, denial of bail would
amount to deprivation of personal liberty, which

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ought not to be considered.

(iv) During the course of arguments, the only allegation

made regarding tampering with witnesses is in
respect of alleged excavation in Lunawada Taluka
(Charge Sheet Pg.4430-4433). In the said case,
anticipatory bail has been granted to Applicant by
the Sessions Court on 15.02.2011 (Applicant’s Paper
Book Pg.665-674, Item No.56 in the List of Dates).
Although charge sheet has been filed, the Applicant
is not shown as an accused in Column No.1 and
the accused was never absconder. There is no
allegation that the Applicant has tried to influence
or approach any witnesses who had filed affidavits
in the Supreme Court since the date the affidavits
were filed till today. They have independently given
statement before the Supreme Court appointed SIT
as well as, as witnesses in various trials which have
concluded. There is no allegation even in any of
the statement or evidence of the witnesses cited in
the present chargesheet that the Applicant has
approached them or tried to influence them since
their evidence in their respective trials. Since the
Applicant was released by the Supreme Court on
03.09.2022, till today there is no allegation even by
the prosecution that the Applicant has tried to
tamper with evidence or influence any witnesses.
There is not even an allegation against the
Applicant that she has approached any witness in
any other criminal case filed against her where bail
or anticipatory bail has been granted to her and no
application by the State has been filed in any of
those cases for cancellation of bail on such ground.
The sole allegation made by any person is by Raees
Khan, that too, two years after he was removed
from service of Citizen for Justice and Peace
(“CJP” for short). Even the complaints alleged to

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have been made by Raees Khan Pathan has not

resulted in any inquiry or finding against the
Applicant that Applicant has tried to influence or
threaten him.

(v) The Applicant has been a journalist over last 30

years and there is nothing to indicate anything
against her character or behaviour.

(vi) The investigation agency has not shown or

identified any other person in Coloumn No.-2 of the
chargesheet as absconding or ‘not arrested’ not
chargesheeted etc.

(vii) In respect of the nature of accusations and the

material relied upon, the submissions are made in
the paragraphs following.

7. In the charge sheet, the Applicant is accused of offences

covered under the following sections of the IPC: Section
468, 469, 471, 194, 211, 218 and 120B. It is submitted
that to be convicted under Sections 468, 469 or 471, it is
essential that the accused should have committed forgery
as defined under Section 463.

(a) Section 463 of the IPC reads as under:

“463. Forgery. - Whoever makes any false

documents or false electronic record or part of a
document or electronic record, with intent to cause
damage or injury to the public or to any person, or
to support any claim or title, or to cause any
person to part with property, or to enter into any
express or implied contract, or with intent to
commit fraud or that fraud may be committed,
commits forgery.” (emphasis supplied)

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To accuse a person of forgery, there has to be an

intention to cause damage or injury to public or
any person or to support any claim with intent to
commit fraud, etc., but it is essential that such
person has to make a false document. Unless he
makes a false document, it cannot be alleged that
he has committed any forgery even if he has intent
to cause damage or injury to public or any person.

(b) Making of a false document is defined in Section

464, which reads as under:

“464. Making a false document. - A person is said

to make a false document or false electronic record
–

First. - Who dishonestly or fraudulently -

(a) makes, signs, seals or executes a document or

part of a document;

(b) makes or transmits any electronic record or part

of any electronic record;

(c) affixes any [electronic signature] on any

electronic record;

(d) makes any mark denoting the execution of a

document or the authenticity of the [electronic
signature].

With the intention of causing it to be believed that

such document or part of document, electronic
record or [electronic signature was made, signed,
sealed, executed, transmitted or affixed by or by
the authority of a person by whom or by whose

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authority he knows that it was not made, signed,

sealed, executed or affixed; or

Secondly. - Who, without lawful authority,

dishonestly or fraudulently, by cancellation or
otherwise, alters a document or an electronic record
in any material part thereof, after it has been
made, executed or affixed with [electronic
signature] either by himself or by any other person,
whether such person be living or dead at the time
of such alteration; or

Thirdly. - Who dishonestly or fraudulently causes

any person to sign, seal, execute or alter a
document or an electronic record or to affix
his [electronic signature] on any electronic record
knowing that such person by reason of unsoundness
of mind or intoxication cannot, or that by reason of
deception practised upon him, he does not know
the contents of the document or electronic record
or the nature of the alteration.” (emphasis supplied)

(c) Considering the emphasis supplied in the Section

above, a person is said to make a false document,
when he makes, signs, seals or executes such
document with an intention to causing it to be
believed that it is signed or executed by or by the
authority of person whom the maker knows that it
was not made, signed, sealed or executed, etc. The
word ‘making’ here cannot imply drafting of a
document or transmission of a document for the
purpose of signature of some person. ‘Making’ has
to go with the words ‘signs’, ‘seals’ or ‘execute’
and a person is said to make a document, if it is
either signed by him as if it is signed by the other
or executed by him as if it is executed by the
other. Consequently, when all the affidavits

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presented before the Supreme Court in 2003 are

signed and affirmed before a Notary Public by the
respective persons, whose affidavit it was, and
when none of whom have alleged that it was not
signed by them, there is no question of any false
document being created. None of the affidavits can
be said to be a false document under the first part
of Section 464. It may be also pertinent highlight
that even the prosecution has not laid any emphasis
on the first part of Section 464.

(d) With respect to the third part of Section 464, it

would be important to highlight that it would only
come into play if one person dishonestly or
fraudulently causes any person to sign, seal, execute
or alter a document and by reason of deception
practiced upon him, he does not know the contents
of the document. It is an essential ingredient for
invocation of the third part of Section 464 that one
person should act dishonestly or fraudulently as
defined under the Indian Penal Code. Section 24 of
the Indian Penal Code defines ‘dishonestly’ as
under:

“24. "Dishonestly". - Whoever does anything with

the intention of causing wrongful gain to one
person or wrongful loss to another person, is said
to do that thing "dishonestly".”

To appreciate the meaning of dishonestly the

definition of wrongful gain and wrongful loss given
in Section 23 become relevant.

“23. "Wrongful gain".- "Wrongful gain" is the gain

by unlawful means of property which the person
gaining is not legally entitled.

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"Wrongful loss".- "Wrongful loss" is the loss by

unlawful means of property to which the person
losing it is legally entitled.

Gaining Wrongfully /Losing wrongfully. - A person

is said to gain wrongfully when such person retains
wrongfully, as well as when such person acquires
wrongfully. A person is said to lose wrongfully
when such person is wrongfully kept out of any
property, as well as when such person is wrongfully
deprived of property.” (emphasis supplied)

In view of the above definition, there has to be

gain of property to the person acting dishonestly or
loss or property to the person who is deceived.
Property cannot mean reputation or image. It only
means either immoveable or moveable property.
The offences against property are covered in
Chapter 17 of the Indian Penal Code commencing
from Section 378 to Section 462, all of which only
deal with either moveable or immoveable property.
Damage to the reputation or image cannot be
termed as wrongful gain or wrongful loss, as it is
separately covered as an offence under Chapter 21.
There is not an iota of allegation that any person,
who has filed affidavits in 2003, have wrongfully
lost any property, whether moveable or
immoveable, or that the Applicant has gained any
property. Consequently, even the third part of
Section 464 would have no application.
Independently, the term ‘fraudulently’ is defined in
Section 25, which reads as under:

“25. "Fraudulently". - A person is said to do a

thing fraudulently if he does that thing with intent
to defraud but not otherwise.” (emphasis supplied)

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There is not an iota of allegation that the

Applicant, with an intent to defraud any of the
deponents, had got the affidavits affirmed by the
deponents. Consequently, even the third part of the
Section 464 will have no application. (Mohd.
Ibrahim vs. State of Bihar, reported in (2009) 8 SCC
751, See- Paras 20 to 21 and 28)

(e) If there is no false document made by the

Applicant, Applicant has not committed, prima
facie, any forgery as defined under Section 463 of
the Indian Penal Code and, therefore, has not
committed any offence under Section 468, 469 and
471 of the Indian Penal Code.

(f) Without prejudice to the above, the following facts

in respect of the affidavits would show that under
no circumstances it can be said that they were false
documents:

(i) In respect of Gulberg case, those whose

statements have been recorded by the present
SIT, are those who have not filed any
affidavit in the Transfer Petition before the
Supreme Court in 2003. Therefore, there
cannot be any allegation of forgery or making
false document in respect of the same. (Refer
charge sheet, Pg.838-888 and 326-445 and in
Applicant’s List of Documents at Item No.17-
Witness Nos.37 and 19)

(ii) In respect of Sardarpura case, the witnesses,

whose statements have been recorded by the
present SIT, have admitted in the course of
evidence during trial that the affidavits which
they have signed and which are filed before
the Supreme Court were read over and

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explained to them in Gujarati. (Refer charge

sheet, Pg.704-837 @ 732, 733, 739, 740,
back-side of 751, 755, 757, back-side of 767,
774, back-side of 785, 786, 790, 798, 807,
817, back-side of 817, 821, 836 and See-
Applicant’s List of Document at Item No.17,
Nos.30-36)

(iii) In respect of Ode case, the witnesses, whose

statements have been recorded by the present
SIT, have admitted in the course of evidence
during trial that the affidavits, which were
filed before the Supreme Court, were read
over and explained to them and were signed
and executed by them. (Refer charge sheet,
Pg.1214-1319, 1327-1339, and 1419-1469 @
1235-1236, 1267, 1291, 1309, 1338 and See-
Applicant’s List of Document at Item No.17,
Nos.44-47 and 49)

(iv) In respect of Naroda Gam case, the witnesses,

whose statements have been recorded by the
present SIT, have admitted in the course of
evidence during trial that the affidavits which
they have signed and which are filed before
the Supreme Court were read over and
explained to them in Gujarati. (Refer charge
sheet, Pg.567-664 @ 578 and in Applicant’s
List of Document at Item No.17, Nos.23-25)

Further, these witnesses, whose statements

have been recorded by the present SIT in
reference to their SC affidavit in reference to
Naroda Patiya case, it is clear that no where
in the affidavit, they have claimed to be eye-
witnesses to Naroda Patiya incident (Refer
charge sheet, Pg.567-664 @ 544, 571, 597,

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628, 671 and in Applicant’s List of Document

at Item No.17, Nos.23-25)

(v) In respect of the following affidavits which

have been relied upon by the prosecution, the
following features emerge from the statement
before the SIT along with the evidence given
by these witnesses during the trial which
clearly rule out practice of deception being
the reason for not knowing the contents of the
affidavit so signed by the respective witnesses.
With respect to their evidence, the Applicant
submits as under:

(1) Imran Khan Pathan. He has admitted to

have signed the affidavit filed before the
Supreme Court in the Transfer Petition
in English. Further, even before the
present SIT, he has not stated that he
had signed on the affidavit without
reading. Even otherwise, in the evidence
before the trial court, he denies having
any conversation with the present
Applicant over phone before drafting of
the SC affidavit which was done by
Raeeshkhan. (Refer charge sheet Pg.537-
565 @ 537, 555-556)

(2) Madinabanu wife of Rafik Khan Chand

Khan Pathan. Before the present SIT,
certain explanation has been sought from
this witness about the affidavit of one
Nannu Miya, who has since died and,
therefore, his statement before the
present SIT is not on record. Even
assuming that the affidavit of Nannu
Miya contains some description in

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respect of this witness, there is no

allegation that the affidavit of
Madinabano also contains that false
description. Further, the charge sheet
papers also include the statement on
oath made in 2002 before the Nanavati
Commission prior to Supreme Court
affidavit in 2003. A mere perusal of the
affidavit before the Supreme Court and
before the Nanavati Commission would
show similarity. Before the Trial Court,
this witness has specifically feigned
ignorance to the suggestion that neither
affidavits were read over nor explained
which fact is different from denial of the
contents. (Refer charge sheet Pg.665-687
@ 667, 673-675 and 681)

(3) Abdul Majid Mohammad Usman Shaikh.

This witness has specifically admitted
that the contents of the affidavit in
respect of the incident of rape
committed on his daughter was
specifically told to him by his daughter
while she was receiving treatment in the
hospital. The falsity as alleged before the
present SIT is in respect of the fact that
he was an eyewitness to the incident.
However, it is clear that the incident of
rape on his daughter did take place and
was disclosed to him while his daughter
was receiving treatment. Further, he has
also admitted that all the facts that was
known to him was disclosed in the
affidavit before the Supreme Court and
the contents was read over to him in the
language that he understands and he has

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not been tutored by the Applicant. (Refer

charge sheet Pg.961-1152 @ 979-980,
981, 984-985, 1067, 1048, 1090-1093,
1020)

(4) Reshmabanu Nadimbhai Sayed. This

witness of Naroda Patiya has admitted in
terms in her evidence before the Trial
Court that not only the affidavit was
typed as per her say and that its
contents were explained to her before
signing, but she also states that
Raeeskhan Pathan was given specific
authority to file this affidavit before the
Supreme Court in the Transfer Petition.
(Refer charge sheet Pg.889-960 @ 941-
942, 953)

(5) Rafikanbanu Rehmanbhai Shakurbhai

Sayed. The present SIT has tried to
suggest that certain details and identity
of the accused persons were not told by
this witness to the Applicant and that
such details are falsely attributed to her
in her Supreme Court affidavit. However,
the evidence before the Trial Court is
wholly contrary in all such respects such
as helping of the rioters by the police
personnel, identity of the accused
persons who burnt her daughter alive.
Both these facts are not only stated but
she has withstood rigorous cross
examination in this regard. She has also
admitted in her evidence before the Trial
Court that where certain details were
missing, it was because of the fact that
she might have forgotten to supply that

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fact to the person writing the affidavit.

The prosecution has tried to selectively
read from few paragraphs here and there
in order to attribute falsity which fact is
not borne out when the entire evidence
is concerned. She has also admitted that
she sought transfer of case out of
Gujarat as others were also doing it.
(Refer charge sheet Pg.1340-1418 @
1347, 1349-1350, 1352, 1360-1361,
1372-1373, 1376, 1384, 1404-1405)

In addition to the above, it is pertinent to note that except

in Naroda gaam case, no other Ld. Trial Courts have even
deemed it appropriate to initiate a proceeding under S.
340 of the Code of Criminal Procedure for false evidence.
Even Naorda Gaam case, despite registration of M. Case
way back in 2011, no chargesheet has been filed.

8. As explained above, prima facie the Applicant has not

committed any offence under Section 467, 468 and 469 as
the Applicant has not committed any forgery. None of the
above documents can be said to be forged documents. In
view of that, the only other offences which have to be
looked at, are Sections 194, 211 and 218 of the Indian
Penal Code. Section 194 reads as under:

“194. Giving or fabricating false evidence with intent to

procure conviction of capital offence. - Whoever gives or
fabricates false evidence, intending thereby to cause, or
knowing it to be likely that he will thereby cause, any
person to be convicted of an offence which is capital [by
the laws for the time being in force in [India] shall be
punished with [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years,
and shall also be liable to fine;

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if innocent person be thereby convicted and executed. -

and if an innocent person be convicted and executed in
consequence of such false evidence, the person who gives
such false evidence shall be punished either with death
or the punishment hereinbefore described.” (emphasis
supplied)

For a person to commit an offence under Section 194, he

has to give false evidence or fabricate false evidence.
Giving false evidence and fabricating false evidence are
defined under Section 191 and 192 of the Indian Penal
Code, which are reproduced below:

“191. Giving false evidence. - Whoever, being legally

bound by an oath or by an express provision of law to
state the truth, or being bound by law to make a
declaration upon any subject, makes any statement which
is false, and which he either knows or believes to be
false or does not believe to be true, is said to give false
evidence.

Explanation 1. - A statement is within the meaning of

this section, whether it is made verbally or otherwise.

Explanation 2. - A false statement as to the belief of the

person attesting is within the meaning of this section,
and a person may be guilty of giving false evidence by
stating that he believes a thing which he does not
believe, as well as by stating that he knows a thing
which he does not know.

192. Fabricating false evidence. - Whoever causes any

circumstance to exist or makes any false entry in any
book or record, or electronic record or makes any
document or electronic record containing a false
statement, intending that such circumstance, false entry

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or false statement may appear in evidence in a judicial

proceeding, or in a proceeding taken by law before a
public servant as such, or before an arbitrator, and that
such circumstance, false entry or false statement, so
appearing in evidence, may cause any person who in
such proceeding is to form an opinion upon the
evidence, to entertain an erroneous opinion touching any
point material to the result of such proceeding, is said
"to fabricate false evidence".”

Of the aforesaid two Sections, Section 191 would have

no application. The Applicant was not required by oath
or by any express provision of law to state the truth.
Even in respect of Section 192, it cannot be said that the
Applicant made any circumstance to exist or made any
document. In this context, Illustration (c) to Section 192
would be relevant, which is reproduced below:

“(c) A, with the intention of causing Z to be convicted

of a criminal conspiracy, writes a letter in imitation of
Z's handwriting, purporting to be addressed to an
accomplice in such criminal conspiracy, and puts the
letter in a place which he knows that the officers of the
Police are likely to search. A has fabricated false
evidence.”

In view of the above, it cannot be said that the Applicant

has given any false evidence or fabricated any false
evidence and cannot be accused under Section 194.

9. Without prejudice to the above, it would be pertinent to

highlight that offence under Section 194 falls under Section
195(1)(b)(i) of the Code of Criminal Procedure and no
Court shall take cognizance of such offence except on a
complaint in writing of that Court, or by such officer of
that Court as the Court may authorize in writing in this
behalf, or of some other Court to which that Court is

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subordinate. A clear distinction is required to be drawn

between Section 195 (1) (b) (i) and 195 (1) (b) (ii). While
offences described in Section 463 or punishable under
Section 471, 475 or 476 of the Indian Penal Code, if
committed in respect of documents produced in Court but
outside the Court, it is not necessary that the complaint
should be filed in writing by the Court. This is evident
from the decision of Iqbal Singh Marwah vs. Meenakshi
Marwah, (2005) 4 SCC 370, (Para 10 and 11). The law laid
down by the Supreme Court applies only to offences
covered under Section 195 (1)(b)(ii) and not to offences
covered Section 195 (1)(b)(i). This proposition is laid down
recently in Bandekar Brothers Private Limited vs. Prasad
Vasudev Keni, (2020) 20 SCC 1 (Para 23, 26-28 and 30).
In view of the above, while Sections 467, 468 and 471
were not applicable, they were invoked solely to get out of
the requirement of complaint being filed by the Court in
respect of Section 194 of the Indian Penal Code as
contemplated under Section 195 (1)(b)(i) of the Code of
Criminal Procedure. This is not permissible as laid down
by the Supreme Court.

10. Without prejudice to the above, the prosecution has tried

to give a camouflage or colour of Sections 463, 464 of the
Indian Penal Code in the impugned FIR solely to get out
of the rigor of lodging a complaint as contemplated in
Section 195 (1)(b)(i) and resorting this device has been
held to be impermissible in the case of Basir-Ul-Haq vs.
State of West Bengal, AIR 1953 SC 293 (Para 14). It is
pertinent to note that the judgment of the Supreme Court
in Basir-Ul-Haq holds field even as of date and has been
followed with approval in innumerable cases.

11. Having dealt with all the major allegations in the charge
sheet and the FIR, the Applicant submits that the
accusations do not support any of the offences alleged to
have been committed by the Applicant and the material

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relied upon cannot occasion the Ld. Trial Court to even

take cognizance and initiate in any criminal proceedings,
much less any conviction.

12. The only other allegation made in the charge sheet and
the statements taken by the SIT and under Section 164 of
the Code of Criminal Code is of large conspiracy. This is
based only on the statement of Raees Khan taken under
Section 164 of the Code of Criminal Procedure before the
Magistrate on 08.07.2022 and 11.07.2022. (Note supplied
by the prosecution, Pg.21-46). The statement refers to the
alleged conversation between late Ahmed Patel and Teesta
Setalvad in the presence of Raees Khan in 2002. This
statement does not see the light of the day from 2002 till
08.07.2022. Raeeskhan worked with CJP from 28.02.2002
to 18.01.2008. After he was removed from CJP by the
Applicant, Raeeskhan has made various statements which
are enumerated below:

(i) Letter dated 01.09.2010 by Raeeskhan to Supreme

Court appointed SIT Chairman R.K. Raghavan.
(Charge sheet Pg.472)
(ii) Letter/Complaint dated 09.09.2010 by Raeeskhan to
the Commissioner of Police, Ahmedabad
complaining regarding hacking of his emails, etc.
No action initiated by police on the basis of such
complaint. (Charge sheet Pg.473-474)
(iii) Letter/Complaint dated 17.09.2010 by Raeeskhan to
the Commissioner of Police, Ahmedabad repeating
the complaint. No action initiated by police on the
basis of such complaint. (Charge sheet Pg.475)
(iv) Affidavit dated 19.10.2010 before the Nanavati
Inquiry Commission which was inter alia inquiring
also into the conduct of the then Chief Minister of
Gujarat. In this affidavit, there is not a murmur of
a larger conspiracy targeting the then Chief

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Minister. (Charge sheet Pg.494-501)

(v) Application dated 28.10.2010, under Section 311 is
filed in the Naroda Gam trial case by Raeeskhan.
(Applicant’s Paper Book, Vol.2, Pg.827-833)
(vi) Application dated 30.10.2010, under Section 311 is
filed in the Sardarpura trial case by Raeeskhan.
(Applicant’s Paper Book, Vol.2, Pg.778-787)
(vii) Application dated 01.11.2010, filed under Section
311 is filed in the Gulberg Society trial case by
Raeeskhan. (Applicant’s Paper Book, Vol.2, Pg.803-
811)
(viii) On 03.10.2013, a complaint is filed by Raeeskhan
to the Police Commissioner, enclosing a CD of
conversation with R.B. Shreekumar of 2010. The
said conversation does not disclose any larger
conspiracy alleged for the first time in the
statement under Section 164 by Raees Khan and the
conversation only indicates that he was preparing to
defend himself against accusation which were being
levied. (Charge sheet Pg.460-461, 514-520)
(ix) Complaint dated 30.03.2018, Raeeskhan filed
against the Applicant and her husband in respect of
alleged forged project. (Charge sheet, Pg.4452-4454)
(x) Statement recorded by the present SIT on
30.06.2022.

If all the aforesaid statements are perused, it would

become evident that at no point of time, Raees Khan has
alleged any larger conspiracy which is alleged in the
statement under Section 164 before the Magistrate. There
is also clear contradictions between the statement under
Section 164 of Raeeskhan Pathan and of Narendra
Brambhatt recorded on 15.07.2022 on the aspect of
whether any conversation ever took place in respect of
“larger conspiracy of implicating high political
functionaries and top government functionaries”. It may
also be pertinent to highlight at this stage that no

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statement of Raeeskhan Pathan till the statement before

the SIT dated 30.06.2022 and statement under Section
164 on 08.07.2022, implicates the Applicant of making
Zakia Ahsan Jafri of filing a Complaint before then
Director General of Police as a part of a larger
conspiracy. Such theory comes for the first time only
post the Supreme Court judgment dated 24.06.2022 and
Raeeskhan, who is charge sheeted accused in Lunawada
excavation case, is sought to be made a star witness and
heavily relied upon by the prosecution to deny the
present Applicant bail.

Note: With relation to Items (v), (vi) and (vii) with deal
with the Applications of Raees Khan before the Special
Trial Courts appointed as an outcome of the Transfer
Petition, none of the Trial Courts have made any findings
on the controverted affidavits by the Applicant.

13. The prosecution, in order to allege the existence of a

larger conspiracy, has tried to portray the fact that the
Applicant was using victims and witnesses and was
collecting large funds in their names. However, the charge
sheet papers belie this claim and categorically demonstrate
that in the case of one witness Qutub-uddin Ansari, an
Appeal has been made to the general public in the
following manner:

“(CC feels that he is an unlikely victim of the genocide.

He is in need of financial assistance. Any contribution for
him, by cheque or draft, should be made to ‘Qutub-uddin
Ansari’ and posted to our address – Editors.)” (Charge
sheet Pg.528)

14. The allegation of keeping the pot boiling is totally uncalled

for in light of the fact that (1) NHRC had filed Transfer

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Petitions in the Supreme Court, (2) the Government of

Gujarat had itself enlarged the scope of inquiry to the
include the Chief Minister, other Ministers and Government
Officials, (3) the Supreme Court had directed the complaint
filed by Zakia Ahsan Jafri to be investigated in the SIT
and on filing of the final report, entitled the said Zakia
Ahsan Jafri to appear before the Magistrate and object to
the final report and the final judgment of the Supreme
Court arises from those proceedings. Approaching higher
Courts cannot be termed as keeping the pot boiling. There
is no allegation against Zakia Ahsan Jafri in respect of any
of the sections invoked in the present charge sheet, when
she was the person who had filed the complaint. This is
being done solely on the basis that the Applicant used her
as a tool which comes out in the statement of Raeeskhan
Pathan. Further, it would be important to highlight Para
56 of the evidence of Zakia Ahsan Jafri in Gulberg Society
case, which reads as under:

“૫૬. મે ં કમીશનમાં જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ કમીશનમાં કમીશનમાં જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ આપેલો તે બાબત સીટે મારી પૂછપરછ તે બ આપેલો તે બાબત સીટે મારી પૂછપરછાબ આપેલો તે બાબત સીટે મારી પૂછપરછત સીટે મારી પૂછપરછ
કરી હશે મને ચો તે બાબત સીટે મારી પૂછપરછક્કસ યાદ નથી નથી. એ વાત ખરી છે કે વાત ખરી છે કે , અમને
તીસ્તાબ આપેલો તે બાબત સીટે મારી પૂછપરછેન શેતલવાડ તથા શ્રીકુમારે જે જે જણાવ્યું તે પ્રમાણે હું તથા શ્રીકુ મારે જે જે જણાવ્યું કમીશનમાં જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ તે પ્રમાણે હું કમીશનમાં જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ
અને બ આપેલો તે બાબત સીટે મારી પૂછપરછીજા સાક્ષીઓ બોલીએ છીએ સાક્ષીઓ બોલીએ છીએ બ આપેલો તે બાબત સીટે મારી પૂછપરછો તે બાબત સીટે મારી પૂછપરછલીએ વાત ખરી છે કે છીએ વાત ખરી છે કે. હવે હું કમીશનમાં જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ કહું કમીશનમાં જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ છુ ં કમીશનમાં જવાબ આપેલો તે બાબત સીટે મારી પૂછપરછ કે , મારે
તીસ્તાબ આપેલો તે બાબત સીટે મારી પૂછપરછેન શેતલવાડ તથા શ્રીકુમારે જે જે જણાવ્યું તે પ્રમાણે હું કે શ્રીકુ માર સાથે સીધી કો તે બાબત સીટે મારી પૂછપરછઇ વાત થયેલ વાત થયેલ
નથી.” (Charge sheet Pg.3832)

While the learned Public Prosecutor read the first portion

of the above paragraph and was completely silent on the
above-mentioned underlined portion that was not read by
him. Read in entirety, this statement does not in any
manner indicate that Zakia Ahsan Jafri was a tool of the
Applicant. Moreover, in the entire cross examination in the
Gulberg Society case, her complaint dated 08.06.2006 to
the Director General of Police was not even put to her. In
the circumstances, to rely on this statement for the
purpose of saying that she was used as a tool, is
completely unfair.

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15. The argument that the present Applicant ought not to be

released on bail on the sole ground that the investigation
is at critical stage appears to be an argument of last resort
adopted by the prosecution. This fact is belied by the reply
of the prosecution vide Exh.24 dated 12.06.2023 to an
application under Section 207 of the Code of Criminal
Procedure in the Ld Sessions Court. The prosecution has
specifically declared before the Trial Court that during the
further investigation, if any documents are collected, the
same will be produced in accordance with law. Further,
there is no other document which has been seized during
investigation till date which has not been produced before
the Trial Court.

16. In view of the above, interim-bail as granted by the

Hon’ble Apex court is required to confirmed and the
Applicant is required to be granted regular bail pending
trial.

5.1 WRITTEN SUBMISSIONS ON BEHALF OF

RESPONDENT STATE SUBMITTED BY LEARNED
PUBLIC PROSECUTOR MR. MITESH AMIN:

“1. FIR is registered at DCB Police Station on 25.06.2022

for the offences punishable under Section-468, 471,
194, 211, 218 and 120(B) of the Indian Penal Code
against the petitioner and two other accused named
Sanjiv Bhatt and R.B. Shreekumar.

2. Petitioner and two other accused were arrested in the

matter of above referred FIR. Petitioner preferred
regular bail application by filling Criminal Misc
Application No. 4617 of 2022 in the Court of Ld.

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City Sessions Judge at Ahmedabad which came to be

rejected through order dated 30.07.2022. Against this
order of rejection of regular bail application filed by
the applicant, applicant has preferred present
application. During the pendency of present petition,
petitioner preferred Criminal Appeal No. 1417 and
1418 of 2022 before the Hon’ble Supreme Court and
the Hon’ble Supreme Court vide order dated
02.09.2022 granted interim bail to the petitioner.
Following part of the order would be relevant for
deciding present application.

“We are therefore not considering whether the

appellant be released on regular bail or not. That
issue will be gone into by the High Court in the
pending application”

“At the cost of repetition, we may observe that we

have considered the matter from the standpoint of
considering interim bail and we shall not be taken to
have expressed any view touching upon the merits of
the submissions advanced on behalf of the appellant.
The pending applications before the High Court shall
be considered by the High Court independently and
uninfluenced by any of the observations made by this
Court in the instant order.

In view of the above this Hon’ble Court needs to

consider material of investigation and other aspects
relating to granting or otherwise of the bail
independently and uninfluenced by any of the
observation made by Hon’ble Supreme Court in the
order granting interim bail to the applicant.

3. During the pendency of the present application

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investigator submitted charge-sheet on 20.09.2022

clarifying in it that investigation is still in progress as
per the provisions of Section-173(8) of the Code of
Criminal Procedure Code. Petitioner is arraigned as
accused no.1 in the charge-sheet and other accused
named R.B.Shreekumar and Sanjiv Bhatt are
arraigned as accused no.2 and 3. At the time of
submitting charge-sheet investigator has added
offence punishable under Section-469 of Indian Penal
Code along with other offences as alleged in the FIR.

4. As the offences are punishable by court of Ld.

Sessions Judge, charge-sheet is committed to the
court of Ld. Sessions Judge and it is numbered as
Sessions Case No. 159 of 2023.

5. On behalf of the applicant broadly following

submissions are made broadly.

(1) Applicant has placed judgment of Hon’ble

Supreme Court delivered in SLP Diary No. 34207
of 2018 at Page No. 1 to 452.
(2) Applicant has also submitted list of dates and
events dated 10.03.2023.
(3) Applicant also submitted charge-sheet against
all the accused.
(4) Applicant has also submitted different orders
from Page-453 to Page No. 865.
(5) Applicant has also relied upon certain
judgments on the issue of bail.
(6) After placing reliance on above referred
material applicant had submitted that she cannot
be consider to be maker of false document as

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alleged false document which are in the nature of

affidavits submitted by different persons in transfer
proceedings initiated before the Hon’ble Supreme
Court are not affirmed by her and therefore, if at
all any wrong is committed, applicant has not
committed one. Applicant had also challenged the
applicability of Section-463, 464, 468 and 471 as
not only that no wrong is committed by her but
there is also no case against her, about applicant’s
involvement in any act of forgery and as a matter
of fact, there is no act of forgery either. Applicant
has also relied upon definitions of dishonestly,
fraudulently etc as defined in Indian Penal Code to
substantiate the submissions that there is no act of
making of false documents, forgery etc. Applicant
also submitted that as investigator has applied
Section-194, 463 and few other Sections of Indian
Penal Code alleging about an act of forgery as
well as giving or fabricating false documents etc,
there is requirement of adhering to provisions of
Section 195 of the Code of Criminal Procedure
Code.
(7) Applicant has also submitted about she having
not signed any affidavit and even if it is assumed
that affidavit is drafted by her, that will not
amount to making of false documents.
(8) Applicant has also disputed applicability of
Section-211 and 218 of Indian Penal Code.
(9) Applicant had also submitted that she had
nothing to do with complaint submitted by M/s.
Jakia Jafri.
(10) Applicant had also submitted about reliability
of the witness namely Rais Khan, Narendra
Brahambhatt and others as there are contradictory
versions and witnesses have not stated version

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stated by them in present investigation though at

earlier point of time they had opportunity to state
or narrate the same.
(11) Applicant has submitted that though there are
different FIRs filed against her, applicant is
granted anticipatory bail and no charge-sheet is
yet laid in such FIR matters.
(12) Applicant also submitted that in the application
submitted by witness Rais Khan for examining him
under Section-311 of Code of Criminal Procedure,
court has ordered initiation of prosecution against
him and others.
(13) Applicant had made many other submissions as
well.

6. On behalf of opponent State of Gujarat convenience

compilation is submitted running around 208 pages
which is part of charge-sheet and 2 other very short
compilation are also submitted which includes
different FIR’s showing criminal antecedents of the
applicant as well as certain orders / judgments,
pleadings etc connecting applicant which are at 31
and 126 pages.

7. Opponent has also relied upon 3 judgments on the

issuance of bail.

8. It is submitted on behalf of the opponent, that

present proceedings are pursuant to filling of FIR as
well as charge-sheet against the applicant and two
other accused consequent to the judgment of Hon’ble
Supreme Court which was delivered on 24.06.2022 in
SLP bearing diary no. 34207 of 2018. Considering the
material placed before the Hon’ble Supreme Court in
the above judgment as well as also considering

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material of investigation in the present FIR more

than Primafacie case is made out by investigation
agency about involvement of applicant and two other
accused propagating issue of larger conspiracy i.e.
when the different incidents of riots took place across
the State of Gujarat on and after 27.02.2002 in
which large number of persons belonging to minority
community were brutally massacred by majority
community is the handy work of the then existing
establishment including highest functionary of the
State i.e. the then Hon’be Chief Minister, other
Hon’ble Ministers, Bureaucrats, Politicians and
Private persons and to substantiate this issue of
larger conspiracy, it is the case of investigator that
different affidavits were prepared by applicant stating
therein falsehood and also making false claims which
were fully known to the applicant being false in
nature. Similarly other two accused as co-conspirators
also had made false claim, false statement etc
propagating above referred theory of larger
conspiracy. It is submitted that this issue of larger
conspiracy was kept boiling to the benefit of
applicant and other two accused since February, 2002
onwards for lot many years and during these many
years issue of larger conspiracy was continuously
politicized and sensationalized.

9. It is submitted that offence committed by applicant

and others are not only serious in nature but are
offences against public justice.

10. Investigator would rely on different witnesses more

particularly witnesses named (1) Raiskhan Azizkhan
Pathan (2) Narendra Jethalal Brahambhatt (3)
Qutbuddin Nasruddin Ansari (4) Yasminbanu Nafitulla

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Shaikh, (5) Affidavit of Abdul Majid Mohammad

Usman Shaikh and his evidence as witness in
concerned Sessions Case as well as (6) Affidavit of
Rafikkanbanu Rehmanbhai Saiyed also with her
evidence in concerned Sessions Case, (7) Affidavit of
Nanumiya Rasulmiya Malek (8) Affidavit of Madina
Aarifhusen Malek along with her evidence in
concerned Sessions Case, (9) Affidavit of Imrankhan
Asrafkhan Pathan along with his evidence in
concerned Sessions Case (10) Statement of notary
advocate Shivkumar Chotelal Gupta and email
communication involving all the three accused
including applicant, as well as such communications
also involving local politicians and one of the
accused etc.

11. On the basis of the above referred material it is

submitted that close associates of applicant i.e.
witness Raiskhan Azizkhan Pathan very clearly
implicates applicants and other two accused about
various and different meetings having taken place
between all these three accused as well as applicant
meeting very strong politician of one of the oldest
political party and also receiving money from him to
the tune of Rs.30lakhs/- and their target of
propagating larger conspiracy by going to the extent
of doing so much so that the then Chief Minister of
the State goes behind bar / jail.

12. Witness Raiskhan has also stated about applicant’s

involvement in publishing magazines / news articles
which would defame the then Chief Minister so much
so that the then Chief Minister would be forced to
give his resignation. It is also stated by witness that
whatever fund / money is received would be used to

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pursue the theory of larger conspiracy. Witness also

stated about complaint propagating larger conspiracy
being prepared by the applicant initially in the name
of one Shri Vitthalbhai Pandya who also went to
meet applicant at Mumbai but refused to pursue the
complaint as prepared by applicant and on his refusal
Ms. Jakia Jafri was chosen as complainant. There is
sufficient material to Primafacie establish that in all
other proceedings relating to pursuing the complaint
filed in the name of Ms. Jakia Jafri applicant
constantly had done all necessary things to take
complaint of Ms. Jakia Jafri to its logical conclusion
but such efforts ultimately faded and frustrated
considering the judgment delivered on 24.06.2022 by
the Hon’ble Supreme Court and subsequent there to
different acts of propagating larger conspiracy came
out openly during the investigation of present FIR
proceedings. Witness has named different victims of
different riots cases whose affidavits containing
falsehood were drafted and prepared by applicant
which came to him and same got affirmed etc. There
is also reference where applicant has claimed that
their group / side would come into power very soon.
Witness also states about different acts of tutoring of
riot victims committed by applicant, as also applicant
engaging certain riot victims in various activities to
achieve desired purpose. Witness also states about
making certain payment in terms of money to certain
riot victims. Witness further states about misuse of
another witness named Qutbuddin Ansari in different
ways, manners and devices by projecting him as
major riot victim time and again. Witness also
involves applicant in the act of one another FIR
matter registered at Lunavada Police Station where
applicant through others exhumes buried dead bodies

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for the purpose of creating sensation and showing it

to public through electronic mode. Witness also states
about applicant having collected crores of rupees in
the name of riot victims. It is also stated by witness
that after he separated from applicant, he received
threats from applicant for which he had filed
complaint at Rakhial Police Station and one other
complaint at Shahpur Police Station. Witness also
stated about another accused named R.B.Shreekumar
having telephoned him regarding witness having filed
affidavit against applicant to which applicant through
this accused suggested witness to arrive at settlement
or else that would benefit highest functionary of the
State and while concluding he also states about there
being threat to his life. Witness has also filed
affidavit in the Commission of Inquiry on Godhara
incident. Investigator has also collected telephonic
conversation between witness and R.B.Shreekumar
and relevant transcription of conversation is also
submitted.

13. To substantiate witness Raiskhan’s version about

erstwhile, now deceased, political leader of oldest
political party giving Rs.30lakhs/- to the applicant,
investigator has also interrogated another witness
named Shri Narendra Jethalal Bhrambhatt who gave
money to the applicant on behalf of above political
leader who clearly states that he had given Rs.25 + 5
i.e. Rs.30lakhs/- to applicant on instruction of
erstwhile political leader, who named in the
statement. Witness belongs to the same political party
to which above mentioned political leader were
belonging. Witness also realised that applicant and
others were propagating as if whatever is happening
(during communal riots), existing political

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establishment of that time is responsible for it.

Witness also states about applicant, after instigating
other persons was taking their interviews, preparing
fake videos which were shown in gulf countries and
other countries and thereby was collecting money.
This witness has also given statement under Section-
164 of Code of Criminal Procedure.

14. It is submitted that one another witness name

Qutbuddin Nasruddin Ansari whose photo which was
in a very poor and Pitiable condition as well as the
witness himself was misused by applicant for the
purpose of showing same as riot victim and also
arranging press conference portraying him as very
serious riots victim, one such photo is also submitted
showing picture of this witness besides petitioner in
press conference. It is the case of the witness that he
was given some money and his pitiable photo was
used for the purpose of getting help from different
corners. Detailed narration is given by witness as to
how witness as well as pitiable photo was misused
by applicant during communal riots and post
communal riots period. Witness has given statement
under Section 164 of the code of CRPC.

15. One another Charge-sheet witness No.46 named

Yasminbanu Nafitulla Shaikh has also given statement
under Section 164 of code of CRPC which also states
about applicant having used her by tutoring her and
she being made to sign certain papers on instruction
of applicant. Investigator had also collected affidavit
of this witness submitted by her before Hon'ble
Bombay High Court which also shows applicant’s role
in different acts of tutoring committed on her as well
as applicant having collected huge sum of money in

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the name of victims of Best Bakery case though

actually nothing was paid to such victims.

16. Witness named Abdul Majid Mohammad Usman

Shaikh is also one another witness whose affidavit is
used by applicant. This witness has also given his
evidence in concerned session case wherein, witness
has accepted about his affidavit being prepared by
applicant which contained false facts about his
daughter named Sufia and he being witness to the
incident of his daughter named Sufia being raped.
Opponent relies on affidavit as well as relevant part
of witness deposition and he is shown as charge-
sheet witness no. 30 and also interrogated by the
investigator.

17. It is submitted that one another charge-sheet witness

no. 41 named Rafikkanbanu Rehmanbhai Saiyed is
also interrogated and her affidavit is also prepared by
applicant which is submitted along with relevant part
of witness deposition, which clearly states about
contention in her affidavit relating to false
involvement of persons named Jaydeep Patel and
Raju Patel. As such these two persons are not known
to the witness.

18. It is also submitted that there is one another charge-

sheet witness no. 18 named Madina Aarifhusen Malek
who in concerned session case when examined this
witness has accepted that she was not subjected to
act of rape and she has not stated about she being
subjected to rape. Witness also states about person
name Nanumiya Rasulmiya Malek and Sajid who
were responsible for executing her affidavit but on
bare reading of her affidavit it clearly shows that she

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had made statement in her affidavit on detailed

questioning by applicant. Reference is made by this
witness about one Nanumiya whose affidavit is also
placed before Hon'ble Court which contains in it that
an act of rape was committed upon witness Madina.
Affidavit of Nanumiya also contains false involvement
of the then highest functionary of the state
responsible for loss of life and property in Naroda
Gam. Affidavit of Nanumiya clearly states that he
had affirmed his affidavit on detail questioning made
by applicant. On trying to know whereabouts of
Nanumiya investigating agency had known that he is
dead.

19,. It is submitted that one another witness who is

charge-sheet witness no. 14 named Imrankhan
Ashrabkhan Pathan on examination of said witness in
concerned session case he has accepted that no
incident of murdering 110 persons as well as burning
them was ever witnessed by him and he had not
stated such facts in his affidavit which is part of
investigation material. On bare examination of his
affidavit this aspect which is denied by witness is
stated in paragraph 27 of his affidavit. Witness’s
affidavit also involves highest state functionary of
that time as well as involves powerfull Political
persons who are not prosecuted and are required to
be punished for their hand in the carnage.

20. It is also submitted that investigator has also

recorded statement of charge-sheet witness No.64
Shivkumar Chotalal Gupta who had stated that
witness was called by applicant at her office and had
told him about affirmation of affidavits and applicant
instructed this witness to not inquire and verify

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about contents of affidavit prepared by applicant to

concerned deponents. Witness further states that as
per instructions given to him by applicant, he
affirmed all the affidavits without verifying contents
of affidavit of deponents under instructions of
applicant.

21. Investigator has also collected email communication

of applicant and two other accused of relevant period
i.e., post communal riot time which refers to
different litigation involving applicant as well as
different names narrated in it in abbreviation like
RKR, RR, RB, MS, etc. This email communication
also referred in it engaging lawyer, copies of affidavit
naming of lawyer preparing ghost questions, draft
press note prepared by applicant which was sent to
co-accused Bhatt referring date of May 6, 2011.
Reference of writ Petition filed by Malika Sarabhai,
reference of news reporter named Himanshu Thakkar,
reference of communication by co-accused Bhatt to
applicant stating about requirement of FIR and
Petition memo and co-accused Bhatt stating to local
political leader about accused waiting for blackberry
as well as copy of note so that accused Bhatt can
suggest points if necessary.

22. On the basis of above referred material it is

submitted that there is more than prima facie case
against applicant and other accused showing their
involvement in the commission of offence as narrated
in the charge-sheet namely about making of false
document, forgery, fabricating, false evidence, etc.
Applicant is challenging this material on the strength
of witness relied upon by investigator having not
revealed these facts never before which they stated in

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the present investigation and therefore according to

applicant, witnesses versions are full of contradiction,
omissions, etc.

23. It is submitted that evaluation of prima facie case

while considering grant or otherwise of bail is very
limited to only extent of examining material only to
evaluate prima facie case and nothing beyond that at
this stage, scrutinizing material of investigation for
deciding credibility and reliability of witness is not
required at all. Further aspect of examining issue of
their conspiracy which was kept boiling for lot many
years by applicant and two other accused which
ultimately on judgment of Hon’ble Supreme Court
dated 24.06.2022 was examined further pursuant to
present FIR and investigation. Hence, witness cannot
be blamed for contradiction as it will be relevant
only at the time of trial. Even different judgments
relied upon by applicant also states about limited
examination of material of investigation only for the
purpose of evaluating Primafacie case not to
scrutinize reliability and credibility of witness.
24. It is submitted that applicant is involved in number
of FIR proceedings which are narrated here under.

A
1. FIR registered at Lunavada Police Station on
02.01.2006 for the offences punishable under
Section-192, 193, 201, 120(B), 295(A), 297 and 114
of Indian Penal Code relating to exhuming of buried
dead bodies and creating sensation by displaying the
same through electronic media. This FIR is
submitted at Page-1 to 4 of convenient compilation
running into 31 pages submitted by opponent in
support of this FIR in the same compilation Page-5

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to 8 affidavit of witness named Rahul Singh Senior

Reporter of India Today running Sahara Samay TV
Channel is also submitted.
2. Applicant initially challenged her involvement in
this FIR proceedings which is not considered by this
Hon’ble Court and thereafter, applicant had
challenged same before the Hon’ble Supreme Court
and after Hon’ble Supreme Court also didn’t
considered applicants prayer, applicant had again
approached this Hon’ble Court with a prayer of
quashing FIR as well as charge-sheet registered at
Lunavada Police Station through Criminal Misc.
Application No. 23184 of 2017 and the same is
pending before this Hon’ble Court. Memo of petition
and certain orders passed in this proceedings are
submitted along with another convenient
compilation running into 126 pages at page no.1 to
26.
3. As the proceedings were stayed for about 6 to 7
years by virtue of Hon’ble Supreme Court’s order
matter has not proceeded further.
B
1. One another FIR is registered at DCB Police Station,
Ahmedabad City where first informant is Firozkhan
Saeedkhan Pathan for the offences punishable under
Section-406, 420, 120(B) and Section-72 of
Information and Technology Act against applicant
and few others, this FIR is at Page-9 to 14 of the
convenient compilation running into 31 pages.
2. Applicant along with other accused preferred
anticipatory bail application which after rejection it
by Ld. Sessions Judge came before this Hon’ble
Court and vide CAV Judgment dated 12.02.2015 this
Hon’ble Court had rejected applicant’s application
bearing Criminal Misc. Application No. 4677 of

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2014 praying for anticipatory bail. This judgment is

placed at Page-60 to 120 of convenient compilation
running into 126 pages. Some relevant observation
regarding purchase of items like wine, shoes,
holiday resort, air tickets, grocery, clothes, regular
hair salon etc as well as applicant been guilty of
tempering with witness etc and also about non co-
operation and requirement of custodial interrogation
is observed at Page-70, 71, 73, 74, 79 and few
other pages.
3. Applicant on denial of anticipatory bail by this
Hon’ble Court through above referred judgment had
approached Hon’ble Supreme Court and applicant is
protected for now and matter of applicant is still
pending.
C
1. One another FIR is also registered before DCB Police
Station Ahmedabad City on 30.03.2018 where first
informant is Raiskhan Azizkhan Pathan and accused
persons are applicant her husband and other for the
offences punishable under Section-120(B), 153(B),
153(A), 406, 409, 420 of Indian Penal Code as well
as also under Section-13(1)(D)(I), 13(2) of Prevention
of Corruption Act. Copy of this FIR is placed at
Page-29 to 31 in the convenient compilation running
into 31 pages.
2. Applicant is granted anticipatory bail in the matter
of above referred FIR and the State has challenged
the order granting anticipatory bail to the applicant
and challenge is presently pending before the
Hon’ble Supreme Court.
3. Challenge of opponent State in the matter of above
referred FIR is tagged with challenge of applicant
not granting anticipatory bail in the matter of FIR
of Firozkhan referred herein above by Hon’ble

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Supreme Court.
D
1. Applicant challenged the order of this Hon’ble Court
in Criminal Misc. Application No. 1692 of 2011
dated 11.07.2011 whereby this Hon’ble Court
refused to interfere with order permitting
investigation under Section-156(3) passed by court
of Ld. Magistrate pursuant to rejection of Raiskhan’s
application praying for examining him as court
witness under Section-311 of Code of Criminal
Procedure, 1973, before the Hon’ble Supreme Court.
2. Challenge before Hon’ble Supreme Court as referred
herein above failed and thereafter, applicant
preferred Criminal Appeal No. 497 of 2018 praying
for setting aside order passed by Ld. Sessions Judge
on which FIR came to be registered against
Raiskhan. Memo of this appeal is at page-32 to 57
in convenient compilation running into 126 pages.
3. Applicant preferred anticipatory bail application in
above preferred bail proceedings and the same came
to be allowed by Ld. Sessions Judge against which
State preferred cancelation of granting of
anticipatory bail through Criminal Misc. Application
No. 13195 of 2011 and the same is pending as for
almost about 7 years, matter remained stayed on
the order of Hon’ble Supreme Court. This Hon’ble
Court passed order dated 16.02.2018 in State’s
Criminal Misc. Application No. 13195 of 2011 and
the same is at Page-123 to 125 in the convenient
compilation running into 126 pages.
4. Presently, above referred Criminal Misc. Application
No. 13195 of 2011 praying cancelation of
anticipatory bail granted in favour of applicant is
pending.

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25. Applicant is rewarded by erstwhile establishment by

conferring PADMASHRI through notification dated
23.03.2007. this notification is placed at Page-28 to
31 of CC running into 126 pages.

26. Opponent is relying upon following judgments

1. 2015(11) SCC 502

Vinod Bhandari Versus State of Uttar Pradesh
2. 2021(6) SCC 191
Naveen Singh Versus State of Uttar Pradesh and
others
3. 2007(11) SCC 195
Satish Jaggi Versus State of Chhattisgarh.
27. It is also submitted that not only that it is the
tendency of applicant to tamper and tutor with
witnesses but Hon’ble Supreme Court had also
considered petitioner’s conduct of sending / marking
petitioner’s letter addresses by her to SIT also sent to
UNHRC at Geneva as a misadventure. It is submitted
that one of the parameter of consideration of
granting or otherwise of bail is conduct, behaviour
and position of accused in the society as observed in
judgments placed by applicant.

28. In view of above and oral submissions made on

behalf of State of Gujarat, applicant does not deserve
relief as prayed for.”

6. I have heard learned senior counsel Mr.Mihir

Thakore assisted by learned advocate Mr.S.M.Vatsa
for the applicant and learned Public Prosecutor

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Mr.Mitesh Amin for the respondent State.

7. The lengthy submissions made by learned counsels

for the parties coupled with the equally lengthy
written submissions can be summerised as under:

7.1 Broadly the following submissions were made by

learned senior counsel Mr.Mihir Thakore.

7.1.1 The affidavits which are alleged to be forged

in the FIR and in the charge-sheet were filed by
different witnesses before Hon’ble Supreme Court in
transfer petition filed by National Human Right
Commission between 06.11.2003 and 17.11.2003.

7.1.2 The applicant is also accused and the aforesaid

fact was considered by the Hon’ble Supreme Court
while releasing her on interim bail. Proviso to
Section 437 (1) (ii) of the Cr.P.C. provides that the
Court may may direct that a person referred to in
clause (i) or clause (ii) be released on bail if such
person is under the age of sixteen years or is a

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woman or is sick or infirm and, therefore, the

applicant being a lady accused looking to the
aforesaid proviso she should be enlarged on bail.

7.1.3 Section 439 of the Cr.P.C., more particularly

Section 439 (1)(A) provides that any person accused
of an offence and in custody, be released on bail,
and if the offence is of the nature specified in sub-
section (3) of Section 437, may impose any condition
which it considers necessary for the purposes
mentioned in that sub-section and, therefore,
considering the fact that present applicant is charge-
sheeted for an offence which would fall within scope
of and ambit of Section 437(3) of Cr.P.C., present
applicant is required to be enlarged on bail.

7.1.4 The general principles governing the Law of bail

are required to be considered while granting or
refusing the bail which are as under:

(i) The Court has to presume innocence of the

accused while considering a bail application;

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(ii) Denial of bail amounts to deprivation of personal

liberty, and grant of bail is the rule and refusal
is exception;
(iii) Object of detention or imprisonment of the
accused is to secure his appearance and
submission to the jurisdiction and judgment of
the Court. Primary inquiry is whether bond
would effect that end. Object of detention is
never punishment before trial;
(iv) Whether the accused is likely to abuse the
discretion granted in his favour by tampering
with evidence or influencing witnesses or
threatening the complainant. Mere apprehension
of tampering with evidence or influencing
witnesses or threatening the complainant without
anything else is not ground for refusal of bail;
(v) The nature of accusations and the severity of
punishment in the case of conviction and the
nature of materials relied upon by the
prosecution; and
(vi) Character behavior and standing of the accused.

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7.1.5 The applicant is not a flight risk and would

be available to the Court and Police whenever
required. Though the allegations about tampering
with the evidence is made in respect of alleged
excavation in Lunawada Taluka, the applicant is
granted anticipatory bail by the Sessions Court
and though the charge-sheet is filed, the
applicant is not shown as accused in column no.1
nor the accused is absconder.

7.1.6 The applicant has been a journalist for over 30

years and there is nothing to indicate anything
against her character or behavior. The
investigation is over and investigating agency has
not shown or identified any other person in
column no.2 in the charge-sheet as absconding or
not arrested or not charge-sheeted etc.

7.1.7 Looking to the definition of ‘Forgery’ as per

Section 463 of the Indian Penal Code and Section
464 making a false statement and looking to the
role attributed to the present applicant she
cannot be said to have forged any document or

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made a false document in view of the definition

of ‘dishontestly’ as defined under Section 24 of
the IPC, ‘wrongful gain’ as defined under Section
23 with ‘wrongful loss’ and ‘gaining wrongfully /
losing wrongfully’.

7.1.8 Even the definition of word ‘fraudulently’ as

defined under Section 25 of IPC would not
applicable considering the role attributed to the
present applicant and, therefore, once when the
applicability of Section 463 qua applicant is not
made out as she herself has not forged any
document, she cannot be said to have committed
offences under Sections 468, 469 and 471 of the
Indian Penal Code.

7.1.9 Looking to the statements of various

witnesses viz. (i) Imran Khan Pathan, (ii)
Madinabanu w/o. Rafik Khan Chand Khan
Pathan, (iii) Abdul Majid Mohammad Usman
Shaikh, (iv) Reshmabanu Nadimbhai Sayed, (v)
Rafikanbanu Rehmanbhai Shakurbhai Sayed, none
of the above witnesses have supported the case

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of the prosecution.

7.1.10 Looking to the role attributed to the present

applicant as well as considering the definition of
Sections 194, 211 and 218 of the Indian Penal
Code, the applicant cannot be said to have
committed offences.

7.1.11 Insofar as offence under Section 194 of

Indian Penal Code is concerned, the same would
fall under Section 195 (1)(b)(i) of Cr.P.C. and no
Court shall take cognizance of such offence
except on a complaint in writing of that Court or
by such officer or that Court as the Court may
authorize in writing in this behalf or of some
other Court to which that Court is subordinate
and, therefore, no offence is made out under
Section 194 of the Indian Penal Code.

7.1.12 As far as the allegations made in the

charge-sheet against the present applicant are
concerned, same are on the basis of statement
given by one Raees Khan Pathan under Section

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164 of the Cr.P.C which is of larger conspiracy

and considering the material on record, it is
evident that at no point of time earlier the said
Raees Khan Pathan has alleged any larger
conspiracy which is alleged in the statement
under Section 164 before the Magistrate and
there is also clear contradictions between the
statement under Section 164 of Raees Khan
Pathan and of Narendra Brahmbhatt which were
recorded on 15.07.2022. On the aspect of
whether any conversation ever took place in
respect of larger conspiracy of implicating high
political functionaries and top government
functionaries.

7.2 Whereas the submissions made by learned Public

Prosecutor Mr.Mitesh Amin can be sumerised as
under:

7.2.1 The Hon’ble Supreme Court, vide its order

dated 02.09.2022, while granting interim bail to
the applicant, passed in Criminal Appeal No.1417
and 1418 of 2022 categorically observed as under:

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“We are therefore not considering whether the

appellant be released on regular bail or not. That
issue will be gone into by the High Court in the
pending application”

“At the cost of repetition, we may observe that

we have considered the matter from the
standpoint of considering interim bail and we
shall not be taken to have expressed any view
touching upon the merits of the submissions
advanced on behalf of the appellant. The pending
applications before the High Court shall be
considered by the High Court independently and
uninfluenced by any of the observations made by
this Court in the instant order”.

And in view of above specific observations of the

Hon’ble Supreme Court this Court needs to
consider the material of investigation and other
aspects relating to granting or otherwise of the
bail independently and uninfluenced by any of
the observation made by Hon’ble Supreme Court
of in the order granting interim bail to the
applicant.

7.2.2 Though charge-sheet is filed on 20.09.2022,

it was already clarified that investigation is still going

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on as per provisions of Section 173(8) of Cr.P.C. The

offence committed by the applicant and others are not
only serious in nature but are offences against public
justice.

7.2.3 By relying upon statement of witnesses viz.

(1) Raiskhan Azizkhan Pathan (2) Narendra Jethalal
Brahambhatt (3) Qutbuddin Nasruddin Ansari (4)
Yasminbanu Nafitulla Shaikh, (5) Abdul Majid
Mohammad Usman Shaikh (6) Rafikkanbanu
Rehmanbhai Saiyed, (7) Nanumiya Rasulmiya Malek (8)
Madina Aarifhusen Malek (9) Imrankhan Asrafkhan
Pathan and (10) notary advocate Shivkumar Chotelal
Gupta as well as email communication it is submitted
that statements of above witnesses and communication
provide ample evidence against present applicant
having involved in an offence in question which is
serious in nature and the said communication also
involves local politicians which indicates sufficiency of
material against the present applicant. It also indicates
that it was the present applicant who participated in a
meeting with very strong politician of one of the oldest

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political party and she received sum of Rs.30,00,000/-

from the aforesaid political leader for propagating
larger conspiracy by going to the extent of doing so
much so that the then Chief Minister of the State goes
behind bar. As per the statement of witness Raeeskhan
Pathan whereby he has stated about applicant’s
involvement in publishing magazines / news articles
which would defame the then Chief Minister to the
extent that the then Chief Minister would be forced to
resign and as stated by witnesses that whatever
funds / money is received would be used used to
pursue the theory of larger conspiracy.

7.2.4 The statement of Raeeskhan Pathan is

elaborately relied uopn by the prosecution to indicate
as to how the entire conspiracy was hatched and how
ultimately after refusal by one Vitthal Pandya’s to file
affidavit the same was filed by Smt.Jakia Jafri. The
learned Public Prosecutor Mr.Amin relied upon the
statements of witnesses viz. Raiskhan Azizkhan Pathan,
Narendra Jethalal Brahambhatt, Qutbuddin Nasruddin
Ansari, Yasminbanu Nafitulla Shaikh, Abdul Majid

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Mohammad Usman Shaikh, Rafikkanbanu Rehmanbhai

Saiyed, Nanumiya Rasulmiya Malek, Madina Aarifhusen
Malek, Imrankhan Asrafkhan Pathan and notary
advocate Shivkumar Chotelal Gupta to indicate that
how the applicant has acted in respect of allegations
levelled against him and attention was also drawn to
the Court about different email communications
between the applicant and two other accused at the
relevant period i.e. post communal riot at Godhra
which refers to different litigation involving applicant
as well as different names narrated in it in
abbreviation like RKR, RR, RB, MS etc. and it also
refers to copies of affidavit naming of lawyer for
preparing ghost questions, draft press notes which were
prepared by the applicant.

7.2.5 By referring to the aforesaid material in the

form of statement and emails, it is submitted that
there is prima facie involvement of the applicant in
commission of offence of making of false documents
and in forgery of fabricating documents etc.

7.2.6 While considering the grant or otherwise of

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bail, the evaluation of prima facie case that the Court

may examine only to the extent of examining materials
to evaluate prima facie case and nothing beyond at
this stage as scrutinizing material of investigation for
deciding credibility and reliability of witness is not
required at this stage.

7.2.7 Any contradiction in the statement of

witnesses would be subject matter of trial and the
same cannot be examined at this stage.

7.2.8 It is submitted by learned Public Prosecutor

that present applicant is also involved in four similar
cases which indicates the instances of the present
applicant.

7.2.9 It is the tendency of the applicant to tamper

and tutor with witnesses. The Hon’ble Supreme Court
also considered the conduct of the applicant of sending
/ marking petitioner’s letter addressed by her to SIT
and also send to UNHRC at Geneva which would
indicate his conduct.

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7.2.10 Gravity of offence is a relevant consideration

for grant or refusal of bail and, therefore, while
considering other parameters, this Court may also
consider the gravity of offence.

7.2.11 By making aforesaid submissions, learned

Public Prosecutor Mr.Mitesh Amin prays for rejection
of bail of the applicant.

8. Heard learned counsels for the parties and perused

the record as well as the written submissions and
judgments relied upon by both the sides.

9. In view of above, my analysis of the aforesaid

submissions of rival counsels are as under:

9.1 SUBMISSION ABOUT APPLICABILITY OF

SECTIONS 468, 469, 471, 194, 211 AND 218 OF THE
INDIAN PENAL CODE:-

9.1.1 Learned senior advocate Mr.Mihir Thakore

made lengthy submissions and by relying upon the

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definition of Section 463 of IPC i.e. about ‘Forgery’,

Section 464 of IPC i.e. about ‘Making a false
document, Section 24 of IPC i.e. about ‘Dishonestly’,
Section 23 of IPC i.e. about ‘Wrongful gain, Wrongful
loss and Gaining Wrongfully / Loosing Wrongfully’ and
Section 25 of IPC i.e. about ‘Fraudulently’ submitted
that in view of aforeaid definitions as the applicant has
neither made, signed, sealed, executed, transmitted or
affixed the affidavits before Hon’ble the Supreme Court
or before Special Investigation Team, she would not
fall under scope and ambit of Section 464 and as the
same was not done with an intent of causing damage
or injury to public or any person or to support any
claim or with intent to commit fraud or that fraud
may be committed in view of aforesaid defintions as
the documents were executed by respective witnesses
and not by applicant herself, the applicability of
Sections 462, 468, 469 and 471 of the IPC has been
questioned. Similarly the applicability of Section 194,
211 and 218 of IPC was quetioned by stating that
Section 194 of IPC would be applicable only to those
whoever gives or frabircates false evidence with an

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intention to cause or procure any person to be

convicted for capital punishment offence and as giving
false evidence and fabricating false evidence are
defnined in Sections 191 and 192 of Indian Penal
Code, the same would be applicable only in respect of
a person whoever being lgeally bound by an oath or
by an express provisions of law to state the truth or to
make declaration upon any subject or to make any
statement which is false would constitute an offence of
giving false statement. Similarly fabricating a false
evidence can be said to be applicable only when a
person makes any document containing a false
statement intending that such circumstance or ralse
statement may appear in evidence in a judicial
proceedings are signed by that person.

9.1.2 Learned senior advocate Mr.Thakore further

submitted that there is clear distinction between
Section 195(1)(b)(i) and Section 195(1)(b)(ii). The
offence under Section 194 would fall under Section
195(1)(b)(i) of Cr.P.C. and the Court can take
cognizance of such offence only when a complaint in

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writing of that Court, or by such officer of that Court

as the Court may authorize in writing in this behalf, or
of some other Court to which that Court is
subordinate. Since an offence allegedly committed
under Sections 463, 471, 475 or 476 of Indian Penal
Code are committed in respect of documents produced
in the Court but prepared outside the Court is is not
necessary that the complaint should be filed in writing
by the Court and, therefore, considering the fact that
as per the law laid down by Hon’ble the Supreme
Court in the case of Iqbal Singh Marwah vs.
Meenakshi Marwah (supra) and in the case of Banekar
Brothers Private Limited vs. Prasad Vasudev Keni
(supra), as the offence committed in respect of Section
194, though Sections 467, 468 and 471 of the Indian
Penal Code were not applicable and they were invoked
only to bring the offence within a purview of Section
194 of Indian Penal Code.

9.1.3 As far as aforesaid submissions regarding

applicability of Sections 468, 469 and 471 of the IPC is
concerned, I have perused the record and definitions of

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relevant sections and the judgment cited by learned

senior advocate Mr.Thakore in case of Iqbal Singh
Marwah vs. Meenakshi Marwah (supra) and in the case
of Banekar Brothers Private Limited vs. Prasad Vasudev
Keni (supra).

9.1.4 However, before proceeding ahead in respect

of applicability of sections, the first and foremost
question that the Court must consider would be about
the aspect of whether the Court should consider the
applicability of relevant sections in respect of offence
in question or not. While considering the bail
application whether the Court should restrict itself to
material available on record and peruse the same or
that the Court can carry out an exercise in a direction
of applicability of various sections by analysing the
material on record and form prima facie conclusion
about applicability of certain sections and, therefore,
keeping the aforesaid aspects in mind, a specific query
was raised to learned senior advocate Mr.Mihir
Thakore as to whether any proceeding in respect of
this FIR are initiated by this applicant either for

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quashing of the entire FIR or challenging the

applicability of certain sections under which the
offence is registered or any other petition either under
Section 482 of the Cr.P.C. or under Article 226 of the
Constitution of India before the High Court or under
Article 32 before Hon’ble the Supreme Court and in
response to the aforesaid query, learned senior
advocate Mr.Mihir Thakore had fairly submitted that
present applicant has not preferred any petition either
for quashing or any other appropriate application
whereby applicability of certain sections of the FIR qua
the applicant or all the accused persons are challenged.

9.1.5 Though charge-sheet is filed as back as on

20.09.2022 and hearing of this application took place
in June, 2023 and though an offence was registered in
the month of March, 2022, during all these time the
applicant has not challenged or questioned the
applicability of any of the section under which FIR was
registered initially or while filing charge-sheet any
other section was added.

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9.1.6 The aforesaid aspect would go to show that

except for making submissions in the present bail
application, the present applicant has not challenged or
questioned the applicability of above referred sections
in the FIR. When the applicant has not challenged the
applicability of any section even after filing of FIR or
charge-sheet, prifa caie, I am of the view that when
the applicant had other remedies available in the form
of petition or application of for quashing to question
and challenge the applicability of certain sections
incorporated in FIR at the stage of FIR, even for quite
considerable long time thereafter if the applicant had
not availed those remedies and questioned the
applicability of certain sections which according to the
applicant are not applicable to her, considering her
role as stated or coming out from the charge-sheet
papers, in that case, venturing into the applicability of
these sections by the Court in bail application is
impermissible. As it prima facie indicates that the
applicant has accepted that subject to the outcome of
the trial even if she is acquitted on the basis of
evidence adduced, prima facie, the offence registered

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and subsequently after investigation charge-sheet filed

is filed under Sections mentioned in the FIR or charge-
sheet would be applicable in the facts of the case.

9.1.7 If a Court is permitted to venture into

carrying out exercise about applicability of certain
sections under which FIR is registered or charge-sheet
is filed, in that case, it would lead to a situation
whereby while exercising powers to grant bail under
Section 439 of the Cr.P.C., if the Court expands its
scope and starts analysing material as if it is hearing
the petition either under Section 482 of the Cr.P.C. or
under Article 226 of the Constitution of India, the
same would amount to acting beyond powers and
parameters of Section 439 of Cr.P.C. and in that case
there would not be any demarcation of exercising of
powers under Article 226 of the Constitution of India,
under Section 482 of the Code of Criminal Procedure
and under Section 439 of the Code of Criminal
Procedure. The legislature while enacting the provisions
of Act or while preparing the constitution had after
careful consideration only have decided the scope and

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ambit of exercising of powers in a particular section or

article and, therefore, even if some submissions in
respect of applicability of particular sections are made
before the Court, this Court believes that it is for the
concerned Judge to apply the measure of self-restraints
and to consider the material on record, as it is, to
analyse whether there is prma facie case against
applicant or not and by keeping in mind the
parameters for grant or refusal of bail and thereby
decide the bail application.

9.1.8 If while deciding the bail application under

Section 439 of the Cr.P.C. if the Courts start analysing
the applicability of various sections under which the
offence is registered or charge-sheet is filed, in that
case, that would not only amount to exercise of
powers beyond its scope and ambit, but may also lead
to a situation whereby if the same applicant prefers
the application challenging the applicability of certain
sections by way of a petition under Article 226 of the
Constitution of India or under Section 482 of the
Cr.P.C. and also prefers application for bail and makes

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submissions in respect of applicability of certain

sections in bail application also, and if both the Courts
takes contrary view even if prima facie about
applicability of certain sections, in that case, that will
not only create problem for the trial Court in
conducting the trial but will also unnecessary prolong
the trial only because of the Courts higher than the
trial Court has taken two contradictory views in
respect of applicability of certain sections in respect of
two different applications preferred by the same
applicant – accused and, therefore, in my view, in an
application under Section 439 of the Cr.P.C. when the
Court is considering as to whether the applicant is
entitled to grant of bail or not the Court must confine
itself to the question as to whether the material
available on record is such that it would constitute
prima facie case against the applicant or not, for grant
of bail and the genuineness of material or the
applicability of certain sections must be left to the trial
Court to consider it at the stage of trial or in case if
the applicant chooses to challenge the applicability of
certain sections or FIR itself by way of appropriate

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proceedings, in that case, it is for the Court taking up

the matters under Section 482 of the Cr.P.C. or under
Article 226 of the Constitution of India to examine and
analyse the material within the permissible limits.

9.1.9 In view of this Court, for a Court taking up

bail matters, it would be improper to form any
opinion, even prima facie, about applicability of any
section and Court is expected to decide the bail
application on the basis of material available before it
by considering parameters and principles for
considering the bail application rather than analysing
the evidence or deciding or opining anything or
expressing any view about applicability of certain
sections and hence in the instant case, though lengthy
submissions were made by learned senior counsel
Mr.Thakore questioning the applicability of sections
468,469, 471, 194, 211 and 218 of the IPC, I do not
deem it proper to go into the aspect of applicability of
those sections and would decide this application on the
basis of material available on record and by keeping in
mind the principles governing the law related to bail

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and the factors which may attribute while deciding a

bail application.

9.1.10 In view of aforesaid discussion, it is not open

for this Court to analyse the material on record and
thereby to form even prima facie opinion about
applicability of any section at the stage of bail and,
therefore, this Court does not propose to venture into
the analysis of material vis-a-vis the applicability of
section and, therefore, the aforesaid submissions cannot
be accepted and the same is required to be rejected
outrightly.

9.1.11 In view of above, this Court shall consider

the material on record to determine the aspect about
grant or refusal of bail on the basis of material
available on record without analysing its applicability
which has not been questioned till date by the
applicant by way of any other proceedings before any
Court of Law and the same has been questioned for
the first time only before this Court.

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9.2 SUBMISSIONS IN RESPECT OF GRANT OF BAIL

TO A WOMAN ACCUSED:

9.2.1 One of the limb of submissions of learned

senior advocate Mr.Thakore was that present applicant
is lady accused and that in view of proviso to section
437 (1) (ii) of Cr.P.C. which provides for grant of bail
to a person, who is under the age of sixteen years or
is a woman or is sick or infirm and about sub-section
(3) of Section 437 providing for grant of bail in respect
of offence punishable with imprisonment which may
extend to seven years or more or of an offence under
Chapter VI, Chapter XVI or Chapter VII of the Indian
Penal Code.

9.2.2 As far as this submission is concerned, no

one can question the aforesaid provisions of Law.
However, in the aforesaid section the word used is
‘MAY’ and the word ‘SHALL’ is not used which, in
view of this Court, indicates that under normal or
ordinary circumstances, the Court may release a person
under the age of 16, a lady accused, sick or infirm on
bail. However, though ordinarily Courts are expected

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to adhere to other provisions of Act, the word ‘MAY’

also indicates that if the Court, upon perusal of the
material, feels that though the accused person is aged
below sixteen years or is a lady accused, is sick or is
infirm, the material on record and nature of offence is
such that the person falling in any of above category is
not required to be enlarged on bail. In that case, the
Court upon giving reasons for the same can certainly
reject the application for bail in view of the fact that
the word used in Section 437 is ‘MAY’ and, therefore,
it is not a straight jacket formula that the Court must
release a lady accused, person below age of 16, child
or infirm on bail irrespective of material against him
or irrespective of gravity of offence or without
considering the overall material available on record
and, therefore, though the applicant is a lady accused,
that is the only one of the grounds available to release
her on bail in case if remaining material against her is
not that serious and if the Court is satisfied that this is
fit case to exercise powers under Section 437 of Cr.P.C.

9.2.3 In the instant case, this Court is mindful of

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the fact that while enlarging the present applicant on

interim bail, the Hon’ble Supreme Court considered the
aspect that the present applicant is a lady accused,
however, in the said order dated 02.09.2022 the
Hon’ble Supreme Court has also directed this Court to
consider the matter on merits and, therefore, this
Court is required to consider the application for bail
preferred by the applicant by taking into consideration
the merits of the matter as well and not merely on the
ground of considering the fact that present applicant is
lady accused and, therefore, though this Court is
mindful of the fact that the applicant is lady accused,
this Court will consider the case of the applicant on
the basis of overall material and, therefore, it is the
duty of the Court to bear in mind the fact that
applicant is lady accused but at the same time overall
material is required to be considered.

9.3 SUBMISSION IN RESPECT OF PARAMETERS /

PRINCIPLES THAT THE COURT MUST BEAR IN MIND
IN RESPECT OF GRANT OF BAIL:

9.3.1 Learned senior advocate Mr.Thakore made

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submissions in respect of various principles and

parameters enunciated by Hon’ble Supreme Court in
different judgments which are required to be
considered while granting or refusing bail.

9.3.2 By relying upon the judgments in the case of

Gurbux Singh Sibbiya vs. State of Punjab (supra), in
the case of Satender Kumar Antil vs. Central Bureau of
Investigation and another (supra), in the case of
Bhagirathsinh Mahipatsinh Jadeja vs. State of Gujarat
(supra), in the case of State of U.P. vs. Armani
Tripathi (supra), in the case of Ranjitsinh
Brahmajitsinh Sharma vs. State of Maharashtra (supra),
P. Chidambaram vs. Central Bureau of Investigation
(supra) and P. Chidambaram vs. Directorate of
Enforcement (supra), learned senior advocate
Mr.Thakore submitted that the Court is required to
consider following general principles as enunciated by
the Ho’nble Supreme Court by way of different
judgments which are referred hereinabove. Such
principles are , -

(i) The Court has to presume innocence of the

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accused while considering a bail application.

(ii) Denial of bail amounts to deprivation of personal
liberty, and grant of bail is the rule and refusal is
exception.
(iii) Object of detention or imprisonment of the
accused is to secure his appearance and
submission to the jurisdiction and judgment of the
Court. Primary inquiry is whether bond would
effect that end. Object of detention is never
punishment before trial.
(iv) Whether the accused is likely to abuse the
discretion granted in his favour by tampering with
evidence or influencing witnesses or threatening
the complainant. Mere apprehension of tampering
with evidence or influencing witnesses or
threatening the complainant without anything else
is not ground for refusal of bail.
(v) The nature of accusations and the severity of
punishment in the case of conviction and the
nature of materials relied upon by the prosecution.
(vi) Character behaviour and standing of the accused.

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9.4 Learned Public Prosecutor Mr.Mitesh Amin

submitted that there cannot be any dispute about the
fact that Law of bail is governed by aforesaid
principles. However, learned Public Prosecutor
Mr.Amin drew attention of this Court that gravity of
offence is also one of the major and important
consideration while dealing with an application for
bail.

9.5 Learned Public Prosecutor Mr.Amin in support of

his submissions relying upon the case of Vinod
Bhandari vs. State of Madhya Pradesh reported in
(2015) 11 SCC 502, in case of Navinsing vs. State of
UP and others reported in (2021) 6 SCC 191 and in
case of Satish Jaggi vs. State of Chhatishgarh and
others reported in (2007) 11 SCC 195 and submitted
that the seriousness of offence or gravity of offence is
also one of the relevant considerations while
considering the grant of bail.

9.6 In case of Vinod Bhandari vs. State of Madhya

Pradesh (supra) the Hon’ble Supreme Court has
observed in para:17 as under:

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“17. In the light of above settled principles of

law dealing with the prayer for bail pending
trial, we proceed to consider the present case.
Undoubtedly, the offence alleged against the
appellant has serious adverse impact on the
fabric of the society. The offence is of high
magnitude indicating illegal admission to large
number of undeserving candidates to the medical
courses by corrupt means. Apart from showing
depravity of character and generation of black
money, the offence has the potential of
undermining the trust of the people in the
integrity of medical profession itself. If
undeserving candidates are admitted to medical
courses by corrupt means, not only the society
will be deprived of the best brains treating the
patients, the patients will be faced with
undeserving and corrupt persons treating them in
whom they will find it difficult to repose faith.
In these circumstances, when the allegations are
supported by material on record and there is a
potential of trial being adversely influenced by
grant of bail, seriously jeopardising the interest
of justice, we do not find any ground to interfere
with the view taken by the trial Court and the
High Court in declining bail.

9.7 In case of Navinsing vs. State of UP and others

(supra) the Hon’ble Supreme Court in paras:12.2 and
12.3 observed as under:

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“12.2 If we consider the impugned judgment

and order passed by the High Court, it appears
that the High Court has not adverted itself to
the seriousness of the case and the offences
alleged against Respondent 2 – accused and the
gravity of the matter. From the impugned
order, it appears that the High Court has
released Respondent 2-accused on bail in a
routine and casual manner and without
adverting to the seriousness of the offence and
the gravity of the matter relating to forgery
and/or manipulating the court order. From the
impugned judgment and order passed by the
High Court, it appears that the High Court has
only observed that since the innocence and
complicity of the accused can be decided only
after taking evidence with regard thereto,
without commenting anything on merit as to
the complicity, involvement and severeness of
the offences, the case being triable by the
Magistrate and the charge-sheet having been
filed and the accused is languishing in jail
since 22-11-2018, is entitled to be released on
bail.

12.3 However, the High Court has not at all

considered that the accused is charged for the
offences under Sections 420, 467, 468, 471 and
12-B IPC and the maximum punishment for the
offence under Section 467 IPC is 10 years and
fine/imprisonment for life and even for the
offence under Section 471 IPC the similar

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punishment. Apart from that forging and / or

manipulating the court record and getting
benefit of such forged / manipulated court
record is a very serious offence. If the court
record is manipulated and / or forged, it will
hamper the administration of justice. Forging /
manipulating the court record and taking the
benefit of the same stands on altogether a
different footing than forging / manipulating
other documents between two individuals.
Therefore, the High Court ought to have been
more cautious / serious in granting the bail to
a person who is alleged to have forged /
manipulated the court record and taken the
benefit of such manipulated and forged court
record more particularly when he has been
charge-sheeted having found prima facie case
and the charge has been framed.

9.8 In case of Satish Jaggi vs. State of Chhatishgarh

and others (supra), in para:12, the Hon’ble Supreme
Court observed as under:

“ 12.Normally if the offence is non-bailable

also, bail can be granted if the facts and
circumstances so demand. We have already
observed that in granting bail in non-bailable
offence, the primary consideration is the
gravity and the nature of the offence. A
reading of the order of the learned Chief
Justice shows that the nature and the gravity

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of the offence and its impact on the

democratic fabric of the society was not at all
considered. We are more concerned with the
observations and findings recorded by the
learned Chief Justice on the credibility and the
evidential value of the witnesses at the stage
of granting bail. By making such observations
and findings, the learned Chief Justice has
virtually acquitted the accused of all the
criminal charges levelled against him even
before the trial. The trial is in progress and if
such findings are allowed to stand it would
seriously prejudice the prosecution case. At the
stage of granting of bail, the court can only go
into the question of the pirma facie case
established for granting bail. It cannot go into
the question of credibility and reliability of the
witnesses put up by the prosecution. The
question of credibility and reliability of
prosecution witnesses can only be tested during
the trial.”

9.9 The aforesaid observations made by the Hon’ble

Supreme Court in aforesaid three judgments make it
abundantly clear that it is the duty of the Court to
keep in mind the aspect of seriousness or gravity of
offence as well while considering the application for
bail preferred by the accused. Of course, the personal
liberty and presumption of innocence of accused are

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very important factors to be considered as can be seen

from principles enunciated by various judgments
referred to herein above and relied upon by learned
senior advocate Mr.Mihir Thakore but gravity of
offence is also one of the serious factor or ground
which cannot be overlooked or ignored by the Court
while deciding the bail application. Therefore, though
principles of grant or refusal of the bail as relied upon
by learned senior advocate Mr.Mihir Thakore are well
settled, but at the same time the Court also must not
ignore or overlook the factor like gravity of offence
and past antecedents as well as overall conduct of the
applicant and, therefore, this Court proposes to
proceed further in direction of considering the material
on record to come to conclusion as to whether prima
facie there is case made out against the applicant or in
favour of applicant for grant or refusal of bail or not
and, therefore, now after aforesaid discussion in
respect of various principles of Law, the applicability
of certain sections etc., I may proceed to consider the
material on record and evaluate it in view of above
referred principles.

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9.10 On merits of the matter on the basis of material

available on record, learned senior counsel Mr.Mihir
Thakore submitted that affidavits which are filed before
the Hon’ble Supreme Court were filed by the
respective witnesses. The present applicant herself did
not file any affidavit nor gave any statement and,
therefore, at the most what can be alleged against her
is the fact that she had only drafted those affidavits.
Drafting of affidavits on behalf of witnesses or any
other person would not constitute any offence.

9.11 Further, in respect of Gulbarg case those

statements were recorded by present SIT and those
who have not filed any affidavit before Hon’ble the
Supreme Court in the year 2003 cannot be said to
have forged any document or made any false
document.

9.12 As far as Sardarpura Case, Ode Case and Naroda

Gam Case ‘Naroda Patiya’ are concerned, the
statements of witnesses are recorded by present SIT
who have admitted during the course of evidence

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during trial that the affidavits which they have signed

were read over and explained to them in Gujarati.

9.13 It was also contended that in respect of Naroda

Patiya incident, the witnesses have not claimed to be
eye witnesses.

9.14 Learned senior advocate Mr.Mihir Thakore by

relying upon various statements of Imran Khan Pathan,
Madinabanu W/o. Rafik Khan Chand Khan Pathan,
Abdul Majid, Reshmabanu Nadimbhai and Rafikabanu
Rehmanbhai, which are already incorporated in
forgoing paras while reproducing the written statements
of the applicant submitted that the statement of all
these witnesses would not constitute any offence under
Sections 467, 468 and 469 of the Indian Penal Code
against the applicant as she has not committed any
forgery and except Naroda Gam Case in no other cases
trial Court have deemed it appropriate to initiate
proceedings under Section 340 of the Cr.PC. For
producing false evidence.

9.15 Learned senior advocate Mr.Mihir Thakore

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further submitted that for the first time in the year

2022 while recording the statement under Section 164
of the Cr.P.C. witness Raees Khan Pathan referred to
alleged conversation between Late Ahemad Patel and
Teesta Setalwad. Though Raees Khan worked with
Citizen for Justice and Peace from 28.02.2002 to
18.01.2008 and he had occasion to file affidavit, make
application and write letters to various authorities
before also, for the first time he named have Late
Ahemad Patel in July, 2022 and at no point of time,
he alleged any larger conspiracy which was alleged by
statement under Section 164 of the Cr.P.C. before the
Magistrate and there are clear contradictions between
the statements made under Section 164 of Cr.P.C by
Raees Khan as well as Narendra Brahmbhatt in
comparison to their earlier statements / affidavits.

9.16 By referring to aforesaid statements and

contradictions thereof in detail, learned senior advocate
Mr.Mihir Thakore submitted that the present applicant
should be enlarged on bail.

10. Learned Public Prosecutor Mr.Mitesh Amin also

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submitted that it was the present applicant who

participated in a meeting with congress leader Late
Ahemad Patel and as she was paid sum of
Rs.30,00,000/- in two installments by Late Ahemad
Patel through Narendra Brahmbhatt she took up the
task of unsettling the then establishment and tarnishing
the image of the then Hon’ble Chief Minister of
Gujarat.

11.1 In view of aforesaid submissions as well as in

view of submissions and statements of witnesses
referred to by learned senior advocate Mr.Thakore, the
Court perused the statements of Raees Khan and
Narendra Brahmbhatt given under Section 164 of the
Cr.P.C. as well as other statements which are on
record and the Court also perused the statements of
Imran Khan Pathan, Madinabanu wife of Rafik Khan
Chand Khan Pathan , Abdul Majid Mohammad Usman
Shaikh, Reshmabanu Nadimbhai Sayed and
Rafikanbanu Rehmanbhai Shakurbhai Sayed which have
been relied upon by learned senior advocate Mr.Mihir
Thakore.

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11.2 The Court also considered the submissions

about contradiction in statements of Raees Khan and
Narendra Brahmbhatt as well as other witnesses and
also perused the statements of Raiskhan Azizkhan
Pathan (2) Narendra Jethalal Brahambhatt (3)
Qutbuddin Nasruddin Ansari (4) Yasminbanu Nafitulla
Shaikh, (5) Affidavit of Abdul Majid Mohammad
Usman Shaikh and his evidence as witness in
concerned Sessions Case as well as (6) Affidavit of
Rafikkanbanu Rehmanbhai Saiyed also with her
evidence in concerned Sessions Case, (7) Affidavit of
Nanumiya Rasulmiya Malek (8) Affidavit of Madina
Aarifhusen Malek along with her evidence in concerned
Sessions Case, (9) Affidavit of Imrankhan Asrafkhan
Pathan along with his evidence in concerned Sessions
Case (10) Statement of notary advocate Shivkumar
Chotelal Gupta and email communication involving all
the three accused including applicant.

11.3 The aforesaid statements are examined by the

Court bearing in mind the fact that it was specifically
submitted by learned senior advocate Mr.Thakore that

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Imrankhan Pathan, in his statement, denied having any

conversation with the present applicant over phone
before drafting of the SC affidavit, Madinabanu wife of
Rafik Khan Chand Khan Pathan before the trial Court
had specifically figned ignorance to the suggestion that
neither affidavits were read over nor explained with
Abdul Majid Mohammad Usman Shaikh though was not
an eye-witness to the incident of alleged rape upon his
daugther, the incident of rape did take place and the
same was discussed to him while receiving treatment,
the statement of Reshmabanu Nadimbhai Sayed had
stated that affidavit was typed as per her say and its
contents were explained to her before signing whereas
Rafikanbanu Rehmanbhai Shakurbhai Sayed had
specifically submitted in her evidence before the trial
Court that she might have forgotten to suply certain
facts to the person drafting the affidavit and, therefore,
those facts were missing from the affidavit.

11.4 However, in respect to aforesaid submissions, if

we look at the material relied upon by learned Public
Prosecutor Mr.Amin, the Court found that there is

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ample material against the present applicant coming

out from statements of witnesses as Raees Khan, in his
statement under Section 164 of the Cr.P.C, recorded on
08.07.2022, stated that he knew present applicant since
the year 1992 ever since the present applicant was
reporter in an English newspaper and worked in relief
camp after riots in 1992. The present applicant told
witness Raees Khan to send photographs of the relief
camp in the manner in which the relief camp work
being done in the relief camp and thereafter when she
came to Ahmedabad, present applicant introduced him
to one Father Sedric Prakash and co-accused Sanjeev
Bhatt and thereafter the present applicant introduced
him to leader of a political party i.e. Late Ahemad
Patel at the Circuit House in Ahmedabad. Where
present applicant alleged to have discussed about the
riots in Gujarat with that political leader and that Late
Political leader expressed his happiness over the way
she had worked in the past at Bombay and insisted
her to work in Gujarat in such a manner that the
establishment in power at the relevant point of time
and the then Chief Minister are sent the behind the

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bars and his reputation is tarnished. When the present

applicant told, that to carry out such activities of
working in the manner that it may disrepute the then
Chief Minister and the establishment and for doing the
work in such manner that the then Chief Minister is
sent to jail, would require huge fund which she did
not had. Late Ahemad Patel told her that she need not
to worry for that and she would get ample funds as
per her requirement. He called one Narendra
Brahmbhatt, introduced him to present applicant and
immediately arranged for a fund of Rs.5,00,000/-
which was given to present applicant. Not just that
thereafter further amount of Rs.25,00,000/- was also
given to the present applicant by Narendra Brahmbhatt
at the instance of Late Ahemad Patel. At the circuit
house when the applicant met that political leader and
aforesaid amount of Rs.25/- Lakhs was given to the
present applicant by Narendra Brahmbhatt, Late
Political Leader by pointing out to other persons told
that present applicant that ‘....please do see that
whenever any further amount is required by you, you
will get it from any of these persons’.

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11.5 On that day, present applicant told late Mr.Patel

that in the month of April she will publish special
edition of her magazine i.e. Communalism Combat and
will break a big news in that. Though magazine would
be in English, she would translate it in Gujarati and
news that would be published in that special edition of
magazine would be such that it would tarnish the
image of the then Chief Minister to such an extent that
he will have to resign. Hearing this, political leader
late Mr.Ahemad Patel was very happy and said that he
would be very eagerly waiting for that special edition
of magazine to be published and assured that he would
ensure that present applicant would never be short of
funds and told the present applicant to tarnish the
image of the then Chief Minister to the best possible
extent.

11.6 Not only that, as per above statement of Raees

Khan Pathan, the present applicant also managed for
press ID for the aforesaid Raees Khan Pathan to ensure
free movement of the present applicant during those
period of riots. Thereafter with the help of one

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advocate Mr.Tirmizi and his team of advocates, present

applicant prepared certain affidavits of people from
Gulbarg Society, Naroda Camp, Ode Camp, Best Bakery
incident, Godhra Lunavada, Modasa etc. will lead to
those persons narrating exaggerated versions which
were drafted in the form of affidavit and on the basis
of those statements and certain provocative
photographs related to riots were printed in the
magazine showing distribution in the relief camp by
the present applicant throughout Gujarat.

11.7 The present applicant also created an NGO i.e.

Citizen for Justice and Peace in April, 2002 at Bombay
and took 40 affected persons of riots to Delhi and in
presence of certain political leaders of congress and
leftest parties and in presence of international and
national media, programme was held which was
arranged by the present applicant. She called one after
another witness on stage and those victims had spoken
what they were tutored by present applicant from stage
and thereafter applicant appealed for funds and in turn
she received huge funds and thereafter took her to the

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residence of political leader to assure them that though

at present their government is not in power, therefore,
they may support the present applicant and do
whatever she asked them to do and they will get
power very soon and given them justice and will give
them government jobs and financial assistance and will
repair their houses. From there present applicant took
them to residence of Late Mr.Patel who also assured
them in line with other political party leaders assured
and then they came back to Ahmedabad.

11.8 What is shocking is that as per the statement

of witness Raees Khan is that one Munsafkhan was
ready to file affidavit and he came with affected
persons in four jeeps and got the affidavits of affected
persons prepared. In those affidavits, name of certain
innocent persons were also mentioned and those who
were having enimosity with Munsafkhan. The present
applicant told them in those affidavits you may
mention whomsoever names you want to mention even
if that person is innocent and she will see to it that
those persons will be punished and accordingly those

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affidavits were prepared.

11.9 The statement of Raees Khan also mentioned

about how Smt Jakia Jafri entered into the scene. As
per statement, one Vitthal Pandya was approached to
file an affidavit but upon learning that he will have to
file affidavit implicating certain innocent persons and
some ministers also, upon perusal of the draft affidavit
that Vitthal Pandya got engry and refused to sign the
affidavit and, therefore, they approached son of
Smt.Jakia Jafri viz. Tanvir Jafri telephonically and
convinced Smt.Jafri to file affidavits. Thereafter Tanvir
Jafri took Jakia Jafri at Ahmedabad and press
conferences were held and Tanvir Jafri and Jakia Jafri
addressed those press conferences in the manner they
were tutored.

11.10 There are also some more factors showing

revelation in the aforesaid statement of Raees Khan
which show that to what an extent present applicant
can be gone. As per statement when the then President
of India visited one of the relief camps i.e. Haj House
at Kalupur and when present applicant came to know

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about President visiting Haj House, just before 24

hours before visiting of the President, she immediately
rushed to Ahmedabad and informed the witness Raees
Khan to enter Haj House at any cost. Though the same
was cordoned, no one were in position to go inside,
somehow witness Raees Khan managed to enter Haj
House. The present applicant also entered Haj House
wearing Burkha. Though camp organization decided
that only two persons would speak to President i.e.
one lady and one male member, only mentioning
about some Muslim lady and not the name she
managed to meet. It was decided to give present
applicant to name of Muslim lady and to speak to
Hon’ble the then President. Even on the previous night
when police came to check the people, she did not
reveal her identity and wrapped witness Raees Khan
also in blanket and when President visited relief camp
at that time she removed her Burkha and though
Hon’ble President did not know that it was present
applicant, she brought out an edition of ‘Communalism
Combat’ in Tamil language which was very provocative
and gave it to Hon’ble President.

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11.11 Similarly, the present applicant approached

one more victim Zahira, tutored her and arranged her
for press conference and thereafter as she did not fulfil
promise given to Zahira [as per statement of Zahira
before taking her to Bombay, present applicant
promised her to buy two flats to her and one shop and
to provide money] and as nothing was done despite
the fact that applicant was collecting huge funds in the
name of victims, said Zahira parted away and even she
was subjected to beaten up with her mother and
therefore she left Vadodara where she held press
conference against present applicant.

11.12 Similarly, the present applicant told Raees

Khan to approach one Qutubuddin Ansari, whose
picture in a miserable condition during the riot had hit
the headlines and was published by many publishing
houses and convinced him to hold the press conference
to speak about the then Chief Minister and also got his
affidavit drafted and filed.

11.13 The statement under Section 164 given by

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Raees Khan is very lengthy statement but it gives an

idea about as to how the present applicant collected
money just to unsettle the establishment and to defame
and disapprove the then Chief Minister and ultimately
parted ways with said Raees Khan since year 2008.

11.14 The affidavit also throws light of the present

applicant who was journalist in the year 1992 and
though was never into social services registered an
NGO i.e. Citizen for Justice and Peace, collected funds
for unsettling the establishment and ultimately went on
to become the member of the National Planning
Commission.

11.15 Similarly, as per the statement of Narendra

Brahmbhatt given under Section 164 of Cr.P.C. he also
has stated that Teesta Setalvad along with Raees Khan
had meeting with Late Ahemad Patel and as Teesta
Setalvad said that she is sort of funds, he gave sum of
Rs.30,00,000/- in two instalments of Rs.5,00,000/- and
Rs.25,00,000/- and while performing his duty to
provide necessary things to the riot victims in the

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relief camps, he found present applicant ear-poisining

the victims against the Government. Even one
journalist of BBC viz. Pankaj Shankar met witness
Narendra Brahmbhatt and said that he is a part of
NGO run by present applicant, looking after Britain
and Gulf countries and they used to provoke the
people against the government, take their interviews
and due to that used to get from the Britain and Gulf
countries.

11.16 Aforesaid statement of Raees Khan also

speaks about how by making false allegations about
how the minorities in Gujarat are tortured, oppressed
and not getting justice and by fabricating evidence in
the form of false affidavits and by holding press
conferences, by influencing witnesses and by projecting
wrong facts and by framing innocents, the present
applicant has collected huge funds from Islamic
countries.

11.17 Similarly I have also perused the transcription

between co-accused Shree Kumar and witness Raees
Khan which also forms part of charge sheet papers

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which is also indicating an active role of the present

applicant and the statement of Qutbuddin Nasruddin
Ansari under Section 164 of the Cr.P.C. In the
aforesaid statement of said Ansari, he has specifically
stated that he had met present applicant and convinced
him to settle at Calcutta, arranged for a press
conference of the present applicant and was used
politically by the present applicant. Though the present
applicant used her photographs in her magazine and
appealed for seeking funds in the name of Qutuudin
Ansari, the funds were collected by the present
applicant and only sum of Rs.1,000/- was paid. The
aforesaid statement of Qutbudin Ansari specifically
mentions about the fact that the present applicant got
his signature in some papers related to Court, however,
in the statement, he has not stated about what that
paper was.

11.18 Similarly, one more victim Yasminbanu

Nafitulla Shaikh in her statement under Section 164 of
Cr.P.C. stated that she is the victim of Best Bakery
case and she was taken to Bombay to meet the present

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applicant and told the witness Yasminbanu that even if

she had already given statement to the police, despite
that present applicant would show her certain names
and photographs and the present applicant along with
one more person used to come to take them, show the
names and photographs and used to take them to
Court and used to bear all expenses. The present
applicant also took her signature on certain documents
and all these was done by promising her that she
would construct a house for her and see to it that her
daughter got married.

11.19 Similarly on perusal of statement of other

persons and material like affidavit of Abdul Majid
Mohammad Usman Shaikh and his evidence as witness
in concerned Sessions Case, affidavit of Rafikkanbanu
Rehmanbhai Saiyed also with her evidence in
concerned Sessions Case, affidavit of Nanumiya
Rasulmiya Malek, affidavit of Madina Aarifhusen Malek
along with her evidence in concerned Sessions Case,
affidavit of Imran Asrafkhan Pathan along with his
evidence in concerned Sessions Case and statement of

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notary advocate Shivkumar Chotelal Gupta and email

communication involving all accused including
applicant, this Court found that even those persons
whose statements / affidavits were referred to by
learned Public Prosecutor have also categorically
deposed against the present applicant and crux of their
statements / affidavits is that present applicant
arranged meeting with other political leader late
Mr.Ahemad Patel, collected sum of Rs.30,00,000/- and
get collected funds by using the names and
photographs of riots victims and ultimately duped
them.

11.20 Prima facie it seems that those persons were

not actually helped by the applicant but only with a
view to gain personal and political benefits, the present
applicant used them and collected huge funds in their
names and ultimately person who started as a
Journalist in English news paper by passage of time
conveniently projected herself to a social leader and
ultimately became the member of Planning
Commission.

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11.21 The aforesaid statements also indicate the fact

that present applicant had prepared false affidavits and
convinced and ensured the victims to file those false
and fabricated affidavits before the Hon’ble the
Supreme Court and other forums. What is shockingly is
that those affidavits were far from truth as it named
innocent persons also in it, and those affidavits were
prepared and filed just to fulfil personal / political
agenda of present applicant and of the late leader of
the political party.

11.22 It is true that learned senior advocate

Mr.Thakore has questioned the authenticity and
genuineness of the aforesaid statements by stating that
there are contradictions and inconsistency in those
statements and affidavits of the witnesses which are
relied upon by prosecution. However, the fact remains
that today those statements are on record and
considering the seriousness of those statements and the
material coming out of those statements, at this stage,
looking to the larger conspiracy alleged by way of FIR,

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substantiated by voluminous record and material

running into around 5000 pages after investigation, by
way of charge sheet papers and also considering the
fact that even today the investigation is going on
under Section 173(8) of the Cr.P.C. the material against
the present applicant cannot be ignored completely.

11.23 Though the issue relates back to the year

2002 and the time thereafter and various litigations
before Hon’ble the Supreme Court were pending till
March, 2022 and as the present FIR is registered
pursuant to the observations made by Hon’ble Supreme
Court in its order dated 22.03.2022, fact remains that
each and every close associate of the present applicant
and even the riots victims who were used by the
present applicant by influencing them to file false and
fabricated affidavits before the Hon’ble Supreme Court
with a view to unsit the establishment and to tranish
the image of establishment and the then Chief
Minister, have unequivocally given statement against
the present applicant making serious allegations against
the present applicant which prima facie supports the

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case of the prosecution.

11.24 What is important to see is when in a

democratic country, the constitution provides for any
State to be Rule and run through democratically
elected government as per the wish of people of that
State, if a person becomes part of the larger conspiracy
and just for money and to fulfil her personal ambition
[ in the instant case i have seen that a Journalist i.e.
applicant has started her career as Journalist and
prima facie it seems that by using victim and witnesses
as ladder for her own benefits the present applicant
ultimately reached on to Padmashree to become
Member of Planning Commission.] to hold prestigious
position goes to any extent and thereby make active
efforts not just to unsettle democratically elected
government by disreputing the then Chief Minister,
government machineries and by using the victims by
convicing them to file false affidavits before various
forums and before the Hon’ble Supreme Court and by
playing with the sentiments of two wounded
communities as she had used sentiments of a particular

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community to her benefit, collected money for her and

ultimately did not help those victims as promised, and
thereby because of all her efforts and by utilising her
intelligence by instituting litigations without any basis
as the affidavits which were filed by witnesses at her
instance before various forums including the Hon’ble
Supreme Court were far from truth and inteded 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 and, therefore, if
any leniency is shown towards such person, there is
strong possibility that in future also, we may see many
more persons coming out openly to help any entity in
fulfilling their agenda in an illegal and unlawful
manner and show readiness to do anything by playing
with the sentiments of the community just to ensure
that particular political party gets sufficient swing in
their favour by changing the mindset of people by
exploiting their religious and communal feelings and
provoking them as persons who are oppressed and are
not given justice by the establishment

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11.25 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
as prima facie this Court is of the view that on one
hand when we are heading towards the progress of the
country with an efforts to strengthen the communal
harmony and brotherhood which would create an
atmosphere which can accelerate and develop the
progress of the country. Any social work in the
direction or making efforts to ensure that poor,
oppressed or needy people / victims of social system or
administration may get justice is always welcome
things but in that case such efforts should be genuine,
self-less and unbiased. However, in the instant case,
prima facie it seems that though present applicant has
formed an NGO in the name of Citizen for Justice and
Peace, she has never worked in the direction of
securing justice and peace. In fact she has even dared
to file false affidavits before the highest forum of the
country i.e. Hon’ble the Supreme Court. Her work was
mainly in the direction to polarise the people of a

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particular communally which would disturb the peace

rather than creating an atmosphere of peace and
brotherhood and all this was done by provoking the
people and by even misleading the various forums
including the Hon’ble Supreme Court by filing false
and fabricated affidavits and even by writing letters to
UNHRC for which she was warned by the Hon’ble
Supreme Court.

11.26 Further, I have also perused other materials

on record and I have found that in the past also there
were allegations against present applicant that she has
utilised the funds which were meant for NGO for her
personal use and that out of that funds she has
purchased some luxurious items for herself.

11.27 Further, as it comes out prima facie from the

record that present applicant has not let any stone
unturned to exploit the feelings of minorities by
provoking them and by engineering and by
manipulating things in respect of various things in
respect of FIR registered at Lunavada Police Station,
DCB Police Station Ahmedabad City, this Court prima

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facie is of the view that present applicant has not only

past track record of going to any extent to achieve the
agenda which is entrusted to her as she had already
done by influencing the witnesses and by aggressively
propagating against government and its machinery as
well as the then Chief Minister and she has shown
courage in the past to threaten the witnesses,
tampering with the evidence and to influence the
people.

11.28 Further, if the present applicant even if she

is lady is enlarged on bail, looking to the material
against her as in the past also all throughout the
efforts is that she has tried to win-over the witnesses
in the manner that suits her as agenda and considering
the fact that the present applicant was funded freely
by political party and was assured of more funds if
requires, shows how influential she is. Further,
considering the fact that present applicant is not only
closely associated with political leaders but also
considering the fact that present applicant is having
close relations with not just political leaders of Gujarat

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and Maharashtra but also has roots at Delhi and she

has contacts with the people from all fields and
fraternity. Even if present applicant is a lady accused,
considering the gravity of offence along with other
parameters based on the principles enunciated by
various judgments of Hon’ble Supreme Court, if the
present applicant is released on bail, who is facing
allegation of larger conspiracy of unsettling the then
establishment and dis reputing the then Chief Minister,
if any leniency is shown to the applicant and is
enlarged on bail, there are ample chances that she
may temper with the witnesses as she is very
influential person who reached upto Padmashree
become Member of Planning Commission as also
considering the fact that if such person facing such
kind of charges and having courage to file false
affidavits before the Hon’ble Supreme Court and to
write letters at UNHRC Geniva, in that case, enlarging
such kind of person would send wrong signal as it may
give signal that in democratic country everything
would be so lenient that even if person go to extent of
making efforts to unsit the then establishment and to

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disrepute the image of the then Chief Minister to the

extent to see that he is sent to jail, that will encourage
others also to act in similar manner.

11.29 Further, I have also considered the fact that

prima facie appears that all these was done by the
present applicant by influencing, threatening and giving
false promises to the riot victims and to file false
affidavits before various forums including the Hon’ble
Supreme Court and thereby made attempts to create an
atmosphere to unsettle democratically elected
government to disrepute the image of the then Chief
Minister and to see that he goes to jail, today some
political party is alleged to have given her task to the
aforesaid things, tomorrow situation may raise that
some outside force may utilise and convince a person
to make efforts in similar line causing danger to
Nation or to a particular State by adopting the same
modalities and, therefore, considering the totality of
the facts and circumstances as also considering the fact
that any such attempts may not take place in future,
the bail application of the present applicant is required

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to be dismissed

11.30 In view of above discussion, to summarize

this Court is of the view that, prima facie, there is
ample material against the present applicant which is
of grave nature to deny her the bail and even looking
to her past conduct and considering the fact that
present applicant is an influential person there are
chances that she may tamper with the evidence, I do
not deem it appropriate to enlarge the present
applicant on bail and, therefore also, the present
application is required to be dismissed and the same is
dismissed.

12. In view of above discussion, the present

application stands dismissed. Rule is discharged. No
order as to costs.

13. As the present applicant is on interim bail

granted by Hon’ble the Supreme Court of India vide
order dated 02.09.2022 passed in Criminal Appeal
No.1417 and 1418 of 2022, the applicant is directed to
surrender immediately.

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FURTHER ORDER:

14. Learned senior advocate Mr.Thakore, after

pronouncement of this order, prayed for stay of this
order for a period of thirty days. However, considering
the aforesaid discussion, request is rejected.

(NIRZAR S. DESAI,J)
MISHRA AMIT V.

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