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Tuesday, March 24, 2015

whether the appellants, the wife and husband, trustees of two trusts, namely, "Citizens for Justice and Peace" (CJP) and "Sabrang Trust", should be taken into custody for custodial interrogation on the bedrock of allegations made by one Ferozkhan Saeedkhan Pathan, alleging that the trustees along with others had raised few crores of rupees as donations from certain donors from India and abroad by projecting the plight of the affected persons of Gulbarga Society and by entering into a conspiracy, and has promised that they would build a "museum" in honour of the 2002 riot victims and also told them not to sell their land with the assurance that the trustees would arrange funds for the same, but they neither built the museum as promised nor spent the amount for the benefit of the members of the Gulbarga Society nor did they fulfil the assurance made to the victims as regards the sale of their properties but expended on themselves by benumbing and comatosing their liberty by asking them to face custodial interrogation or regard being had to the nature of the offences, for which a crime punishable under Sections 420, 406, 468, 120B of the Indian Penal Code ('IPC' for short) and Section 72(A) of the Information and Technology Act, 2000 (for brevity 'the Act'), has been registered should they be extended the benefit of anticipatory bail, as envisaged under Section 438 of the Criminal Procedure Code (CrPC) that has been refused by the Court of Session as well as by the High Court.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 338 OF 2015
                [Arising out of S.L.P. (Crl.) No.1512 of 2015
                              (D.No. 5077/2015]




Teesta Atul Setalvad and Anr.                ...   Appellant

                                   Versus

State of Gujarat                                   ...   Respondent



                                  O R D E R


Dipak Misra, J.

The present appeal, raises the seminal issue  whether  the  appellants,  the
wife and husband, trustees of two trusts, namely, "Citizens for Justice  and
Peace"  (CJP)  and  "Sabrang  Trust",  should  be  taken  into  custody  for
custodial interrogation on the bedrock of allegations made by one  Ferozkhan
Saeedkhan Pathan, alleging that the trustees along with  others  had  raised
few crores of rupees as donations from certain donors from India and  abroad
by projecting the plight of the affected persons of Gulbarga Society and  by
entering into a conspiracy,  and  has  promised  that  they  would  build  a
"museum" in honour of the 2002 riot victims and also told them not  to  sell
their land with the assurance that the trustees would arrange funds for  the
same, but they neither built the museum as promised  nor  spent  the  amount
for the benefit of the members of the Gulbarga Society nor did  they  fulfil
the assurance made to the victims as regards the  sale of  their  properties
but expended on themselves by benumbing  and  comatosing  their  liberty  by
asking them to face custodial interrogation  or  regard  being  had  to  the
nature of the offences, for which a crime  punishable  under  Sections  420,
406, 468, 120B of the Indian Penal Code ('IPC' for short) and Section  72(A)
of the Information and Technology Act, 2000 (for  brevity  'the  Act'),  has
been registered should they be extended the benefit  of  anticipatory  bail,
as envisaged under Section 438 of the Criminal Procedure  Code  (CrPC)  that
has been refused by the Court of Session as well as by the High Court.
2.    Regard being had to the aforesaid issue, the question that arises  for
consideration is whether liberty on the one  hand  and  fair  and  effective
investigation on the other, make out a case for extending the benefit  under
Section 438 CrPC.
3.    Needless to say "Liberty is to the collective body, what health is  to
every individual body. Without health, no pleasure can  be  tasted  by  man;
without liberty, no happiness can be  enjoyed  by  society."[1]  Thus  spoke
Bolingbroke.
4.    In this context,  a  passage  from  Edmund  Burke  which  pertains  to
societal control is also apt to quote:
"Men  are  qualified  for  civil  liberty,  in  exact  proportion  to  their
disposition to put moral chains upon their own appetites; in  proportion  as
their love to justice is  above  their  rapacity;  in  proportion  as  their
soundness  and  sobriety  of  understanding  is  above  their   vanity   and
presumption; in proportion as they  are  more  disposed  to  listen  to  the
counsel of the wise and good, in  preference  to  the  flattery  of  knaves.
Society cannot exist unless a controlling power upon will  and  appetite  be
placed somewhere and the less of it there is within, the more there must  be
without. It is ordained in the eternal constitution of things  that  men  of
intemperate minds cannot be free. Their passions forge their fetters."[2]

5.    In this context, it is also  seemly  to  reproduce  what  John  Adams,
future second President of the United  States  of  America,  while  speaking
about the definition of a Republic, had said:
"The true and only definition is a Government, in which all  men,  rich  and
poor, Magistrates and subjects, officers and people, masters  and  servants,
the first citizen and the last, are equally subject to the laws."

      The aforesaid passage clearly makes out that every citizen is  subject
to the laws of the country.  No one is above law.
6.    Having stated about the value of liberty,  the  concept  of  regulated
freedom, the societal restriction, the supremacy of the law, the concept  of
anticipatory bail and the  assertion  of  the  prosecution  about  the  non-
cooperation of the appellants in the investigation,  and  the  asseverations
made by the appellants, we think it appropriate that the  matter  should  be
heard by a larger Bench.
7.    Accordingly, the Registry is directed to place the matter  before  the
Hon'ble Chief Justice for constitution of appropriate larger Bench.
8.    A three-Judge Bench of this Court, on 12.02.2015, had granted  interim
protection till 13.02.2015, which was extended by the next order  passed  on
13.02.2015 till 19.02.2015.  When  this  Bench  had  heard  the  matter  and
reserved the judgment on 19.2.2015, it had passed the following order:-
"As an interim measure, it is directed that  the  appellants  shall  not  be
arrested in connection with FIR being C.R. No. 1 of  2014,  registered  with
D.C.P., Crime Branch, Ahmedabad, Gujarat."

9.    As we are referring the matter to a larger Bench,  the  interim  order
passed on 19.02.2015 shall remain in force till the larger  Bench  takes  up
the matter.

                                  ........................................J.
                             [DIPAK MISRA]


                                 .........................................J.
                                      [ADARSH KUMAR GOEL]

NEW DELHI
MARCH 19, 2015.
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[1]    The Works of Lord Bolingbroke with a Life, Vol.2 (Carey and Hart,
1841) 391
[2]    Alfred Howard, The Beauties of Burke (T. Davison, London) 109

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