Supreme Court last month gave the couple anticipatory bail in a separate case of alleged misappropriation of funds raised for a museum at the site of the Gulberg Society massacre during the 2002 Gujarat riots. Supreme Court last month gave the couple anticipatory bail in a separate case of alleged misappropriation of funds raised for a museum at the site of the Gulberg Society massacre during the 2002 Gujarat riots.

Social activist Teesta Setalvad and her husband Javed Anand failed to get anticipatory bail on Thursday, with a two-judge bench of the Supreme Court saying the issue demanded the attention of a larger bench.

The bail plea, usually a routine matter in courts, will now be decided by a bench comprising at least three judges of the top court. There is currently a stay on the couple’s arrest.

Saying that “the matter should be heard by a larger bench”, the court directed the Court Registry to place the matter before Chief Justice H L Dattu for the constitution of an appropriate bench.

The two-judge bench of Justices Dipak Misra and Adarsh Kumar Goel said the issue before it was “whether liberty on one hand and fair and effective investigation on the other, make out a case for extending the benefit under Section 438 CrPC (anticipatory bail)”.

It cited one passage from political thinker Edmund Burke to emphasise how indispensable liberty was, and another by second president of the United States John Adams to state that no one is above the law.

The court said the larger bench would need to address a host of issues, namely “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 asseveration made by the appellants (Teesta and Javed)”.

The case involves funds received by Sabrang Trust and Citizens for Justice and Peace for building a memorial at the Gulbarg Cooperative Housing Society in Ahmedabad for victims of the 2002 riots. The Gujarat police had lodged an FIR on a complaint alleging cheating, breach of trust and misappropriation of funds. The High Court had rejected the couple’s bail plea underlining their lack of cooperation with investigators, prompting Teesta and Javed to move the top court.

The matter was then mentioned before a bench headed by CJI Dattu, and he allowed the case to be listed the next day on an urgent basis. When the matter came up before a two-judge bench of Justices S J Mukhopadhaya and N V Ramana, it said that the allegations were “grave” and added that “she (Teesta) would be treated like any other ordinary citizen”.

But almost a week later, the case came to be listed before another bench of Justices Misra and Goel. This bench granted Teesta and Javed interim protection from arrest, and expressed an inclination to grant them bail, observing that “liberty is paramount and cannot be put on a ventilator” when custodial interrogation is not imperative. It reserved its judgement on February 19.

Three days later, an unusual development took place as the Supreme Court fielded its Registrar to deny that the CJI had “on his own” shifted the bail plea to the new bench. The Registrar, however, declined to disclose which of the two judges on the previous bench — Justice Mukhopadhaya or Justice Ramana — had recused. Neither did the Registrar disclose why the judge had not recused when the bail plea first came up before the bench.

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