NEW DELHI: In a rare decision, Chief Justice H L Dattu has assigned the anticipatory bail plea of social activist and Narendra Modi baiter Teesta Setalvad to a new bench even though none of the two judges on the earlier bench, which had stayed her arrest till Thursday, sought recusal from the hearing.

On February 13, a bench of Justices S J Mukhopadhaya and N V Ramana had heard petitions by Setalvad and her husband, accused of allegedly misappropriating donations meant for riot victims, and stayed their arrest by Gujarat Police till Thursday but not before asking uncomfortable questions.

Setalvad's counsel Kapil SIbal had said, "If she is arrested and sent to jail, the voice of dissent against the might of a state will be lost. She is ready to face investigation. This is a fit case for grant of anticipatory bail. Please don't allow Gujarat Police to arrest her."

The bench of Justices Mukhopadhaya and Ramana had said, "We will not be swayed by sentiments and stature of the person before us. We will treat this case like any other case."

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But on Thursday, the petitions will be heard by a bench of Justices Dipak Misra and Adarsh Goel. The sudden change of bench surprised many. TOI inquired from the SC registry and found that none of the judges on the earlier bench, Justices Mukhopadhaya and Ramana, had recused from hearing the petitions.

The CJI decides which case goes to which bench. If there are written or oral requests for recusal from a particular judge, then the case is shifted to another bench.

Advocate Prashant Bhushan, who wrote an edit page article on Wednesday on the case, welcomed the change of bench and said there were questions about the earlier bench hearing Setalvad's petition.

He said, "It has been brought to my notice that Narendra Modi was an invitee of and recently attended the weddings of the children of Justices Mukhopadhaya and Ramana, who are hearing the case of Teesta Setalvad . The allegation of Teesta in this case is that she is being hounded by Gujarat Police since she had played a leading role in exposing the role of Modi in the Gujarat carnage of 2002 and is seeking accountability for it. In these circumstances, the question has arisen whether it would be appropriate for these judges to hear this case."

Citing the unwritten code for recusal of judges from a case, Bhushan said, "A person in Teesta's position can reasonably apprehend that Modi must have been invited to the weddings of the judges' children because they are his personal friends and in which case, she can reasonably apprehend bias in this case. I, therefore, feel that this is a case where the judges would be well advised to recuse themselves from the case, in order to, as the code of conduct says, 'reaffirm the people's faith in the impartiality of the judiciary'."