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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

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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.

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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  

1 The Works of Lord Bolingbroke with a Life, Vol.2 (Carey and Hart, 1841) 391

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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.   

2 Alfred Howard, The Beauties of Burke (T. Davison, London) 109

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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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