High Court said she must first quash FIR to get bail. Supreme Court: That's absurd.

The High Court told her: 'You can't get bail unless you first get the FIR quashed.' The Supreme Court's response? 'That would make bail impossible.' On a July morning in 2023, three judges of the Supreme Court of India sat down to read an order that had just come from the Gujarat High Court — and what they found made them call it "perverse."

Teesta Setalvad, a social activist, had been on interim bail for nearly ten months. She had not fled. She had not tampered with witnesses. She had not committed a single new offence. Yet the High Court ordered her to surrender immediately, because — among other reasons — she had not filed a petition to quash the FIR (a formal request to throw out the criminal complaint entirely) before asking for bail. The Supreme Court's response was swift and devastating to that reasoning: if every bail applicant had to first get the charges quashed, no one would ever get bail.

When the FIR arrived the day after a Supreme Court observation

The story begins not with Setalvad's arrest, but with a separate case. In Zakia Ahsan Jafri v. State of Gujarat, the Supreme Court made observations suggesting that those who had abused the legal process in connection with the 2002 Gujarat riots should face consequences. The very next day — June 25, 2022 — an FIR was registered against Setalvad in Gujarat. She was arrested the same day.

The charge was serious: that Setalvad had influenced citizens to file false affidavits, fabricating evidence to implicate people in the 2002 riots. The police invoked seven sections of the Indian Penal Code — including Section 194 (giving or fabricating false evidence with intent to procure a conviction for a capital offence), Section 468 (forgery for cheating), Section 471 (using a forged document as genuine), and Section 120B (criminal conspiracy).

Setalvad was produced before a magistrate the next day. The court granted police remand for seven days. After that, she was sent to judicial custody. Her first bail application, before the Sessions Court, was rejected on July 30, 2022.

Why the High Court said no — and why it made no sense

Setalvad then approached the Gujarat High Court. On August 3, 2022, the High Court issued a notice — a formal order asking the state to respond — but refused to grant any interim relief. She remained in custody.

Then came the Supreme Court. On September 2, 2022, a bench granted her interim bail. The reasons were straightforward: she was a woman, the alleged offences dated back to 2002, her custodial interrogation was complete, and the investigating agency already had all the documentary evidence it needed. The chargesheet had been filed. There was no risk of her tampering with evidence or fleeing.

For nearly ten months, Setalvad remained on that interim bail. She complied with every condition. She did not approach any witness. She did not leave the country.

Then, on July 1, 2023, a single judge of the Gujarat High Court heard her final bail application — and rejected it. The order directed her to surrender immediately.

The High Court's reasoning contained a contradiction that the Supreme Court would later call out. First, the High Court said that at the bail stage, a court cannot assess whether a prima facie case (a case that appears valid on first examination) exists against the accused. Then, in the very same order, the High Court went on to find that a prima facie case existed under Section 194 IPC.

But the more troubling part was this: the High Court held that because Setalvad had not filed a petition under Section 482 of the CrPC (the High Court's inherent power to quash an FIR or criminal proceedings), she could not challenge the existence of a prima facie case at the bail stage.

The Supreme Court's response: 'That would make bail impossible'

Setalvad appealed to the Supreme Court. A three-judge bench — Justice B.R. Gavai, Justice A.S. Bopanna, and Justice Dipankar Datta — heard the matter on July 19, 2023.

The bench did not mince words. It found the High Court's reasoning "perverse in parts." The core legal question was simple: can a bail application be rejected because the accused has not filed a quashing petition?

The Supreme Court's answer was emphatic: no. The court held that the fact that an accused has not filed a petition to quash the FIR or chargesheet under Section 482 CrPC or under Articles 226/32 of the Constitution has no relevance whatsoever in deciding a bail application. If such a requirement were imposed, the court reasoned, no bail application at a pre-trial stage could ever be entertained without first filing a quashing petition. That would make bail impossible — precisely the absurdity the High Court had created.

The bench also noted that the considerations that justified interim bail in September 2022 — Setalvad's gender, the age of the alleged offences, the completion of custodial interrogation, the filing of the chargesheet, and the documentary evidence already in the investigating agency's possession — continued to exist. No changed circumstances had been shown. The High Court had not pointed to a single instance of witness tampering or flight risk during the ten months she was on interim bail.

On the direction to surrender immediately, the Supreme Court was equally sharp. Where an accused has been on interim bail for an extended period without incident, a direction to surrender immediately upon rejection of bail — without showing any alarming urgency — is unjustified.

What the court actually decided

The Supreme Court quashed the High Court's order and allowed the appeal. Setalvad was directed to continue on bail on the same terms as the September 2022 order. The only condition imposed was that she shall not make any attempt to influence witnesses and shall remain away from them.

The bench cited two precedents. The first was Zakia Ahsan Jafri v. State of Gujarat itself — the case whose observations had triggered the FIR. The second was Niranjan Singh v. Prabhakar Rajaram Kharote, a 1980 Supreme Court decision that had settled the law on what considerations govern bail at the pre-trial stage: the existence of a prima facie case, the risk of tampering with evidence, and the risk of flight.

The ratio — the court's central reasoning — was clear. First, a bail application cannot be rejected for failure to file a quashing petition. Second, where the considerations that justified interim bail continue to subsist, the accused is entitled to regular bail. Third, a direction to surrender immediately after a long period of compliant interim bail is unjustified without showing urgency.

Why this matters for every bail applicant

For practitioners, this judgment does something simple but important: it shuts down a bad argument that some High Courts had begun to entertain. The idea that a bail applicant must first challenge the FIR itself — a long, expensive, and uncertain process — before being considered for release was never good law. Now it is clearly bad law.

THE PLAY: If a court tells your client to first file a quashing petition before seeking bail, cite Teesta Setalvad v. State of Gujarat and argue that such a requirement makes bail impossible and is perverse on its face.

The court ended where it began: with an absurdity that no longer stands.