Supreme Court reserves verdict in Pawan Khera's anticipatory bail plea

The Supreme Court on Thursday reserved its verdict in the anticipatory bail plea filed by Congress leader Pawan Khera in a defamation and forgery case registered against him by the Assam Police after he made allegations against the wife of Assam Chief Minister Himanta Biswa Sarma.

A Bench of Justices JK Maheshwari and AS Chandurkar heard Khera and the Assam Police before proceeding to reserve the judgment.

Khera told the Court that there is no necessity to arrest him and that his statements will at the most attract only the offence of defamation and not other offences of forgery and public mischief invoked by the Assam Police.

However, the Assam Police maintained that Khera had paraded forged documents including passports to make false claims. Thus, his custody would be necessary to ascertain who his accomplices were and whether there are foreign elements involved.

The Gauhati High Court had on April 24 rejected Khera's plea for anticipatory bail in the case registered against him by the Crime Branch of Assam Police in Guwahati. 

The case alleging defamation, forgery and criminal conspiracy was registered against Khera following his recent claims at a press conference that Sarma’s wife Riniki Bhuyan holds multiple foreign passports and undisclosed assets abroad.

Assam Police had visited Khera’s residence in Delhi on April 7, but he was not present there. 

Khera later approached the Telangana High Court seeking transit anticipatory bail.

The Telangana High Court granted him a week's relief on April 10 to enable him approach the courts in Assam for anticipatory bail.

On April 15, the Supreme Court stayed Telangana High Court's April 10 order on an appeal moved by Assam government.

Subsequently, on April 17, the top court refused to extend the transit bail period. It asked Khera to approach the Gauhati High Court instead.

Khera then moved the Gauhati High Court.

In his petition before the Gauhati High Court, Khera argued that the allegations against him arise out of statements made in a public and political context during a press conference. He said that the same were "selectively construed" to initiate the criminal proceedings.

Khera added that the first information report (FIR) was registered to "satisfy ulterior motive/political vendetta of the complainant", who is the wife of the Assam Chief Minister.

On April 24, the High Court rejected his plea.

The High Court said that custodial interrogation of Khera was necessary to find the persons who had provided him the documents he used to claim that Sarma's wife holds three foreign passports and a company in the United States.

The Court observed that if Khera had made the allegations only against the Chief Minister, it would have been called political rhetoric, but he dragged an innocent lady into the controversy.

It added that Khera was avoiding police investigation, with material on record prima facie suggesting commission of an offence under Section 339 of the Bharatiya Nyaya Sanhita, which relates to possession of forged documents.

Khera then filed the current plea before the Supreme Court.

Senior Advocate Abhishek Manu Singhvi, appearing for Khera today, said that Khera's apprehension of arrest is credible and that the Assam Chief Minister's statements lends credence to such apprehension.

"Please see the published articles on Assam chronicle with the unprintable word right in the middle. “Pelunga”, “peda bana dunga”. Dr. Ambedkar would turn over in his grave if he had imagined a constitutional holder of office behaving like a constitutional cowboy, a constitutional Rambo...These are statements by the boss of the boss of the boss of the boss of the prosecutor. There is no question of apprehension of arrest being in doubt," Singhvi said.

Singhvi underscored that Khera is not at flight risk and that there is no necessity to arrest him.

"The issue is why is it necessary to humiliate by a custodial arrest? The investigating officer says non-bailable arrest warrant is required because he is absconding, could tamper with evidence, has political influence etc. Every possible section has been thrown in," Singhvi argued.

He also took objection to the manner in which Khera was being hounded, adding that the Chief Minister was threatening the State police to arrest Khera.

"About 50-70 policemen land up in Nizamuddin as if to arrest a terrorist. There’s an interview given by the executive head of the State (CM Himanta Sarma) on April 18. It’s an interview to news channel ABP. Such venom and malice flowing out. He said, 'I would make the Assam police accountable that how did this person go from Gauhati to Delhi, how did he go from Delhi to Hyderabad? If on May 4 our government comes, then on May 5, (police) commissioner will be on firing lines.' He is threatening his own police," Singhvi said.

He also took objection to the High Court order and claimed that it speaks about the offence under Section 339 (possession of forged documents) BNS though the FIR did not invoke that offence.

"It (High Court) says he should be arrested because he is guilty of under section 339. 339 is bailable! It is neither there in the FIR or police complaint. It’s only from the judge’s mind. Even the prosecutor with all venom didn’t add Section 339 but the impugned order (of High Court has Section 339."

Singhvi maintained that the offences involved do not require any arrest and the only object is to humiliate Khera.

He also questioned how the offence of public mischief under Section 353 of BNS could have been invoked.

"Public mischief is a mega offence. It doesn’t arise from the text of it. I am allegedly defaming him (Sarma). How is it public mischief?" he demanded.

Singhvi further said that anticipatory bail is a right and not a privilege and that the High Court erred in saying that it is only a privilege.

"They say he (Khera) have not proved beyond doubt that she has multiple passports. The judge (of High Court) calls anticipatory bail a privilege. It’s a right. It’s a basic right. Your lordships is considering anticipatory bail. It has to be seen in the light of context. It is heavily biased. It is heavily surcharged. Liberty has to be counterbalanced with a hardened criminal. Inherently, the offence is such I can’t go to independent witnesses. There’s no flight risk etc. They couldn’t give a 35 notice? 60 plus persons were sent to Nizamuddin," Singhvi said.

"On what basis you are saying 60 plus persons are sent to Nizamuddin?" the Bench asked.

"From his application before Telangana High Court. I have said before this court too. Here is venom and malice spewing out from the prosecutor’s boss’s boss’s boss’s boss," Singhvi said.

Solicitor General Tushar Mehta, appearing for Assam Police, argued that the claims made by Khera in his press conference against CM Sarma's wife were blatantly false.

"Antigua is country where fugitives go. He said I have a passport for that. All statements about allegations about my holding citizenship are totally false. Copies of passports are fake, doctored and fabricated documents," Mehta contended.

He also said that the offence under Section 338 of BNS is a non-bailable offence.

"Section 338 of BNS is a non-bailable offence. Passport is a valuable security under BNS. During the election campaign, one person comes and says one lady is holding 3 passports. He displays them with the photographs of the lady. The lady says she has never applied for and they are not her passports. Investigation has revealed that these are forged documents. Some properties in UAE were pointed out, the complainant says these are also forged documents. I would like to know as an investigation agency how he forged this document. Who helped him forge if it is forged," the SG said.

He said that the case involves forgery of passport seals and photographs.

"Who are his accomplices? Who created that passport seal, who created that official seal of the government? We have to show how he removed the photograph of one person from the passport and pasted the photograph of another lady along with QR, seals etc. This may lead to several other fabricated documents," Mehta contended.

He further said that Khera's custodial interrogation would be required to find out who forged the documents and that involvement of foreign elements in elections cannot be ruled out.

"There are judgments that say that when there is a serious case of fabrication, the lady is not even a politician, there is prima facie evidence. From the date of the offence, he’s absconding. He’s releasing videos etc that he’s just keeping himself safe. That means he’s aware of the FIR. I would like to know as an investigation agency, how he forged, who forged it if not you, who were the people who have you, the intention of foreign elements interfering with local election program etc. during election something or the other every leader says. But investigation has to be conducted."

Singhvi then rebutted by saying that the prosecution has not demonstrated any necessity for arrest.

"The basis of my apprehension is very clear. There is no answer of errors by the High Court judge. If custodial interrogation is qualitatively different, then 438 and 439 may might as well be scrapped. The nature of the person is important in this," he said.

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