‘Criminal process must be applied with objectivity and circumspection’: Supreme Court grants anticipatory bail to Congress leader Pawan Khera

The court further said, “We are of the opinion that while adjudicating an application for anticipatory bail, a careful balance must be struck between the State’s interest in ensuring a fair investigation and the individual’s fundamental right to personal liberty under Article 21 of the Constitution of India… The right to personal liberty is a cherished fundamental right, and any deprivation thereof must be justified on a higher threshold, particularly where the surrounding circumstances may indicate the presence of political overtones.”

Khera had approached the Supreme Court challenging the April 24 order of the Gauhati High Court denying him anticipatory bail in the case. His plea, filed through Advocate Priyansha Sharma, questioned the need for custodial interrogation in the case.  Appearing for him, Senior Advocate A M Singhvi objected to some of the remarks allegedly made by the CM in connection with Khera’s charges and stated that he was speaking like a “Constitutional cowboy or a Constitutional Rambo.”

In its order, the Supreme Court said, “In our view, the observations as made by the High Court in the order impugned is not based on correct appreciation of all the material which has been placed on record and appears to be erroneous, in particular shifting the burden on the accused.” The top court noted that even though the offence under Section 339 (possessing forged documents or electronic records) of the Bharatiya Nyaya Sanhita was not mentioned in the FIR, based on the statement of the Advocate General, the high court order recorded that Khera’s case may fall under the provision. “General, observations made regarding Section 339 of BNS do not appear to be correct”, the Supreme Court said.

The bench, which perused the allegations by Khera as well as Himanta Biswa Sarma, said, “We are of the view that the allegations and counter-allegations have been made by the Appellant (Khera) as well as by the husband (Himanta Biswa Sarma) of the complainant (Riniki Bhuyan). Learned Solicitor General has not defended any of such statements during the course of hearing, nor is the veracity of the same questioned.

“It primarily appears that merely to gain some political momentum in favour of his party, this statement has been made by the Appellant (Khera).”

The court added, “albeit, we cannot lose sight of the fact that the Chief Minister of the State, who is also husband of the complainant, has made certain unparliamentary remarks against the Appellant in various press statements…” The SC said, “At this stage, we are cognizant of the fact that personal liberty of an individual enshrined under Article 21 of the Constitution of India cannot be put to jeopardy lightly. But at the same time, we are also of the view that for any offences as alleged in the FIR, the investigation should be completed with integrity and in full swing with the co-operation of the Appellant.”