Supreme Court: While considering this appeal filed by Congress leader Pawan Khera (appellant), challenging Gauhati High Court’s order dated 24 April 2026 whereby the Court had refused to grant him anticipatory bail in connection with alleged defamatory allegations against Riniki Bhuyan Sarma (complainant), the wife of the Chief Minister of Assam, Himanta Biswa Sarma; the Division Bench of J.K. Maheshwari and Atul S. Chandurkar, JJ., deemed it appropriate to grant anticipatory bail to the appellant albeit with conditions.
Background: Allegations made by Pawan Khera and its Aftermath
The appellant, who is an office bearer of Congress, addressed two press conferences on 5 April 2026, one at All India Congress Committee headquarters, New Delhi, and other at Hotel Lily, Gauhati. It was alleged that the appellant displayed certain documents inter alia, stating that the complainant, who is the wife of sitting Chief Minister of Assam, holds passports of Egypt, United Arab Emirates, Antigua and Barbuda. The appellant had also stated that the complainant has a company registered at Wyoming, USA with an investment of more than Rs 50,000 crores and that she owns and possesses certain assets and properties in Dubai and these facts were disclosed in the election affidavit filed by her husband. After convening the press conferences, the appellant returned to Delhi.
The complainant denying the veracity of the alleged claims, registered an FIR under Sections 175, 3(5), 3(6), 318, 336(4), 337, 338, 340, 341(1), 351(1), 352, 353, 356 and 61(2), Nyaya Sanhita, 2023 (BNS) stating that the applicant had fabricated the documents using forged seals and QR codes.
The appellant filed an application before Gauhati High Court seeking anticipatory bail, which was rejected by the impugned order.
Contentions
Counsel for the appellant contended that the offences under Sections 175, 318, 336(4), 356, 340, 341(1), 351(1), 352 and 339, BNS are bailable. It is only offences under Sections 337, 338 and 353, BNS that are cognizable and non-bailable. It was contended that on the basis of the contents of the FIR, prima facie, offences under Sections 337, 338 and 339, BNS could not be made out. It was contended that statements made by the appellant during the press conference at best, be said to have been uttered for the purpose of gaining political edge having no intention or mens rea for commission of offence as allegedly projected.
Per contra, the respondents argued that with respect to allegations as raised in the FIR, investigation has already begun and the documents which were exhibited by the appellant in the press conferences have been found to be forged. Therefore, prima facie offences under Sections 337 and 338 of BNS are made out.
Court’s Assessment
Perusing the facts and contentions, the Court noted that the High Court mainly based its decision on the fact that the alleged documents in question as exhibited by the appellant were found to be forged by the police and it is not the case of appellant that the prosecution claim is fabricated or he has been falsely implicated.
Referring to relevant precedents, the Court stated that in case accusations as alleged do not reflect any motive to secure ends of justice, but reflect a discernible ulterior motive and object to cause injury or to humiliate the applicant, the direction to release in the event of arrest must be ordered usually.
The Court further explained that for the present case, it is required to be examined whether the discretion of grant of anticipatory bail ought to be exercised by the Supreme Court and whether the High Court was justified in refusing to grant anticipatory bail.
Perusing the facts of the case, the Court stated that there is no dispute that assembly elections were in progress in Assam and the incident occurred prior to the conclusion of the election campaign. While the prosecution has alleged intentional harm to the complainant’s reputation; however, the Court stated that it primarily appears that merely to gain some political momentum in favour of his party, this statement has been made by the appellant. “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 which have been filed before this Court vide annexure P/5.”
The Court also took note of the allegations and counter allegations levelled by the parties and stated that personal liberty of an individual enshrined under Article 21 of the Constitution cannot be put to jeopardy lightly. However, the Court opined that for any offences as alleged in the FIR, the investigation should be completed with integrity and in full swing with cooperation of the appellant.
The Court further stated 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. The criminal process must be applied with objectivity and circumspection to ensure that individual liberty is not imperiled by proceedings that may be coloured by political rivalry. “We are further of the opinion that the allegations and counter-allegations, as apparent in the present case, prima facie, appear to be politically motivated and seemingly influenced by such rivalry, rather than disclosing a situation warranting custodial interrogation, and the veracity of the allegations can be tested at trial.” 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.
The Court further stated that the High Court’s observations in the impugned order were 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 appellant. In addition, observations made regarding Section 339, BNS merely on basis of statements made by the Advocate General, especially when there was no allegation of any offence under Section 339, BNS, did not appear to be the correct approach.
Decision
With the aforestated assessment, the Court decided that the tests as enumerated for grant of anticipatory bail in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, favours the appellant. Hence the appellant was granted anticipatory bail in the event of his arrest. He was directed to cooperate in the investigation and not to tamper any evidence during pendency of the investigation or trial.
[Pawan Khera v. State of Assam, SLP (Crl.) No. 7786 of 2026, order dated on 30-4-2026]
Advocates who appeared in this case:
Dr. Abhishek Manu Singhvi, Senior counsel, appearing for the Appellant,
Mr. Tushar Mehta, Solicitor General appearing for the Respondent-State