Arrest not first resort: Congress' Abhishek Singhvi as SC grants anticipatory bail to Pawan Khera

New Delhi [India], May 1 (ANI): Following the grant of anticipatory bail to Congress leader Pawan Khera in an alleged defamation and forgery case linked to Assam Chief Minister Himanta Biswa Sarma's wife passport row, Congress leader Abhishek Manu Singhvi on Friday said that arrest should not be the "first but the last resort," invoking the legal "triple test."

Addressing reporters, Singhvi underscored that the case had traversed multiple judicial forums in a short span from a magistrate's court in Assam's Kamrup to the Telangana High Court for transit bail, then to the Supreme Court, back to the Gauhati High Court, and finally again to the Supreme Court.
"This journey has had, in a very short period of time, multiple stages: from the original magistrate's court where the state went in Assam, Kamrup, to the transit bail High Court in Telangana, to the Supreme Court, back to the High Court of Guwahati, and finally to the Supreme Court today, which has delivered judgment. In this entire process, our entire unwavering commitment to the judicial process can be seen--that of the litigant concerned, that of the Congress party, and that of every other stakeholder," Singhvi said.
"This case also reminds us that when reputational damage is the issue--the beginning of this case, the heart of this case, is reputational damage--it reminds us that when that is the issue, arrest should not be the first but the last resort," he added.
Singhvi stressed that the matter pertains to alleged reputational damage and argued that arrest is unwarranted when the "triple test" of flight risk, tampering with evidence, and need for custodial interrogation is not satisfied, especially when the material in question is already in the public domain.
He further contended that in such circumstances, arrest or custodial interrogation in a politically adversarial context could amount to harassment or an attempt to score political points, which he said is reflected in the spirit of the judgment.
"And a last resort on what test? Can you achieve the prospects of proper investigation without arrest? Is arrest the only way I can investigate his alleged defamatory comment? Is arrest the only way because this case is bristling with flight risk--that if I do not arrest him and custodially investigate, he will flee? Is arrest the only way because I will not be able to sit with him without arrest? Is arrest the only way because he will tamper with witnesses and proofs? Lawyers call it the "triple test." Now, on the face of it, when this test is not satisfied--let us assume there was an error, let us assume the right is this or the right is that--irrespective of that press conference which is alleged to have caused reputational damage, everything in the public sphere was transparently documented. Well, in that case, clearly, if the triple test is satisfied in favour of the accused, then the only object of arrest or custodial interrogation--especially in a political adversarial context--can be humiliation, harassment, and scoring a political point. That is the message, both in the text and spirit, of this judgment," said Singhvi.
Singhvi also urged Sarma to reflect on his public remarks cited in the judgment, noting that several statements recorded were unfit for repetition, and expressed concern that such language undermines democratic values. He added that the Supreme Court had taken note of these observations and that the Solicitor General did not justify or support them.
"There is also a larger issue. Let me preface it by saying I am nobody--and I mean it--to advise the CM of Assam. He may well head to a victory two days later; these are the vicissitudes of democracy and politics. But I, with folded hands, request the CM of Assam--presently caretaker CM for two more days before the verdict comes out--does he not wish that he should genuinely reconsider his stand as reflected in the judgment?," said Singhvi.
"Quoted in the judgment, the statements made by him in the public domain and quoted extensively by the Supreme Court over almost three pages: most are unrepeatable, unprintable, and unstatable. But you can read it now. Even the Supreme Court has not reproduced what my petition reproduced. So I, with humility and without any condescension, say that this truly debases our democracy. It devalues it. It makes us no different from the constitutional wrecks and ruins which we find in our neighbourhood. I guess "unparliamentary language" is the mildest word in the dictionary. But without asking him to reconsider or apologise--and as I said, I am nobody--if he were to do it and express regret, he would be actually elevating himself. The Supreme Court has categorically underlined those observations, only partially quoted, and the Supreme Court has underlined that the Solicitor General neither justified nor supported those statements," said Singhvi.
The Supreme Court granted anticipatory bail to Congress leader Pawan Khera in a forgery and defamation case linked to allegations of making false statements against the wife of Assam Chief Minister Himanta Biswa Sarma, Riniki Bhuyan Sharma.
A bench of Justice JK Maheshwari and Atul S Chandurkar, on Thursday, observed that the allegations and counter-allegations in the case were prima facie politically motivated and seemingly influenced by such political rivalry, rather than disclosing a situation warranting custodial interrogation. The Court further noted that the veracity of the allegations can be examined during the course of the trial.
"In our view, the observations as made by the High Court in the order impugned are not based on a correct appreciation of all the material which has been placed on record and appear to be erroneous, in particular shifting the burden on the accused. In addition, without alleging any offence under Section 339 of BNS and merely on the basis of a statement made by the learned Advocate General, observations made regarding Section 339 of BNS do not appear to be correct. Accordingly, the present appeal stands allowed with the following directions," the Court noted.
The apex court directed that Khera be released on anticipatory bail in the event of his arrest in the concerned case, subject to reasonable conditions imposed by the Investigating Officer (IO).
It also directed Khera to fully cooperate with the investigation and appear before the police whenever required during the course of the inquiry.
The Court also restrained him from influencing witnesses or tampering with evidence during the investigation or trial, and prohibited him from leaving India without prior permission from the competent court.
Further, it allowed the trial court to impose any additional conditions if necessary. Moreover, the Court clarified that its observations are only for deciding the bail application and should not affect the merits of the case, which must be decided independently in accordance with the law.
The Court noted that, as per the prosecution's claim, Khera had, in a press conference, used fake passports and wrongly attributed them to Riniki Bhuyan with the intent to defame her reputation. However, it found that such conduct on the part of Khera appeared to have been done to gain political momentum in favour of his party ahead of the assembly elections in Assam.
At the same time, the Court also found that Assam Chief Minister Himanta Biswa Sarma, who is the husband of the complainant, also made certain "unparliamentary" remarks against Khera at various occasions before the press.
"However, 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", it noted.
The Congress leader had approached the Supreme Court against the rejection of his anticipatory bail by the Gauhati High Court in a case where an FIR has been registered by the Assam police against Khera for allegedly making false allegations against Riniki Bhuyan Sharma, the wife of Assam CM Himanta Biswa Sarma.
The Gauhati High Court had denied him relief on April 24.
Earlier, the Supreme Court had also rejected Khera's plea seeking to extend the transit anticipatory bail, granted to him earlier by the Telangana High Court, on the ground of enabling him to approach any jurisdictional court in Assam to seek relief.
However, the apex court had clarified its earlier order in which it had stayed the one-week transit anticipatory bail granted to Khera by the Telangana High Court to the extent that the same will not have any adverse influence on the jurisdictional court, which would decide over Khera's plea. (ANI)