In Pawan Khera vs. State of Assam (2026), Supreme Court's Division Bench of Justices J.K. Maheshwari and Atuk S. Chandukar passed a 22-page long order dated April 30, 2026, wherein, it referred to Court's decision in Gurbaksh Singh Sibbia & Ors. vs. State of Punjab 1980) 2 SCC 565 granted anticipatory bail to Pawan Khera, observing that
the purported allegations of forgery, appeared to be politically
motivated and influenced by political rivalry, not warranting custodial
interrogation.
The case originated from a Guwahati press conference where Pawan Khera alleged
that Riniki Bhuyan Sarma, the wife of the Assam Chief Minister, held
multiple international passports and had invested ₹50,000 crores in a
U.S.-based company.
The Court concluded:"....we are of the view that the tests as enumerated for grant of anticipatory bail in Gurbaksh Singh Sibbia (supra) finds favour with the Appellant. 27) 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. In addition, without alleging any offence under Section 339 of BNS and merely on the basis of 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 following directions –
a) The Appellant is directed to be released on anticipatory bail in the event of his arrest in Crime Branch P.S. Case No. 04/2026 and on such reasonable terms and conditions which may be put by the Investigating Officer as deemed fit;
b) The Appellant is directed to co-operate in the investigation and to appear before the police station as and when required and intimated;
c) The Appellant shall not influence or tamper with any of the evidence during pendency of the investigation or trial;
d) Further, he shall not leave India without prior leave of the competent Court;
e) We further direct that if the trial Court deems it fit to impose some other conditions, it has the discretion to do the needful and put those conditions during trial.
28) We further make it clear that the reference of the documents and the material made hereinabove is only for the purpose of consideration of grant of anticipatory bail and it has nothing to do with the merits of the criminal case. Therefore, the competent Court shall not be influenced by those observations and shall proceed in the matter in accordance with law.
In Gurbaksh Singh Sibbia & Ors. vs. State of Punjab 1980) 2 SCC 565, the Court observed, “…the criminal process must be applied with objectivity and
circumspection so as to ensure that individual liberty is not imperiled
by proceedings that may be coloured by political rivalry…”
Dr. Abhishek Manu Singhvi, senior counsel, appearing on behalf of the appellant assailed order dated April 24, 2026 passed by the Gauhati High Court of Assam in Anticipatory Bail No. 804/2026, whereby, the Gauhati High Court refused to grant anticipatory bail. The appellant made an accused in connection with FIR No. 04/2026 dated 06.04.2026 registered by the Crime Branch Police Station, Guwahati under Sections 175, 3(5), 3(6), 318, 336(4), 337, 338, 340, 341(1), 351(1), 352, 353, 356, and 61(2) of Bharatiya Nyaya Sanhita, 2023.
In the FIR, it was alleged that the appellant, who was an office bearer of a national political party, addressed two press conferences on April 5, 2026, one at All India Congress Committee headquarters, New Delhi, and other at Hotel Lily, Gauhati. In the press conferences, the appellant displayed certain documents on the stage with a large screen in the background, inter alia, stating that the complainant is the wife of the present Chief Minister of Assam and she holds three passports of (i) Egypt; (ii) United Arab Emirates; (iii) Antigua and Barbuda. He also stated that the documents shown on the screen exist as on date and have not expired. Showing some other documents in similar manner, it was also stated that the complainant had a company registered at Wyoming, USA with an investment of more than Rs. 50,000/-crores. She also owned and possesses certain assets and properties in Dubai and these facts were not disclosed in the election affidavit filed by the husband of the complainant. The complainant while lodging FIR denied the veracity of all these documents and stated that they were fabricated using forged seals and QR codes. On the basis of these averments appropriate criminal action for the offences was sought. The press conferences allegedly was held on April 5, 2026 at about 6 p.m. in the evening and the FIR was registered at 12.49 a.m. in the intervening night of April 5, 2026 and April 6, 2026. After giving such statements the Appellant travelled to Delhi and later to Hyderabad.
On the next date, i.e., April 7, 2026, search and seizure proceedings were undertaken by the State through the police authorities at the residence of the appellant in Delhi. Simultaneously, an application was also filed before the Chief Judicial Magistrate, Kamrup (M) seeking issuance of non-bailable warrant of arrest against the Appellant which was rejected on the same date, inter alia observing that the grounds urged were based on presumptions and conjectures without being supported by any material on record. It was also observed that the offences as alleged were cognizable and non-bailable, therefore, the IO had the authority to arrest the appellant under Section 35 of the BNSS. The application seeking issuance of the non-bailable warrant was rejected.
The appellant sought transit anticipatory bail before the Telangana High Court which was granted vide order dated April 10, 2026. Challenging the same, the State filed Special Leave Petition (Criminal) No. before the Supreme Court, wherein initially by order dated April 15, 2026, the operation of the order of the Telangana High Court was stayed. The appellant sought vacation of the stay and the SLP (Crl.) as well as the I.A. were disposed of by order dated April 17, 2026 granting liberty to the appellant to file an application seeking anticipatory bail before the competent Court in Assam. It was also observed that upon filing such application it be decided uninfluenced by the observations made by the Telangana High Court in the order dated April 10, 2026 or by the Supreme Court while staying the said order. On filing the application seeking anticipatory bail before the Gauhati High Court, it was rejected by impugned order dated April 24, 2026, which gave rise to the appeal.
Supreme Court's order reads:"....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, in light of the principles enunciated in Gurbaksh Singh Sibbia (supra). In this context, the criminal process must be applied with objectivity and circumspection so as 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."
Notably, the Constitution Bench judgment in the case of Gurbaksh Singh Sibbia observed:
“31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.
Notably, the relevance of these considerations was pointed out in State vs. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.”
The Privy Council in King Emperor vs. Khwaja Nasir Ahmed observed:"Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. The functions of the Judiciary and the Police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function...."
The Supreme Court in Balchand Jain vs. State of Madhya Pradesh, Justices Bhagwati and A. C. Gupta, observed:"the power of granting 'anticipatory bail' is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or "there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail" that such power is to be exercised."
Justice Fazal Ali delivered a separate judgment of concurrence observed that:"an order for anticipatory bail is an extraordinary remedy available in special cases" and proceeded to say:"As Section 438 immediately follows s. 437 which is the main provision for bail in respect of non- bailable offences, it is manifest that the conditions imposed by s. 437 (1) are implicitly contained in s. 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under s. 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of s. 437 nugatory and will give a free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under s. 438 and by-passing s. 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in s. 437, there is a special case made out for passing the order. The words "for a direction under this section" and "Court may, if it thinks fit, direct" clearly show that the Court has to be guided by a large number of considerations including those mentioned in s. 437 of the Code."
In his conclusion, Justice Fazal Ali reiterated in conclusion no.3 that "Section 438 of the Code is an extraordinary remedy and should be resorted to only in special cases."
In paragraph 3 of his judgment, he observed that "the only point" which arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation, exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to Section 438 that Rule 184 is what the Court was concerned with in the appeal. The observations made in Balchand Jain (supra) regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and
439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain (supra) in an altogether different context on an altogether different point."
The Court wrote: "We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail."
The Court noted that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra vs. King Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.
In K. N. Joglekar vs. Emperor it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously.
In Emperor vs. H. L. Hutchinson it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
It was observed by Justice Krishna Iyer in Gudikanti Narasimhulu vs. Public Prosecutor, High Court of Andhra Pradesh that "the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."
