'We Are Protecting You...': Supreme Court Observes While Granting Interim Bail To Pawan Khera

The Supreme Court on Thursday ordered grant of interim bail to Congress leader Pawan Khera till February 28 in a case related to his alleged objectionable remarks against Prime Minister Narendra Modi in which the Assam Police arrested him after having him deplaned at the Delhi airport amid chaotic scenes.

A three-judge bench headed by Chief Justice D Y Chandrachud said Khera will be produced before the competent magistrate in Delhi and released on interim bail.

"In order to enable the petitioner (Khera) to apply for regular bail before the jurisdictional court, upon the FIRs being transferred to one jurisdiction, we direct that the petitioner shall be released on interim bail by the court of the competent magistrate at Delhi where he is to be produced this evening," said the bench, also comprising Justices M R Shah and P S Narasimha.

Granting Khera reprieve, Chief Justice DY Chandrachud said: "There has to be some level of discourse, we are protecting you." The Supreme Court agreed to the Congress's request to club cases registered against Mr Khera in Uttar Pradesh and Assam.

"The above order shall remain in operation till February 28, 2023," the bench said, while making it clear that it was passing the order in connection with the case lodged in Assam. 

The apex court, which listed the matter for hearing on February 27, issued notices to the states of Assam and Uttar Pradesh seeking their responses to Khera's plea for transferring and clubbing together three separate FIRs lodged against him in Assam, and Uttar Pradesh cities of Lucknow and Varanasi for his alleged offensive remarks against the prime minister.

After dictating the order, the CJI, apparently displeased with the Congress leader's remarks, told senior advocate A M Singhvi, who was representing Khera, "We have protected you (Khera) but there has to be some level of discourse." 

In its order, the apex court noted that today, Khera was deboarded from a flight travelling from Delhi to Raipur on the ground that he was to be arrested by the Assam Police.

It noted that a communication was addressed by the Assam Police to the station house officer of domestic airport police station in New Delhi stating that Khera is required to be apprehended in connection with the case lodged there. 

The bench said the apex court's jurisdiction has been invoked for diverse reliefs, including -- quashing of the complaints; in the alternative, transfer and clubbing of the FIRs at one jurisdiction and restraint on all coercive steps, and to provide security to the petitioner and his family.

"At the outset, we have indicated to counsel for the petitioner that a petition under Article 32 cannot be entertained for quashing the FIRs since the petitioner has an alternate remedy under section 482 of the Code of Criminal Procedure, 1973, before the jurisdictional high court. Moreover, the petitioner will have to seek regular bail before the competent court," the bench said.

It noted Singhvi's submission that Khera will not press the prayer for quashing of FIRs since the petitioner would be advised to pursue the remedies which are available to him in accordance with law before the appropriate high court. 

"However, the petition has been pressed for clubbing of the FIRs in one jurisdiction since it has been urged that the gravamen (the essence) of all the FIRs (lodged presently at Lucknow, Varanasi and Dima Hasao) is one and the same, namely, the press conference at which certain objectionable words were used," the bench noted.

It noted in the order that Singhvi has stated that the petitioner has since clarified that the use of the language was "inadvertent, though inappropriate", and that he would not stand by the use of such language. 

"However, Singhvi states that the petitioner tenders an unconditional apology," the bench said, adding, "Apart from the above submission, it has been urged that the words taken at their face value, as reflected in the FIRs, do not establish any offence punishable under the sections of the IPC (Indian Penal Code) which have been invoked, including sections 153A, 153B, 295, 500, 504 and 505 of IPC."     

The bench noted Singhvi has also urged that recourse to the power of arrest under section 41A of the CrPC was not warranted where the offence is punishable for a term not exceeding seven years.

It said Additional Solicitor General Aishwarya Bhati, appearing for Assam, has submitted, after adverting to the live replay of the offending video, that the expression which was used by Khera was not unintentional and, on the contrary, a "deliberate attempt to denigrate a constitutional functionary has been made".     "The Additional Solicitor General has also urged that the petitioner, having been arrested at Delhi Airport, would be produced before the court of the competent jurisdiction for transit bail and the petitioner may seek his remedies before that court," the bench noted.

The apex court said it is inclined to entertain the petition confined to the issue as to whether the FIRs should be clubbed into one and the same jurisdiction and such a course of action has been previously adopted by the top court in journalist Arnab Goswami's case.

"We pass the following ad-interim order: (i) Issue notice on the prayer of the petitioner for transferring and clubbing of the FIRs which have been registered in respect of the press conference in question in one jurisdiction; (ii) For that purpose, notice shall issue, at this stage, to the states of Assam and Uttar Pradesh," it said.

In fast-paced developments, Khera, who had boarded a flight from New Delhi to Raipur to attend the Congress plenary session, was deplaned, detained and finally arrested by the Assam Police in connection with an FIR lodged in Haflong.     

As the hearing got underway, Singhvi told the apex court that Khera had already apologised for his remarks made at a press conference on February 17 in Mumbai and the offences alleged against him in the cases did not require arrest.

"It will have straightaway impact on the latitude of free speech," Singhvi said, adding, "This should not have led to arrest. The offences entail maximum sentence of three or five years and no prior notice was served upon him."

He said Khera had already acknowledged the very same day that the remarks were a mistake.

He said FIRs have been lodged and offences, including those under sections 153A (promoting enmity between different groups) and 295-A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the IPC have been invoked against him.

Terming it a "calculated statement", Bhati played the audio-video clip of Khera's alleged remarks, in the open court and said he cannot use such "derogatory words" against a democratically elected prime minister of the country. 

When Singhvi pointed out that Khera has already apologised for his remarks, Bhati said, "Please see the video whether it is a mistake or a deliberate act. It is the demeanour which counts. There was laughter all around after these remarks."

"The entire press conference has to be seen....It is a very calculated statement. It is a statement which not just insults the prime minister but invites disaffection and disloyalty. After all, he is the duly elected prime minister of the largest democracy in the world," Bhati said.