A stay of the order of the Telangana High Court as granting one-week transit anticipatory bail to senior Congress leader Pawan Khera in a criminal case filed by Assam police, has been a significant juridical blow to Khera and has rekindled a hot debate about forums, jurisdiction, and forum shopping in politically sensitive cases. A bench of Justices J.K. Maheshwari and A.S. Chandurkar, while issuing a notice on the Assam government’s plea, said it was “surprised” by the High Court’s decision, underlining that the operation of the transit‑bail order would remain suspended until the larger question of jurisdiction is examined.

Why was there a Supreme Court order?

The tussle began when Khera, on the allegations that he had published false and defamatory information about Assam Chief Minister Himanta Biswa Sarma wife, Riniki Bhuyan Sharma, had filed a FIR in Guwahati against Assam Police. Out of fear of being arrested, Khera sought anticipatory bail by petitioning the Telangana High Court under Section 438 of the CrPC. On April 10, Justice K. Sujana allowed him one-week transit anticipatory bail, on conditions, with the proviso that he will address to the Guwahati High Court or the relevant court in Assam to get a permanent reprieve.

This order was challenged by Assam government in the Supreme Court, it termed this as a complete abuse of process and accused Khera of forum choosing by assigning a court very far away than the place where the alleged offence was committed. The Solicitor General Tushar Mehta, appearing on behalf of Assam, argued that Telangana High Court lacked any territorial jurisdiction and that the petitioner had not alleged any cogent reason as to why he could not seek redress in the competent court in Assam, either in the Guwahati High Court or a trial-court in Assam.

The reason why the Supreme Court declared we are surprised.

The sudden announcement that the Supreme Court has done so that it was shocked by the order of the Telangana High Court suggests a discomfort with the application of the rule of transit-anticipatory-bail to a case which in fact obviously falls under the jurisdiction of Assam. The bench noted that one of the alleged offences can be penalized with a maximum term of up to ten years of imprisonment, which, by rule, is a barrier to convenient, extra-territorial bail relief, without a serious hardship-justified explanation. The Court also pointed out that the petition brought by Khera did not articulate why he was unable to go to the own courts in Assam nor did it allege some threat of imminent arrest, that would require a stop-gap order by a remote High Court.

In the meantime, the Supreme Court stated that it was not refusing Khera a chance to move anticipatory bail in Assam. The bench explicitly stated that its interim stay would not be used to the prejudice of any other application that he could bring before the competent court in Assam and he could apply regularly to the Guwahati High Court or the appropriate court to be given anticipatory bail. Such a subtle stance is an indication that the Court does not oppose the idea of bail in theory, but only desires it to be granted in the appropriate territorial and procedural context as opposed to what it considers to be a fairly tense application of transit-anticipatory-bail doctrine.

Political and legal implications.

Besides the technicalities of the jurisdictions, the case has been able to attract high profile political masses with the role of Khera as a national face of the Congress party and the family of the Assam CM being involved. The comment of the Supreme Court that we are surprised will be taken to mean that the lower courts should not be so liberal in granting bail in politically charged cases, at least when the accused has access to a competent forum, in the state in which the FIR is located.

In the meantime, the fact that the Court allowed Khera to claim relief in Assam suggests that it is treading the thin thread of putting individual freedom under Article 21 and protecting the principle of territorial jurisdiction and integrity of the criminal-procedure system. The fact that the next hearing will be held on about three weeks will either invert the order of the Telangana High Court or modify it, and possibly a case on how to go about transit-anticipatory-bail petitions in politically sensitive cross-state cases.