Supreme Court asks if arrest can be called invalid after cognisance of case

How can we invalidate the JMM leader’s arrest when trial court has already denied bail and taken cognisance of PMLA charges, asks Bench

Updated - May 22, 2024 09:25 am IST

Published - May 21, 2024 04:16 pm IST - NEW DELHI

Former Jharkhand Chief Minister Hemant Soren. File

Former Jharkhand Chief Minister Hemant Soren. File | Photo Credit: PTI

A Supreme Court hearing in an interim bail plea filed by former Jharkhand Chief Minister Hemant Soren to canvas for votes ahead of the last two phases of polling in the Lok Sabha elections, scheduled for May 25 and June 1, ended on an indecisive note on Tuesday.

Mr. Soren is in custody in a money laundering case since his arrest on January 31, 2024.

However, a Vacation Bench of Justices Dipankar Datta and Satish Chandra Sharma said Mr. Soren’s case, leave alone for interim bail, but even for quashing his arrest on January 31, required “intense debate”.

Also read: Hemant Soren SC hearing highlights

The judges found that Mr. Soren was previously denied bail by the Special Court on May 3. Moreover, the trial court had already taken cognisance of the money laundering case, a clear indication that it had found him prima facie guilty based on the evidence at hand.

“A lot of water has flown under the bridge after the arrest [of Mr. Soren], which is challenged here. Thereafter, bail was rejected and cognisance was also taken… But you say the arrest is illegal and so the custody is illegal… You are challenging his custody. But then the Special Court had taken cognisance. So, the question we want to ask is if even after cognisance, can arrest be called invalid? This needs an intense debate,” Justice Datta addressed senior advocate Kapil Sibal, who appeared for Mr. Soren.

Additional Solicitor General S.V. Raju, for the Directorate of Enforcement (ED), suggested posting the case after court vacations. The court would reopen only in July, well after elections.

Mr. Sibal pleaded his client would have “lost everything” by then, prompting the Bench to list the case on May 22.

‘Different from Kejriwal case’

During the hearing, Mr. Raju said the case of the Jharkhand Mukti Morcha (JMM) leader was different from that of Delhi Chief Minister Arvind Kejriwal, who was granted interim bail by the apex court in the liquor policy case on May 10 to canvas votes for the Lok Sabha polls.

“For one, the Special Court had prima facie found material suggesting Mr. Soren had committed the offence, and thus, taken cognisance. The cognisance order has not been challenged,” he said.

On the other hand, Mr. Kejriwal was made an accused, along with the Aam Aadmi Party, by the ED in a supplementary chargesheet only after he was out on interim bail.

“Secondly, Mr. Soren’s bail application under Section 45 of the Prevention of Money Laundering Act (PMLA) was filed and rejected,” Mr. Raju noted.

Mr. Kejriwal had never applied for bail under Section 45, choosing to approach the constitutional courts to quash his arrest on May 21.

“The arrest of Mr. Soren was not done, as in Mr. Kejriwal’s case, days after the Model Code of Conduct for the Lok Sabha polls came into force… Interim bail in this case would open a Pandora’s box,” Mr. Raju argued.

The ED contended that while Mr. Soren claimed he had no connection with the 8.86 acres of land at Shanti Nagar in Ranchi, he had allegedly tried to tamper with the evidence.

Mr. Sibal said he was opposing the arrest itself.

“Whatever material was in possession of the ED officer was not enough to arrest me under Article 19 [power to arrest] of the PMLA… The allegation against me at the time of the arrest was forcible or illegal possession of 8.86 acres of land in Ranchi. Forcible or illegal possession of land is not a scheduled offence under the PMLA,” Mr. Sibal argued.

He said the proceeds of crime should arise from a scheduled offence given in the PMLA.

“Anybody can say that this land belongs to Soren. There is no evidence the land belongs to him,” the senior lawyer argued.

‘Illegally mutated’

Mr. Sibal submitted the land in question was illegally mutated between 1976 and 1986. Mr. Soren was four years old at the time and could not possibly have had a role in these activities. He said the ED had built its case on the statements recorded under Section 50 of the PMLA of all the people who said the 8.86-acre property was in the possession of Mr. Soren. There was no evidence whatsoever to show when the land was illegally possessed, how and by whom.

“Those who have illegally possessed the mutated land, instead of being accused, became complainants in the case against me,” the senior lawyer submitted.

He said the subsequent judicial orders would collapse if the arrest was invalidated.

But Justice Datta persisted in his line of questioning on whether a challenge to arrest would survive an order of the Special Court taking cognisance of the case against Mr. Soren.

“The Special Court has already applied its judicial mind to the evidence against you [Soren] and found them satisfactory. Can a writ court intervene now?” Justice Datta asked.

To this, Mr. Sibal queried whether a constitutional court could refuse to go into “the question of a man’s freedom and illegality of his arrest”.

“Satisfy us that despite two orders of rejection of bail and cognisance order, the challenge to arrest will survive,” Justice Datta told Mr. Sibal.

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