The story so far: The Supreme Court on Wednesday refused to entertain a petition by former Jharkhand Chief Minister Hemant Soren seeking interim bail to campaign in the ongoing Lok Sabha elections by berating him for concealing key facts and engaging in ‘blemished conduct.’ Mr. Soren had also challenged the legality of his arrest by the Enforcement Directorate (ED) on January 31 in a money laundering case related to an alleged land scam.
The Jharkhand Mukti Morcha (JMM) leader had sought parity with Delhi Chief Minister Arvind Kejriwal, who was given interim bail by the top Court on May 10 to canvass votes for the Aam Admi Party (AAP) in the polls. Voting will take place for the remaining seven seats of Jharkhand in the last two phases on May 25 and June 1.
After a vacation Bench of Justices Dipankar Datta and Satish Chandra Sharma expressed their inclination to record in the order that Mr. Soren had approached the Court with ‘unclean hands,’ Mr. Kapil Sibal, appearing for the former CM, decided to withdraw the petition.
In light of this development, The Hindu decodes why the precedent of the Supreme Court granting interim relief to the AAP supremo was not relied upon in Mr. Soren’s case.
Also Read: Hemant Soren hearing highlights May 22, 2024
Hemant Soren’s case
Soon after the former Jharkhand Chief Minister’s arrest by the Enforcement Directorate on January 31, he moved the Supreme Court challenging the legality of this arrest. However, a three-judge bench comprising Justices Sanjiv Khanna, MM Sundresh and Bela M Trivedi refused to entertain the plea and asked him to try his luck in the Jharkhand High Court instead. The Bench, however, requested the High Court to consider and decide Mr. Soren’s petition expeditiously.
The High Court heard Mr. Soren’s plea and reserved its verdict on February 28. However, it pronounced its judgment refusing to quash the case on May 3, nearly two months later. On April 24, the JMM leader filed a fresh petition in the top Court challenging his arrest, citing the delay by the High Court in pronouncing its verdict. On May 6, an appeal was also filed against the High Court’s order with a plea for an urgent hearing given the ongoing Lok Sabha polls.
In the meantime, on March 30, the ED filed a chargesheet in the case attaching land worth ₹31 crore allegedly owned by the former CM. A special Prevention of Money Laundering Act (PMLA) court in Jharkhand took cognisance of it on April 4 — an indication that it had prima facie found incriminating material suggesting Mr. Soren had committed the offence. Only after this pre-trial stage can the trial Court frame charges, following which the trial would commence.
While Mr. Soren’s plea challenging his arrest was pending before the High Court, he had moved a bail application under Section 45 of the PMLA before the Special Court which was eventually declined on May 3.
However, during the proceedings, the Supreme Court took Mr. Soren to task for concealing the fact that the Special Court had already taken cognisance of the money laundering charges against him. It also expressed strong reservations about the former CM approaching the top Court for interim bail even while he was concurrently pursuing a ‘parallel remedy’ for bail from the trial Court.
“His (Soren’s) conduct when he came to the Supreme Court is not without blemish… Why did you not disclose the cognisance order (of the Special Court) in the present petition?” Justice Datta asked Mr. Sibal. However, the senior lawyer maintained that the cognisance order had been filed as a part of additional documents submitted in an earlier litigation in the apex Court.
While Mr. Sibal asserted that his client’s bona fides should not be questioned for any possible default on the part of his lawyers, the Bench pointed out that crucial facts about the trial Court’s cognisance order and subsequent bail order were missing not only from Mr. Soren’s present petition but also from the one filed previously against the High Court’s delay in pronouncing its verdict. Additional Solicitor General (ASG) SV Raju also chipped in to highlight that the former CM had failed to include the cognisance and rejection of bail orders in the “list of dates,” although these developments took place subsequent to the filing of the petition.
While reiterating that there was no intention of “hoodwinking” the Court, Mr. Soren’s lawyer contended that a Special Court’s cognisance order does not affect a Constitutional Court’s power to strike down an ‘illegal’ arrest since personal liberty was at stake. Responding to this, the Bench underscored that if the former CM wanted to appeal to the judges’ conscience then he should have come with ‘clean hands.’ At this point, Mr. Sibal requested the Bench to let him withdraw the plea to abate the possibility of any adverse remarks being recorded against his client. The Court acceded to the request.
Arvind Kejriwal’s bail order
The Delhi Chief Minister was arrested on March 21 by the ED in a money laundering case relating to the Delhi excise policy. The Delhi High Court on March 27 rejected his plea for interim bail and then proceeded to uphold his arrest on April 9. The very next day, Mr. Kejriwal challenged the High Court’s decision in the Supreme Court.
Approaching the High Court instead of the trial Court appears to have been a crucial strategic move in the Kejriwal case. This is because obtaining bail in PMLA cases is highly unlikely due to the high threshold envisaged under Section 45 of the PMLA. The provision stipulates ‘twin conditions’ for bail — the accused has to first prove that he or she is prima facie innocent of the offence and secondly, the accused should be able to convince the judge that he or she is not likely to commit any offence while on bail.
On the other hand, the standard is set differently when the legality of the arrest itself is challenged before a Constitutional Court, i.e., either before a High Court or a Supreme Court. Under Section 19 of the PMLA (power to arrest), the onus is on the ED to show that the concerned investigating officer had “reasons to believe” from “materials in possession” that the person intended to be arrested is “guilty of the offence.” This objective criteria has to be satisfied before going ahead with the arrest.
While hearing Mr. Kejriwal’s appeal against the Delhi High Court’s refusal to quash his arrest, a Bench of Justices Sanjiv Khanna and Dipankar Datta made a surprise announcement on May 3 that they were considering interim bail for Mr. Kejriwal due to the ongoing polls. Accordingly, on May 10, the top Court granted the AAP supremo interim bail till June 1 to campaign for the Lok Sabha polls.
While highlighting the “prodigious importance” of the polls, the judges acknowledged that Mr. Kejriwal’s status as the Chief Minister of Delhi and the leader of a national party justified the “holistic and libertarian view.” They, however, restrained Mr. Kejriwal from visiting the Office of the Chief Minister and the Delhi Secretariat as well as from signing official files to assert that ‘no special circumstances’ were being created for politicians.
Distinctions in the cases
Unlike Mr. Soren, the Delhi CM had neither sought regular bail from a trial court nor had there been any judicial order of cognisance against him in the Delhi excise policy case. He had instead chosen to approach the Constitutional Courts to quash his arrest. On the other hand, the Jharkhand trial Court’s orders of cognisance and rejection of bail in Mr Soren’s case implied that it had prima facie found incriminating material to proceed with the case. Mr. Soren had not challenged the cognisance order.
Further, the timing of Mr. Kejriwal’s arrest — days after the Model Code of Conduct for the Lok Sabha elections came into force— was repeatedly questioned by the top Court during the proceedings. The former Jharkhand CM, however, was arrested much earlier — in January this year.
While the ED filed a chargesheet against Mr. Soren on March 30, Mr. Kejriwal was made an accused, along with AAP, in a supplementary chargesheet only after he was out on interim bail.
What’s next for the Opposition leaders?
The apex Court’s refusal to entertain Mr. Soren’s petition means that he will have to challenge the trial Court’s order dismissing his bail plea before the Jharkhand High Court. He will have to remain in judicial custody in the meantime.
Mr. Kejriwal, on the other hand, will have to return to Tihar jail on June 2 once his interim bail tenure ends. The Supreme Court on May 17 reserved its verdict on his plea challenging the legality of his arrest, but the judgement in the case can only be pronounced once the Court reopens after vacation in July. The Delhi CM has, however, been granted liberty to approach a trial Court for bail in the interim period.
