‘ED Has A Good Case On Merits….’, SC On Hemant Soren’s Challenge To His Arrest

A bench of Justices Dipankar Datta and Satish Chandra Sharma, posted the Hemant Soren’s challenge to his arrest for further hearing on Wednesday and asked Soren's counsel to first satisfy the court as to how interim bail can be granted to him for campaigning in the Lok Sabha poll when his application for regular bail has been dismissed.

New Delhi:The Supreme Court on Tuesday shot a volley of questions at former Jharkhand Chief Minister Hemant Soren, in the money laundering case, saying, that since the order refusing bail notes that there is a prima facie case made out against Soren, the question is whether the apex court can examine the legality of the arrest. The apex court also observed that ED has a good case on merits in the matter but it would have to be looked at from a different perspective in view of subsequent developments.

A bench comprising justices Dipankar Datta and Satish Chandra Sharma said: “There is a judicial forum order saying that prima facie there is a commission of the offence, what happens to that judicial order?” Justice Datta told senior advocate Kapil Sibal, representing Soren, that the order in NewsClick editor Prabir Purkayastha’s case does not help him because of the factual distinction. On May 15, the Supreme Court ordered the release of Purkayastha, saying that his arrest by the Delhi Police was not valid in a case under the Unlawful Activities (Prevention) Act 1967. “We are being called upon to evaluate whether on the basis of material in the possession of the arresting officer at (the time) arrest was warranted or not?.....despite these two orders the challenge to arrest would survive, satisfy us on that”, Justice Datta queried Sibal.

Sibal pressed that his client was challenging the arrest, which was illegal, and he was not seeking bail or quashing the case. “I am not asking for bail or quashing. I am not saying cognisance is bad. I am saying the arrest was itself wrong since all material in possession does not make out a case for an arrest," Sibal argued.

During the hearing, the bench posed queries to Sibal: Judicial order by a special court taking cognizance of prima facie commission of offence has not been challenged? Without challenging the special court order, does a petition challenging arrest stand? Why did Soren not challenge the rejection of bail by the high court? The bench noted that even as Soren’s plea challenging his arrest was pending before the Jharkhand High Court, he filed a separate bail plea which was dismissed.

Sibal said: “What I am asking your lordships to consider is that whatever material is available under Section 19 of the Prevention of Money Laundering Act (PMLA) does not make out an offence, on January 31, 2024”.

Justice Datta said that this was the argument before the court when the bail application was filed, on the same grounds. Sibal insisted that arrest is bad on the facts and cited his arguments before the high court. The bench said: “It is illegal custody (you challenged)….”, and added that at the outset it said that Soren should have moved the high court and “your right is protected by the court which is seizing of the matter….”. Sibal vehemently argued that Soren has nothing to do with the case and this is all cooked-up stuff and “somebody (ED) has not filed a complaint since 2009....”.

Concluding the hearing, Justice Datta observed: “They (ED) have a good case on merits, but we have to look at it from a different perspective in view of subsequent developments. Please check-up, you can come ….”. The bench has scheduled the matter for further hearing tomorrow.

Additional solicitor general S V Raju, representing the ED, contended that Soren is not entitled to interim bail and his case is not like the case of Delhi chief minister Arvind Kejriwal, who is currently out on interim bail. The ED argued that the trial court has taken cognisance of the offence and Soren’s bail application was rejected, and pressed that the trial court had formed the opinion that there is a prima-facie case. ED’s counsel contended that Soren’s arrest was not just before polls and he did not challenge the rejection of bail and also the cognizance taken by the court.

The probe against Soren is in relation to an 8.86-acre plot of land in Ranchi that the ED has alleged was illegally acquired by him. The money laundering investigation stems from multiple FIRs registered by Jharkhand Police in land "scam" cases against several people, including state government officials.