BREAKING | Supreme Court Refuses To Entertain Hemant Soren's Petition Challenging ED Arrest

The Supreme Court on Wednesday (May 22) dismissed as withdrawn former Jharkhand Chief Minister Hemant Soren's petition challenging his arrest by the Enforcement Directorate (ED) in a money laundering case related to an alleged land scam in Jharkhand.

After a vacation bench of Justices Dipankar Datta and Satish Chandra Sharma expressed disinclination to entertain the matter, the petitioner chose to withdraw the petition. The bench orally observed during the hearing that the petitioner had not disclosed facts relating to the Special Court taking cognizance of the complaint filed by the ED.

It may be recalled that during yesterday's hearing, the bench had asked Senior Advocate Kapil Sibal (appearing for Soren) to satisfy it on the proposition that the validity of arrest can be examined by the Court, despite the Trial Court taking cognizance of ED complaint and rejecting a regular bail application filed on behalf of Soren.  

Today's hearing

At the outset, the bench asked Sibal when did the petitioner get knowledge about the Special Court taking cognizance. Sibal replied that the cognizance order was passed on April 4, 2024, while Soren was in custody.

The bench noted that on April 15 he filed a bail application. Sibal clarified that the bail application was without prejudice to his contentions in the writ petition.

Justice Datta observed, "You were pursuing parallel proceedings." Justice Datta said that "more candour" was expected from the petitioner in disclosing the facts related to the rejection of bail and the taking of cognizance. "Your conduct leaves a lot to be desired," the judge said.

"I take it as a fault of mine and not the client. The client is in jail. Our intention was never to mislead the court," Sibal replied. He explained that the petition was challenging the validity of arrest and was not a bail application and hence, both the remedies are distinct. "That is my conception. It could be wrong," he said.

"We can simpliciter dismiss your petition, without commenting on that. But if you argue on points of law, we will have to deal with it," Justice Datta cautioned.

Justice Datta said when the cognizance was taken, the detention became a judicial act rather than an executive act. "It enters the judicial arena with cognizance taken..why was it not mentioned in any of the petitions, earlier petition and the present petition," the judge said. It may be noted that Soren had earlier filed a petition, aggrieved by the High Court's delay in pronouncing the judgment. The said petition was dismissed as infructuous on May 10 as the High Court's judgment was delivered on May 3.

"Your lordships have held that an order taking cognizance will not stand in the way of release if the arrest is invalid. Writ petition challenging S.19 (arrest) does not entitle me to the quashing of the proceedings or acquittal. They can re-arrest. It does not impact the proceedings," Sibal said.

"It does. Once you are judicial custody, Court has to be very slow in releasing you," Justice Datta stated. "First of all your conduct is not free from blemish. It is blameworthy. So you may take your chance elsewhere," he added.

Sibal stated that immediately after Soren was arrested on January 31, he approached the Supreme Court. On February 2, the Supreme Court sent him back to the High Court. Sibal added that the High Court heard only after four weeks. Though the judgment was reserved on February 29, it was not pronounced until May 3.

"The complaint has to be filed within 60 days. Can your lordships ask why did the judge not render the judgment? A judge who knows that within 60 days the complaint will be filed does not render the judgment to make my matter infructuous in a matter of personal liberty. Is there any answer to that? An act of the Court cannot prejudice one's fundamental right," Sibal said.

"True, but we are talking about your conduct," Justice Datta replied.

"I have been wrongly dealt with by the Court" Sibal said.

"You had options. You could have brought that to the attention of the Court," Justice Datta stated. Sibal said that the matter was mentioned before the High Court.

In an attempt to persuade the bench, Sibal cited judgments to the effect that the order taking cognizance will not stand in the way of release of an accused if the arrest is invalid. During the hearing, Sibal also clarified that the cognizance order was produced as an additional document in the earlier Special Leave Petition. He also pointed out that the Soren's application for bail was mentioned in the present petitiion too. However, Justice Datta said that it was not mentioned in the List of Dates and the Synopsis. 

After fervent attempts by Sibal in persuasion failed, the bench proceeded to dictate an order stating that the petition has been dismissed and there was no reason to interfere with the impugned judgment of the High Court. After the order was dictated, Sibal requested that he be allowed to withdraw the petition. Accordingly, the petition was dismissed as withdrawn.

Sibal requested that the High Court be asked to decide his bail application within one month. But the bench declined to make any such observation with Justice Datta saying, "It becomes very difficult for us to regulate the business of High Courts."

Recap

Soren filed the present petition challenging the Jharkhand High Court's judgment which dismissed his challenge to the ED arrest. He was arrested by ED in connection with the alleged land scam on January 31, and is accused of being the primary beneficiary of fraudulently acquired land.

The arrest followed Soren's resignation as the Chief Minister of Jharkhand and he has been in custody since then.

On May 17, a bench comprising Justices Sanjiv Khanna and Dipankar Datta refused to pass an order on Soren's interim bail plea without affording ED an opportunity to reply. Seeking time to prepare and argue, ASG SV Raju had urged before the bench that Soren was arrested long back and his regular bail applications were dismissed. He also pointed out that four phases of elections were already over and claimed that Soren was directly involved with the subject land.

When the matter came up yesterday, the primary argument raised on Soren's behalf was that (alleged) illegal possession of land is not a scheduled offence under the Prevention of Money Laundering Act (PMLA) and hence the ED officers could not have arrested him in the exercise of powers under Section 19 of the PMLA.

ED, on the other hand, raised preliminary objections to Soren's pleas and distinguished his case from Delhi CM Arvind Kejriwal's. It highlighted that: (i) Soren was arrested in January, way ahead of the the declaration of elections, (ii) In his case, Special Court has taken cognizance of the complaint and issued process, which means that there is a judicial satisfaction regarding a prima facie case, and (iii) Soren's regular bail application under Section 45 PMLA has been rejected by the Special Court, which order he has not challenged.

For a detailed background, click here.

Case Title: Hemant Soren v. Directorate of Enforcement and Anr., SLP(Crl) No. 6611/2024