SC shuts the door on Hemant Soren’s plea challenging his arrest citing non-disclosure of facts

"An act of the court cannot prejudice my fundamental rights," Sibal submitted. Justice Datta retorted that the Bench was talking about the conduct of Hemant Soren and that two wrongs do not make a right.

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IN a high-voltage drama of fever-pitched proceedings, the Supreme Court on Wednesday rejected the petition filed by the former chief minister of Jharkhand Hemant Soren against the judgment of the Jharkhand High Court upholding his arrest under Section 19 of the Prevention of Money Laundering (PMLA) Act, 2002.

Soren's hopes of getting interim bail following the judgment in Arvind Kejriwal versus NCT of Delhi, given that Lok Sabha elections are ongoing, were quickly dashed as a Bench of Justices Dipankar Datta and Satish Chandra Sharma refused to entertain his petition. The petition was dismissed as withdrawn.

The Bench was of the view that Soren did not come to the court unblemished since he had not disclosed in his petition that the special court under the PMLA had taken cognisance of the complaint filed against him and that he had also filed a bail petition before the special court.

The Bench said Soren was pursuing two parallel proceedings. The Bench was referring to Soren having already applied for bail before the special judge and also seeking release on bail from the Supreme Court in his first special leave petition.

In a catena of decisions, the Supreme Court has held that a person may have a right to choose the forum for redressal of his grievance, but they cannot be permitted to choose two forums in respect of the same subject matter for the same relief. Permitting a litigant to continue with parallel proceedings may give rise to forum hunting and abuse of the process of law.

Also read: "Will open floodgates," SC says while refusing to hear Hemant Soren Article 32 plea against arrest

However, a Constitution Bench in A.V. Venkateswaran, Collector of Customs, Bombay versus Ramchand Sobhraj Wadhwani held that even where a party has approached an alternative forum, there cannot be a "straitjacket formula" on whether the court should entertain a writ petition or not.

The court may examine the facts and circumstances of the case to decide whether to entertain the petition, the Bench held.

In Soren's case, on Tuesday, the Bench had asked his counsel, senior advocate Kapil Sibal, whether the Supreme Court could examine the legality of the arrest given that a special court has already taken cognisance of the offence under the PMLA against Soren and thus there is a judicial Order in place?

On Wednesday, when the matter was called out for hearing, and even before Sibal could begin to answer the legal issue posed by the Bench on Tuesday, the Bench handed out a list of dates to Sibal and Additional Solicitor General (ASG) S.V. Raju, appearing for the Directorate of Enforcement (ED).

As per the list of dates, Soren was arrested on January 31, 2024. On February 2, a special Bench of the Supreme Court comprising Justices Sanjiv Khanna, M.M. Sundresh and Bela M. Trivedi refused to entertain a petition by Soren challenging his arrest by ED.

The Bench asked Soren to approach the Jharkhand High Court. The Jharkhand High Court heard the matter substantially on February 27 and 28 and reserved the judgment on February 28. While the high court continued to sit on the judgment, Soren filed a bail petition before the special court on April 5.

On April 4, a special court under PMLA took cognisance of the complaint filed by the ED against Soren.

On April 18, Soren again approached the Supreme Court complaining that the high court was delaying the pronouncement of the judgment. On April 29, a Bench comprising Justice Sanjiv Khanna and Justice Datta issued a notice in the matter.

It observed that, in the meantime, it will be open for the high court to pronounce the Order. It was only after the Supreme Court's intervention that the high court delivered the judgment on May 3 upholding the arrest of Soren by the ED.

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On May 6, Soren filed a second petition. This time he challenged the final order of the Jharkhand High Court dated May 3 refusing to declare his arrest illegal.

On May 10, the Supreme Court disposed of the first petition filed by Soren as infructuous. It also said that all pleas and contentions raised by the petitioner could be raised in the petition challenging the high court Order dated May 3.

Based on these facts, the Bench sought to know from Sibal whether his client was aware of the cognisance Order and if yes, when did he get to know about it. Sibal responded that he would presume that his client got to know about the cognisance Order on the very same day, that is, April 4.

The Bench then asked Sibal why Soren had not disclosed the fact that a cognisance Order had been issued in the first as well as the second petition. During the hearing, Sibal sought to submit that the cognisance Order had been placed on record in the first petition by way of an additional document. The Bench then asked why the same had not been mentioned in the present petition, that is, the second petition.

Sibal responded that they saw the proceedings— from the first to the second petition— as "continuous" and had not hidden the fact of the cognisance Order on purpose to mislead the court.

The Bench flagged that when the first petition was disposed of as infructuous, it was not informed that a cognisance Order existed and that Soren had already approached the special court for bail.

An irked Bench thus observed it was not the way to come to the court.

"You were pursuing parallel proceedings. More candour was expected from the petitioner in disclosing the facts related to the rejection of bail and the taking of cognisance," the Bench said.

Justice Datta observed that once cognisance is taken, the detention, which is an executive act, enters the judicial arena.

Responding to the Bench's questions, Sibal said he took it as his fault, not the client's.

"The client is in jail. Our intention was never to mislead the court," Sibal added. Sibal also submitted that arrest under Section 19 of the PMLA has nothing to do with bail.

Also read: Supreme Court holds written communication of grounds of arrest not necessary in PMLA cases

Yesterday, responding to the preliminary objections, Sibal had sought to make a distinction between proceedings under Section 19 and Section 45 of the PMLA Act. He had argued that Section 45 has no connection to Section 19.

Section 19(1) of the PMLA confers power upon the ED to make an arrest provided that the officer, based on material in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under the PMLA.

Section 45, while excluding the applicability of the Code of Criminal Procedure (CrPC), mandates that no person accused of an offence under the PMLA shall be released on bail unless:

(i) The public prosecutor has been given an opportunity to oppose the application for such release.

(ii) Where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that they are not guilty of such offence and that they are not likely to commit any offence while on bail.

Sibal had referred to a decision of the Supreme Court in Pankaj Bansal versus Union of India, in which it was held that the court, while remanding a person arrested by the ED under Section 19(1), has a duty to verify and ensure that the conditions in Section 19 are duly satisfied and that the arrest is valid and lawful.

In the event the court fails to discharge this duty in earnest and with the "proper perspective", the Order of remand would have to fail on that ground and the same cannot, by any stretch of the imagination, validate an unlawful arrest made under Section 19 of the Act of 2002.

Sibal had also referred to another observation made in Pankaj Bansal's judgment while referring to a decision in Madhu Limaye and others in which it was observed that it would be necessary for the State to establish that, at the stage of remand, the magistrate directed detention in jail custody after applying his mind to all relevant matters and if the arrest suffered on the ground of violation of Article 22(1) of the Constitution, the Order of remand would not cure the constitutional infirmities attaching to such arrest.

However, as soon as Sibal sought to create a distinction between Section 19 and Section 45 of the PMLA on Wednesday, an unimpressed Bench offered him Sophie's choice: It could either dismiss the petition without comment or, in case Sibal wanted to argue on points of law, it was willing to deal with the petition but warned that doing so "could be damaging to the client".

Also read: In a strongly-worded judgment, SC comes down heavily on "arbitrary exercise of power" by ED

An unrelenting Sibal submitted that he would argue that matter and that he was ready to bear the consequences.

Responding to the query posed by the Bench yesterday, Sibal referred to a decision of the Supreme Court in Rini Johar versus State of Madhya Pradesh, in which the Supreme Court had held the arrest illegal even though charges had been framed.

Sibal submitted that declaration of arrest as illegal does not entitle acquittal and that it does not affect the trial proceedings.

Hearing Sibal for a while on the legal issues, the Bench again turned to the issue of concealment of material facts by Soren and started dictating the Order that it was not inclined to interfere with the high court Order since the petitioner had not approached the court with clean hands.

Sibal submitted that doing so would be the worse option, and chose to withdraw the petition instead.

During the hearing, Sibal submitted that his client had been wrongly dealt with by the courts. Referring to the conduct of the high court in delaying the judgment, Sibal said that the high court judges knew fully well that under the PMLA, a complaint (chargesheet) is filed within 60 days, yet the high court judges chose to delay the judgment for two months.

"An act of the court cannot prejudice my fundamental rights," Sibal submitted.

"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 submitted.

Justice Datta retorted that the Bench was talking about the conduct of Soren and that two wrongs do not make a right.

On the submission of Sibal that Soren had filed a bail petition without prejudice to his rights, Justice Datta observed that the special court Order was final and binding.

Case against Soren

On January 31, Soren was arrested by the ED in an alleged land scam.

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In the grounds of arrest furnished to Soren, the ED stated that the investigation revealed Bhanu Pratap Prasad (revenue sub-inspector, circle office, Baragai, Ranchi) and others were part of a very large syndicate involved in corrupt practices of acquiring properties forcefully as well as based on false deeds, falsification of government records, tampering with original revenue documents, etc.

The ED also stated that Bhanu Pratap Prasad was actively involved in hatching conspiracies with other persons to acquire and conceal various properties illegally, including properties that have been illegally acquired and possessed by Soren.

The ED further stated that the statement of several persons had been recorded under Section 50 of the PMLA, 2002, which also establishes that the said property is under illegal acquisition, possession and use of Soren, and this fact had been kept concealed by Soren.

In addition, the ED claimed that Soren directly indulged in the process connected with the acquisition, possession and use of proceeds of crime.

"Shri Hemant Soren is knowingly a party along with Bhanu Pratap Prasad and others in the activities connected with concealment of the original records for projecting the property acquired by him in an illegal manner as an untainted property.

"Further, the process or the activity connected with the acquisition, possession and use of proceeds of crime by projecting it as untainted property is continuing as on day as he is still enjoying the said proceeds of crime by its possession, occupation and use by claiming it as an untainted property," the ED stated in the grounds of arrest.