Why has the Jharkhand HC granted Hemant Soren bail?

A detailed analysis of the Jharkhand High Court judgment granting former chief minister of the state Hemant Soren bail.

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ON Friday, the Jharkhand High Court granted bail to the former chief minister of the state Hemant Soren in a case under the Prevention of Money Laundering Act (PMLA), 2002 registered by the Directorate of Enforcement (ED) concerning an alleged land scam.

Justice Rongon Mukhopadhyay ruled that on broad probabilities of the case, Soren is not specifically or indirectly involved in the acquisition and possession of 8.86 acre of land at Shanti Nagar, Baragain, Ranchi, as well as concealment regarding it connected to the "proceeds of crime".

Justice Mukhopadhyay also held that none of the registers or revenue records bear an imprint of the direct involvement of Soren in the acquisition and possession of the said land.

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.

On May 3, the Jharkhand High Court dismissed the writ petition filed by Soren challenging his arrest under Section 19 of the PMLA.

On May 22, the Supreme Court rejected the petition by Soren against the judgment of the Jharkhand High Court upholding his arrest under Section 19 of the PMLA.

A Bench of Justice Dipankar Datta and Satish Chandra Sharma 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 which the special court dismissed.

On May 22, Soren approached the Jharkhand High Court seeking bail in a PMLA case registered by the ED.

Allegations against Soren

It all started with the investigation into the fraudulent acquisition of land which was in possession of the ministry of defence, government of India. The investigation led to the identification of some private persons in connivance with government officials who were part of a land-grabbing syndicate and whose involvement ranged from falsification of government records to tampering with the original revenue records.

Also read: SC shuts the door on Hemant Soren's plea challenging his arrest citing non-disclosure of facts

Recoveries were effected from the premises of Bhanu Pratap Prasad (revenue sub-inspector, circle office, Baragai, Ranchi) which included property documents and 17 original registers (Register-II). This led to the registration of a case at Police Station Sadar in 2023.

According to the ED, the seized documents manifested in a trail designating the role of Soren in the illegal acquisition and possession of 8.86 acre of land situated at Shanti Nagar, Baragain, Bariatu Road (near Lalu Khatal).

On the basis of the documents, the ED claims that Soren had derived or obtained property as a result of a scheduled offence and had indulged himself in an activity connected with the said property.

The ED claimed that Soren manoeuvred the state agency while holding the post of Chief Minister of Jharkhand in the acquisition and possession of 8.86 acre of land at Shanti Nagar, Baragain, Bariatu, Ranchi and the investigating agency has attempted to connect the dots incriminating the petitioner with the derivation of the said property which can be construed to be from "proceeds of crime".

No case under PMLA

Senior advocate Kapil Sibal, for Soren, made multifold arguments. He contended that:

• The possession of the petitioner, either actual or constructive, on the subject property was not made out.
• Forcible possession of a property is not a scheduled offence under the PMLA.
• Possession by itself is not a criminal act. There is no scheduled offence and thus there is no case of money laundering under the PMLA.
• Even if it is assumed that the land has been in the possession of Soren, the same would not conclusively prove that it was on account of "proceeds of crime". There is no document indicating that the property measuring 8.86 acre has been transferred in the name of Soren or any of his family members. None of the documents found in the possession of Bhanu Pratap Prasad are suggestive in any way about the involvement of Soren. 
• If Soren had resorted to forcible dispossession, the sufferer(s) could have easily preferred a complaint before the court even if the police had desisted from entertaining a report. 
• The filing of an application under Section 71A of the Chotanagpur Tenancy (CNT) Act, 1908 by one Raj Kumar Pahan for restoration of the land in question and the same having been allowed, establishes the ownership of Raj Kumar Pahan and others over the subject property. This demolishes the case of the ED against Soren.
• The fact that Raj Kumar Pahan is the owner of the land and continues to remain in possession is borne out from the registered lease deed dated December 16, 2015, between Raj Kumar Pahan and Hilerious Kachhap and the installation of an electric metre is in the name of Hilerious Kachhap and not Soren.

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• The lease agreement dated December 21, 2011, entered into between Chandrika Pahan and others with Ranjit Singh did not identify Soren with the property of 8.86 acre. 
• The lease agreement dated December 16, 2015, amplifies the ownership of Raj Kumar Pahan over the land when considered in the backdrop of the Order passed by the scheduled area regulation (SAR) court under Section 71A of the CNT Act which has already attained finality.
• The nature of the land in question is "Bhuinhari" land which cannot be sold or transferred under Section 48 of the CNT Act which imposes a complete restriction on the transfer of "Bhuinhari Tenure Land". As per the records, the land belongs to the "Pahan family" which fact has been reinforced by the Order dated January 29, 2024, passed by the SAR court in terms of Section 71A of the CNT Act. 
• Since the possession of Raj Kumar Pahan and others has been restored which continues to operate and is binding on all authorities, the entire case of the ED of the involvement of Soren in a case of money laundering has been obliterated.
• Concerning recovery of a BMW car and cash amounting to ₹ 36,00,000 approximately from the premises of Soren at Shanti Niketan, New Delhi, Sibal submitted that the same neither has any bearing on the scheduled offence nor has it any nexus or is a derivative of a scheduled offence.

Senior advocate Meenakshi Arora also made arguments on behalf of Soren. She rebutted the argument of Additional Solicitor General (ASG) S.V. Raju that the decision of the division Bench dismissing the petition filed by Soren challenging his arrest under the PMLA was binding on the judge hearing the bail matter.

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She argued that Sections 19 and 45 of the PMLA are intrinsically different as the said provisions are invoked and operate at different stages. She added that the right to grant bail to the petitioner cannot be subjugated by the Order of the division Bench as both operate in different fields.

Arguments by the ED

ASG Raju, for the ED, argued:

• The offence of money laundering is an independent offence and a person accused of money laundering need not necessarily be an accused in a scheduled offence.
• In the course of the investigation, it was detected that in several cases the nature of the land had been changed by manufacturing false and back-dated deeds, and in the course of the investigation, handwritten notes, diaries and mobile phones containing incriminating evidence relating to properties acquired by highly placed persons have been seized which were kept concealed by them. 
• Reference was made to surveys conducted on April 20, 2023, and February 10, 2024. Based on these surveys, Raju argued that they were not one-sided surveys but surveys in which the concerned persons including government officials had participated and the land was found bounded which indicated that only one person was the owner, that is, Hemant Soren. 
• During the search conducted on April 13, 2024, voluminous property documents and original registers were seized from the possession of Bhanu Pratap Prasad which were concealed and kept in his room. The properties were spread across different khatas and plots numbers and the property acquired and possessed by Soren are entered in three volumes, i.e., Volume-I, Volume-IV and Volume-V, which were kept by Bhanu Pratap Prasad at his premises. 
• The registers themselves are properties as per the definition in Section 2 (1)(v) of the PMLA, 2002 as they were involved in the commission of the scheduled offence and as such any forgery, criminality and tampering relatable to the said registers was within the ambit of investigation under PMLA, 2002. 
• Bhanu Pratap Prasad was an accomplice of Soren and had played a pivotal role in assisting him in acquiring "proceeds of crime", i.e., 8.86 acre of land. 
• During analysis of the mobile phone seized from Bhanu Pratap Prasad, the image recovered contained the details of the landed property situated adjacently on 12 plots at Baragain Anchal, a total area of which was 8.86 acre.

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• That Bhanu Pratap Prasad had admitted in his statement that the 8.86 acres of land belong to Soren.
• Witness Hilerious Kachhap, in his statement, under the PMLA stated that he used to be personally involved in the verification work done by Bhanu Pratap Prasad and he was instrumental in the construction of the boundary wall over the 8.86 acre of property of Soren. 
• That the statement of Hilerious Kachhap gets corroborated by the statements of Manoj Kumar, circle officer, Baragain, Uday Shankar, PPS CMO and Abishek Prasad @ Pinto the press advisor of the petitioner and it gets correlated with the statement of Bhanu Pratap Prasad recorded at Para 8.1 of the prosecution complaint. 
• To the application submitted by Raj Kumar Pahan on August 16, 2023, addressed to the deputy commissioner, Ranchi wherein he sought for cancellation of the registered deed and to restore possession to him and the plot numbers mentioned in the said letter, Raju submitted that it corelates with the property measuring 8.86 acre located near Lalu Khatal, Shanti Nagar, Baragain which is in the possession of Soren and that this application filed by Raj Kumar Pahan was an apparent effort made by him to shield Soren. The application preferred by Raj Kumar Pahan was done immediately after the ED had issued a summons to Soren. 

Court's ruling

Justice Mukhopadhyay on the reliance made by ASG Raju on the decision of a division Bench upholding the arrest of Soren, observed that the fundamental issue before the division Bench was concerning Section 19 of the PMLA.

When Soren's petition challenging his arrest was heard, the prosecution complaint was not filed by the ED but the same was subsequently filed on March 3, 2024, and cognisance was taken.

Justice Mukhopadhyay thus held that an entirely new scenario had emerged with the filing of the prosecution complaint and the supplementary prosecution complaint.

"The present case being an application of bail and operating in an entirely different sphere and in view of the changed circumstances noted above would not be shackled by the observations made by the division Bench," said Justice Mukhopadhyay.

On merits, Justice Mukhopadhyay observed that in the numerous registers and revenue records recovered from the premises of Bhanu Pratap Prasad the name of Soren or his family members did not figure.

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"The plan of a banquet hall retrieved from the mobile of Binod Singh in his WhatsApp chat with the petitioner depicts the area as Lalu Khatal, and since the 8.86 acre of land allegedly possessed by the petitioner is in the vicinity of Lalu Khatal and since there was no other open tract of land of considerable dimension in the said area it was inferred that the plan of the banquet hall was prepared at the behest of the petitioner being oblivious to the fact that even the clients name did not figure in the plan submitted by grid consultants," Justice Mukhopadhyay observed.

Examining the statements of persons recorded by the ED under the PMLA, Justice Mukhopadhyay noted that the statements transpired that Bhanu Pratap Prasad was directed by Manoj Kumar, circle officer, Baragain to submit a verification report giving details of the property measuring 8.86 acre.

He has stated that Soren was the owner of the said property. The aamin, Shristidhar Mahto had disclosed that he had "come to know" that the property belonged to Soren.

The said Bhanu Pratap Prasad was subsequently confronted with the revenue records recovered from his premises but in none of his ensuing statements the name of Soren figured.

As per the statements, Ashok Jaiswal, Shashi Bhushan Singh and Bishnu Kumar Bhagat have claimed to have purchased the land in the year 1985 but Soren and others had forcibly got them evicted in the year 2009–10 and the complaints made were not entertained by the police.

At this, Justice Mukhopadhyay wondered how these persons could have purchased the land when admittedly it is a "Bakast Bhuinhari" land which is non-transferrable in terms of Section 48 of the CNT Act.

On the question of the verification of land at the behest of Soren, Justice Mukhopadhyay noted that as per the allegations emanating from the statements of the persons recorded under Section 50 of the PMLA, 2002, Soren had acquired and possessed the land comprising 8.86 acre in the year 2010 and the boundary wall was also constructed and it seems that only during the tenure of Bhanu Pratap Prasad, revenue sub-inspector, circle office, Baragain, Ranchi there was a necessity to verify the land in question which seems to be farfetched and with an intent to prosecute Soren.

Justice Mukhopadhyay further observed that the electric metre installed in the said premises is in the name of Hilerious Kachhap and here also the presence of Soren in any tangible or intangible form is absent.

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On the argument of the ED questioning the Order dated January 29, 2024, passed by the SAR court on the application of one Raj Kumar Pahan alleging that the application was filed at the behest of Soren to create parallel evidence to exculpate Soren from the scheduled offence, Justice Mukhopadhyay observed that all the safeguards had been taken as legally required and thereafter the land was ordered to be restored in favour of Raj Kumar Pahan and others.

"This Order has attained finality in absence of any challenge mounted to it by the other side. It also seems that this was not the only case disposed of by the SAR court during the period 2023–24 but three other cases as well were disposed of and the Order dated January 29, 2024, considering the reasons given cannot be concluded to be an Order fraught with baseless reasonings," Justice Mukhopadhyay ruled.

Justice Mukhopadhyay further ruled that none of the registers or revenue records bare an imprint of the direct involvement of the petitioner in the acquisition and possession of the said land.

"The statement of some of the persons under Section 50 of the PMLA designated the petitioner in the acquisition and possession of the property in question in the year 2010 without any material worth consideration and for all this while none of the ousted persons had approached the competent authority by registering any complaint which has conveniently been discounted by the ED that the approaches though made to the police proved futile," Justice Mukhopadhyay said.

He added that there was no reason for the purported oustees from the land in question not to have approached the authorities for redress of their grievance if at all Soren had acquired and possessed the said land when he was not in power.

The claim of the ED, Justice Mukhopadhyay observed, that its timely action had prevented the illegal acquisition of the land by forging and manipulating the records seems to be an ambiguous statement when considered in the backdrop of the allegation that the land had already been acquired and possessed by Soren as per some of the statements recorded under Section 50 PMLA, 2002 and that too from the year 2010 onwards.

Click here to read the Order