New Delhi, May 21 -- The Supreme Court on Tuesday raised doubts over the jurisdiction of a writ court to scrutinise the legality of former Jharkhand chief minister Hemant Soren's arrest after the trial court had already acknowledged the prosecution complaint filed by the Enforcement Directorate (ED) in the alleged land scam case against him.
The vacation bench, comprising Justices Dipankar Datta and Satish Chandra Sharma, scheduled further hearings for Wednesday. They asked Soren's counsel to explain how he could be granted interim bail for Lok Sabha poll campaigning when his regular bail application had been rejected.
The bench, addressing senior advocates Kapil Sibal and Arunabh Chowdhury, who represented Soren, stated: "The trial court, after taking a prima facie view that offence has been committed, has passed a judicial order taking cognisance of prosecution complaint. What will happen to that judicial order especially when it has not been challenged? You have to satisfy us, can a writ court examine the legality of arrest after the judicial order taking cognisance has been passed."
Both lawyers requested time until Wednesday to answer the court's questions. Additional Solicitor General SV Raju, representing the ED, opposed Soren's interim bail plea, arguing that his case differed from that of Delhi Chief Minister Arvind Kejriwal, who was granted interim bail on May 10 for general elections campaigning.
Raju stated that the trial court had acknowledged the prosecution complaint, equivalent to a chargesheet, on April 4, finding a prima facie case against Soren. Sibal argued that no offence of illegal land possession under the Prevention of Money Laundering Act (PMLA), which is not a predicate/scheduled offence, is made out against Soren.
Sibal raised a constitutional question, stating: "I am raising a question of constitutional infirmity. It relates to my freedom. It relates to taking away of my right to liberty under Article 21. Why can't I challenge my arrest under the PMLA, when no offence is made out. The writ court can interfere, if my rights are affected."
He further argued that if the court is not inclined to grant Soren interim relief, it would have to rule that an accused's right to challenge section 19 of the PMLA (power of arrest) is extinguished the moment a regular bail application is moved.
The bench referred to the subsequent developments following Soren's arrest, such as the dismissal of his plea challenging his arrest by the high court, the cognisance of the prosecution complaint (chargesheet), and the dismissal of his regular bail application. It stated: "We need assistance on the issue from both the sides."
Sibal contended that the trial court has only taken a prima facie view that an offence has been committed, but Soren's case is that his arrest itself is bad in law. He said: "This is totally different. The material before the trial court does not disclose commission of offence under the PMLA and hence arrest is illegal."
The bench responded: "We need to have some intense debate on the issue and need assistance from both sides. We are keeping our mind open and have not formed our opinion. Satisfy us."
Sibal mentioned that the high court had reserved its order on Soren's plea challenging his arrest on February 28, and the verdict was pronounced on May 3. He added that the bail application was moved without any prejudice to Soren's rights and contentions.
Raju interjected, stating that Soren pursuing bail while challenging his arrest in the high court was akin to "riding two horses at a time". He argued, "This case cannot be compared with the other case (Kejriwal's case). Else, every day someone will come challenging arrest and criminal proceedings will go for a toss. It will open a pandora's box."
The ED, in its affidavit, claimed that Soren is actively attempting to "subvert" the probe in the money laundering case against him by "misusing state machinery". It opposed his "special prayer" for interim bail to campaign in the Lok Sabha polls.
The agency stated that Soren's arrest on January 31 has been upheld by the Jharkhand High Court and his regular bail application was dismissed by the trial court on May 13.
On May 13, Soren referred to the top court's order granting interim bail to Kejriwal in the money laundering case against him linked to the alleged Delhi excise scam and sought identical relief for himself.
In his appeal filed through advocate Praghya Baghel, Soren stated that the high court had erred in dismissing his plea.
The ED has alleged that "huge amounts of proceeds of crime" were generated by Soren through manipulation of official records by showing dummy sellers and purchasers in the guise of forged/bogus documents to acquire huge parcels of land having value in crores of rupees.
The probe against Soren pertains to an 8.86-acre plot of land in Ranchi that the ED has alleged was illegally acquired by him.
Soren is currently lodged in judicial custody in Ranchi's Birsa Munda Central Jail.
Published by HT Digital Content Services with permission from Millennium Post.