Can court examine legality of arrest after cognisance of ED's complaint taken: SC to Hemant Soren
The trial court, after taking a prima facie view that offence has been committed, has passed a judicial order taking cognisance of prosecution complaint.
![Can court examine legality of arrest after cognisance of EDs complaint taken: SC to Hemant Soren Can court examine legality of arrest after cognisance of EDs complaint taken: SC to Hemant Soren](https://dtnext-prod.s3.ap-south-1.amazonaws.com/h-upload/2024/05/21/750x450_824238-12cms.webp)
Hemant Soren (R) and Supreme Court (L)
NEW DELHI: The Supreme Court on Tuesday asked former Jharkhand chief minister Hemant Soren whether a writ court can examine the legality of his arrest after the trial court has taken cognisance of the prosecution complaint filed by the Enforcement Directorate (ED) in the money laundering case against him related to an alleged land scam.
A vacation bench of Justices Dipankar Datta and Satish Chandra Sharma, which posted the matter for further hearing on Wednesday, 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.
"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," the bench told senior advocates Kapil Sibal and Arunabh Chowdhury, who appeared for Soren.
Both the lawyers sought time till Wednesday to respond to the court's queries. Additional Solicitor General SV Raju, appearing for the ED, opposed Soren's interim bail plea, contending his case was different from that of Delhi Chief Minister Arvind Kejriwal, who was granted interim bail on May 10 for campaigning in the general elections.
He said the trial court had on April 4 taken cognisance of the prosecution complaint, ED's equivalent of a charge sheet, upon finding that a prima facie case was made out against Soren.
Sibal said no offence of illegal possession of land is made out against Soren under the Prevention of Money Laundering Act (PMLA), which is not a predicate/scheduled offence.
"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 said.
The senior lawyer submitted that if the court is not inclined to grant interim relief to Soren, then it will have to hold that the moment an accused moves a regular bail application, his right to challenge section 19 of the PMLA (power of arrest) stands extinguished.
"We need assistance on the issue from both the sides," the bench said while referring to the subsequent developments following Soren's arrest like dismissal by the high court of his plea challenging his arrest, cognisance of the prosecution complaint (charge sheet), and dismissal of his regular bail application.
Sibal said the trial court has only taken a prima facie view that an offence has been committed but the petitioner's case is that his arrest itself is bad in law.
"This is totally different. The material before the trial court does not disclose commission of offence under the PMLA and hence arrest is illegal," he said.
The bench said, "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 said the high court had reserved its order on Soren's plea challenging his arrest on February 28, and on May 3, the court pronounced the verdict.
"Yes, I have moved for regular bail before the trial court on April 15 but what else could I have done," he said, adding that the bail application was moved without any prejudice to Soren's rights and contentions.
Raju intervened and said that Soren simultaneously pursuing bail while challenging his arrest in the high court was akin to "riding two horses at a time".
Raju, who raised preliminary objections to the maintainability of Soren's petition, told the bench, "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."
He added that unlike Kejriwal's case, Soren was arrested on January 31, long before the schedule for the Lok Sabha election was announced on March 16.
The ED has, in its affidavit, said Soren is actively attempting to "subvert" the probe in the money laundering case against him by "misusing state machinery". It has opposed his "special prayer" for interim bail to campaign in the Lok Sabha polls.
The agency said Soren's arrest on January 31 has been upheld by the Jharkhand High Court and his regular bail application 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, the JMM leader said 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.