Case against former Jharkhand CM Hemant Soren “fabricated”, petitioners argue

Today, a Vacation Bench of Justices Dipankar Datta and S.C. Sharma heard a plea seeking interim bail by former Jharkhand Chief Minister Hemant Soren. Soren was arrested by the Enforcement Directorate (ED) on 31 January 2024 in an alleged land scam under Section 19 of the Prevention of Money Laundering Act, 2002. Section 19 deals with the ED’s power to arrest. Delhi Chief Minister Arvind Kejriwal was arrested under the same provision for his alleged role in the Delhi Excise Policy case. 

Senior Advocate Kapil Sibal represented Soren. He argued that the land scam was “fabricated” to arrest Soren. Soren has also filed a plea for interim bail to campaign in the Lok Sabha Elections. The ED has contested against his plea by saying that politicians do not enjoy a special status and the right to campaign before the elections is not a fundamental right.  

The ED had made the same argument in Kejriwal’s case where the Supreme Court granted interim bail to the incumbent Delhi Chief Minister. Today, Additional Solicitor General S.V. Raju for the ED got a “told you so” moment as he argued that Kejriwal’s order opened a “pandora’s box” for similar petitions. 

Sibal: ED cannot investigate a civil land dispute

Sibal argued that Soren had allegedly “grabbed” the disputed land in 2009-10. There had been no complaints against Soren until 2023, when the ED conducted a survey of the land in April 2023. He pointed out that the coincidence of the ED just stumbled upon two witnesses was suspicious at best. Two claimants to the land, Shyamlal Pahan and Baijnath Munda had deposed that Soren forcefully seized the land from them. 

The ED had noted that the land was illegally mutated between 1976 to 1986, and had marked the dispute as one of a civil nature. Sibal argued that a civil dispute on land was not a scheduled offence under the PMLA. The investigative agency, he said, “should have stopped there” as they had no evidence to show that the land was illegally possessed by Soren. Further, he pointed out that the persons who illegally mutated the land were being presented as witnesses instead of the accused. 

Sibal then focused on the conditions of Section 19 of PMLA which stipulates that the ED should have sufficient reasons to believe that Soren was prima facie guilty of the land scam. He argued that “anybody” could claim that Soren had taken illegal possession of the land. The ED had no evidence to support their accusation. 

Justice Datta asked whether a writ petition challenging an arrest would invalidate any orders passed by other courts in Sorens case. For instance, a trial court has taken cognisance of the case and Soren’s regular bail petition was also rejected by the Special Court. Sibal responded that the Supreme Court need only check if the arrest conformed with Section 19 of the PMLA. If the arrest was illegal, any subsequent development after his arrest would “collapse.” The Jharkhand High Court dismissed Soren’s plea challenging his arrest on 3 May 2024. 

Justice Datta pointed out that a Special Court has already concluded that the evidence against Soren is satisfactory. Sibal had to demonstrate how a challenge to arrest would “survive” despite two orders which rejected his bail and took cognisance of his case. Justice Datta stated that invalidating an arrest after the Court had taken cognisance would require an “intense debate.” 

Raju: Kejriwal’s case different from Sorens 

In previous hearings, Sibal had stated that the order in Kejriwal’s plea was in Soren’s favour. Raju claimed that the facts pertaining to Kejriwal’s interim bail differed for the following reasons:

1. In Soren’s case the Court’s order taking cognisance of the offence and arrest was not challenged. In the Kejriwal case, the arrest itself was challenged.. 
2. A bail petition under Section 45 of the PMLA was rejected; Kejriwal never applied for bail under Section 45
3. Unlike Kejriwal, Soren was not arrested during the Model Code of Conduct 

At the end of the hearing, Raju suggested that Soren’s plea should be listed after the vacation. Sibal protested. The Bench directed the case to be listed for 22 May 2024.

(this report will be updated)