Former Jharkhand CM Hemant Soren withdraws his challenge to ED arrest from the Supreme Court

Today, former Jharkhand Chief Minister Hemant Soren withdrew his petition challenging his arrest under PMLA by the Enforcement Directorate(ED) from the Supreme Court. The decision to withdraw came after a vacation bench of Justices Dipankar Datta and S.C. Sharma suggested that they were inclined to dismiss his petition entirely. The reason—failure to disclose key facts related to lower court proceedings in Soren’s petition. 

The Bench noted that Soren’s petition did not mention that a Special Court had earlier this year passed a cognisance order after a complaint filed by the ED. Soren was arrested in January 2024 for his alleged involvement in a land scam. 

Senior Advocate Kapil Sibal, appearing for Soren, admitted to the error but apprised the Bench that it was unintentional and Soren had no role to play with the missing information. He pleaded the Court to hear his arguments on how a plea challenging arrest does not rely on subsequent events, such as a cognisance order or an order dismissing a bail. Sibal’s persistent efforts fell short and he tepidly withdrew the petition. 

Justice Datta: “We expected some candour from your client” 

Sibal began the hearing “What your lordships asked me to look at….,” before he was interrupted by Justice Datta. “We need certain clarifications,” announced Justice Datta. He asked Soren when he first became aware of the cognisance order issued on 4 April 2024. Sibal promptly responded that Soren was already in custody at that time and suggested that the Bench could “assume” Soren was aware of it. 

Justice Datta then took note of the history of the current petition. He pointed out that the Jharkhand High Court had kept Soren’s challenge to his arrest pending for two months, and then reserved judgement on 28 February 2024. Soren’s team had approached the Supreme Court requesting them to direct speedy delivery of the judgement from the Jharkhand High Court. On 3 May the Jharkhand High Court upheld the arrest by the ED. Soren’s writ petition for speedy delivery of the order was disposed of by Justices Sanjiv Khanna and Datta. He filed a Special Leave Petition (SLP) challenging the High Court’s order, which the Court is hearing in the present case. 

Justice Datta pointed out that Sibal had sought bail for Soren during the hearings on the High Court’s delay. Sibal responded, “I should have said release but I said bail. I agree.” Justice Datta then asked whether Soren had informed Sibal that a bail application was pending before a Special Court. 

Justice Datta stated, “We expected some candour from your client. He should have said that he had already applied for bail. That was not told to us.” He went on, “You were pursuing parallel remedies.” 

Further, he stated that Soren’s SLPs in the Supreme Court appealing against the Jharkhand High Courts decision made no “whisper” of the cognisance order. 

Sibal immediately took responsibility for the mistake. He clarified that it was his fault, and not Sorens. “The client is in jail. We are lawyers acting for him…our intention is never to mislead the Court.” As he attempted to justify his petition, Justice Datta suggested dismissing it without commenting on the merits of the case. The judge warned that it would be risky for Sibal to argue as it would be damaging for Soren. “We will take the consequences,” Sibal replied. 

Sibal: Bail petition is conceptually different 

Sibal argued that the plea challenging an arrest under the PMLA is a “remedy of release” which differs from a “bail remedy.” His plea was solely on the arrest being illegal. In yesterday’s hearing, he had stated that the cognisance order and an order rejecting bail would collapse if the arrest is held illegal. 

“Why was it not brought to our notice…at two stages [writ petition and special leave petition]” Justice Datta repeated. Sibal insisted that the Supreme Court had held that an order of cognisance does not obstruct a plea challenging arrest. He also referred to two Supreme Court judgements on this. Defending Soren once again, Sibal stated “He [Soren] is in custody…he is not in touch with us…this is not his fault.” 

In a last-ditch attempt, Sibal contended that the cognisance order was submitted as an additional document with the writ petition which was disposed of by Justice Khanna’s bench. “Why was it not disclosed in this petition?” asked Justice Datta piercingly, “we also did our homework.” 

The Bench started dictating the dismissal order with Justice Datta stating that Soren approached the Court “without clean hands.” Sibal requested to withdraw the petition stating that such observation put on record in an Order by the Bench would be “worse” for Soren. 

Post-hearing reflections 

Sibal expressed his displeasure with the manner in which the Bench was dismissing the petition. He repeated that Soren’s case was a case of “personal liberty.” He quoted a judgement by Justice Krishna Iyer which stated that the subsequent events—in this context the cognisance order—do not play a role in personal liberty cases. 

He concluded, “The proof of the pudding is in the eating, and we eat it everyday.” 

Appearing for the ED, Additional Solicitor General S.V. Raju who remained quiet for almost the entirety of the hearing said, “Grateful my lords.”