The Supreme Court, today, during the hearing of the plea of former Jharkhand Chief Minister and Jharkhand Mukti Morcha (JMM) leader Hemant Soren, raised a query regarding the status of the cognizance order passed by the Trial Court, if the order of arrest is set aside.

Senior Advocate Kapil Sibal, for Soren, submitted that the cognizance of the offence was taken on the basis of material in possession and in this case, the material in itself does not make out an offence as illegal possession of land is not a scheduled offence.

A Special Leave Petition was filed by JMM Leader Soren challenging the order passed on May 3, 2024, by the Jharkhand High Court dismissing his application which challenged the arrest by the ED in a money laundering case linked to an alleged land scam. On May 17, 2024, the Supreme Court ordered that the matter be listed before the Vacation Bench and directed the Directorate of Enforcement (ED) to file a reply in the interim bail plea and the petition filed by Soren challenging his arrest by the Directorate of Enforcement (ED).

The Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma ordered, "Re-list the matter for further arguments for tomorrow. "

Senior Advocate Kapil Sibal, for Soren, submitted "This relates to 8.86 acres of land situated at, Baragain, Bariyatu Road, which cannot be transferred as it is a tribal land under Chhotanagpur Tenancy Act. The allegation is that in 2009-10, I have occupied the land. Between 2009-10 and April 2023 no complaint by anybody. Nobody complained. On this land, there is an electricity meter connection in the name of Accused No. 4...who is cultivating the land under a formal lease which is in the name of the owner Raj Kumar. Nothing to do with me."

He further submitted that the ED went to this land and one Bhanu Pratap, Revenue Sub Inspector, collected 17 trunks. He mentioned the names of the complainants including Bajinath Munda and Shyamlal Pahwan, who happened to be there when ED came.

"As far as the claim of these two is concerned, the claim of their ownership over the properties seems disputed, and the matter appears to be Diwani Matter i.e. a civil matter. It is a civil matter, the original owners have several descendants and there is a large family tree at present and certainly the settlement of the same is not the scope of the investigation under ED.", Sibal submitted.

Sibal highlighted the contents of the complaint, ECIR and the documents annexed with Soren's petition. "He(Bhanu Pratap) said they seized the records and had they not seized it, Hemant Soren's name would have been added. So how do they know Soren would have been added, God alone knows?"

Sibal referred to the charts of record statements of various people including Bhanu Pratap, Baijnath Munda and Shyamlal Pahwan. He said that there were only oral statements, no evidence, and no actual possession. "They all stated that they had purchased the land in 1985, and they accused that Hemant Soren and others misused and got them evicted during 2009-10. No complaint since 2009-10 and instead of making them Accused, they become prosecution witness. I was not even the Chief Minister"

ASG SV Raju appearing on behalf of ED, strongly opposed this and submitted that Sibal was getting into trial and cognizance had already been taken by the Trial Court, therefore, prima facie case was already established.

Justice Datta said "When the matter was heard by Justice Khanna and myself...you must satisfy us that there is a prima facie case."

Raju said, "This is not like Kejriwal's case. The Court has issued process. Prima facie it is convinced that offence has been committed...Bail filed and rejected."

Raju referred to the Affidavit and said, "In the present case, neither the title of 8.86 acres vests with the Petitioner, nor his name is mentioned in any land records. There is no allegation of any manipulation, fabrication or falsification of Register in the name of the Petitioner, Images received form the accused Bhanu Pratap's mobile phone contains a list of 12 landed properties, it does not mention the name of the Petitioner as the owner of the property. The list of landed property consists of different plots shown to be registered in the name of different persons. The land has been shown as Gair-Bhuinhari & Bakasat-Bhuinhari. It means that the land cannot be sold to a non-tribal...It was revealed that the caretaker Santosh Munda, who was residing in a temporary settlement, that the land is in the custody of Soren."

Justice Datta asked Sibal, "We are just letting you know what is passing through our minds...you filed a writ before the High Court. There are subsequent developments ASG is citing, cognizance order has not been challenged. If we hold arrest illegal, what will happen to these two orders?"

Sibal replied, "They will go."

Justice Datta said, "Why will they go? They are findings of judicial forum, which have not been challenged."

Sibal referred to PMLA provisions and submitted that the High Court dismissed my plea but said 'without prejudice'.

Sibal further explained "(Referred to NewsClick Judgment) This is the case models where the grounds of arrest were not conveyed. In the meantime, the Accused had been remanded to judicial custody. The question, that was argued on the other side there was a remand order, there was no question of setting aside the arrest."

Justice Datta asked Sibal, "Here there are some factual dissimilarities, Cognizance has been taken, therefore, the court was prima facie satisfied...cognizance has been taken. A judicial forum has applied its mind. Whether a writ court would still look into the validity of arrest?"

Sibal submitted, "No offence is made out even if everything they say is accepted. Ilegal possession of land is not a scheduled offence, this land has nothing to do with this. Vijay Madanlal covers me."

Sibal while referring to Pankaj Bansal's judgment said, "I am raising a constitutional infirmity...It is a constitutional infirmity because it relates to my freedom under Article 21, there has to be a procedure established by law...Vijay Madanlal says proceeds of crime have to arise from a scheduled offence. I mean anybody can take anybody's oral statement and say this land belongs to him and then file an FIR after 15 years...I have never seen the land."

ASG Raju said, "You were building a banquet hall on the land."

Sibal said, "Oh yes, of course, for you. It is just a figment of your imagination."

Sibal submitted "Possession of land, forceable possession of land, illegal possession of land is not a scheduled offence."

Justice Datta remarked, "We need to be satisfied that after the cognizance taking order, challenge to arrest survives."

Sibal replied to this, "I am not saying cognizance is bad. I am saying that the arrest in itself was without law. There are two separate issues. Cognizance of an offence taken is on the basis of material in its possession. Whatever material is in the possession does not make out an offence."

Justice Datta remarked, "Doesn't same logic apply? Logic applied in Rahul Modi. Rahul Modi is on Habeaus corpus. Either before filing of the petition or immediately after filing of the petition, there were judicial orders of remand...As a matter of fact, at the outset you should have approached the High Court. You must satisfy us on that."

Sibal requested the Court to hear the matter tomorrow. ASG Raju requested the Court to list the matter after the vacation. The Bench agreed to hear the matter tomorrow i.e. May 22, 2024.

On May 20, 2024, the ED filed a counter affidavit stating facts, circumstances and evidence disentitling him from any interim bail in the matter. The ED said, "As stated above, during searches on 13.04.2023, voluminous property documents and original registers were seized from the possession of Bhanu Pratap Prasad which were concealed and secreted at his home. Forgeries were identified in those registers which was aimed at providing assistance to other persons to acquire properties. As a result of which the Chief Secretary, Government of Jharkhand. In the said complaint, details of the registers seized by the Directorate of Enforcement from possession of Bhanu Pratap Prasad were also listed."

It also stated that there are various criminal antecedents which is a relevant factor demonstrating the role of Soren emerging in several other cases under investigation apart from the ECIR in which he was arrested. The ED stated Soren's role in the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) Scam, Illegal Scam, Misuse of funds to the rural development department, land grabbing scam and the tender scam.

The Affidavit alleged, "The conduct of the Petitioner would also be a relevant factor to reject any kind of interim relief. That, in all, 10 opportunities were given to Shri Hemant Soren by way of 7 summonses and 3 letters to get his statement recorded. He did not comply with eight such opportunities. Finally, his statement was recorded at his residence initially on 20.01.2024 and then on 31.01.2024. On 31.01.2024, he was arrested under section 19 of PMLA, 2002."

The ED vehemently opposed the interim bail on the ground of Soren's inability to campaign in the General Elections, 2024 and stated that the right to campaign for an election is neither a fundamental right nor a constitutional right and not even a legal right. Further, it stated that the investigation revealed that the property around 8 acres located at Ranchi, has been in possession of Soren.

The Court on May 13, 2024 had issued a notice in the petition filed by the Soren. Sibal had strongly requested for a shorter date and interim bail, and said, "Now the election is over...great injustice is done to him...Kejriwal's order covers me."

Former Chief Minister Hemant Soren had moved the Supreme Court on May 6, 2024, against the Jharkhand High Court order dismissing his application challenging his arrest by the ED in a money laundering case linked to an alleged land scam.

Soren was arrested on January 31 after he resigned as the Jharkhand chief minister, and party loyalist and state transport minister Champai Soren was named as his successor. He is at present lodged in judicial custody at the Birsa Munda Central Jail in Ranchi and was sent to jail on February 15 after his 13-day ED custody ended.

The allegations of money laundering against the JMM leader pertain to the alleged illegal possession of certain immovable assets apart from his purported links with members of the 'land mafia'. The investigation is linked to a "huge racket of illegal change of ownership of land by the mafia" in Jharkhand, according to the central probe agency.

Cause Title: Hemant Soren v. Directorate of Enforcement and Anr. (SLP(Crl.) No. 6611/2024)

Justice Dipankar DattaJustice Satish Chandra SharmaHemant Soren

Aastha Kaushik