Can Legality Of Arrest Be Examined After Trial Court Has Taken Cognizance & Rejected Bail? Supreme Court Asks Hemant Soren

While hearing former Jharkhand Chief Minister Hemant Soren's petition challenging his arrest by the Enforcement Directorate (ED), the Supreme Court on Tuesday (May 21) asked if the validity of arrest can be examined after the trial court has taken cognizance of the ED complaint and rejected the regular bail application of Soren.After hearing arguments for about one and half hours, the vacation bench comprising Justices Dipankar Datta and Satish Chandra Sharma listed the matter tomorrow for further arguments.The primary argument raised on Soren's behalf today was that the alleged illegal possession of land is not a scheduled offence under the Prevention of Money Laundering Act (PMLA) and hence the ED officers could not have arrested him in the exercise of powers under Section 19 of the PMLA.Arguments of SorenAt the outset, Senior Advocate Kapil Sibal, appearing for Soren, submitted that the subject land was 8.86 acres of tribal land which cannot be transferred under the Chotta Nagpur Tenancy Act. He asserted that Soren has nothing to do with the land.Moving on, Sibal recapitulated that ED's allegation was that in 2009-10 Soren occupied the subject land forcibly. A complaint was lodged in April 2023, but between 2009-10 and April 2023, there was no complaint by anybody. Sibal claimed that the electricity connection in the land was in the name of a person, who is cultivating the land under a registered lease from another person.He further contended that ED is not the investigating agency with respect to the settlement of the land as it is purely a civil matter. Insofar as ED's contention that had it not intervened, Soren's name would have added in the land register, Sibal asked, "How do they know that his name would be added?".ED raises preliminary objectionsAdditional Solicitor General SV Raju, appearing for ED, submitted that Soren's case is different from Arvind Kejriwal's case on many grounds, including :1. Soren was arrested in January, way ahead of the the declaration of elections,2. The Special Court has taken cognizance of the complaint and issued process, which means that there is a judicial satisfaction regarding a prima facie case,3. Soren's regular bail application under Section 45 PMLA was rejected by the Special Court, which he has not challenged.The ASG said that to grant interim bail only on the ground of elections would open a "pandora's box" as several other jailed politicians will also try to take advantage of such an order. Soren was simultaneously pursuing bail while challenging the arrest, which is akin to "riding two horses at a time". The Supreme Court has deprecated the practice of parties resorting to parallel remedies simultaneously, he submitted.Can the writ court interfere when the Special Court has taken cognizance and bail has been denied? Bench asksOn hearing submissions on behalf of Soren, the bench asked if the writ petition challenging arrest can be maintained when the special court has taken cognizance and when his regular bail application has been rejected.In reply, Sibal said that the allegation of land grabbing is not a scheduled offence under PMLA. So far as Justice Datta's query on whether subsequent judicial orders would not give an imprimatur to the arrest, Sibal answered in the negative. He cited the recent judgment in Prabir Purkayastha v. Union of India which held that if the initial arrest is invalid, the subsequent remand orders will not validate it. However, Justice Datta said that there were certain factual dissimilarities in the cases."Here, cognizance has been taken which means that there is a prima facie case. Here your case is that you could not have been arrested under Section 19 as there are no materials to believe that you are guilty. When the Court has taken cognizance, that will impact that argument," Justice Datta said while stating that in the Prabir Purkayastha case, the arrest was invalidated on the basis that the grounds of arrest were not supplied."When a judicial order taking cognizance is there, which has not been challenged, whether a writ court can look into that?" Justice Datta asked. The judge also said that the bail application was filed without taking the leave of the the High Court which had reserved judgment on his petition challenging arrest.Sibal asserted that no offence is made out under the PMLA as illegal possession of land is not a scheduled offence under the PMLA. Hence, ex-facie, there is no basis to invoke Section 19 PMLA (power of arrest). This has to be determined based on the materials and developments as existing on the date of arrest, January 31, 2024, he said."I am raising a Constitutional infirmity as it is related to freedom. Taking away of the liberty under Article 21 as per procedure established by law. Here the procedure established by law is Section 19. If 19 is violated, the writ court can interfere," Sibal argued.The senior counsel further contended that it would be an "unfair proposition of law" to hold that a...

Can Legality Of Arrest Be Examined After Trial Court Has Taken Cognizance & Rejected Bail? Supreme Court Asks Hemant Soren

Debby Jain

Tags