The Supreme Court on Wednesday asked the Enforcement Directorate why did it furnish a report in sealed cover before the Jharkhand High Court in a PIL seeking enquiry against Jharkhand Cheif Minister Hemant Soren, even before the allegations are substantiated.
During the hearing today, a Bench of Justices UU Lalit, Sudhanshu Dhulia and Ravindra Bhat asked the ED "Can you act on an individual citizen's non-substantiated allegations and proceed? You cannot take it as an opportunity to act"
"Why did you submit the sealed cover before the High Court?', the court further questioned.
"ED got power to register Enforcement Case Information Report after 16 FIRs where registered in the MNREGA cases involving the petitioner. While investigating, we had to raid premises. In the course of that investigation, we found certain documents", Additional Solicitor General SV Raju, appearing for the ED said..
The court further asked how a sealed cover document could be furnished before the court in a public interest litigation.
"In PIL, we are bound to share the information. In criminal case, we may still allow in a sealed cover", the court said.
The bench was hearing the special leave petitions filed by the State of Jharkhand and Chief Minister Hemant Soren challenging the High Court's decision to hold the PILs filed by one Shiv Shankar Sharma as maintainable and to allow ED to produce sealed cover documents. The PILs sought action agaisnt alleged corruption in grant of mining leases, MNREGA scam and money laundering through shell companies.
During the hearing today, Senior Advocates Kapil Sibal appearing for the State government, Mukul Rohatgi appearing for CM Soren and ASG Raju made detailed submissions, following which the court reserved its judgement.
Non incriminating evidence against CM Soren: State government
Sibal contended that conduct of the PIL petitione was questionable, as he had prior enmity with the petitioner's father.
He also showed the court how the High Court looked into the "merits" of the matter despite the Supreme Court order which asked it to consider "maintainability" first.
"So according to you, the High Court disposed of the matter not only on maintainability but also on merits", the court rephrased.
"Yes, the Supreme Court had asked the High Court to decide on maintainability first", asked Sibal.
Further, he pointed out how the High Court had decided on maintainability even before all the documents were placed before it. The State government had filed its objections through various affidavits, the court was told.
Sibal also took strong exception to manner in which the High Court was hearing the matters against Soren, by holding hearings even on Saturdays.
He further argued that the Enforcement Directorate had produced materials in a sealed cover without there being any incriminating evidence against Soren.
The Original petitioner never approached the Police: Soren
Rohatgi pointed that no credentials were shown to the satisfaction of the court, there was suppression of the public interest litigations filed by the petitioner and his lawyer and there was no prima facie satisfaction of the Court.
He submitted that the original petitioner refrained from moving the Police first, regarding his grievance. This was done despite the petitioners knowing the law very well.
"In Sakiri Vasu, it's clear. If you have a complaint, you need to go to the police. If no action taken by them, then to a senior officer. Then a petition under 482. There's no real representation here. No substance in the writ petition."
When Rohatgi pointed out that there are judgements which hold that grant of mining lease does not fall foul of the law, Justice Ravindra Bhat interjected to say,
"We can't get into that. If the Election Commission is looking into it…"
A petition which shows corruption should not be thrown out on technicalities: ED
Countering these submissions, Additional Solicitor General SV Raju, appearing for the Enforcement Directorate argued criminal petitions should not be thrown out on the technical grounds.
"Any petition which shows corruption cannot be thrown out on technicalities. Technicality should not come in the way", he said.
He also said that the credentials of the petitioner become irrelevant when there's an offence. The actual question then would be whether there's a prima facie offence or not, he argued.
The Court then questioned the grounds on which ED proceeded in the matter. "A ground has to be made in the petition itself. Let's not go into ED's sealed cover. Otherwise, it shows that you just make a bare allegation against a person, and because he's a person holding political office… then the Court must embark on that."
ASG Raju further said that ED cannot act on its own, there has to be a predicate offence. And here the predicate offence was the 16 cases regarding misappropriation of MNREGA funds.
"But the registration of offence is a matter of status for anybody", the bench said.
The Court also opined that the petitioner ought to have taken burden of finding material against CM Soren by himself and not expect ED to do so.
"The averments are very very sketchy..... Either the man must take burden on himself and say that he's aware of the developments....but he is not taking that burden for himself. He wants the investigation agency to do that, what he wishes to accomplish. Where does the answer lie?....There's a possibility of arrest, may not happen...."
Justice Bhat further questioned as to how a report in a sealed cover could be produced before the High Court when the investigation is pending.
"How can you show the report in sealed cover? That's not privilege.... You should not show it to the court also. Because investigation is going on…"
When asked on why ED didn't approach the jurisdictional police and the Magistrate, ASG Raju said that there was a high possibility of the former not acting in the case as higher officials were allegedly involved.
"Kindly see why we didn't go to magistrate... The jurisdictional police will not act keeping in mind the persons who may be involved."
"That is tone with the WP or the ED:, the bench asked.
"ED also has that apprehension", was the ASG's reply.
The Court further asserted that ED cannot act on mere allegations.
"But it can't be coloured, our Judicial discipline will go haywire. We can't register PILs on mere suspicions like this…..But HC must have confidence to order as it did. It cannot embark on that merely because allegations made."
What is your source of information? Court Asks Original Petitioner
The Court asked the advocate appearing for the original petitioner what was the source of his information/averments made in the plea.
He said that he's been a Right to Information (RTI) activist for the past 10 years.
He also supported ASG Raju's submissions on the maintainability of the plea. As the matter drew to a close, he sought for protection of the petitioner and his family, which, the Court asked Sibal to ensure.
Case Title: State of Jharkhand v. Shiv Shankar Sharma| SLP(C) 10622 of 2022, Hemant Soren v. Shiv Shankar Sharma SLP(C) No.11364-11365/2022