Can courts examine validity of plea against arrest: Supreme Court to Hemant Soren

Tribune News Service

New Delhi, May 21

The Supreme Court today asked former Jharkhand CM Hemant Soren to explain if constitutional courts can examine the validity of his arrest after the trial court took cognisance of the Enforcement Directorate’s complaint (chargesheet) against him in a money laundering case linked to a land scam.

“The trial court, after taking a prima facie view that offence has been committed, has passed a judicial order taking cognisance of prosecution complaint. What will happen to that judicial order, especially when it has not been challenged? You have to satisfy us, can a writ court examine the legality of arrest after the judicial order taking cognisance has been passed,” a Vacation Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma told senior advocate Kapil Sibal, who represented Soren.

Seeking to know how interim bail can be granted to Soren for campaigning in the Lok Sabha poll after dismissal of his application for regular bail, the Bench posted the matter for hearing on Wednesday. Arrested on January 31 in the case by the ED, Soren has challenged the May 3 order of the Jharkhand High Court dismissing his petition against the arrest. He has also sought interim bail for campaigning in the Lok Sabha election till the court delivers its verdict on his plea against arrest.

On behalf of the ED, Additional Solicitor General SV Raju opposed Soren’s interim bail plea, saying his case was different from that of Delhi Chief Minister Arvind Kejriwal, who was granted 21-day interim bail on May 10 for campaigning in the ongoing Lok Sabha poll. Raju pointed out that the trial court had on April 4 taken cognisance of the ED’s complaint upon finding that a prima facie case was made out against Soren.

Sibal said no offence of illegal possession of land was made out against Soren under the Prevention of Money Laundering Act (PMLA), which was not a predicate/scheduled offence. “I am raising a question of constitutional infirmity. It relates to my freedom. It relates to taking away my right to liberty under Article 21. Why can’t I challenge my arrest under the PMLA, when no offence is made out,” Sibal said, asserting that a writ court could interfere, if fundamental rights of the accused were affected.

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