Can court examine legality of arrest after cognisance of ED’s complaint taken: Supreme Court to Hemant Soren

New Delhi, May 21
The Supreme Court on Tuesday asked former Jharkhand chief minister Hemant Soren whether a writ court can examine the legality of his arrest after the trial court has taken cognisance of the prosecution complaint filed by the Enforcement Directorate (ED) in the money- laundering case against him related to an alleged land scam. A vacation bench of Justices Dipankar Datta and Satish Chandra Sharma, which posted the matter for Wednesday, asked Soren’s counsel to first satisfy the court as to how interim bail can be granted to him for campaigning in the Lok Sabha poll when his application for regular bail has been dismissed. “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,” the bench told senior advocates Kapil Sibal and Arunabh Chowdhury, who appeared for Soren.
Both the lawyers sought time till Wednesday to respond to the court’s queries. Additional Solicitor General SV Raju, appearing for the ED, opposed Soren’s interim bail plea, contending his case was different from that of Delhi Chief Minister Arvind Kejriwal, who was granted interim bail on May 10 for campaigning in the general election.
He said the trial court had on April 4 taken cognisance of the prosecution complaint, ED’s equivalent of a charge sheet, upon finding that a prima facie case was made out against Soren.
Sibal said no offence of illegal possession of land is made out against Soren under the Prevention of Money Laundering Act (PMLA), which is not a predicate/ scheduled offence.
“I am raising a question of constitutional infirmity. It relates to my freedom. It relates to taking away of my right to liberty under Article 21. Why can’t I challenge my arrest under the PMLA, when no offence is made out. The writ court can interfere, if my rights are affected,” he said.
The senior lawyer submitted that if the court is not inclined to grant interim relief to Soren, then it will have to hold that the moment an accused moves a regular bail application, his right to challenge Section 19 of the PMLA (power of arrest) stands extinguished.