The Supreme Court on Wednesday refused to entertain the plea moved by former Jharkhand Chief Minister Hemant Soren seeking bail after it found that the petition did not mention the cognisance taken by the special court in the case and he had pursued parallel remedies by approaching special court along with the top court for bail at the same time. The court dismissed the petition saying that Soren has not approached with clean hands.
The top court grilled JMM chief Hemant Soren's counsel Kapil Sibal for not mentioning in his petition challenging arrest by the Enforcement Directorate (ED) that cognisance has been taken by the Prevention of Money Laundering Act (PMLA) court.
Kapil Sibal submitted in the court that order taking cognisance shall not stand in the way of granting release in the petition challenging arrest under Section 19 of PMLA. He further alleged that there was a deliberate delay by the Jharkhand High Court in delivering the verdict which allowed the time for the special court to take cognisance.
However, the bench headed by Justice Dipankar Datta took a strong exception and said that Soren should have said in the petition that he has already applied for bail in the special court.
"You just touch it saying 'without prejudice'...You were pursuing parallel remedies. You had applied for bail before the Special Court, you came before us praying for bail," Justice Datta remarked.
However, Kapil Sibal said that it was his mistake that he said "bail" when he meant to say "release" under sections 19 of PMLA.Senior Advocate Kapil Sibal requested the court to not hold Hemant Soren responsible for this.
Justice Datta said that why should the court not doubt Soren's intention in filing a petition in this way. "He is not a lay man!"
"Assume, I have made a mistake, why should the client suffer?" Sibal said in court.
"He is in custody, but he is not a layman Sibal." Justice Datta remarked.
"Hemant Soren is not in touch with us. It's not his fault!" Sibal said.
Ultimately, the top court said it is inclined to dismiss the petition. However, Sibal said that "please then allow me to withdraw the petition."
The top court then allowed Kapil Sibal to withdraw the petition by Soren. He further assured the court that it was not his intention to conceal the cognisance taken order. He said that the special court's order came after they filed the petition in the top court.
On Tuesday, the apex court adjourned the hearing after Sibal sought more time from the bench to answer the top court on its doubts. The apex court asked if Hemant Soren's petition challenging the arrest made by the ED in the alleged land scam, would still stand after a special court has taken cognisance of the case while denying bail to Soren and that order is unchallenged.
The vacation bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma asked Senior Advocate Kapil Sibal appearing for Soren to explain to the court, how challenge to arrest will survive after the special court has taken cognisance.
Sibal however said that "cognisance" is a prima-facie opinion that offense has been committed.
"I am saying the arrest itself was without law. These are two separate issues." Sibal said yesterday.
Sibal yesterday contended that Soren was not in possession of the said land and even if ED's argument is accepted that Soren was in possession of the said land then also his arrest under PMLA is illegal as it is not a scheduled offence.
"Illegal possession of land is not a scheduled offense! It is covered by Vijay Madanlal judgment." Sibal said
.Justice Datta however said that the court needs to be satisfied that after the cognisance taking order of the special court, the challenge to arrest will survive in the Supreme Court.
On Monday, the ED filed an affidavit in the court stating that Soren is actively attempting to subvert the probe into the money laundering case against him by misusing state machinery. The ED opposed interim bail for Soren and said that a politician can claim no special status higher than that of an ordinary citizen.