First decide on plea’s maintainability, SC directs Jharkhand HC

A bench of justices Dhananjaya Y Chandrachud and Bela M Trivedi directed the high court to examine the issue of maintainability of the PILs upfront on the next date of hearing before examining the request for probes by the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) into the alleged illegalities.
The Jharkhand government and Hemant Soren have flagged that the PIL petitioner, Shiv Shankar Sharma, did not divulge that his father testified against the chief minister’s father Shibu Soren in a murder case in 2006 (ANI)
The Jharkhand government and Hemant Soren have flagged that the PIL petitioner, Shiv Shankar Sharma, did not divulge that his father testified against the chief minister’s father Shibu Soren in a murder case in 2006 (ANI)
Updated on May 25, 2022 04:45 AM IST
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The Supreme Court on Tuesday restrained the Jharkhand high court from considering pleas for investigations by central agencies into the mining lease purportedly granted by chief minister Hemant Soren to himself, and into some shell companies allegedly operated by his family members and associates, without first deciding whether the cases should be entertained as public interest litigations (PILs) or not.

A bench of justices Dhananjaya Y Chandrachud and Bela M Trivedi directed the high court to examine the issue of maintainability of the PILs upfront on the next date of hearing before examining the request for probes by the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) into the alleged illegalities.

“Since the high court has clearly stated on May 13 that it would deal with the issue of maintainability of the petition upfront, it would be appropriate if the high court first decides the said issue. We accordingly direct that the issue as to the maintainability should be first dealt with by the high court on the next date of listing. Based on the outcome of the maintainability of the proceedings, the high court may proceed in accordance with the law,” the court stated in its order.

The Jharkhand high court is expected to hear the matter on Saturday.

The top court order will give the Jharkhand chief minister some breathing time, for the high court has been hearing the PILs on merits, without examining the requests made by the state government as well as Soren that the petition should be dismissed right away on the ground of concealment of relevant information and being a motivated plea against the Soren family.

The state government and Soren have flagged that the PIL petitioner, Shiv Shankar Sharma, did not divulge that his father testified against the chief minister’s father Shibu Soren in a murder case in 2006, in which the veteran Jharkhand Mukti Morcha leader was eventually acquitted.

Appearing before the Supreme Court on behalf of the state government and Soren respectively, advocates Kapil Sibal and Mukul Rohatgi complained on Tuesday that the high court has chosen to gloss over the fact that the PILs are not maintainable under the Jharkhand high court PIL rules, and that they ought to be rejected straight away.

Sibal, representing the state, further rued that the high court opted to look into a sealed cover envelope handed over by ED on May 17 despite their objections. Following the perusal of ED’s report adduced confidentially, the high court on May 19 observed that it was of the view that the matter was of “paramount importance, urgency and of public cause”.

Taking umbrage at the high court’s acceptance of the report, Sibal contended before the bench: “The first question is, can some extraneous matter in an unrelated matter be brought to the court and should the court look into it?” He added that the high court cannot entertain a PIL for a CBI probe when there is no first information report (FIR) into the matter.

Arguing for the chief minister, Rohatgi supported Sibal and argued that the Supreme Court has repeatedly frowned upon the “sealed cover jurisprudence” and that the high court erred in not entertaining his objections to the credibility of the PIL petitioner who has always been inimical to the chief minister’s father.

“The PIL talks about some mining lease. That is the subject matter before the Election Commission of India where an office of profit case is pending against me,” he said on behalf of Soren. “I will argue this before the EC. The PIL, therefore, has no legs to stand.”

Responding on behalf of the Union ministry of corporate affairs, CBI and ED, solicitor general Tushar Mehta emphasised that there were three different petitions taken up by the high court since they were all interlinked.

“These are petitions relating to the grant of mining lease by the chief minister, who also has the portfolio of the ministry concerned, to himself, and to the MNREGA (rural jobs guarantee scheme) fund embezzlement, which involves a former divisional commissioner, Pooja Singhal, who was also the mining secretary in Jharkhand,” Mehta said.

“The money laundering proceedings were initiated against Singhal in 2012 when some other government was in power at the Centre,” he added. “When raids were conducted at her premises, several relevant materials regarding shell companies and money trails were also recovered.”

Mehta highlighted that the PIL mentioned a list of 28 shell companies and the materials recovered from Singhal could be linked to some of them.

But the bench replied: “Your authority to conduct investigation is not in question here. In a PIL, ED submits a sealed cover. If the high court were to entertain it, it has to first decide whether the PIL is maintainable or not. Even if the high court rejects the PIL on grounds of maintainability, it won’t preclude you from carrying out your investigation.”

“Why did ED have to piggyback on the PIL petitioner? You can independently investigate. Nobody is stopping you,” it further remarked. “They (state and Soren) are also not questioning your authority to investigate. But if the high court has said it would first decide the maintainability, it must decide that before hearing anything else.”

“The material is very serious and authentic,” Mehta asserted. “There is a money trail.”

The bench, however, remained unconvinced. “However serious the violations are, the high court has itself said that it would first hear the issue of maintainability,” it remarked. “And that will not foreclose ED from exercising its power to investigate under the law.”

To this, the central government’s law officer said that he apprehends that evidence could be destroyed in the meantime. “And my apprehension is that evidence is being created,” Sibal retorted. “You file an FIR if you think you have the evidence.”

Following the exchange between the counsels, the bench proceeded to pass its order, directing the high court to first decide the issue of maintainability.

Earlier this month, the Election Commission gave notice to Soren, seeking his stand on the charge that he issued a mining lease in the state in his favour, making him liable to be disqualified as a legislator. Following Soren’s written response to the notice, the poll panel has asked him to appear before it either personally or through his counsel on May 31.

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Tuesday, July 05, 2022