Hemant Soren v. Directorate of Enforcement: PMLA bail and the Section 45 twin conditions

The facts in brief

The petitioner, Hemant Soren, a leader of the Jharkhand Mukti Morcha and a former Chief Minister of Jharkhand, was arrested by the Enforcement Directorate on 31 January 2024 in connection with a money-laundering case. The ED's case concerned the alleged illegal acquisition, possession and concealment of land. The agency placed the disputed parcel at roughly 8.86 acres in the vicinity it identified in its summary of the case — a figure carried in the SCC OnLine report of the judgment, though some press accounts referred to a slightly different area.

After several months in custody, the petitioner applied for regular bail. The application came before Justice Rongon Mukhopadhyay, sitting as a single judge of the High Court of Jharkhand at Ranchi, and was decided on 28 June 2024. The question was whether the rigorous Section 45 PMLA threshold for bail could be crossed on the material the ED had assembled.

The Section 45 twin conditions

Bail in a PMLA prosecution is governed by Section 45, which superimposes two additional conditions on the ordinary bail enquiry. A court may release an accused only where it is satisfied that there are reasonable grounds for believing that he is not guilty of the offence, and that he is not likely to commit any offence while on bail. These are the so-called "twin conditions." In Vijay Madanlal Choudhary v. Union of India, the Supreme Court upheld the constitutional validity of Section 45 and confirmed that the twin conditions apply to PMLA bail applications.

The twin conditions are demanding, but they are not a substitute for trial. The "reason to believe" the accused is not guilty is assessed on the material then before the court, on broad probabilities, without the court conducting a meticulous evaluation of the evidence as though delivering a verdict. The exercise is to see whether, taking the prosecution case at a reasonable level of probability, the threshold of likely non-guilt is met.

What the Court held

Justice Mukhopadhyay was satisfied that both limbs were met. On the first limb, the Court found that the ED's material did not, on broad probabilities, link the petitioner to the acquisition, possession or concealment of the land in question.

The Court also found an internal tension in the ED's own narrative. The agency had asserted that its timely action prevented an illegal acquisition of the land through forged and manipulated records; yet it had simultaneously alleged that the land had already been possessed by the petitioner from 2010 onwards. The two propositions did not sit comfortably together.

On the second limb, the Court was satisfied that the petitioner was not likely to commit a similar offence while on bail. Having found both conditions met, the Court granted bail on a personal bond of ₹50,000 with two sureties.

The standard of proof at the bail stage

The decision is a working illustration of how the Section 45 threshold operates in practice. The Court did not purport to acquit the petitioner or to pronounce on the ultimate merits; it asked the narrower question the statute poses — whether, on the material then available, there were reasonable grounds to believe the petitioner was not guilty. The internal inconsistency in the ED's case, and the absence of a clear evidentiary thread connecting the petitioner to the disputed land, were enough to satisfy that threshold on broad probabilities.

This is significant because Section 45 is often treated as an almost insurmountable barrier. The judgment demonstrates that the twin conditions remain a genuine judicial enquiry: where the prosecution's own account is ambiguous and the link to the alleged proceeds of crime is not made out even on a probabilistic reading, the conditions can be satisfied. The standard is exacting, but it is not a foregone conclusion against the accused.

The Supreme Court's response

The reasoning in this matter drew an unusually direct endorsement from the Supreme Court. When the ED challenged a related interim-bail order concerning the petitioner, the Supreme Court dismissed the challenge and described the High Court's reasoning as very well reasoned. That endorsement lends additional weight to the High Court's reading of the Section 45 standard, signalling that an order granting PMLA bail on a careful, probabilities-based assessment of the prosecution case will withstand appellate scrutiny where the agency's case is internally inconsistent.

Reading the judgment in the PMLA bail line

The decision belongs to the body of post-Vijay Madanlal authority working out how the Section 45 twin conditions apply on the facts of particular cases. It illustrates the difference between the statutory threshold and a trial: the court must form a view on likely non-guilt, but it does so on broad probabilities and on the material then before it. Where the prosecution's narrative is self-contradictory and does not connect the accused to the proceeds of crime, that view can be formed in the accused's favour.

The case is best read alongside the wider PMLA jurisprudence on custody and trial procedure. Where the arrest-power line — exemplified by the Patna High Court's treatment of Section 19 after cognizance — addresses whether and when the ED may take an accused into custody, the bail line addressed here governs the terms on which an accused already in custody may be released. Both turn on a disciplined, statute-anchored reading of the PMLA's coercive machinery rather than on the political prominence of the parties.

The note on the land area

A small but instructive detail concerns the area of the disputed land. The SCC OnLine report of the judgment carries the figure of 8.86 acres, and that is the figure used in the line of the order reproduced above; a number of press accounts referred instead to a slightly different area of roughly 8.36 acres. The discrepancy is a reporting variance rather than a matter going to the holding: the Court's reasoning turned on the absence of an evidentiary thread connecting the petitioner to the acquisition, possession or concealment of the parcel, not on its precise measurement. Where the judgment's own quoted language uses 8.86 acres, that is the figure carried here, with the press variant noted for completeness. Nothing in the bail reasoning depends on resolving the difference.

What the decision establishes

Stripped of its high-profile context, the decision establishes a workable proposition about the Section 45 enquiry: the twin conditions are a genuine judicial assessment conducted on broad probabilities, and they can be satisfied where the prosecution's own narrative is internally inconsistent and does not, even probabilistically, connect the accused to the proceeds of crime. The Court neither tried the case nor pronounced on ultimate guilt; it asked the statutory question and answered it on the material then available.

The Supreme Court's description of the related reasoning as very well reasoned reinforces the point that a careful, probabilities-based grant of PMLA bail is not vulnerable merely because the offence is grave or the accused prominent. What sustains such an order on appeal is the quality of the reasoning — a demonstrated engagement with the prosecution's material and an identified gap between the allegation and the evidence. Hemant Soren supplies a clean illustration of that engagement, and for that reason it functions as a practitioner's reference on how the Section 45 threshold is met in practice rather than merely recited.

Related on Valkya

• Vijay Madanlal Choudhary v. Union of India: the PMLA framework upheld
• Ganesh Prasad Singh v. Union of India: ED arrest power after cognizance under PMLA
• Parvinder Singh v. Directorate of Enforcement: the BNSS Section 223 pre-cognizance hearing
• Farooq Abdullah v. Union of India: JKCA charge sheets quashed for want of a scheduled offence

Sources

1. SCC OnLine Blog — "Jharkhand HC grants bail to former Jharkhand CM Hemant Soren in money laundering case": https://www.scconline.com/blog/post/2024/06/28/jharkhand-hc-grants-bail-to-former-jharkhand-cm-hemant-soren-in-money-laundering-case/
2. Verdictum — "Jharkhand HC Grants Bail To Hemant Soren In PMLA Case; Says There's 'Reason To Believe' That He Is Not Guilty": https://www.verdictum.in/court-updates/high-courts/jharkhand-high-court-hemant-soren-v-directorate-enforcement-granted-bail-jmm-leader-former-cm-sec-45-pmla-land-mafia-case-1542041
3. LiveLaw — "'Very Well Reasoned Judgment': Supreme Court Dismisses ED's Challenge To HC Order Granting Bail To Hemant Soren": https://www.livelaw.in/top-stories/supreme-court-jharkhand-land-scam-ed-plea-against-hemant-soren-bail-264883