After Delhi CM Kejriwal chose to skip the third summons issued by ED in the excise policy case, the directorate is set to issue yet another summons. Amid speculation of the AAP chief’s possible arrest, we look at the legal provisions available to the ED in the case. A report by Aayush Goel
As Delhi Chief Minister Arvind Kejriwal has refused to appear before the ED (Enforcement Directorate) following the ‘third’ summons to join the investigation in the alleged excise policy case, the ED is planning to issue a fourth summons. Sources said the ED is currently examining Kejriwal’s five-page reply sent to the investigating officer of the case on Wednesday and may reject his charges of calling the summons illegal. The agency may issue its fourth summons to Kejriwal as per provisions of the Prevention of Money Laundering Act (PMLA), they said.
He was earlier asked to depose on November 2 and December 21 in 2023 and January 3 this year. AAP supremo Kejriwal has alleged that the ED sent “false summons” to him in connection with the alleged liquor policy scam. While asserting his willingness to cooperate, he said that he ‘won’t bow down to hooliganism and dictatorship of the BJP’ even as the saffron party claimed that the Aam Aadmi Party (AAP) supremo was “behaving like a fugitive” by skipping summons issued to him by the ED for the third time.
Kejriwal further questioned the agency for not responding to his earlier replies when the summons was sent to him and he had raised certain queries on the nature of the agency’s investigation. “As a premier investigating agency, the non-disclosure and non-response approach adopted by you cannot sustain the test of law, equity or justice. Your obstinacy is tantamount to assuming the role of judge, jury and executioner at the same time which is not acceptable in our country governed by the rule of law. In these circumstances, I urge you to respond to my earlier response and clarify the position so as to enable me to understand the real intent, ambit, nature, sweep and scope of the purported inquiry/investigation for which I am being called” read the reply sent by Kejriwal. So while he is away on a political tour to Gujarat and Goa, we look for an answer to the question everyone has on mind: will he be arrested?
Legal provisions
The issuance of three summons to Kejriwal and non-compliance with the same doesn’t necessarily mean that the agency is bound to arrest him. There have been instances in the past when the ED has summoned persons to no avail. Jharkhand Chief Minister Hemant Soren is the most recent example, having refused to comply with six summons. However, according to Nitesh Rana, an advocate specialising in PMLA cases, the agency has the power to arrest a person if it has sufficient material. “There is no limit on how many summons can be issued. But if somebody doesn’t turn up despite being summoned repeatedly, ED can file a private complaint under Section 174 of IPC before the court concerned and the person will have to face consequences of that,” he explained. According to legal journal, Bar and Benches, while the ED issues summons under Section 50 of PMLA, Section 174 of the Indian Penal Code deals with “non-attendance in obedience to an order from public servant” and its violation attracts punishment in terms of imprisonment and fine. On the other hand, the agency derives its power of arrest from Section 19 of PMLA, which stipulates, “If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.” As per Section 63(2)(c) of the PMLA, if a person to whom the agency issues summons under Section 50 either to attend and give evidence or produce documents, omits to do so, he is liable to pay a fine “not be less than five hundred rupees but which may extend to ten thousand rupees for each such default or failure”.
Kejriwal cries vendetta
“In the last two years, all the agencies of BJP have conducted many raids but not a single penny was found. If there is corruption then where is the money? AAP leaders are kept in jail in such fake cases. Now the BJP wants to arrest me. My biggest strength and asset is my honesty,” Kejriwal said while addressing a press conference. Questioning the timing of the notice just before the 2024 Lok Sabha elections, the Delhi CM said that BJP wants to stop him from campaigning for the Lok Sabha elections. “My lawyers told me that the summons were illegal. I wrote the question and sent it to ED. Should I obey an unlawful summons? If a legal summons comes, I will comply with it. Why am I being called just before the Lok Sabha elections? Eight months ago, I was called by the CBI. I went and gave all the answers. Today they want to stop me from campaigning for the Lok Sabha elections,” he added.
The AAP chief further said that he has always fought for the country and till his last breath, he will fight for the country. “Today, opposition leaders are being included in the BJP through ED. Whoever joins the party, all his matters get resolved. Today honest leaders like Manish Sisodia, Sanjay Singh and Vijay Nair have been put in jail. I have always fought for the country. Every breath of mine is for the country. We have to save the country together. I am fighting against them with all my heart, I need your support,” he said.
AAP leader Jasmine Shah in a scathing attack against the BJP said that the saffron brigade’s only aim is to “finish” the AAP and “arrest” Delhi Chief Minister Arvind Kejriwal before the upcoming Lok Sabha polls.
Arvind Kejriwal also received support from Samajwadi Party chief and I.N.D.I.A bloc ally Akhilesh Yadav. The former Uttar Pradesh chief minister shrugged off the ED summons as “nothing new” and claimed that the BJP dispensation was probing all opposition leaders.
Kejriwal not above law: BJP
Union Minister Anurag Thakur asked if the Delhi CM was above the law of the land. The BJP leader claimed that Kejriwal is “scared to appear before the ED”. “One after another, scams keep coming out. The leaders of the AAP have been in jail for more than a year. Arvind Kejriwal has an equal role in all these scams. People are asking if Arvind Kejriwal is above the law today. Why is he so scared to appear before the ED?” Anurag Thakur asked.
“One by one, the scams done by Kejriwal and his party are coming to light. Today, he is not ready to appear before ED and is behaving like a fugitive,” said the BJP spokesperson, Shehzad Poonawalla “If there is nothing to hide, why is he not appearing before ED, even after the 3rd summons?”, the BJP leader asked.
In what is changing the political dynamics of the I.N.D.I.A block, even Congress is now cornering Kejriwal for ignoring summons. Congress leader Sandeep Dikshit reminded Kejriwal about his ‘fight against corruption’ and called him a “cheater of his own ideology”.
“When the Lokpal Bill was under discussion, I used to discuss the same with him. We told him that the Lokpal you’re trying to make may be misused if the wrong person becomes a Lokpal and the government could misuse it. He said that a political leader should be transparent. If there is any allegation against them, they should resign…and they should also surrender if they get arrested and if one is innocent then it will be proved. He should at least stick to his words. I believe he’s become the biggest cheater of his own ideology,” he added.
