Kejriwal Skips Fifth ED Summons: Can ED Invoke Section 174 IPC?
Arvind Kejriwal Skips Fifth Successive ED Summons; AAP Dubs the ED Summons as 'Unlawful'.
Arvind Kejriwal Skips Fifth ED Summons.
Delhi Chief Minister Arvind Kejriwal today again refrained from complying with the latest summons issued by the Enforcement Directorate (ED), and spent better part of the day participating in a demonstration against the alleged rigging of the election of Mayor of Municipal Corporation, Chandigarh. The Aam Aadmi Party (AAP) stated, "Delhi CM and AAP national convener Arvind Kejriwal will not appear before ED today as well. The party calls the summons 'unlawful.' We will comply with lawful summons. PM Modi's aim is to arrest Arvind Kejriwal and topple the Delhi Government. We will not allow this to happen," according to news agency ANI.
This episode marks the fifth consecutive summons, scheduled for February 2, 2024, that Kejriwal has chosen to avoid. The summons pertains to the ED's investigation into alleged irregularities within Delhi's 2021-22 Excise Policy, highlighting the ongoing legal battle between Kejriwal and the ED.
Against the backdrop of Jharkhand Chief Minister Shibu Soren's recent arrest by the ED on January 31, 2024, in a case related to illegal mining, and the Supreme Court's refusal earlier today to entertain his petition challenging the legality of the arrest, speculations are rife within political and legal circles regarding the course of future events. Arvind Kejriwal, who also serves as the National Convenor of the Aam Aadmi Party (AAP), has consistently raised concerns, including legal questions, about the summons. These concerns revolve around the ED's failure to clarify whether he is being summoned as a witness or a suspect and whether the summons relates to his role as the Chief Minister or an AAP office-bearer. While there is widespread speculation about whether this standoff will ultimately result in compliance or arrest, our analysis suggests that neither outcome is likely. In fact, another legal avenue, namely section 174 IPC, appears to have emerged as a potential course of action that the ED may be actively considering.
But first, the brief background. The readers who think they know enough of the sequence of past events and the stance of the various stakeholders, may choose to jump to our paragraph captioned “What Next?” Otherwise, continue reading.
Kejriwal's Perspective
Kejriwal firmly maintains that the four summons issued by the ED are illegal and invalid. He contends that different courts have deemed such general, non-specific ED summons illegal in the past and subsequently quashed them. Kejriwal has expressed his concerns to the ED regarding the legality of these summons and asserts that he has not received a response from the central probe agency. According to him, these repeated summons are part of a political conspiracy aimed at his arrest before the upcoming Lok Sabha polls to obstruct his election campaign.
AAP's Objections
The AAP, in tandem with Kejriwal, has consistently raised objections to the ED's summonses, citing the lack of clarity regarding the nature of Kejriwal's involvement in the investigation. While AAP leaders have publicly echoed Kejriwal's assertions, they also reference statements from some BJP leaders who suggest that Kejriwal will be arrested. These references are used to bolster their argument that the ED is perceived as a "caged parrot" under the influence of the ruling party.
ED's Stance
The Enforcement Directorate's stance on the matter has remained undisclosed to the public, and their latest communication or summons to Kejriwal have not been made accessible to the media. Nonetheless, it is widely believed that Kejriwal has strongly objected to the language employed by the ED in a communication dated January 12. The inclusion of phrases such as "excuse," "extraneous reasons," "camouflage your real motive," and "intentionally disobeying your summons" in the ED's communication reportedly prompted Kejriwal to raise concerns about potential bias and prejudice against him.
BJP's Reaction
The Bharatiya Janata Party (BJP) has accused Kejriwal of displaying evasive behavior in response to the ED summons. While Kejriwal contends that the summons are invalid, the BJP underscores the importance of him complying with them, allowing the law to take its course. The BJP argues that Kejriwal has important questions to answer regarding the excise policy, and they find his reasons for skipping the ED summons quite flimsy. They express surprise that an individual who claims to champion transparency and due process is evading the summons, which can only contribute to the public perception of his potential complicity, if not guilt.
Legal Provisions
The dispute surrounding Kejriwal's summons sheds light on the stringent conditions for bail under the Prevention of Money Laundering Act, 2002 (PMLA). The Act contains a presumption against bail, placing the burden of proof on the accused to demonstrate their innocence. The requirement for the court to be satisfied that the accused is "prima facie NOT guilty" presents a considerable challenge, particularly when investigations are ongoing. The legal community has raised questions about the fairness and reasonableness of this procedure within the framework of Fundamental Rights, particularly Article 21 of the Constitution of India, but at the moment the constitutional validity of the same have been upheld by the Supreme Court.
ED Charge-Sheets and Allegations
It is essential to note that the ED has filed six charge sheets in the excise policy probe against 31 individuals and entities. The probe alleges that bribes worth 245 crore generated through the excise policy were used to fund the Goa assembly elections campaign. Notably, AAP members, including the former Deputy Chief Minister Manish Sisodia and Rajya Sabha MP Sanjay Singh, are among those accused. All the accused, including Sisodia and Singh, have consistently denied the charges, labeling the case as a "witch-hunt" and "political vendetta" orchestrated by the ruling party.
What Next?
The ongoing legal battle between Arvind Kejriwal and the Enforcement Directorate highlights the complex and contentious nature of money laundering investigations. While Kejriwal alleges a political conspiracy and the illegality of the summonses, the BJP insists on adherence to the law. The implications of this dispute extend beyond the individual case, raising broader questions about the legal framework and the balance between investigation and individual rights.
Open-ended and Hypothetical Questions:
In light of the ongoing dispute, what are the potential options available to Arvind Kejriwal and the Enforcement Directorate to break the logjam?
Let us address this issue in a question and answer format:
1. Will Mr Kejriwal comply with the summons?
Appears highly unlikely. At lest it is now clear that he shall not be appearing before the ED on February 2, 2024, in compliance with the fifth successive summons. After having taken such a firm, legal, and public stand, it will strengthen him, neither legally, nor politically, to appear before the ED.
2. Will Mr Kejriwal challenge the summons in the Delhi High Court, in exercise of its writ jurisdiction?
Given the fact that Mr Kejriwal has publicly stated that such non-specific summons are invalid and have been earlier quashed by the courts, this could be a logical way forward. However, an adverse decision, or denial of any interim protection or “no coercive measures” order will harm him politically as well as legally.
3. Will Mr Kejriwal seek anticipatory bail?
Highly unlikely. The provisions of anticipatory bail are exceedingly stringent, if not altogether non-existent. In the event, anticipatory bail is denied, or no interim protection given, it will virtually become a compulsion for the ED to effect an arrest.
4. Will the ED exercise its powers under section 19 of the PMLA to effect arrest?
Highly unlikely, in our opinion. Given the hyper-profile nature of the case, and the individual involved, any such precipitate step will only give credence to the rumours that the investigation is not totally independent.
5. Will ED approach the Special PMLA court to issue either bailable or non-bailable warrants?
Not likely, at this stage. However, in our opinion, the Special PMLA Court might choose to issue Mr Kejriwal a notice before straightaway issuing such warrants. This notice could then be contested by Mr Kejriwal before the trial court or the Delhi High Court in exercise of its writ jurisdiction.
This may lead to protracted litigation, which ED obviously does not want, as it will also delay, if not derail, the main Trial. Thus, ED will have to think very deeply and carefully before invoking this legal option.
6. Is filing a criminal complaint with the PMLA Court an option with ED?
In our previous article, we had hypothesized that the above would be the most plausible option with the ED. However, a fourth option— section 174 IPC— seems to be emerging but first let us recapitulate as to what were reasons that previously tilted us towards this option.
In our opinion, in case the compliance of the summons does not take place, the ED always has the option of filing a fresh or supplementary chargesheet/criminal complaint in the Special PMLA court, against AAP as a Political Party or a legal entity, as well as the office bearer de facto in charge of the affairs of the same, that would most likely be its National Convenor Arvind Kejriwal, leaving it for the Court to summon the accused and face trial.
From the ED’s perspective, this is has several advantages:
First of all, it avoids any potential and prolonged litigation based on the legality of its summons.
Secondly, it avoids the precipitate action of effecting arrest, which would have created far-reaching political ramifications, which might ultimately have benefited Mr Kejriwal, while making the Agency vulnerable to the allegations that its investigation was not independent, and that the arrest was a part of a political conspiracy.
Thirdly, once a chargesheet/a criminal complaint has been filed by the ED in the Special PMLA Court, it essentially becomes a matter between the trial court and the accused, allowing ED to recede in a subtle manner and avoid allegations of any political bias.
Fourthly, Mr Kejriwal would have lost a valuable opportunity to submit, on record, his version of the law and facts as well as his general defense at the stage of the inquiry/investigation, which he would have now be essentially waiving, owing to his successive episodes of non-appearance before the ED investigating officer.
Last, but not the least, this would essentially expedite the whole process because ultimately a speedy trial is what every accused is entitled to, and what every prosecutor wants.
7. Criminal Complaint under section 174 IPC
To understand and appreciate the relevance of the aforesaid section, let us reproduce it below, for ready reference.
Section 174. Non-attendance in obedience to an order from public servant.
Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same,
intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart,
shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;
or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Another option available to the ED to break this apparent logjam is thus to invoke a seemingly innocuous provision that constitutes a non-cognizable and bailable offense. The ED could file a criminal complaint before the Chief Judicial Magistrate, alleging the commission of an offence under section 174 of the IPC. On the question of fact, it would be an open-and-shut case since the service of the ED summons on Mr. Kejriwal cannot be denied, and it will not be difficult to prove that he did not comply with them. Kejriwal could potentially take “advice of the counsel” plea.
However, on the question of law, the same legal dispute would arise—whether the summons issued by the ED on each of the five occasions were valid or void ab initio, as averred by the AAP Supremo. This matter could lead to revision petitions or writ petitions if the Magistrate initially rules that the ED summons were valid. Two points are worth noting here.
Firstly, this new criminal prosecution under section 174 IPC would be distinct from and independent of any formal supplementary criminal complaint that the ED may or may not file against Mr. Kejriwal in the Special PMLA Court under the appropriate sections of the PMLA, 2002, in pursuance of its ECIR under the Delhi Excise case. The latter would involve a long-winded trial, whereas the criminal complaint under section 174 IPC would be a relatively shorter procedure. There would be no other co-accused.
Secondly, unlike any litigation to challenge the issue of summons or potentially warrants, whether bailable or otherwise, by the PMLA Court, this complaint could lead to conviction, although the sentence or punishment may be just a fine.
Whether the ED invokes this provision of the IPC or not, now that the non-compliance of five successive summons by Arvind Kejriwal has been established, only time will tell. However, it appears that the legal stalemate will now be broken soon, one way or another.
Summing Up
In the realm of law and politics, unforeseen alternatives may emerge, but at present, it seems that if Mr. Kejriwal continues to defy the ED's summons that he deems illegal and invalid, the evolving legal scenario may not necessarily culminate in the submission of a criminal complaint or charge-sheet in the Special PMLA Court by the ED. on the other hand, the invocation of section 174 IPC now appears to be another option available to the ED, a possibility that has received limited attention in the mainstream media, legal, or academic circles.
Be that as it may, truth and justice shall ultimately triumph.
