Delhi Chief Minister and national convenor of the Aam Aadmi Party (AAP) Arvind Kejriwal on Wednesday skipped his third summons by the Enforcement Directorate in connection with the excise policy-related case. He has cited the upcoming Rajya Sabha elections, Republic Day celebrations as well as the ED’s “non-disclosure” approach as reasons for skipping the summons.
Kejriwal was first summoned in October last year when he was asked to appear for questioning on November 2. The second summons was sent on December 18, asking him to appear on December 21, and he was asked to appear before the ED on Wednesday (January 4).
The CM had earlier called the summons “motivated” and alleged that they were “issued for vexatious considerations”. As soon as he skipped his third summons, several AAP leaders on Wednesday night expressed apprehensions that Kejriwal could be arrested.
The ED, however, is now set to issue fresh summons — the fourth by the agency — to Kejriwal. The Delhi CM, on the other hand, is heading to Gujarat on a three-day visit from January 6-9. It isn’t clear yet of the ED will summon Kejriwal during the period of his Gujarat visit.
What next for Kejriwal?
A person can ignore the summons by the Enforcement Directorate three times, following which the apex anti-money laundering agency can seek a non-bailable warrant (NBW). This move would make it mandatory for him to appear before a court.
In case, the individual doesn’t comply with an NBW, this may lead to his arrest.
What can Kejriwal do about it?
The AAP leader can move a court to challenge the summons, while asserting his rights and may seek clarity on the allegations.
And in case, an NBW is issued, he can opt for anticipatory bail, which is a legal mechanism to safeguard against arrest while probe is on.
But can a CM be arrested?
Yes, indeed. It was former Chief Minister of Tamil Nadu J Jayalalitha, who had become the first sitting CM in the country to be arrested in connection with the disproportionate assets case. The late CM was arrested on December 7, 1996, by the Central Bureau of Investigation (CBI) and served imprisonment for a month.
The only protection from arrests, according to Article 361 of the Constitution, is granted to the President of the Republic and Governors, who are immune from civil and criminal proceedings until his/her term ends.
Speaking to Financial Express Online, PDT Achary, former Lok Sabha secretary general, had said that they have immunity from arrest in both civil as well as criminal matters, and they can’t be arrested even in criminal offences when they are in office. Action can only be taken against them only after they demit office.
For any CM, the person can be arrested who is an accused, in compliance with the rules. They can only be arrested if there is enough reason to believe that the accused would abscond, will try to destroy evidence, or act in a way so as to avoid the legal process.
For the ED to arrest a person under Section 63 of the PMLA, the ED needs to get a fresh case registered under Section 174 of the Indian Penal Code, which will be followed by a trial. However, never in the history of the central agency this has been followed, reports The Indian Express.
Moreover, since the CM has given written reasons for his non-attendance, the ED needs to convince a court that the non co-operation was deliberate and that the person was involved.
Moreover, several court judgments have also held that Section 50 does not allow the investigating agency to arrest a person who has been summoned.
Has any sitting CM skipped summons?
Yes. Jharkhand Chief Minister Hemant Soren has skipped seven summons by the ED. The CM has been issued a summons for the seventh time for questioning in connection with an alleged land scam under the Prevention of Money Laundering Act, 2002, on December 30.
He has sent his reply to the ED on Tuesday (January 2), two days after the deadline given by them to respond to its seventh summon. He alleged that the agency was conducting a “biased” probe and that a media trial was being done to “malign his image”.
The ED had said that this was the last opportunity for Soren to join the questioning. In a letter, Soren said that he would challenge the entire investigation in a court of law.