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Kejriwal and Hemant Soren refuse ED summons

Context:

  • Recently, Delhi Chief Minister Arvind Kejriwal refused to appear before the investigating agency against its summons in the Delhi excise policy case.
  • He has cited Rajya Sabha elections, Republic Day celebrations and the Enforcement Directorate’s ‘non-disclosure’ and ‘non-response’ approach as reasons for not appearing before ED.
  • In his previous responses to two such summonses, he alleged that the summons were not clear in which capacity he was being summoned that is as a witness or a suspect.
  • Apart from Kejriwal, Jharkhand CM Hemant Soren has also refused seven summonses by ED in relation to a money laundering case.

Is it mandatory that ED should reveal whether a person summoned is an accused or a witness?

  • The summons are issued under the provisions of the Prevention of Money Laundering Act (PMLA).
  • Under the law it is nowhere mentioned that the investigating agency must declare that the person being summoned is an accused or not.
  • Actually the provisions are not crystal clear whether the summons should mention the grounds for questioning of a person.
  • However, in general ED always mentions the case in which a person is being summoned to give evidence.

Provisions for issue of summons:

  • Summons are issued by the Enforcement Directorate under Section 50 of the PMLA.
  • According to this provision the Director of the ED who for the purposes of investigations has the power of civil court for inspection, compelling the production of record, enforcing attendance of a person, receiving evidence on affidavits etc.
  • According to the same provision The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have the power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act.

What are the consequences if the person refuses to appear?

  • The same law has the provision for penalty of up to Rs 10,000 and invocation of Section 174 of the Indian Penal Code that consists of a jail term of one month and/or a fine of Rs 500 in case of non-appearance against ED summons.
  • Also, under Section 63 (2) (C) of the PMLA, when a person refuses to respect the summons issued by ED or refuses to produce documents or evidence as demanded by the agency, he/she shall pay, by way of penalty a sum of minimum five hundred rupees but which may extend to ten thousand rupees for each such default or failure.

Can Kejriwal be arrested for refusing Summon?

  • Under Section 63 of the PMLA to arrest a person, the ED have to get fresh case registered under Section 174 of the IPC and which should be followed by a trial.
  • Apart from that, the other legal route is that ED has to get non-bailable warrants issued against the person refusing summons.
  • However it is important to note that the court judgements have held that Section 50 does not allow ED to arrest a person summoned by it.

If so, how does ED arrest a person for non-cooperation?

  • Currently, there are no exact provisions in the PMLA to arrest for non-cooperation of persons.
  • There is also no clarity on the limit to how many summons the agency must issue before reaching the conclusion that the person summoned is not cooperating.
  • However the law is clear in that an arrest can be made only if the officer is convinced that the person is guilty of the offence of money laundering.

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