New Delhi, Jan 22 (PTI) Acquitting former Delhi chief minister Arvind Kejriwal on Thursday in two separate cases lodged against him for not appearing before the Enforcement Directorate in pursuance of the summonses asking him to join the probe in the alleged excise policy scam, a Delhi court said personal liberty was sacrosanct to every individual.
Additional Chief Judicial Magistrate Paras Dalal, who acquitted Kejriwal, was hearing two complaint cases filed against Kejriwal under IPC Section 174 (non-attendance in obedience to an order from a public servant).
The court said, “As has already been established by various judicial pronouncements, personal liberty is sacrosanct to every individual, and in India, the Constitution guarantees it as a natural right to every human being. This liberty of a human being can be curtailed by the state only through the procedure prescribed by law.” It said that the process of issuing a summons by email to the suspect, accused or witness to join the investigation was not tenable in law. “The ED may claim that the accused was summoned as a witness or only as a suspect; the fact remains that, in either case, the summons must be served in accordance with the provisions of the Prevention of Money Laundering Act (PMLA),” the court said.
It said that the PMLA provisions provided that the summons had to be served in accordance with the Code of Criminal Procedure (CrPC).
“CrPC thus, mandates a physical mode of service of summons by an investigating officer; and after due diligence, if the accused is not found or avoids summons, the same shall be served through an extended mode (summons delivered to an adult male member of the family) or substituted mode (affixation of summons on a conspicuous part of the house where the recipient resides),” the court said.
It said that the country was governed by the rule of law and no one was above it.
It said, “Any individual, be it a commoner or a public representative, enjoys their Fundamental Right, of which one of the pivotal is the Fundamental Right to Movement. Article 19(1)(d) of the Constitution of India guarantees such a right to all citizens.
“The accused was a serving chief minister of the government of the National Capital Territory of Delhi, and he too enjoyed his Fundamental Right of Movement. The action by the ED sought to challenge this right available to the accused, and any such restriction, thus, ought to be in conformity with Article 19(5) (reasonable restrictions to Fundamental Rights) of the Constitution.” It said the provisions of the PMLA and the CrPC constituted reasonable restrictions and the ED had to comply with them strictly in accordance with law.
“When the ED fails to comply with its established principles of law, no legal consequences shall follow. The ED itself failed to comply with the procedures established under the PMLA and the CrPC and, hence, cannot now claim grave legal consequences against the accused,” the court said.
It also slammed the ED for sending summonses to Kejriwal through email.
“Investigation is not a desk job; it is the most fieldwork-intensive job of all. An investigating officer cannot be allowed to sit in his office and perform his duties merely by serving a summons via email. An investigation would require groundwork, field visits and searches,” it said.
The court underlined that service would mean not just delivery of communication or process, but included other aspects such as complying with other statutory requirements, like that of a case diary and proof of receipt.
“It must be understood by the investigating officer that he is summoning a witness, suspect/ accused who otherwise is ‘innocent until proven guilty’. The action of the investigating officer is a direct obstacle to the rights of a witness/ suspect/ accused,” the court said.
The investigating officer, when permitted by a procedure established by law to impose reasonable restrictions on the rights of any person, must strictly follow that procedure to uphold the sanctity of those rights, it added. PTI MNR MNR KSS KSS
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