Khattar govt in a bind over police seeking approval after filing FIR
CHANDIGARH: The embarrassing gaffe by the Haryana Police in registering a criminal case against former chief minister Bhupinder Singh Hooda under the Prevention of Corruption Act (PCA) without taking the prior approval of the state government has put the BJP regime in a tight spot over how to wriggle out of the situation.
The police on Tuesday tried to make amends by seeking “ex-post facto” approval of the state government for conducting investigations into the offence alleged to have been committed by Hooda under the amended PCA.
While this may not cure the defective first information report (FIR) lodged by the Gurgaon police without seeking the prior approval, the state government has also not been able to find a mechanism to accord “ex-post facto” approval for investigating the case.
Additional chief secretary (ACS), home, SS Prasad said they were examining the reference sent by the Gurgaon commissioner of police, seeking approval of the state government. “I cannot say much at this juncture,’’ Prasad said.
COMMUNIQUÉ SENT BY GURGAON CP
Police officials said that Gurgaon CP has sent a very sketchy communiqué to the DGP, seeking approval to investigate PCA cases against Hooda.
Before the state government accords approval in this regard, it would have to give a cogent justification in black and white.
Vikram Chaudhri, senior advocate and criminal lawyer at the Punjab and Haryana high court, said the government departments cannot act as mere post offices. “They need to devise a mechanism to accord approval. There cannot be a mere mechanical exercise. Mere form won’t help. There has to be substance. And if the government does not follow a procedure, it would be a malice in law.
Even the authority designated to give approval will have to apply its mind before doing so,’’ Chaudhari said.
Pointing to the “ex-post facto” approval sought by the police, the HC lawyer said that “minutest infraction” of the procedure established by the law will vitiate the entire proceedings and infringe on Article 21 of the Constitution.
HOME DEPT WILL HAVE TO SEEK COMMENTS FROM OTHER DEPTS
Senior officials familiar with the issue said that since the allegations in the FIR pertained to the town and country planning, industries and revenue departments, the home department will have to seek and examine their comments before proceeding any further.
The governor, who is the appointing authority of a chief minister, can accord approval only after getting a justification that a case is made out here.
As per a 1997 ruling of the Supreme Court in J Jayalaltiha case, the governor while determining whether sanction of prosecution should be granted or not would necessarily act on his own discretion and not on the advice of the council of ministers as a matter of propriety.
Hooda was on Saturday booked under Section 13 of the PCA in a suspected land deal involving Robert Vadra’s company, Sky Light Hospitality, and realty major, DLF. HT had on Monday reported the faux pas committed by the Gurgaon police in registering a criminal case against Hooda under the PCA without taking the prior approval of the state government, a condition mandated under the amended graft law.
The Supreme Court in its March 1, 2011 order had defined investigations as: “Under the scheme of the Code of Criminal Procedure, investigation commences with lodgment of information relating to the commission of an offence.”
SKETCHY COMMUNIQUÉ SENT BY POLICE NEEDS TO BE JUSTIFIED BEFORE GIVING NOD