Governor accords ex-post facto approval to FIR against Hooda

GURGAON LAND DEAL Advocate general’s advice runs contrary to Supreme Court rulings

CHANDIGARH: As a face-saver, the BJP government in Haryana has granted ex-post facto approval to a first information report (FIR) registered by the Gurgaon police against former chief minister Bhupinder Singh Hooda under the Prevention of Corruption Act (PCA) on September 1. The approval was granted by governor Satyadeo Narain Arya.

The case pertains to the purchase of 3.5 acres in 2008 by Congress president Rahul Gandhi’s brother-in-law Robert Vadra’s company Sky Light Hospitality from another realty firm, Onkareshwar Properties, in Gurgaon’s Shikohpur (Sector 83) for ₹7.5 crore during the Congress rule with Hooda at the helm.

The police had committed a blunder by not taking prior approval of the state government before registering the FIR against Hooda.

Under the amended Prevention of Corruption Act, the police cannot conduct an inquiry or investigation into any offence alleged to have been committed by a public servant under the PC Act, where the alleged offence is related to any recommendation or decision taken by such public servant in discharge of his official functions or duties, without the previous approval of the state or central government.

The ex-post facto approval was given by the state government on the advice of advocate general BR Mahajan. He said he had advised that the prior approval was required only before conducting investigation and no such approval was required before registration of the FIR. However, his advice runs contrary to Supreme Court rulings.

A three-member apex court bench of justices RP Sethi, SN Variava and KT Thomas had on October 16, 2000, held that under the scheme of the Code of Criminal Procedure, investigation commences with the lodgement of information relating to the commission of an offence. This was reiterated by the apex court bench of justices P Sathasivam and BS Chauhan in its March 1, 2011 order. Asked about the apex court rulings, the advocate general could not offer a satisfactory reply.

FLAWED DECISION

Endorsing the Supreme Court rulings, criminal lawyer Vikram Chaudari said no opinion can cure this illegality.

“It is a settled law that when a statute provides for a thing to be done in a particular manner, all other modes are forbidden,’’ Chaudhari said.

He said that it was a case illustrated by a Latin legal maxim, sublato fundamento cadit opus, meaning when the foundation is removed, the structure falls. Legal experts said the minutest infraction of the procedure established by the law will vitiate the proceedings and infringe on Article 21 of the Constitution. Vadra, Hooda, DLF and Onkareshwar properties were booked on September 1 under Sections 420 (cheating and dishonesty), 467 (forgery of valuable security), 468 (forgery for the purpose of cheating), 471 (using as genuine a forged document or electronic record), 120-B (criminal conspiracy) of the IPC and Section 13 of the Prevention of Corruption Act (criminal misconduct by a public servant).

The FIR mentioned that Congress leaders and officers colluded to facilitate gains for Vadra’s Sky Light Hospitality.

The complainant alleged a quid pro quo between the then political executive and the developers by saying that DLF was also allotted 350 acres in violation of norms from which the company made a profit of Rs 5,000 crore.

CASE PERTAINS TO PURCHASE OF 3.5 ACRES BY CONGRESS CHIEF RAHUL GANDHI’S BROTHER-IN-LAW ROBERT VADRA’S COMPANY SKY LIGHT HOSPITALITY