Gover­nor ac­cords ex-post facto ap­proval to FIR against Hooda

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

Hindustan Times (Patiala) - - Punjab & Haryana - Hi­ten­der Rao n [email protected]­dus­tan­times.com

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

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