P’kula police on sticky wicket for registering FIR against Khemka
PANCHKULA: Entangled in a fight between two Haryana IAS officers, the Panchkula police seem to have overlooked the legal requirement and court judgements mandating prior approval of the state government before registration of a first information report (FIR) under the provision of the Prevention of Corruption (PC) Act against additional chief secretary rank officer Ashok Khemka and some retired officials.
Section 17-A of the PC Act says no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a serving or retired public servant under this Act where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval of the state government.
Apex court on probe under CrPC
As per a March 1, 2011 judgement of a Supreme Court bench comprising justice P Sathasivam and Dr BS Chauhan, investigation
under the scheme of the Code of Criminal Procedure (CrPC) commences with lodgement of information relating to the commission of an offence. “If it is a cognisable offence, the officer-incharge of the police station, to whom the information is supplied orally, has a statutory duty to reduce it to writing and get the signature of the informant. He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the state in that behalf,” the apex court judgment said.
‘Mandatory to take prior approval of govt’
Senior high court advocate and criminal lawyer Vikram Chaudhri said if the offending act falls within the sweep of Section 17-A of PC Act, it is obligatory and mandatory to seek previous approval of the authority concerned before embarking upon any enquiry, inquiry or investigation. “Any breach of this mandatory provision would result in violation of Article 21 of the Constitution which mandates that no one shall be deprived of his life or liberty except in accordance with the procedure established by law. Therefore, the procedure under Section 17-A is the mandate and any breach would result in vitiation of the proceedings,” Chaudhri said.
High court lawyer Ashwani Talwar said registration of an FIR under the PC Act against a public servant without seeking the prior approval of the government was illegal. “Such FIRs are unmaintainable under the law,” he said.
Another legal expert said while seeking prior approval of the government, the police will have to spell out the reasons to start an inquiry, enquiry or investigation and it has been overlooked in this case.
Police defend decision
Panchkula commissioner of police Hanif Qureshi, on the other hand, said a first information report is like a carbon copy of the complaint. “In this case, we have registered an FIR, but we have not started investigations. We have written to the DGP to seek permission from the chief secretary to conduct an investigation,” he said.
Qureshi said as per the Supreme Court’s Lalita Kumari judgment, once an offence is disclosed, an FIR must be registered. “Also, there is an option of ex-post facto approval, which means that we can seek approval after registering a case. So, we have registered an FIR in this case,” he said.
When asked about the SC judgment which said investigation starts with the lodgement of information, he said these are legal points and have been left to the chief secretary to take a decision.
HC lawyer Ashwani Talwar, however, said registration of FIR against a public servant under the PC Act without taking prior approval would defeat the purpose of Section 17-A.
The Supreme Court, in a November 14, 2019 order, had said even proceeding on the basis that on petitioners’ complaint, an FIR must be registered as it purports to disclose cognisable offences and the court must so direct, will it not be a futile exercise having regard to Section 17-A.