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Manesar land release case: CBI court to decide on legitimacy of repealed provision of PC Act
Court will have to adjudicate on matter before framing charges against Hooda, aides
The special CBI court in Panchkula hearing the Manesar land release case will have an important issue to adjudicate before it moves on to frame charges against the accused in the case.
The CBI which investigated the land matter had presented in February 2018 a chargesheet against former chief minister Bhupinder Singh Hooda and his aides before the special CBI judge and invoked section 13 (1) (d) of the Prevention of Corruption (PC) Act, besides provisions of the Indian Penal Code (IPC).
During the arguments in the case, several accused in the case filed discharge applications disputing CBI’s move to bring into play section 13 (1) (d) of the PC Act, which was repealed in 2018 when the law was amended by the Parliament.
Section 13(1) (d) of the Act spoke about criminal misconduct by a public servant if he obtained for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means; or by abusing his position as a public servant, or while holding office as a public servant, obtained for any person any valuable thing or pecuniary advantage without any public interest.
The provision no longer existed on the statute book after the July 26, 2018 amendment was notified by the central government.
The accused argued the legitimacy of the repealed provision in their discharge applications filed before the court.
The matter is under the consideration of the special CBI judge Jagdeep Singh. This is one of the reasons why the court has not been able to frame charges against the accused and commence trial despite the fact that arguments on the charges got concluded a month ago.
OPTIONS BEFORE COURT
The CBI court, as per the legal experts, can either go ahead with the PC Act provision while framing the charges or refer the matter to the Punjab and Haryana high court. Section 395 of the Code of Criminal Procedure (CrPC) stipulates that where any court is satisfied that a case pending before it involves a question as to the validity of any Act, ordinance or regulation or of any provision contained in them and its necessary to decide it for the disposal of the case, and is of opinion that such Act, ordinance, regulation or provision is invalid or inoperative, but has not been so declared by the High Court or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the decision of the High Court.
LEGAL OPINION DIVIDED ON REPEALED PROVISION
The legal fraternity is divided on the legality of the repealed provision. Senior criminal lawyer from the Punjab and Haryana high court Vikram Chaudhri said the PC Act provision cannot be applied with retrospective effect.
“The intent of the Parliament in repealing this provision mattered a lot. The legislature by intent and design inserted safeguards by amending the provision,’’ he said.
Chaudhri said since the Parliament wanted to do away with this section, the provision of General Clauses Act which provided that repeal of any Act or regulation shall not affect the previous operation of any enactment so repealed, shall not apply in this matter.
Chaudhri said there is no repeal and saving clause in the amended PC Act to grant legitimacy to the repealed provisions.
The Madurai bench of the Madras high court in a November 2018 order, however, offered a different viewpoint. The single judge bench said the repeal saving provision in Section 30 of the principal Act of 1988 as well as section 6 of the General Clauses Act mandates the trial court to apply law as it was prior to the amendment of 2018.
THE CASE TIMELINE
2007: About 600 acres acquired for the HSIIDC for creating residential and recreational utilities in the Industrial Model Township (IMT), Manesar, was dropped from the acquisition process in 2007 on the orders of the former chief minister Bhupinder Singh Hooda.
2015: CBI registers a case under the Prevention of Corruption Act and IPC against unknown persons on a recommendation made by the BJP government in Haryana.
2018: CBI files chargesheet in court, accuses Hooda and three former IAS officers — ML Tayal, Chhatar Singh and SS Dhillon — among others of dropping acquisition proceedings to help real estate builders. Builders also named as accused.
2018: Supreme Court sets aside the decision of Hooda government to drop land acquisition proceedings; directs CBI to unravel the role of middlemen in the matter.
