Anti-graft law: After Khemka, Sanjeev Verma booked under PC Act without prior approval

Initially, Verma was booked under provisions of the Indian Penal Code (IPC),and Sections of the PC Act (criminal misconduct by a public servant) were later inserted.

In contravention of the law, the Haryana Police have belatedly invoked provisions of the Prevention of Corruption (PC) Act in an April 2022 caseregistered against Haryana IAS officer Sanjeev Verma in Panchkula, without seeking prior approval of the state government.

Anti-graft law: After Khemka, Sanjeev Verma booked under PC Act without prior approval

Initially, Verma was booked under provisions of the Indian Penal Code (IPC),and Sections of the PC Act (criminal misconduct by a public servant) were later inserted. Legal experts say that registration of an FIR under the PC Act against a public servant without taking prior approval of the government is illegal.

Senior criminal lawyer Vikram Chaudhri says if the offending act falls within the sweep of Section 17-A of PC Act, it is obligatory and mandatory to seek prior approval of the authority concerned before embarking upon any enquiry, inquiry or investigation. “Therefore, the procedure under Section 17-A is the mandate and any breach would result in vitiation of the proceedings,” Chaudhri said.

Panchkula ACP Raj Kumar, who is investigating the case, said charges under the PC Act had been added in the FIR against Verma, but prior approval as mandated under Section 17-A had not been taken before invoking the PC Act.

Chief Secy’s communications overlooked

Police also seemed to have disregarded two communications from chief secretary (CS) Sanjeev Kaushal, in this regard.

The July 26 communique pertaining to standard operating procedures for processing cases under Section 17-A of the PC Act issued by the CS said that the issue of obtaining previous approval by a police officer for conducting an enquiry, inquiry or investigation of offences relatable to recommendations made or decision taken by a public servant in discharge of official functions or duties was reconsidered in light of the Supreme Court judgement of November 14, 2019 in a review petition (Yashwant Sinha v/s CBI), popularly known as the Rafale case.

“After comprehensive consideration the legal mandate of Section 17-A of the PC Act comes out that a police officer is mandated to obtain previous approval of the government for conducting enquiry, inquiry or investigation of offences relatable to recommendations made or decision taken by a public servant in discharge of official functions or duties,” the CS wrote.

An August 18 communique reiterated the prior approval requirement under Section 17-A. The August 18 communication conveyed to the director general of police by the CS office was the outcome of a representation given senior IAS officer Ashok Khemka, who was also booked by the Panchkula police under provisions of PC Act on April 26 without taking prior approval, on a complaint by his colleague, Sanjeev Verma, for allegedly making appointment in an illegal manner as managing director of Haryana State Warehousing Corporation. Primarily, this meant that the state government had refused to accord ex-post facto sanction sought by Panchkula Police for the April 26 FIR registered against Khemka.

Advocate general’s legal advice on same lines

The August 18 communication was also backed by the legal opinion tendered by advocate general (AG) BR Mahajan in 2019 . The opinion said that Section 17-A cast a duty on the cops to obtain approval from competent authority before conducting an investigation against any public servant for the offences relatable to the discharge of his official functions or duties. Chapter 12 of the CrPC mandates that the investigation can only be conducted by the police officer after the registration of an FIR. So, before registering a case under provisions of the PC Act against a public servant, prior approval from the competent authority is mandatory.

How anti-graft law was invoked in Verma’s case

On April 26, IAS officer Verma was initially booked under Sections 167 (public servant framing an incorrect document with intent to cause injury), 182 (false information, with intent to cause public servant to use his lawful power to the injury of another person), 195-A (threatening any person to give false evidence), 198 (using as true a certificate known to be false), 211 (false charge of offence made with intent to injure), 218 (public servant framing an incorrect record or writing with intent to save person from punishment, or property from forfeiture), 120B (criminal conspiracy) of the Indian Penal Code, following a cross complaint by senior IAS officer Ashok Khemka and on the intervention of home minister Anil Vij. An FIR was registered against Khemka also on Verma’s complaint the same day.

The PC Act provisions in the FIR against Verma were invoked subsequently at a later stage by the police for reasons best known to them.

Vij recommended sanction for Verma, sought denial of approval for Khemka’s FIR

In July, home minister Anil Vij had recommended that since Section 13 of the PC Act has been added by the police in FIR number 171 (against Sanjeev Verma) at a later stage, prior sanction to investigate the alleged PC Act offence may be accorded.

The home minister also wrote that sanction under Section 17-A of the PC Act in FIR number 170 ( against Ashok Khemka) may be denied since it was registered without taking prior approval and does not bring forth an account of dishonest intention, which is necessary to constitute an offence under Section 13 of the PC Act.

Reacting to the development, IAS officer, Sanjeev Verma said both the FIRs should be referred to the CBI by the state government.