E-Paper
Anti-graft law: Haryana govt refuses to accord ex post facto nod to FIR against Ashok Khemka
Haryana police had on April 26 booked 1991-batch IAS officer Ashok Khemka, a former HSWC manager Som Nath, former assistant manager SC Kansal, and former assistant Naresh Kumar under Section 420 (cheating) of the Indian Penal Code and Section 13 (criminal misconduct by a public servant) of the PC Act.
The Haryana police, which had booked 1991-batch IAS officer Ashok Khemka in April under the provisions of Prevention of Corruption (PC) Act for allegedly making appointment in an illegal and arbitrary manner during his stint as managing director of Haryana State Warehousing Corporation (HSWC), is now in a legal quandary for not taking prior approval of the state government before registration of a first information report (FIR).
The police had on April 26 booked Khemka, a former HSWC manager Som Nath, former assistant manager SC Kansal, and former assistant Naresh Kumar under Section 420 (cheating) of the Indian Penal Code and Section 13 (criminal misconduct by a public servant) of the PC Act.
The state government, after examining a representation by the IAS officer and a police communication seeking ex post facto approval for the FIR registered at Panchkula, has communicated to the director general of police (DGP) that as per Section 17-A of the PC Act, prior approval of the state government is required for registering an FIR for any offence alleged to have been committed by a public servant under the Act pertaining to the decisions taken in discharge of official duties. This has been held by Supreme Court in its November 14, 2019 judgment in Yashwant Sinha versus CBI, the government has conveyed to the police.
Primarily, this would mean that the state government has refused to accord ex-post facto sanction sought by Panchkula Police for the FIR registered against Khemka on April 26.
Govt decision backed by AG’s opinion
This decision of the state government is also backed by a legal opinion of 2019, tendered by Haryana advocate general (AG) BR Mahajan. The AG’s opinion said that
Section 17-A cast a duty on the police officer to obtain approval from the competent authority before conducting an investigation against any public servant for the offences relatable to the discharge of official functions or duties. Chapter 12 of the Code of Criminal Procedure (CrPC) mandates that the investigation can only be conducted by the police officer after the registration of FIR. So before registering a case under provisions of PC Act against a public servant, prior approval from the competent authority is mandatory.
As per a March 1, 2011 judgment of a Supreme Court bench comprising Justice P Sathasivam and Dr BS Chauhan, investigation under the scheme of the CrPC commences with lodgment of information relating to the commission of an offence.
An official well-versed in administrative law said that initially executive instructions were issued by the Central government for making prior approval mandatory in PC Act cases. “This was done to ward off capricious and malafide action by agencies such as the CBI and the police against public servants. However, the instructions were struck down by the courts because these were executive and not backed by legislation. The 2018 amendment in PC Act for inserting Section 17-A was done by the Parliament because policy paralysis had hit the government departments while dealing in financial matters. Obviously, the police and other law enforcement agencies are not happy about it,’ the official said.
Options before the police
Haryana advocate general BR Mahajan, on being asked about the fate of the FIR against Khemka, said the police though can still investigate the alleged offence under Section 420 of the Indian Penal Code mentioned in the FIR.
As per July 26 instructions issued by the vigilance department, the requirement of Section 17A of the PC Act, which pertains to seeking prior approval from the state government for conducting an inquiry or investigation against a serving or retired public servant, will not apply when the alleged act by a public servant is ex-facie criminal and in trap cases. As per a communication, pertaining to standard operating procedures (SoPs) for processing cases under Section 17-A of the PC Act, an ex-facie criminal act means offences committed under different provisions of Indian Penal Code (IPC) such as forgery (Section 465), cheating (Section 420), misappropriation (Section 403), and fraud (Section 421). The state government in its communication to the DGP has said that these government instructions be kept in mind while taking further action and this FIR be examined in view of the position explained.
