Gurugram land deal probe: Anti-graft law FIR against Bhupinder Hooda won’t hold water, say legal experts

Gurugram police committed a gaffe, did not take prior approval of state government before registering a PC Act case against former Haryana chief minister Bhupinder Singh Hooda; the case pertained to suspected irregularities in a land transaction which took place between Sky Light Hospitality and realty major DLF Ltd in Gurugram’s Shikohpur when the state was governed by a Congress was in power

The attempt of the Gurugram Police to expedite investigations in the 2018 first information report (FIR) registered against former Haryana chief minister Bhupinder Singh Hooda and Robert Vadra under the Prevention of Corruption (PC) Act may fall flat in view of lapses committed by the police.

Legal experts said the FIR is unsustainable in the eyes of law and will not hold water since the police did not take prior approval of the state government before registering a PC Act case against former Haryana chief minister Bhupinder Singh Hooda. (HT File)

Legal experts said the FIR is unsustainable in the eyes of law and will not hold water since the police did not take prior approval of the state government before registering a PC Act case against Hooda.

The case pertained to suspected irregularities in a land transaction which took place between Sky Light Hospitality and realty major DLF Ltd in Gurugram’s Shikohpur when the state was governed by a Congress administration under Bhupinder Singh Hooda. Robert Vadra, the son-in-law of former Congress president Sonia Gandhi, is a director of Sky Light Hospitality. The BJP, now in government in the state, made the alleged corruption and nepotism in the land deal an issue in the run-up to the 2014 Lok Sabha elections. The police on April 7 reconstituted the special investigating team (SIT) after getting a rap from the Punjab and Haryana high court over slow progress of investigations.

While the PC Act FIR against the former chief minister and others was registered on September 1, 2018, at Kherki Daula police station, the Gurugram police completely disregarded the newly inserted Section 17-A of the PC Act which mandated prior approval of the state government before conducting an enquiry, inquiry or investigation into an offence alleged to have been committed by a serving or retired public servant under the Act. The amendment in the PC Act was notified by the Central government on July 26, 2018.

Red-faced over the gaffe, the Bharatiya Janata Party-led state government on November 29, 2018, took ex post facto approval from the governor to conduct an investigation into the offences alleged to have been committed by the former chief minister in the FIR. The then additional chief secretary, home, Shyam Sundar Prasad in an order said that after going through the contents of the FIR forwarded by the Gurugram police commissioner, the Haryana governor considers that the FIR reveals offences of serious nature and misuse of official position by former chief minister Bhupinder Singh Hooda and others named in the FIR and needs to be probed.

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. “Therefore, the procedure under

Section 17A is the mandate and any breach would result in vitiation of the proceedings,” said Chaudhri.

Ex post facto approval for Khemka FIR refused on similar grounds

The state government had refused to accord ex post facto sanction for a PC Act FIR registered against Haryana IAS officer Ashok Khemka at Panchkula.

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 against the officer had on August 18, 2022, communicated to the director general of police 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 the Supreme Court in its in November 14, 2019, judgment in Yashwant Sinha versus CBI, the government told the police.

This decision of the state government was also backed by a legal opinion of 2019 tendered by Haryana advocate general (AG) Baldev Raj 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 his 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.

Legal experts said that ideally the police should have registered a fresh FIR against Hooda after complying with the Section 17-A requirement of PC Act. “With the high court (HC) quashing the report of a Justice SN Dhingra Commission of Inquiry on the land deal citing procedural flaws and restraining the state government from making it public and the state government not keen to appoint another commission of inquiry despite a green signal from the HC, the fate of the probe is anyone’s guess,” said a state official.