Graft case against IAS officer: Haryana ACB counting on chain of evidence to Arya

The Haryana anti-corruption bureau (ACB) is relying on a chain of evidence in the graft case registered against 2009-batch IAS officer Jaibir Singh Arya to nail him.

The now arrested IAS officer, who was serving as managing director (MD) of Haryana State Warehousing Corporation (HSWC), was booked, along with two state officials and a private individual, under Sections 7 and 7-A of the Prevention of Corruption (PC) Act, and Sections 384 and 120-B of the Indian Penal Code on October 11.

The ACB FIR, however, does not indicate direct acceptance of illegal gratification by the IAS officer from the husband of a HSWC employee for posting her as a district manager in Kurukshetra. The FIR only speaks about the involvement of another HSWC employee, Sandeep Ghanghas, a CONFED official, Rajesh Bansal who was also arrested by the CBI in 2019 and a private individual, Manish Sharma.

“The ACB has enough evidence to present a chargesheet against the IAS officer. There is a chain of evidence which would nail the arrested IAS officer for demanding illegal gratification,” said an ACB official.

What did the FIR say

As per the FIR, the complainant, Rajesh Kumar of Kurukshetra, told the ACB that HSWC Panipat district manager Sandeep Ganghas had approached him with an offer to pay the then HSWC MD, Jaibir Arya, ₹3 lakh as illegal gratification to get his wife, Rinku Hooda, posted as Kurukshetra district manager. Her posting orders for Kurukshetra were issued by Arya on October 5 and she joined on October 6, the FIR said. Thereafter, Ghanghas told the complainant to pay the bribe money being sought by IAS officer through Rajesh Bansal who allegedly acted as Arya’s middleman, the FIR said. It further said that Ghanghas also told him that Bansal has asked that the bribe money be delivered to one Manish Sharma, who has a shop in Panchkula industrial area.

The ACB sleuths, as per a press statement, arrested Sharma while accepting ₹3 lakh bribe. Arya was arrested for demanding the bribe.

An ACB spokesperson said the ACB laid a trap and apprehend the accused official. “Accused Jaibir Singh Arya and Manish Sharma had demanded ₹3 lakh bribe from the complainant in lieu of transfer of his wife Rinku. The ACB team organised a raid to catch the accused red handed and it resulted in the arrest of private person while he was accepting the bribe on the behalf of director of the HSWC MD. The entire operation was carried out in the presence of independent witnesses, ensuring transparency and fairness,’’ the ACB statement said.

Scope of a way out for the accused IAS officer: Experts

The FIR, legal experts said, has created a legal gap to the advantage of the accused IAS officer. They said Section 7 of the PC Act deals with offences relating to public servant being bribed and provides that it will be immaterial whether a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.

However, by skipping the mandatory requirements under the PC Act to obtain prior approval of the government and by ignoring the guidelines laid down by the Supreme Court, enough room has been created by the ACB to the advantage of the accused IAS officer, legal experts said.

Senior high court advocate and criminal lawyer Vikram Chaudhri said, as per Lalita Kumari judgement of the Supreme Court, registration of FIR is mandatory under Section 154 of the Code of Criminal Procedure, if the information discloses commission of a cognisable offence and no preliminary inquiry is permissible in such a situation. “However, if the information received does not disclose a cognisable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognisable offence is disclosed or not.

The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognisable offence. It means the quality of evidence would matter,’’ Chaudhri added.

He said in this case a preliminary inquiry should have been conducted direct involvement of the accused IAS officer has not been established in the FIR. “Since provisions of the PC Act has also been invoked in the FIR, it is obligatory and mandatory for the investigating agency to seek previous approval of the authority concerned under Section 17-A of the PC Act before embarking upon any enquiry, inquiry or investigation. The only exception is that no previous approval is necessary for trap cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person, Chaudhri said.

“The procedure under Section 17A of the PC Act is the mandate and any breach would result in vitiation of the proceedings,” Chaudhri added.

Ex facie criminal and trap cases

The vigilance department in 2022 said the requirement of Section 17-A for seeking prior approval of the government for conducting an enquiry, inquiry or investigation against a serving or retired public servant under the PC Act would not apply when the alleged of the public servant is ex facie criminal and except in trap cases. As per a government SoP, an ex-facie criminal act or any act which constitutes any offence means offence under various provisions of the IPC such as Section 465 (forgery), Section 420 (cheating), Section 403 (misappropriation), Section 421 (fraud), etc.

The communication said if any doubt arises regarding trap cases, it should be referred to the competent authority for a decision.

The chief secretary’s office said issue of obtaining previous approval under Section 17-A has been reconsidered in light of Supreme Court judgement of November 14, 2019, in a review petition (Yashwant Sinha v/s CBI).

“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,’’ it said.