20 Nov 2023 11:10 AM GMT
Observing that "the Police Act does not approve or authorize engagement of a Police Officer on contract basis", the Punjab & Haryana High Court has questioned Haryana government on appointment of retired CBI Officer as Investigating Officer under Prevention Of Corruption Act.Justice Vinod S. Bhardwaj noted that, "There is no reference made in the reply furnished by the State as to under...
Observing that "the Police Act does not approve or authorize engagement of a Police Officer on contract basis", the Punjab & Haryana High Court has questioned Haryana government on appointment of retired CBI Officer as Investigating Officer under Prevention Of Corruption Act.
Justice Vinod S. Bhardwaj noted that, "There is no reference made in the reply furnished by the State as to under what substantive provision of law could the Police Officers be engaged on contract basis to conduct investigation of the cases and to exercise the powers of Gazetted Officers and also file the final reports."
The Court added that, "...the Haryana Police Act, 2007 defines a Police Officer to be “a member of the Police Service of the State” constituted under this Act and includes the IPS Officer of the State Cadre. Hence, a Police Officer competent to investigate and to file a final report is required to ex-facie satisfy his status and test as a Police Officer under the Haryana Police Act, 2007. For a person to be “a member of the Police Service”, he has to be in the cadre as per the service jurisprudence since “Police service” means the “service constituted under this Act”.
The Police Act does not approve or authorize engagement of a Police Officer on contract basis. Further, the Prevention of Corruption Act, 1988 mandates that in relation to the offences arising out of Prevention of Corruption Act, 1988, investigation is not to be conducted by an officer below the rank of DSP i.e. a Gazetted Officer, noted the Court.
Justice Bhardwaj pointed that it is still not answered as to, "how the status of a Gazetted Officer could be conferred on a person who had been engaged on a contract basis under an initial engagement proposal as that of a consultant and as to under what order or capacity could he discharge the functions of an Investigating Officer and to file final reports."
These observations were made while hearing the plea of one Dheeraj Garg, who challenged the investigation and the proceedings arising out of the FIR registered under Sections 409, 420 and 120-B of the Indian Penal Code, 1860 read with Section 7, 7-A and 13 of the Prevention of Corruption Act, against him as well as the chargesheet filed.
It was submitted by the counsel for the petitioner that the Investigating Officer in the present case has been one Ramaswamy Parthasarathy, Dy. Superintendent of Police, Anti- Corruption Bureau (ACB), Faridabad who is a retired CBI Officer and has been engaged in the State Vigilance Bureau.
The said officers having retired from the Central Government in 2022 had been engaged on contractual basis as consultants to guide the Investigating Officer in the ACB, added the counsel.
It was brought to the notice of the Court that instead of guiding the Investigating Officers, the said employees engaged on contract basis have not only conducted the investigation and filled up the case diary but have also filed the final report under Section 173 (8) Cr.P.C.
It was argued that contractual appointment on the post of Superintendent of Police and Deputy Superintendent of Police runs contrary to the independence of the Investigating Agency and that such contractual appointment at the rank of Superintendent of Police and Deputy Superintendent of Police is impermissible under the Police Act since appointment to police service can only be done either by way of direct recruitment.
Considering the submissions, the Court noted that in reply, by way of an affidavit of Pankaj Nain, Deputy Inspector General, Anti Corruption Bureau (Hq.) that the engagement have been approved by the Chief Minister and there was no perversity in the functions being discharged.
The Court further noted that the State counsel could not get any satisfactory explanation other than reiterating that the file had been put up at the highest level and had been approved. "A pointed query was also raised as to how, in the absence of any statutory power as an Investigating Officer, the same could be exercised and under what authority, an act which is beyond the statutory power could be validated by such approval," it added.
Stating that the vital questions, whether Investigating Officers could be appointed to the Gazetted rank of Superintendent of Police and Deputy Superintendent of Police by way of contract and as to whether they were authorized to conduct investigation in law and file charge-sheet or not which is yet to be determined, the Court directed the State Vigilance to withdraw the investigation from the officer engaged on contract basis with "immediate effect."
It further directed that, "The charge-sheet filed by the above said contractual engagees as the Investigating Officer shall not be proceeded any further and the proceedings therein shall remain stayed till the next date of hearing."
The matter is listed for December 16, for further consideration.
Appearance: Amandeep Vashisth, Advocate and Mr. Manish Soni, Advocate
for the petitioner.
Ms. Shruti Jain Goyal, Sr. DAG, Haryana.
Citation: 2023 LiveLaw (PH) 232
Title: DHEERAJ GARG v. STATE OF HARYANA AND OTHERS
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