Saturday, January 6, 2018
To begin with, in a big reprieve for the former Chief Minister of Maharashtra and Congress leader Ashok Chavan who was the Chief Minister between December 2008 and November 2010 and currently the President of the Maharashtra unit of the Congress in the Adarsh housing society case, the Bombay High Court has on December 22, 2017 set aside the sanction granted by the Maharashtra Governor to prosecute him for his role in it. A Bench of Justice Ranjit More and Justice Sadhana Jadhav of Bombay High Court while quashing and setting aside the sanction order said that the order passed by the Maharashtra Governor granting sanction to prosecute Ashok Chavan in the Adarsh housing society scam “cannot be sustained” since it was not based on any fresh material produced by the CBI that could be considered as plausible evidence by courts during trial.
To put things in perspective, the Bombay High Court was hearing a petition filed by Ashok Chavan challenging the decision of Maharashtra Governor C Vidyasagar Rao granting sanction to the CBI to prosecute him in the scam. The Bench had earlier made Rao a respondent in the matter. This is the second major relief for the Congress in recent times. On December 22, a Special CBI Court acquitted all accused, including former telecom minister A Raja in Congress led UPA regime, in the 2G spectrum allocation case.
It must be revealed here that the CBI in its FIR filed on January 2011 had named former Maharashtra Chief Minister Ashok Chavan as accused 13 in the Adarsh society case. According to the FIR, Chavan got involved in a criminal conspiracy when he was the Revenue Minister in 2000. His proposal that civilians be made members of the society was approved though his ulterior motive was to reportedly allow his relatives to secure flats in the society. The flats in the society were meant for widows of Kargil war. The FIR stated that RC Thakur, Brigadier Madan Mohan Wanchu and Kanhaiyalal Gidwani were also involved in the plot.
It must be also revealed here that the CBI said that after the induction of civil members, state government officials expedited the process of land allotment. In 2009, then CM Ashok Chavan had exempted the society from reserving 15% space for a recreational ground – an exemption not allowed by the previous government. In turn, Chavan secured membership for his relatives, according to the CBI.
Truly speaking, the FIR said Chavan had abused his position to favour the society. A case was filed on charges of conspiracy, cheating, forgery and Sections of the Prevention of Corruption Act, 1988. The CBI had recorded Chavan’s statement in the case. It had also questioned several people to ascertain the number of civilians who got flats in the society on his orders. They found that there were six such flats. Two were registered in the name of Chavan’s mother-in-law and sister-in-law.
It cannot be lost on us that in 2014, the former Governor K Sankaranarayanan refused sanctions to prosecute Chavan. The CBI had moved an application in a special court, seeking the approval to remove Chavan’s name from the list of accused, which it rejected. In October 2015, the Joint Director of CBI, Mumbai had sought sanctions to prosecute Chavan under Section 197 (issuing or signing false certificate) of the Criminal Procedure Code, based on fresh material, namely, the Justice JA Patil Commission report and the Bombay High Court’s observations of the criminal revision application. The key accused in the case, former member of Legislative Council Kanhaiyalal Gidwani had died in December 2012.
Before proceeding ahead, let me quickly recapitulate the entire sequence of events in this high profile case. They are as follows –
April 19, 2013: Justice JA Patil Inquiry Commission report was submitted to the government.
August 19, 2013: The CBI forwarded the report to the offices of the SP, ACB and its Mumbai branch.
December 17, 2013: The erstwhile Governor K Sankaranarayan refused sanction to prosecute Ashok Chavan.
December 20, 2013: Justice JA Patil Inquiry Commission was tabled in Legislative Assembly.
January 15, 2014: The CBI submitted an application in the Trial Court, seeking to delete Chavan’s name from the list of accused due to then Governor’s refusal to grant sanction.
January 18, 2014: The Trial Court rejected the CBI application.
May 25, 2014: The CBI filed a criminal revision application before the single Judge of the Bombay High Court for quashing and setting aside the order of the Trial Court.
March 27, 2014: The CBI filed supplementary chargesheet before the Trial Court, stating that Chavan was not involved in benami transctions in respect to the flats of Adarsh society.
June 19, 2014: The CBI filed a second supplementary chargesheet and informed the Trial Court the investigation had been completed.
November 19, 2014: Bombay High Court dismissed the criminal revision application field by the CBI.
December 15, 2014: Chavan field a criminal application recalling the order. The application was dismissed on March 4, 2015 by the Bombay High Court.
April 1, 2015: Chavan filed a special leave petition (SLP) challenging the order dated November 19, 2014 and March 4, 2015.
July 13, 2015: The Supreme Court issued notices to the state government and the CBI on the SLP. The SLP is pending before the Supreme Court for final disposal.
October 8, 2015: The CBI sent fresh proposal (second application) seeking sanction to prosecute Chavan.
While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bombay High Court held in its judgment categorically that, “It was permissible for the Governor, the sanctioning authority, to review or reconsider the earlier decision of the erstwhile Governor not to grant sanction to prosecute the petitioner (Ashok Chavan) in terms of the fresh material which had surfaced after the earlier sanction was refused.” So whatever the Governor did, he was well within his right to do so. There can be no denying or disputing it!
It must be mentioned here that the Bench also added that, “However, the agency (CBI) failed to present any fresh material capable of being converted into evidence that can be substantiated at the time of trial. Therefore, in the absence of fresh material, the sanction cannot be sustained and is quashed and set aside.”
For my esteemed readers exclusive indulgence, let me also inform them that in December 2013, the then Maharashtra Governor K Sankaranarayanan had refused sanction for the CBI to initiate proceedings against Chavan. On February 4, 2016, Sankaranarayanan’s successor C Vidyasagar Rao granted sanction to prosecute Chavan for alleged offences of criminal conspiracy and cheating under relevant sections of the Indian Penal Code, and under various provisions of the Prevention of Corruption Act. However, the Bombay High Court did not agree with the argument made by senior counsel Amit Desai, appearing for Chavan, that material to be considered by the sanctioning authority can only be evidence collected by the investigating agency.
To be sure, Justice Ranjit More made it clear that, “The material which is required to be considered by the sanctioning authority is not limited to the evidence collected by the investigating agency during the course of investigation”. But in the same vein the court also observed that such material must be admissible and capable of being converted to evidence, which can be substantiated at the trial stage. Who can question this?
Needless to say, the Bench of Bombay High Court while pronouncing its judgment held that, “The sanctioning authority is an independent agency, which cannot allow itself to be influenced by any opinion in the case of absence of material. This is the case of absence of material and in such a case earlier order of refusing sanction could not have been reviewed. Is it not a case of non-application of mind and, therefore, the same must be dealt with at the earliest if possible in order to avoid ignominy to a public servant.” Every person has the right to reputation which cannot be denigrated by anyone without substantial proof which has to be approved in a court of law. Who can question this? Chavan contended that the decision to review the December 2013 decision of the then Governor was politically motivated and biased, and there was no additional material warranting review of the decision. It was also argued that the February 2016 order was motivated by change in political circumstances and not by any change in material aspects.
Be it noted, while appearing for the CBI, lawyer Hiten Venegaonkar had earlier told the court that validity of the Governor’s February 2016 order granting sanction to prosecute Chavan in the case can only be tested in the trial court. Senior counsel Amit Desai while appearing for Chavan had argued that the 2016 order was motivated by a change in political circumstances and not by any change in material aspects of the case.
Truth be told, in an earlier affidavit filed by the agency, it said that it approached the Governor for the second time seeking sanction as there was additional and fresh material against Chavan. On October 8, 2015, the CBI sent a fresh proposal in the form of a second application seeking sanction to prosecute Chavan, which was granted by the Governor. The CBI had relied on the report submitted on April 19, 2013, by a two-member judicial commission set up by the government to inquire into the Adarsh scam and a previous order of the court passed in November 2014.
As it turned out, the Bombay High Court while trashing aside the evidence produced held that, “Neither the extract of (the)… Commission report nor the order passed by the Single Judge of the Court are admissible as evidence and, therefore, it cannot be considered. In the absence of fresh material, the Governor has no jurisdiction to review the order of the erstwhile Governor.” The Court held that, “The Commission report is only recommendatory in nature”. The court said that the challenge by the petitioner to Governor’s order can be entertained at the pre-trial stage since the same was passed without there being any fresh material.
Of course, while rejecting former Maharashtra CM Ashok Chavan’s petition challenging the trial court’s decision to reject the CBI plea seeking deletion of his name from the list of accused persons, the Bombay High Court that the single Judge merely expressed his tentative opinion “which in our considered opinion cannot constitute fresh material”. Additional Solicitor General Anil Singh had claimed that the report of the Commission and certain observations made by the Single Judge were “additional material”. The Bombay High Court, however, while disagreeing with him said in its judgment that, “The ASG’s arguments cannot be entertained as it would amount to abuse to process of law”.
All in all, this latest judgment by Bombay High Court is a huge relief to Ashok Chavan who was on tenterhooks till the judgment finally came. He too expressed a sigh of relief and said that, “ Truth has prevailed. I have full faith in the judiciary. The governor’s order was politically motivated. The High Court order reaffirms my faith in the judiciary. I am satisfied. The Governor had given the sanction to prosecute me, overruling the decision of his predecessor. With today’s court decision, the Governor’s office has been saved from setting a new precedent.” He is well within his rights to feel happy and vindicated by this Bombay High Court latest judgment! Well, there can be no denying this!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.