CBI legal officers say no such permission was required because entering into conspiracy & cheating were not part of Chavan's official duty.
Former Maharashtra chief minister Ashok Chavan, one of the 14 accused in the Adarsh scam case, had written to the CBI, saying that the investigation agency must seek Maharashtra governor’s sanction before prosecuting him in the case.
But, was the governor’s permission to prosecute the former Maharashtra chief minister in the case a legal must? According to documents available with dna, two legal officers of the CBI stated that no permission was required to prosecute Chavan, because “entering into conspiracy and cheating were not part of his official duty.”
Even special director VK Gupta had put his seal on legal officers’ opinion before retiring in February 2013.
However, CBI director Ranjit Sinha reversed the decision and ruled that prosecution against Chavan could only be initiated after the state governor gave permission.
Ranjit Sinha went ahead and thus sought sanction from Maharashtra Governor K Sankarnaryanan. The governor refused permission.
Chavan had asked the CBI to invoke Section 197 of the Criminal Procedure Code (CrPC) before chargesheeting him. Sanction of prosecution under Section 197 of CrPC is required against a public servant if the omission and commission constituting the offence has nexus with the discharge of official duty of the public servant.
But the majority opinion in the CBI was that Chavan has also been charged under the Prevention of Corruption Act (PC). And Section 19 of Act says that no sanction is required if a public servant ceases to hold office, which was misused at the time of taking cognizance of the offence.
Sources in the CBI say the issue of “prosecution” or “no prosecution” triggered around mid-November 2012, when Chavan sent a representation to the then CBI director AP Singh, saying that the “CBI has not sought sanction against him from the competent authority under Section 197 of CrPC, although on that subject sanction was sought against two other public servants”.
These two public servants – Dr Jairaj Pathak, the then municipal commissioner of Mumbai, and Dr Pradeep Vyas, the then collector of Mumbai – are accused in the Adarsh scam.
Chavan, in his representation, also drew parallels with Mayawati’s Taj Corridor case.
In December 2012, Ranjit Sinha took over as CBI chief and began discussions on Chavan’s representation.
Sinha told dna: “Decision was taken on legal advise of the prosecution wing. The matter was not referred to attorney general GE Vahanavati. The CBI decides on merit and not to pander to popular demand.”
But documents with dna tell another story. A letter from joint director Keshav Kumar (CBI-Mumbai) stress on the urgency to address the matter in view of Chavan’s written representation.
Kumar forwarded Chavan’s letter to the department of prosecution, following which the two legal officers gave their opinions.
The legal officers argued that no sanction under Section 197 is required.
Endorsing the legal officers’ view, special director VB Gupta had stated that prosecution against former telecom minister A Raja was not obtained in 2G case before filing charge sheet as he had already ceased to be a public servant.
On Chavan’s reference to Mayawati’s case, Gupta said: “The said reference for seeking sanction for prosecution against Ms Mayawati and others under Section 197 CrPC and section 19 of PC Act was made under the directions of Special Judge before whom a report was earlier presented.”
But subsequently, Gupta says, many Supreme Court judgments, including in the Parkash Singh Badal case, have made it clear that no sanction is required in such corruption cases. “Thus it will not be worthwhile to draw any comparison between the two cases, that is, case of Ms Mayawati and Shri Ashok Shankarrao Chavan,’’ wrote VK Gupta.
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