mumbai

Updated: Dec 23, 2017 12:20 IST

A day after all the accused in the 2G scam case were acquitted, the Congress got another major legal reprieve. The Bombay high court on Friday set aside the sanction granted by the Maharashtra governor to prosecute former chief minister and Congress leader Ashok Chavan in the Adarsh society scam.

Leaders from political parties, bureaucrats and ex-servicemen allegedly conspired to get flats at cheap rates in the Adarsh Housing Society, a prime property in south Mumbai’s Colaba, originally constructed for the welfare of war widows.

Chavan was accused of criminal conspiracy and criminal misconduct for granting additional floor space index (FSI) to the society in lieu of flats for relatives.

The bench, comprising justice Ranjit More and justice Sadhana Jadhav, quashed the February 2016 sanction given by governor Ch Vidyasagar Rao to prosecute Chavan. Rao had, in February last year, overturned the December 2013 decision of the then governor K Sankaranarayanan, who had rejected the CBI’s plea for sanction to prosecute Chavan after the latter was forced to resign as chief minister after being implicated in the scam. Such a sanction from designated constitutional authorities is a mandatory prerequisite to prosecute public servants such as a chief minister or a former chief minister.

“The sanctioning authority is an independent [authority], which cannot allow itself to be influenced by any opinion. The ASG’s [additional solicitor general] argument cannot be entertained as it would amount to abuse of power,” the judges ruled on a challenge filed by Chavan.

The bench held that the CBI failed to present fresh evidence before Rao while seeking the sanction to prosecute Chavan and the material presented by it could not be converted into “credible evidence” against the Congress leader.

“The material which is required to be considered by the sanctioning authority is not limited or restricted to the evidence collected by the investigating agency during the course of investigation. However, the material must be admissible in evidence or capable of being converted to evidence which can be substantiated at the trial,” the judges observed while passing the order.

While setting aside and quashing Rao’s order, the judges concluded, “In absence of fresh material, the governor has no jurisdiction to review the order of erstwhile governor.”

Chavan had 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.

The judges also held that “Justice JA Patil Commission report and the order of the learned single judge of this court cannot be termed as ‘material’, much less as ‘fresh material,’ the impugned order is vitiated and cannot be sustained.”

The JA Patil Commission report followed the appointment of justice Patil on September 10, 2014, to look into the illegality over the allocation of houses in the Adarsh cooperative housing society.

The court also observed that neither the extract of the report nor the high court order of November 2014 is admissible in evidence or capable of being converted into evidence.