Ashok Chavan (Express) Ashok Chavan (Express)

THE BOMBAY High Court Friday ruled that the order passed by the Maharashtra Governor granting sanction to prosecute former state chief minister Ashok Chavan in the Adarsh housing society scam “cannot be sustained”. A bench of Justice Ranjit More and Justice Sadhana Jadhav quashed and set aside the sanction order.

The court was hearing a petition filed by Chavan challenging the decision of Maharashtra Governor C Vidyasagar Rao granting sanction to the CBI to prosecute him in the case. The bench had earlier made Rao a respondent in the matter.

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.

“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,” said the court.

The court held that the Commission report “is only recommendatory in nature”. The court also said that the challenge by the petitioner against the Governor’s order can be entertained at the pre-trial stage since the same was passed without there being any 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 court, however, said in its judgement that “the ASG’s arguments cannot be entertained as it would amount to abuse to process of law”.

However, the court held 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”.

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 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 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.

“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,” said Justice More. But the court observed that such material must be admissible and capable of being converted to evidence, which can be substantiated at the trial stage.

“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. It is 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,” observed the Bench.

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.

While rejecting 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 court held that the Single Judge merely expressed his tentative opinion “which in our considered opinion cannot constitute fresh material”.

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 Desai 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.

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Expressing relief at the court’s verdict, Maharashtra Congress chief Chavan criticised the BJP-led government. “My stance from the very beginning has been that I was being targetted for political vendetta, and that the accusations levelled against me were politically motivated. The previous Governor K Sankaranarayanan has refused to accord sanction for prosecution after considering all the material that the investigating agency had placed before him and after proper application of mind,” he said.

“Today, the prestige of the office of the Governor has been the restored. It would have set a wrong precedent otherwise,” Chavan said. Later, the Congress issued a statement, accusing the BJP-led government of indulging in “vendetta politics” while NCP MLA Jitendra Awadh demanded the resignation of Governor Rao.

In the state assembly, Congress MLA Abdul Sattar said the “clean chit to Chavan” shows there was “a move to entangle him” in the case.

Chief Minister Devendra Fadnavis said, “The decision was taken by the Governor and the High Court has made some observations. The state government has not received the details. We will comment after studying the decision.”

Governor Rao’s office said he did not wish to comment on the court’s decision.

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