In my opinion, the examination of the case of respondent No.2
either under Clause (ii) of Section 13(1)(d) or Clause (iii) of the said Section
did not allow the Special Judge at this stage to declare that no material was
placed before him to take cognizance of the offence. In fact, the learned
Judge has taken cognizance of the offence by stating in very unambiguous
language that exoneration of respondent No.2 for want of sanction from the
Governor for prosecution of the offences under the Indian Penal Code does
not by itself entitles respondent No.2 to get relief from other offences.
Though the learned Special Judge has stated that the cognizance of the
offence has not been taken, the order clearly indicates that the cognizance of
the offence has been taken and the learned trial Judge has formed opinion
which can be reproduced as under :
“6. Prosecution has filed application under section 169
r/w 173(2) of Cr.P Section 169 of Cr.P reads
Release of the accused when evidence deficient.
Prosecution is praying deletion of the name of Shri
Chavan on the ground of refusal of sanction by Hon'ble
Governor. Sanction order passed by Hon'ble Governor
shows sanction is refused under section 197 of Cr.P.C.
against Shri Chavan for prosecution under section 120
B, 420 of IPC. In this case Shri Chavan has also been
chargesheeted under section 13(1)(d) r/w 13(2) of P .C.
Act. It is separate offence. It would not go off with
sections of IPC. Moreover there is no provision under
section 169 of Cr.P. C. for deletion of name of accused
when there is refusal of sanction. ...”
It is, thus, clear that the learned trial Judge has given a finding
that despite the application by CBI for closing the case or deleting name of
respondent No.2, it was not possible to do so because the offence punishable
under Section 13(2) is independent of the offences for which the sanction
has been refused by the Governor. For all these reasons, the application
application.
Exh.46 has been rightly rejected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
CRIMINAL APPELLATE JURISDICTION.
CRIMINAL REVISION APPLICATION NO. 136 OF 2014
Central Bureau of Investigation
AntiCorruption Branch, Mumbai V Shri Ashok Shankarrao Chavan,
CORAM : M.L. TAHALIYANI, J.
Citation: 2015(1)BomCR(Cri)249
Dated : 19.11.2014.
Heard finally by consent of the learned counsel for the parties.
4. This criminal revision application impugns the order passed by
3.
Special Judge, Greater Mumbai in Special Case No. 42 of 2012 below Exh.46.
Exh.46 was an application filed by the Central Bureau of Investigation, Anti
Corruption Bureau, Mumbai for deleting the name of Respondent No.2
5.
the case against him.
(accused No.11 Ashok Shankarrao Chavan) from the chargesheet and closing
The chargesheet against accused No.11, respondent No.2
herein and others was filed after completion of investigation of crime
registered at CBI, ACB, Mumbai vide First Information Report No. RC No.
6(A)/2011. The First Information Report was registered against 13 accused
on the basis of source information that the accused had entered into
conspiracy to grab government land admeasuring about 3758 sq.mtrs. in
BlockVI at Colaba, adjacent to Backbay Bus Depot, Mumbai which was in
possession of Army and was being used as park by name 'Khukri Park'. It
was further alleged that in pursuance of the said conspiracy the said land was
allotted to Adarsh Cooperative Housing Society. It is also alleged that the
accused named in the first information report or their relatives got flats in
the said society in consideration of the respective role played by the accused
in allotment of the land.
After completion of the investigation chargesheet was filed
6.
against 12 accused. At this stage, it may be mentioned here that accused
No.13 in the F. I.R. M. Guruswami was also alleged conspirator. However, he
died before filing of the chargesheet.
Accused No.1 R.C. Thakur is retired SDO, Defence Estate Office,
7.
Pune. Accused No.2 has also retired from Army. Accused No.3 is a private
person. Accused No.4 is a retired Major General of Army. Accused No.5 is
also retired Major General of Army. Accused No.6 was also working in Army.
Accused No.7 is retired as Director of Town Planning, Maharashtra State,
Pune, accused No.8 is suspended State Information Commissioner, Accused
No.9 was also working in Mantralaya and is member of Indian
Administrative Services, accused No.10 is Secretary (Expenditure), Finance
Department, Government of Maharashtra, accused No.11 Ashok Chavan was
working as Revenue Minister and thereafter Chief Minister of Government of
Maharashtra and accused No.12 was working as Municipal Commissioner of
Greater Bombay. It was stated in the chargesheet that further investigation
was in progress and that CBI proposed to file additional/ supplementary
chargesheet under Section 173(8) of the Code of Criminal Procedure. The
present application, it was submitted, was filed after further investigation.
The prayer for deletion of the name of respondent No.2 was made because
the Governor of Maharashtra had refused to grant sanction for prosecution of
respondent No.2 for the offences punishable under Sections 120B and 420
of the Indian Penal Code. It was submitted that in view of the order of the
Governor it was not possible for the CBI to prosecute respondent No.2 for the
offence punishable under Section 13(2) r/w 13 (1)(d) of the Prevention of
Corruption Act. Before proceeding further to consider the arguments of the
learned Additional Public Prosecutor and the learned Senior Advocate Mr.
Amit Desai for respondent No.2, brief narration of the allegations against
It is alleged that, in pursuance of the said conspiracy, accused
8.
respondent No.2 and others is necessary to be recorded here :
No.1 Mr. R.C. Thakur made an application on 21st September, 1999 to the
Government of Maharashtra for allotment of the said land. It was
represented that the Army had no objection for grant of the said land if
certain accommodation is made for army which included provision of girls
hostel. However, no action was taken on the said application by the
Government. The said prayer for allotment of the land was, therefore,
renewed on 7th February, 2000 by accused No.1. The Chief Minister
forwarded the said application to the Revenue Department for necessary
action. The Revenue Department had sent a letter dated 6th Mach, 2000 to
the Superintendent in the office of Collector, Mumbai asking for urgent
proposal on the request of the society. Pursuant to the said letter, a survey
was carried out by the Maintenance Surveyor on 27th March, 2000. A report
was submitted to the Government of Maharashtra that the proposed plot was
located next to Back Bay Bus Depot building at Back Bay Reclamation. Block
VI, Plot No.87C, Colaba. Immediately thereafter on next day the office of
the Collector had sent a letter to Adarsh Society (proposed) for submission of
details of their members. The society vide their letter dated 10 th April, 2000
submitted a list of 40 members mentioning that the members belonged to
defence services or they were members from the services paid from Defence
Services Estimates. A letter was issued to the GOC M&G Area, Mumbai
seeking No Objection Certificate for allotment of the land to the society. The
letter was collected by accused No.2 Brig M.M.Wanchu and was handed over
to accused No.4 A.R. Kumar. Maj.Gen.A.R. Kumar was working as GOC M&G
Area, Mumbai from 23rd February, 1998 to 20th July, 2001. It is alleged that
he, in fact, was not empowered to issue any no objection. Despite he
knowing very well that he was not empowered to issue No Objection
Certificate, he directed Col. S.S. Jog, who was working under him, to issue
No Objection Certificate for the said land. The No Objection Certificate was
issued on 5th April, 2000 under the signature of Col. S.S. Jog. The said No
Objection Certificate was handed over in the office of Collector, Mumbai by
accused No.1. It is alleged that the accused No. 4 A.R. Kumar got
membership in the name of his son in Adarsha Society in lieu of grant of
NOC for the land in question.
9.
After receipt of the NOC from Army, the Collector office
submitted report dated 12th May, 2000 to the Revenue Department that the
land fell under CRZII (Coastal Regulatory Zone) and was reserved for the
road widening of Prakash Pethe Marg as per development plan of MMRDA.
It is further alleged that since this hurdle of road widening was
10.
required to be removed, some more persons became part of the conspiracy to
clear the problems in the way of allotment of the land. Accused No.3 K.L.
Gidwani, the then MLC (now deceased) was alleged to be a very influential
person and had free access in various departments in Mantralaya. It is
alleged that accused Nos. 1, 2 and 3 met accused No.11, the then Revenue
Minister on 2nd June, 2000 in connection with the problem arising out of the
road widening of Prakash Pethe Marg. Accused No.11 proposed inclusion of
civilians up to the ratio of 40% as members of the society. It is alleged that
31 members of Defence Services showed their willingness to accommodate
40% civilians. This letter was issued on 10th April, 2000. Since induction of
40% civilians was accepted, the whole complexion of the society had
changed and total number of members had risen up to 71. It is alleged that
Smt. Seema Vinod Sharma, sisterinlaw of accused No.1 got membership in
the society pursuant to the inclusion of civilians and she was allotted a flat in
the society. It is alleged that after inclusion of 40% civilian members, a
proposal for allotment of land got momentum and got accelerated. It is
alleged that it was falsely represented that the society was basically for
serving and retired defence officers including those officers who had served
in 'Operation Vijay' at Kargil.
11.
In pursuance of the said conspiracy a Draft Development Plan
of Back Bay Reclamation was required to be modified and in the process
width of Cap. Prakash Pethe Marg was to be reduced from 60.96 mtrs to
18.92 mtrs. The Government of Maharashtra published a notice under
Section 37(1A) dated 3rd October, 2001 appointing Deputy Director, Town
Planning, Collector, Mumbai to receive suggestions and objections pertaining
to change in width of Cap. Prakash Peth Marg. The Deputy Director
submitted report and on the basis of the said report, the width of road was
reduced from 60.97 mtrs. to 18.40 mtrs. A portion of the area so deleted
12.
from the development plan was included partially in residential zone.
After change in Development Plan, the matter was processed in
the Revenue Department and Finance Department of the Government of
Maharashtra and a conditional letter of intent, dated 18th January, 2003 was
issued after approval of the Revenue Minister and Chief Minister to the Chief
Promoter accused No.1 R.C. Thakur. The Government had conveyed its
intention to allot the land admeasuring 3758.22 sq.mtrs. A condition was
imposed that permission from Environment and Forest Department,
Government of India should be obtained as the land fell in CRZII category.
13.
The Maharashtra Coastal Zone Management Authority was
empowered to examine all the projects proposed in Coastal Regulation Zone
irrespective of its nature and the investment involved in it. It was obligatory
on the part of the Authority to submit its report to the Central Government.
Accused No.7 P . Deshmukh was working as Deputy Secretary, Urban
Development Department, Government of Maharashtra from 31st October,
2001 to 1st November, 2003. It is alleged that in pursuance of the conspiracy,
he wrote a letter, dated 5th October, 2002 to the Secretary, Ministry of
Environment and Forest, New Delhi intimating that the Government of
Maharashtra has proposed to allot the said land to Adarsh Society. He also
requested for grant of no objection. The Ministry of Environment and Forest
had intimated on 11th March, 2003 to accused No.7 that powers had already
been delegated to the concerned State Government for undertaking
development in Coastal Regulation ZoneII. It is alleged that accused No.7
by abusing his official position and with dishonest intention wrote letter
dated 15th March, 2003 to Chief Engineer (Development Plan),
Brihanmumbai Municipal Corporation that the matter relating to Adarsha
Society was referred to MoEF, Delhi and that MoEF, Delhi had communicated
their no objection for development for residential purpose. Based on the said
letter, MMRDA (Planning Authority) gave permission for construction of
Adarsh Building from time to time without appropriate clearance as required
under CRZ notification of the year 1991. Accused No.7 in consideration and
favour shown to the society had been allotted the flat in the said society.
14.
It is the case of the prosecution that one Mr. Saurav Ray, who
had occasion to work with accused Nos. 5 and 6, had written several letters
to Headquarter, M&G Area requesting them to withdraw the No Objection
Certificate issued for construction of the building on the land. It is alleged
that accused No.5 Maj. Gen. Kaul and accused No.6 Col. T.K. Sinha did not
take any action to prevent the transfer of the land to Adarsh Society nor did
they take any action to withdraw the No Objection Certificate as they were
beneficial members of the said society.
In the meantime, there was a Parliament Question seeking
15.
information as to whether Khukri Park was ever in possession of Army. It is
alleged that accused No.5 T.K. Kaul, accused No.1 R.C. Thakur and accused
No.2 M.M. Wanchu along with accused No.13 (now deceased) had
fraudulently furnished false information by letter dated 13th December, 2003
that the land in question was never in possession of Army. The investigation
carried out by CBI revealed that the plot in question was in possession of
Army and was being used as Khukri Park and was properly fenced with
boundary wall. These accused also got flats in the society in consideration of
the acts and omissions committed by them.
16.
At this stage, the society faced another problem of FSI, as the
number of members had increased to 71. The society through accused No.3
Mr. L.K. Gidwani, therefore, requested for availing FSI of adjoining plot
reserved for B.E.S.T. A meeting was convened by Minister of State Urban
Development (MOS, UDD) on 14th July, 2004 in which accused No.8
Ramanand Tiwari, then Principal Secretary, Urban Development Department
was also present. He proposed that the reservation might be deleted and the
land might be allotted to Adarsh Society. Accordingly a proposal was
submitted by the society. Accused No.8 Ramanand Tiwari, the then Principal
Secretary, UDD and accused No.9 Subhash Lalla who was working as
Principal Secretary to the Chief Minister assisted the society to get their
proposal cleared. The proposal was put up before the Chief Minister by
accused No.8, which was approved by the Chief Minister. Accordingly, a
notification pertaining to deletion of reservation of B.E.S.T. was published on
3rd March, 2006. Accused No.8, in consideration, got a flat allotted in the
name of his son and accused No.9 Subhash Lalla got two flats one each in the
name of his mother and daughter. As such, land measuring 2669.68 sq.mtrs.
was allotted to Adarsh Society.
17.
The society was able to construct 27 floors with the help of
additional F.S.I. made available by deleting the reservation of B.E.S.T.
However, it is alleged, the membership of the society increased and some
more F.S.I. was required. The society, therefore, requested the Government
for nondeduction of 15% R.G. on 24th March, 2009. The said request was
rejected by the Government on 9th April, 2009. It is alleged that the renewed
request made by the society to the Government through the Municipal
Corporation of Greater Mumbai was approved by respondent No.2 on 20th
July, 2009 while he was working as Chief Minister of Maharashtra. It is
alleged that nondeduction of 15% R.G. was approved on the pretext of 'past
precedence'. What is further alleged is that the motherinlaw and brother of
father in law of respondent No.2 got one flat each in the society in lieu of the
approval of nondeduction of 15% R.G. by respondent No.2.
18.
In brief, there were twofold allegations against respondent
No.2. The first allegation was that he had suggested induction of civilian
members of the society with a view to get accommodation for his sisterin
law Mrs. Seema Sharma. The second set of allegations against him is that he
approved nondeduction of 15% R.G. to get two flats one each for his mother
in law and brother of father in law.
At the time of filing of the chargesheet it was stated by the CBI
19.
that further investigation was in progress, particularly with regard to Benami
Transactions and other incidental issues. In this regard, it may be noted here
that the first set of allegations against respondent No.2 pertain to the period
when he was working as Revenue Minister and second set of allegations
against him pertain to the period when he was working as Chief Minister of
Maharashtra. Chargesheet was filed against accused Nos. 1 to 12 on 4 th July,
2012 in the Court of Special Judge, Mumbai. Sanction under Section 19 of
the Prevention of Corruption Act, 1988 was not required to prosecute
respondent No.2 for the offence punishable under Section 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act as he was no more the
Chief Minister on the date of filing of the chargesheet. However, the sanction
was required under Section 197 of the Code of Criminal Procedure to
prosecute respondent No.2 for the offence punishable under Section 120B
and 420 of the Indian Penal Code as the alleged offences were committed by
him while discharging his duties or in purported discharge of his official
duties as the Revenue Minister and the Chief Minister. The Governor of
Maharashtra by his order dated 17th December, 2013 refused to grant
sanction under Section 197 of the Code of Criminal Procedure to prosecute
respondent No.2 for the offences punishable under Sections 120B and 420
of the Indian Penal Code. As such, the allegations against respondent No.2 in
the present chargesheet are confined to Section 13(2) r/w. 13(1)(d) of the
Prevention of Corruption Act.
20.
The learned Additional Public Prosecutor Mr. Venegaonkar
appearing on behalf of the CBI was heard at length and learned Senior
Advocate Mr. Amit Desai, appearing for respondent No.2 was also heard.
21.
The learned Senior Advocate has also supported the contention
of the CBI in the application made before the learned Special Judge and the
present revision application. The order, which is impugned in the present
revision application, was passed by the learned Special Judge below Exh.46
in Special Case No. 42 of 2012 pending against the respondent No.2 and the
other accused. The CBI had submitted before the learned Special Judge that
since further investigation was progressed and since during the course of
further investigation, the Governor of Maharashtra refused to grant sanction
to prosecute respondent No.2 for the offence punishable under Section 120B
and 420 of the Indian Penal Code, the Special Judge might delete respondent
No.2/ accused No.11 from the list of accused and might close the case
against him.
The learned Special Judge rejected the application on two
22.
grounds. Firstly, on the ground that some issue pertaining to the present
chargesheet is under consideration before the Hon'ble High Court and
therefore, judicial discipline required that the learned Special Judge should
refrain himself from passing any order on the application made by the CBI.
Secondly, on the ground that there was no provision under Section 169 of the
Code of Criminal Procedure to delete the name of the accused from the
chargesheet.
23.
During the course of hearing of the present application three
issues arose for consideration, namely :
(i)
As to whether the learned Special Judge was under obligation
to refrain himself from passing any order due to the pending
petition before the High Court ;
(ii)
As to whether application under Section 169 of the Code of
Criminal Procedure could have filed by the CBI after filing of
the chargesheet under Section 170 of the Code of Criminal
Procedure ;
(iii) Third incidental and most important issue had also arisen and
argued at length by both the sides was, as to whether it was not
possible or permissible to prosecute the respondent No.2 for the
offence punishable under Section 13(2) r/w. 13(1)(d) of the
Prevention of Corruption Act in view of the refusal on the part
of the Governor to grant sanction under Section 197 of the
Code of Criminal Procedure for prosecution of respondent No.2
for the offences punishable under Sections 120B and 420 of
the Indian Penal Code.
As far as first issue is concerned, it was brought to my notice
24.
that a petition has been filed before this Court and is pending before the
Division Bench in which the authority of CBI to investigate the present
offence has been challenged. Both the learned counsel did not want to press
that issue beyond a particular limit and conceded that the Special Judge was
not prevented from considering the application of CBI under Section 169 of
the Code of Criminal Procedure despite pendency of writ petition challenging
the authority of CBI to investigate the alleged offences. In fact, the question
of considering the issue of judicial discipline or otherwise does not arise in
the present revision application as the learned Special Judge has already
given his finding on the issues raised by CBI in their application before the
learned Special Judge vide Exh.46. The learned special Judge has
categorically stated in his order that Section 169 of the Code of Criminal
Procedure does not provide for deletion of the name of accused from the
chargesheet. He has further categorically stated that refusal of sanction to
prosecute respondent No.2 for the offence punishable under Section 120B
and 420 of the Indian Penal Code by itself will not exonerate respondent
No.2 from the offence punishable under Section 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act. Therefore, in fact, the learned Special Judge
has decided the application on merits and has come to a conclusion that
Section 169 of the Code had no application at the stage when the application
by CBI was filed for deleting the name of respondent No.2. The learned
Special Judge has also given finding that the charge for the offence
punishable under Section 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act does not go away only because of refusal on the part of the
Governor to grant sanction under Section 197 of the Code of Criminal
Procedure for I.P
.C. offences. As far as applicability of Section 169 of the
Code of Criminal Procedure is concerned, it was pointed out by learned
Additional Public Prosecutor Mr. Venegaonkar and learned Senior Advocate
Mr. Amit Desai that the learned Special Judge failed to take note of the fact
that the application was not under Section 169 simplicitor but it was under
Section 169 r/w 173(8) of the Code of Criminal Procedure. It was brought
to my notice that the CBI at the time of filing of the chargesheet itself had
stated that further investigation was in progress. The order of the Governor
came after filing of the chargesheet and therefore, CBI decided to file
application under Section 169 r/w 173(8) of the Code of Criminal Procedure
for deleting the name of respondent No.2. It was submitted that the
application might be treated as application under Section 173(8) of the Code
of Criminal Procedure and that, in effect it is a closure report. Without going
into niceties of the applicability of Section 169 or otherwise of the Code of
Criminal Procedure, what can be seen is that the CBI, in effect, wanted
closure of the case as against respondent No.2. It need not be stated here
that when 'final report' or 'summary report' or 'closure report' is submitted
before a Magistrate or a Special Judge, the Magistrate or Special Judge, as
the case may be, is not bound by the report submitted by the prosecuting
agency. It is very well settled that the Special Judge may accept the said
report in a deserving case or may take cognizance of the offence on the basis
of material available in the report and the documents submitted by the
prosecuting agency.
25.
The learned Additional Public Prosecutor and the learned
Senior Advocate have submitted that it was the case of CBI since beginning
that all the accused had committed the alleged offences in pursuance of the
conspiracy and that the different accused had become part of the conspiracy
at different stages. It was further submitted that once it was not possible for
the CBI to prosecute respondent No.2 for the offence punishable under
Section 120B of the Indian Penal Code, it could safely be concluded that
respondent No.2 could not have been successfully prosecuted for the offence
punishable under Section 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act. The submissions made by the CBI, in writing, before the
learned Special Judge can be reproduced as under :
Reliance was placed on the judgment of the Hon'ble Supreme
26.
“4. That it is submitted that in view of the refusal of
sanction by the Governor of Maharashtra for prosecuting
Shri Ashok Chavan (A11) for offence punishable under
IPC, including the offence punishable U/Sec.120B of
IPC. It is also submitted that once the charge of criminal
conspiracy goes, the other charges in pursuance of the
same including charges under Sec. 13(2) r/w 13(1)(d)
of PC Act, 1988 automatically go.”
Court, in the case of K.R.Purushothaman Vs. State of Kerala, reported at
(2005) 12 SCC 631 to canvass the point that in absence of Section 120B of
the Indian Penal Code conviction cannot be arrived at for the offence
punishable under Section 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act. Heavy reliance was placed on the observations made by the
Hon'ble Supreme Court in paragraph 21 as under :
“21. To attract the provisions of Section 13(1)(d) of the
Prevention of Corruption Act, a public servant should
obtain for himself or for any other person any valuable
thing or pecuniary advantage by corrupt or illegal means
or by abusing his position as a public servant.
Therefore, for convicting a person under the provisions of
Section 13(1)(d) of the Prevention of Corruption Act
1988, there must be evidence on record that the accused
has obtained for himself or for any other person, any
valuable thing or pecuniary advantage by corrupt or
illegal means or by abusing his position as a public
servant obtains for himself, or for any person, any
valuable thing, or pecuniary advantage without any
public interest. What we find in the present case is
that there is no evidence on record to prove these facts
that the appellant accused had obtained for himself or
for
any
other
person
any
valuable thing or pecuniary advantage. We may clarify
that the charge of conspiracy being not proved under
Section 120B I.P C., the appellant accused could not be
held responsible for the act done by A3. The prosecution
has failed to prove that he has obtained for himself or
for any other person any valuable thing or pecuniary
advantage. Similarly, we do not find any evidence on
record to convict appellant accused under Sections 403,
477A I.P.C.”
What is pertinent to note here is that the appellant K.R.
27.
Purushotnaman in the case before the Hon'ble Supreme Court, who was
accused No.2 before the trial Court, was convicted with the help of Section
120B of the Indian Penal Code. The Hon'ble Supreme Court came to the
conclusion that there was no material before the trial Court to come to the
conclusion that the appellant was part of the conspiracy. Therefore, he could
not have been convicted for the offence punishable under Section 13(2) r/w
13(1)(d) of the Prevention of Corruption Act for the acts committed by
accused No.3. What is further pertinent to note here is that accused No.3 in
the said case was also convicted for the offence punishable under Section
13(2) r/w 13(1)(d) of the Prevention of Corruption Act. Accused No.3 had
allegedly misappropriated certain gold belonging to Chottanikkara
Bhagavathy Temple, administered by Cochin Devaswom Board. Accused
No.3 was working as Devaswom Officer. The allegations against the
appellant before the Supreme Court were that he had accompanied accused
No.3 to Coimbatore where part of the gold was misappropriated while
melting the gold. It is observed by the Hon'ble Supreme Court in paragraph
18 that :
“18. From the findings arrived at by the High Court that
it was A3 who was entrusted with the gold by the
Devaswom Board, and who was looking after the affairs
of making the ornament golaka, simply because the
accusedappellant had accompanied him to Coimbatore,
it cannot be inferred that there was an agreement
entered into between them to misappropriate the
gold. ...”
As such, in the said case the Hon'ble Supreme Court had come
28.
to the conclusion that the appellant was not part of the conspiracy and
therefore, he could not be convicted for the acts committed by accused No.3
only because the appellant had accompanied accused No.3 to Coimbatore in
connection with melting of the gold.
29.
In the present case, the respondent No.2 is not only accused of
conspiracy but he is also accused of the individual acts of suggesting
accommodation for 40% civilians and approval of nondeduction of 15% R.G.
to Adarsh Cooperative Housing Society. Therefore, in my opinion, the
judgment cited by the learned Senior Advocate Mr. Desai cannot help the CBI
or respondent No.2 in any manner in the present case.
30.
The accusations made in the chargesheet do not only allege
conspiracy but also allege individual acts committed by respondent No.2
while working as Revenue Minister and thereafter Chief Minister of the
Maharashtra. Therefore, the charges levelled against respondent No.2 for
the alleged individual acts cannot goaway only because the Governor has
refused to grant sanction for prosecuting respondent No.2 for conspiracy and
cheating. As already stated, in the case relied upon by the learned counsel
for the parties, the appellant before the Supreme Court got relief because he
was convicted by the trial Judge for the alleged act of accused No.3. His
conviction was based on the alleged proof of conspiracy and not on the basis
31.
of individual acts of the appellant.
The learned counsel for both the sides have also submitted that
in the first set of allegations the chargesheet itself states that the respondent
No.2 had 'reportedly' suggested inclusion of civilians in Adarsh Cooperative
Housing Society. As such the chargesheet does not disclose any material to
establish that the civilians were inducted at the instance of respondent No.2.
To my mind, this argument of the learned counsel needs to be accepted as
there is no material to indicate that the civilians were included only at the
instance of respondent No.2. However, as far as second set of allegations
pertaining to allotment of flat to Mrs. Seema Sharma, mother in law of
respondent No.2 and brother of fatherinlaw of respondent No.2 are
concerned, it is stated that the request of society for nondeduction of 15%
R.G. was earlier rejected by Urban Land Development Department on 9th
April, 2009. However, further request was made by the society and the same
was approved by respondent No.2 on 20th April, 2009 on the pretext of
'precedents'. It is further alleged that while issue regarding nondeduction of
R.G. was pending, mother in law of respondent No.2 and brother of his
32.
fatherinlaw applied for membership and they were allotted flats later on.
The learned counsel has submitted that nondeduction of R.G.
was granted in the public interest. It was pointed out that in many other
cases the nondeduction of R.G. was approved in the same locality by the
Government. The learned Senior Advocate Amit Desai has submitted that
had the nondeduction been not granted, respondent No.3 could have been
accused of discrimination. It was submitted that since respondent No.2 was
holding public office he was bound to pass orders which are sometimes in
favour of an individual or in favour of a group of individuals. It was
contended that only because a particular order grants some benefit to an
individual or a group of individuals, it cannot be said that the public servant
had abused his office. Mr. Desai has submitted that while holding post of
Chief Minister respondent No.2 was under obligation to pass such orders in
routine course. Simply because some of his relatives were incidentally
members of the society, it cannot be said that respondent No.2 had abused
his office. It was repeatedly submitted that so long as the order was in the
interest of public, the provisions of Section 13(1)(d) (iii) cannot be invoked.
The reliance was placed on the oftenly cited judgment of Hon'ble Supreme
Court in State of M.P
. Vs. Sheetla Sahai, reported at (2009) 8 SCC 617. My
attention was drawn to paragraph 35 of such judgment which runs as under :
“35. Section 13 of the Act provides for criminal
misconduct by a public servant. Such an offence of
criminal misconduct by a public servant can be said to
33.
have been committed if in terms of Sections 13(1)(d)
(ii)(iii) a public servant abuses its position and obtains
for himself or for any other person any valuable thing or
pecuniary advantage; or while holding office as a public
servant, obtains for any person any valuable thing or
pecuniary advantage without any public interest. Sub
section (2) of Section 13 provides that any public
servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall be
not less than one year but which may extend to seven
years and shall also be liable to fine.”
I have gone through the full text of the judgment. Respondent
Sheetla Sahai who was working as Minister for Water Resources of the State
of Madhya Pradesh and others were prosecuted for the offence punishable
under Section 120B of the Indian Penal Code and 13(2) r/w 13(1)(d) (ii)
and (iii) of the Prevention of Corruption Act for the alleged pecuniary favour
shown to the contractors who had constructed Hasdeo Bango Masonry Dam.
The contract between the Government and the contractors included a term
which allowed the contractor to excavate the stones from Therma Pahar
Quarry which was situated at 12 kms. away from the Dam site. The stones
were later on excavated from some other quarries which were at the distance
of more than 20 kms. from the dam site and extra lead was claimed by the
contractor which was granted. The respondent Sheetla Sahai and other
public servants and private persons were accused of conspiracy to claim
extralead by violating the terms of the contract. When the matter was heard
by the Hon'ble Supreme Court, it was noted by the Hon'ble Supreme Court
that the file in question had travelled through proper channel and if any
extralead was given to the contractor it was in the interest of public so as to
complete the dam within a timeframe. The Hon'ble Supreme Court in
paragraph 29 of the judgment has stated as under :
34.
“29. At the outset, however, we must place on record
that construction of the dam over River Hasdeo Bango
became necessary for the purpose of supply of water to
National Thermal Power Corporation. It was a World
Bank Project. The project was required to be completed
within a timeframe. Stones required to be used for the
construction of the dam, as of necessity, were required to
be of sufficient strength.”
The Hon'ble Supreme Court, concluded that the absence of
public interest is sine qua non for later category of cases [under Section
13(1)(d) (iii)].
35.
In the present case, respondent No.2 is accused of the offence
punishable under Section 13(2) r/w. 13(1)(d) of the Prevention of
Corruption Act. The applicants (CBI) have not specifically stated as to
whether the case of respondent No.2 will fall under Section 13(1)(d)(ii) or
(iii) of the Prevention of Corruption Act. As far as Section 13(1)(d)(ii) is
concerned, absence of public interest is not sine quo non for prosecuting a
public servant for the said offence. Under Clause(iii) of Section 13(1)(d)
what the prosecution is required to demonstrate is that the accused was
holding public office and he obtained for any person valuable thing or
pecuniary advantage without any public interest. If the case of respondent
No.2 is examined under Section 13(1)(d) (ii) the question of proof of
absence of public interest does not arise. Even if the case of respondent No.2
is examined under clause (iii) of Section 13(1)(d) what can be seen from the
material placed before the trial Judge is that respondent No.2 was holding
public office and he had obtained pecuniary advantage for his motherinlaw
and brother of his fatherinlaw. As far as issue of 'public interest' is
concerned, the learned Senior Advocate Mr. Desai has submitted that since
other societies situated in the same vicinity are granted similar benefits in the
past, there was no reason to reject the prayer of Adarsh Society. No evidence
is placed before the trial Judge or this Court to indicate that the similar
benefit is given to other societies in the past. Even if it is accepted for the
time being, for the sake of arguments, that similar benefit was given to other
societies also, it cannot be said that it was in the interest of public. It cannot
be coincident that two of the close relatives of respondent No.2 got two flats
worth crores of rupees according to the market value, by investing much
lesser amount as compared to market value. The learned Senior Advocate
Mr. Desai has submitted that the file regarding approval of nondeduction of
15% R.G. had travelled from various concerned officers and had reached
respondent No.2 through proper channel. It is submitted that respondent
No.2 had not done anything out out turn. In my opinion, the trial Court is
not required to examine finer aspects of the case at the time of taking
cognizance of the offence. Without commenting much on the merits of the
case, what can be stated is that the stage of taking cognizance is altogether
different as compared to the stage of framing of charge. The Judge takes
cognizance of the offence at the former stage and at the later stage he
decides as to whether a particular charge can be framed against a particular
accused or not.
In my opinion, the examination of the case of respondent No.2
36.
either under Clause (ii) of Section 13(1)(d) or Clause (iii) of the said Section
did not allow the Special Judge at this stage to declare that no material was
placed before him to take cognizance of the offence. In fact, the learned
Judge has taken cognizance of the offence by stating in very unambiguous
language that exoneration of respondent No.2 for want of sanction from the
Governor for prosecution of the offences under the Indian Penal Code does
not by itself entitles respondent No.2 to get relief from other offences.
Though the learned Special Judge has stated that the cognizance of the
offence has not been taken, the order clearly indicates that the cognizance of
the offence has been taken and the learned trial Judge has formed opinion
which can be reproduced as under :
“6. Prosecution has filed application under section 169
r/w 173(2) of Cr.P Section 169 of Cr.P reads
Release of the accused when evidence deficient.
Prosecution is praying deletion of the name of Shri
Chavan on the ground of refusal of sanction by Hon'ble
Governor. Sanction order passed by Hon'ble Governor
shows sanction is refused under section 197 of Cr.P.C.
against Shri Chavan for prosecution under section 120
B, 420 of IPC. In this case Shri Chavan has also been
chargesheeted under section 13(1)(d) r/w 13(2) of P .C.
37.
Act. It is separate offence. It would not go off with
sections of IPC. Moreover there is no provision under
section 169 of Cr.P. C. for deletion of name of accused
when there is refusal of sanction. ...”
It is, thus, clear that the learned trial Judge has given a finding
that despite the application by CBI for closing the case or deleting name of
respondent No.2, it was not possible to do so because the offence punishable
under Section 13(2) is independent of the offences for which the sanction
has been refused by the Governor. For all these reasons, the application
application.
Exh.46 has been rightly rejected. There is no substance in the revision
The revision application, therefore, stands dismissed.
At this stage, the learned Additional Public Prosecutor Mr.
Venegaonkar prays for stay on the effect and operation of this order. Since
adinterim relief was there in operation for last about six months, it is just
and proper that this order is stayed for a period of four weeks from today.
The order stands stayed for the period of four weeks.
JUDGE
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