Maharashtra: Closer look at Ashok Chavan's acquittal in the Adarsh housing scam

Much is being made of former Maharashtra chief minister Ashok Chavan's acquittal in the Adarsh housing scam and the controversy over the governor's nod to sanction.

Chavan got relief after the Bombay High Court rejected the governor's sanction to prosecute him. While the present governor had given the nod, his predecessor had refused.

However, was a sanction to prosecute Chavan required in the first place? Apparently not, if one goes by the file noting of the Central Bureau of Investigation (CBI) related to the subject accessed by Mail Today.

Officers up to the level of special director had said repeatedly that sanction is not needed. The opinion changed when the file reached the table of the then CBI director Ranjit Sinha who insisted that sanction for prosecution was required.

When Mail Today contacted Sinha, he said, "I don't remember the facts now. It's been many years. But I must have taken legal opinion. One legal opinion always differs from another. Anything I did would have been based on merit and legal opinion."

Till the time of going to press, the CBI spokesperson could not be reached despite several calls. So what did the file noting really record?

Then CBI special director VK Gupta, in a three-page opinion, was clear that sanction 'was not necessary against retired/ex public servant for charging them under the various sections of the Prevention of Corruption Act. As Shri Ashok Shankarrao Chavan had ceased to be a minister when the case was finalised, there is full justification for not taking sanction for prosecution.'

Interestingly, the CBI in its defence quoted the example of former telecom minister A Raja, also acquitted last week in the 2G case.

While the agency was being circumspect in taking legal opinion again and again in the matter of Chavan, it had actually gone ahead and chargesheeted Raja in 2011 without seeking any sanction.

The charge sheet filed five months after the scam blew up in the Parliament's winter session of 2010 was filed without any sanction as Raja had by then ceased to be a public servant.

The CBI special director had said, "Trial court has already framed charges against him, without any question having been raised about the need for sanction of prosecution."

He cited the opinion of the Assistant Legal Advisor (ALA), who had said, "Retired officials as well as serving public servants and then Revenue/chief minister will not get the benefit under Section 197 of the CrPC (Criminal Procedure Code) for the reason that entering into conspiracy and cheating are not part of discharge of their official duty."

The special director went on to say, "An act of cheating is not to be regarded as act committed in the discharge of official duty. I am of the clear view that sanction for prosecution under Section 197 CrPC is not required."

The CBI went through the entire rigmarole of seeking legal opinion after Chavan wrote to the agency director pointing out that sanction to prosecute had not been sought while filing a charge sheet, cognisance of which was to be taken by December 12, 2012, as per file noting of the then joint director, Mumbai, Keshav Kumar.

Chavan had sought to draw parallels with former Uttar Pradesh chief minister Mayawati, calling attention to the fact that the CBI had sought sanction in her case. The agency officials, however, pointed out that the sanction was taken 'under the directions of the special judge.'

When the file was put up before Sinha, he wrote on it, "We have to be certain on facts on the issue of comparison of instant case with that of Mayawati which was also investigated by the CBI. Lucknow branch may be asked to come up with full facts so that a considered view can be taken."

In the final run, Sinha insisted that the CBI needed sanction of the governor to prosecute. While Chavan called the entire probe politically motivated, the Congress had claimed there never was any Adarsh housing scam.

Then governor K Sankaranarayanan refused sanction in 2013. The CBI then sought sanction again in 2015, when the National Democratic Alliance (NDA) government came to power, on the ground that it had fresh evidence against Chavan.

While acquitting Chavan earlier this week, the high court said, "It was permissible for the Hon'ble Governor (Rao), the sanctioning authority in the present case, to review or reconsider the earlier decision of the erstwhile governor's (his predecessor governor K Sankaranarayanan) decision not to grant sanction, since the CBI claimed that some fresh material had surfaced after the earlier sanction was refused."

"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," the bench said.

The fresh material that the CBI was referring to was a judicial commission report which was actually never tabled in the state Assembly.

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