Monday 30 March 2015

Whether name of accused can be deleted from charge sheet U/S 169 of crpc when there is refusal of sanction by governor?


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 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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