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.
