1. Heard.
2. ADMIT.
3. Heard finally by consent of the learned counsel for the parties.
4. This criminal revision application impugns the order passed by 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 (accused No.11 Ashok Shankarrao Chavan) from the chargesheet and closing the case against him.
5. 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 Block-VI 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 Co-operative 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.
6. After completion of the investigation chargesheet was filed 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.
7. Accused No.1 R.C. Thakur is retired SDO, Defence Estate Office, 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 respondent No.2 and others is necessary to be recorded here :
8. It is alleged that, in pursuance of the said conspiracy, accused 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 10th 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 MandG 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 MandG 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.
10. It is further alleged that since this hurdle of road widening was 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, sister-in-law 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 from the development plan was included partially in residential zone.
12. 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.V. 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 Zone-II. 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, MandG 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.
15. In the meantime, there was a Parliament Question seeking 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 non-deduction 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 non-deduction of 15% R.G. was approved on the pretext of 'past precedence'. What is further alleged is that the mother-in-law and brother of father-in-law of respondent No.2 got one flat each in the society in lieu of the approval of non-deduction 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 sister-in-law Mrs. Seema Sharma. The second set of allegations against him is that he approved non-deduction of 15% R.G. to get two flats one each for his mother in law and brother of father in law.
19. At the time of filing of the chargesheet it was stated by the CBI 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 4th 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.
22. The learned Special Judge rejected the application on two 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.
24. As far as first issue is concerned, it was brought to my notice 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:
â4. 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.â
26. Reliance was placed on the judgment of the Hon'ble Supreme Court, in the case of K.R.PurushothamanVs. 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:
â21. 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.â
27. What is pertinent to note here is that the appellant K.R. 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:
â18. 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 accused-appellant had accompanied him to Coimbatore, it cannot be inferred that there was an agreement entered into between them to misappropriate the gold. ...â
28. As such, in the said case the Hon'ble Supreme Court had come 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 non-deduction 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 go-away 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 of individual acts of the appellant.
31. 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 father-in-law of respondent No.2 are concerned, it is stated that the request of society for non-deduction 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 non-deduction of R.G. was pending, mother in law of respondent No.2 and brother of his father-in-law applied for membership and they were allotted flats later on.
32. The learned counsel has submitted that non-deduction of R.G. was granted in the public interest. It was pointed out that in many other cases the non-deduction of R.G. was approved in the same locality by the Government. The learned Senior Advocate Amit Desai has submitted that had the non-deduction 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:
â35. 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 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. Subsection (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.â
33. I have gone through the full text of the judgment. Respondent SheetlaSahai 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 SheetlaSahai 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 extra-lead 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:
â29. 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.â
34. 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 mother-in-law and brother of his father-in-law.
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 non-deduction 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.
36. 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:
â6. Prosecution has filed application under section 169 r/w 173(2) of Cr.P.C. Section 169 of Cr.P.C. 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 120B, 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. ...â
37. 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 Exh.46 has been rightly rejected. There is no substance in the revision application. 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 ad-interim 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.