Responding to accusations that Chavan proposed including civilians as Adarsh members, the Governor’s order read, “The CBI has not been able to collect/ produce any evidence at all, leave aside the evidence that would prima facie disclose even a grain of truth in this regard. No prima facie case therefore exists for this allegation at all.”
The CBI had written to the Governor on August 19 last year seeking grant of sanction, and the Governor’s refusal was sent four months later, on December 17. “For the prosecution of the accused under Section 19 of Prevention of Corruption Act, Governor’s sanction is not necessary. Having considered the above matter from all angles, the entire papers and documents, I do not find that even a prima facie case is made out and hence the request of the CBI for sanction to prosecute under Section 197 of CrPC is liable to be rejected,” read his order.
Section 197 is invoked when a judge or a public servant is acting in the discharge of his official duty, in which case sanction is needed to prosecute him.
While official communication from the Governor’s office was accessed, the CBI denied permission to the Governor’s office to make available all documents it had submitted as evidence against Chavan.
The trail of documents shows that Sankarnarayanan sought the opinion of the Attorney General and the Solicitor General on whether the conduct of the accussed falls under the definition of “acting or purporting to act in the discharge of his official duty” appearing in Section 197 of the CrPC and consequently whether the Governor’s sanction is required. He also asked if he was required to obtain the aid and advice of the council of ministers.
The AG returned the papers in November stating that the CBI had, through the DoPT and Ministry of Law, also sought his opinion with regard to the necessity for obtaining sanction and he had already rendered an opinion. He said it would not be proper for him to give his opinion to the Governor in this regard.
The SG stated that the sanctioning authority needs to be solely guided by his own application of mind based on available material and his opinion is only for general legal or factual exposition of the queries raised. He said the issue of grant or refusal of sanction under Section 197 does arise in the case. Moreover, there would be an element of bias if the aid and advice of the council is sought in the case. Based on the facts and circumstancesof the case and after close scrutiny of the materials on record, no prima facie case exists for grant of sanction to prosecute, he said.
The SG also said he had learnt that the AG had said it was incumbent to obtain sanction under Section 197 of the CrPC before prosecuting Chavan. “The said opinion was accepted by the CBI and hence it sought sanction from the Governor,” the SG’s note said.
Shailesh Gandhi said both the Governor and the SG, by commenting on the evidence submitted by the CBI, acted like judges. “The Governor was expected to make out if Chavan legitimately or illegitimately acted in the discharge of his duty and accordingly grant or refuse sanction,” he said.