According to a trail of documents from the CBI, overwhelming opinion within the agency held that Chavan, like former telecom minister A Raja in the 2G scandal, could be prosecuted without prior sanction.
The documents suggest that the director of prosecution and special director were among those who felt the agency was not required to move the governor. However, the agency went ahead and sought prosecution sanction from the state governor.
CBI chief Ranjit Sinha admitted that opinion was split on the issue but said that this was not unusual. "There were divergent views which is par for the course in the CBI but the final decision was taken after due diligence," he said.
Under the rules, the CBI chief has the final say on prosecution matters and can overrule the director of prosecution — a prerogative which has been used by several directors in important cases — for instance the 2G and Arushi murder cases.
When CBI sought sanction from Maharashtra governor K Sankaranarayanan he rejected it, and the CBI promptly moved the court to remove Chavan's name from the list of accused. However, the CBI court last Saturday rejected the agency's plea.
The CBI discussion on if they need to seek sanction from the governor against Chavan started with the former chief minister submitting a representation to the CBI chief. In a note, Keshav Kumar, joint director heading CBI Mumbai zone-I, pointed out that the additional legal advisor has said there was no need for sanction under 197 CrPC. "I am of the view that the retired officials as well as serving public servants and then revenue/chief minister will not get the benefit" of seeking prior permission, since "conspiracy and cheating are not part of discharge of their official duty," the advisor had written. Kumar however requested his superior, special director CBI, to look into the issue.
In an opinion given on December 13, 2012, special prosecutor JB Singh had pointed out that the "offence of cheating and criminal conspiracy to cheat do not have any nexus with discharge of duty of any public servant." And hence there was need for prosecution sanction. He also pointed out that the law on sanction under section 19 of Prevention of Corruption Act 1988 was settled in many cases including that of Dr Subramanian Swamy's case in the 2G scam.
CBI's director of prosecution Abdul Aziz wrote his opinion on December 19, 2012. He concluded: "Since chargesheet (has) already been filed, if any such plea (on need for prosecution sanction) is raised before the court that can be contested on the above line that since the principal offence allegedly committed by A-11 (Chavan) is of cheating" and no sanction was required.
On December 21, 2012, just 10 days before he retired, CBI special director VK Gupta wrote that Chavan has compared his case to that of Mayawati's in the Taj corridor case, in which the trial court had asked CBI to seek sanction. However, Gupta pointed out, based on several cases, that "there is full justification for not taking sanction for prosecution under this section (19 of the Prevention of Corruption Act) against him."
Gupta pointed out that in the 2G case, the Supreme Court had held that "sanction for prosecution for offences committed under Prevention of Corruption Act was not required against an ex-minister who had resigned from office." He cited the case of A Raja in the 2G scam, and that no prior sanction was sought.
Gupta also argued that in view of the explanations "an act of cheating is not to be regarded as act committed in the discharge of official duty and cannot be said to have any nexus with performance of such duties."
"Accordingly, in view of the recommendation received from the officials below, I am of clear view that sanction for prosecution under section 197 of the Code of Criminal Procedure is also not required in respect of Shri Ashok Shankarrao Chavan." He went on to say there was "no ambiguity" in the way the entire issue has been dealt by the additional legal advisor. In the event, the view was disregarded.
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