Jharkhand High Court
Mithilesh Kumar Singh vs State Of Jharkhand Through Central ... on 10 February, 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 829 of 2013
with
Cr. M.P. No. 833 of 2013
with
W.P.(Cr.) No. 73 of 2013
with
Cr. M.P. No. 262 of 2014
Mithilesh Kumar Singh... ............. Petitioner (In all the cases)
Versus
State of Jharkhand through CBI ...... Opp. Party (In all cases)
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Coram: Hon'ble Mr. Justice R.R.Prasad
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For the Petitioners : Mr. B.P.Pandey, Sr. Advocate
M/s S.N.Singh, B.N.Ojha, Advocates
For the CBI : Mr. K.P.Deo, APP
......
O R D E R
C.A.V. On 24/07/2015 Delivered on 10/02/2016
32/10.02.2016Since, the issue involved in the aforesaid four cases is the same, it were heard together and are being disposed of by the common order though all the cases do arise out of the different R.C. Cases.
2. Pursuant to the order passed by the Hon'ble Supreme Court as well as the Patna High Court, the CBI took up the matter for investigation during which it registered 64 cases, including R.C. Case Nos. 25(A)/1996, 33(A)/1996, 38(A)/1996 and 20(A)/1996, which are the subject matters of these cases.
3. According to Mr. Pandey, learned senior counsel appearing for the petitioner, when the CBI took up the matter for investigation of the Fodder Scam cases, it recorded the statements of one S.B.Sinha, (since died) a king pin of the Scam known as Fodder Scam. He, in his statements, named all those persons, who were involved in one way or the other in defrauding the State and misappropriating a colossal amount. On that basis Clerks, Peons, TVOs of the Animal Husbandry Department and also the Treasury Officers and Treasury Clerks, who were the beneficiaries, were made accused. However, the beneficiaries at the highest level were left out though their names did find figure in the statements of S.B.Sinha. However, some big personalities like Jagannath Mishra and Laloo Prasad Yadav, the former Chief Minister of the State of Bihar, were made accused. The entire focus of the investigation was against them and, thereby, the CBI did not care to look or take into account the culpabilities of others though they were equally responsible as they were also the beneficiaries of the Scam. In that event, the petitioner, being a social activists, when was able to get hold of certain documents, came to know that Dr. Shyam Bihari Sinha had made statements in connection with R.C. Case No. 32/1996, wherein it was disclosed that the payments to the politician were made through one Umesh Pd. Singh, the then Section Officer, Cabinet Vigilance Department, Government of Bihar and, therefore, he was arrested but he did not confirm the statement of S.B.Sinha of payment being made to Nitish Kumar and Shiva Nand Tiwary though S.B.Sinha, in his statement, was quite categorical that Rs. 1 crore had been given to Nitish Kumar and around Rs. 3040 lakhs to Shiva Nand Tiwary. According to the statements made by S.B.Sinha, one Bijay Kumar Mallick was directed to pay one crore to Umesh Pd. Singh for being paid to Mr. Nitish Kumar and, thereby, Bijay Kumar Mallick paid one crore to Umesh Pd. Singh at New Delhi, which seems to have been paid to him as Mr. Nitish Kumar confirmed telephonically about receipt of the money. Such statement of S.B.Sinha also gets corroboration from the statement of Umesh Pd. Singh, who, in his statement, confirmed that Bijay Kr. Mallick was a person, who used to give money to conduits for making payment to big politician and that Bijay Mallick at the instance of S.B.Sinha handed over Rs. 4 lakhs in Marina Hotel to Mr. Shiva Nand Tiwary.
On account of culpability of Umesh Pd. Singh being there, he was taken into custody. When the bail application was moved on his behalf, it was opposed by the CBI and the bail application was rejected by the Court. Thereupon, Umesh Pd. Singh filed a writ of habeas corpus (Cr.W.J.C No. 842/1996) in which one Javed Ahmad, the then Superintendent of Police, S.P.E., CBI, Patna, filed a counter affidavit, wherein it was stated that the petitioner (Umesh Pd.Singh), was offered by one of the prime suppliers/accused of the case, a huge amount of money in crores to influence the then political personalities and the petitioner (Umesh Pd. Singh) was used as a conduit and, thereby, the petitioner (Umesh Pd. Singh) was deeply involved alongwith other accused persons whereby crores and crores of rupees were misappropriated.
The aforesaid accusation also gets confirmed from the statements of R.K.Das, one of the accused whereby he, in his 164 statement, had stated that S.B.Sinha had disclosed that Nithsh Kumar is being paid money by R.K.Rana.
4. According to Mr. Pandey, learned senior counsel, had the investigation being made in right perspective against Nitish Kumar and Shiva Nand Tiwary on the basis of the materials surfaced against them, sufficient materials could have been collected for submitting charge sheet like that of Laloo Prasad Yadav, Jagannath Mishra and others.
In this regard, it was further submitted that the CBI may not have submitted charge sheet against them probably by forming an opinion that sufficient materials are not there, which prerogative the investigating agency does have but such opinion formed by the investigating agency is not final as it is always subject to scrutiny by the Court who has a right under the statute either to accept or reject or can direct for further investigation but the CBI never placed materials collected against those two persons before the Court and, thereby, the Court had no opportunity to scrutinize it. Had those materials been brought, the Court would have scrutinized it as it is the duty of the Court to see that no innocent person is harassed but at the same time no guilty should be spored and, therefore, even if according to CBI, there was no sufficient materials, those materials should not have been brought to the notice of the Court so that the Court may have or may not have taken cognizance or could have passed order for further investigation if the court would have felt necessity of it.
In this regard, learned counsel referred to a decision rendered in a case reported in "AIR 2012 (SC) 2326", wherein it has been held that "The Court is vested with very wide powers in order to equip it adequately to be able to do complete justice." At the same time the Hon'ble Supreme Court also did observe that "the Court's has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation."
5. In the context of the aforesaid decision, it was also submitted that primafacie materials had also been collected against the Accountant General and the Officers and Staff attached to the Accountant General office, which is evident from the preliminary inquiry made by one Shri John,Dy.S.P., wherein he had reported that fraud continued on account of connivance and /or negligence on the part of the Officials and Staffs of A.G. Office as the said fraud continued for more than 15 years, whereby the scamesters went on withdrawing without there being budgetary allocation.
6. Thus, it was submitted that since it was expedient in the interest of justice that once the crime has been detected and accusation primafacie appears to be correct then the investigation was required to be made against those persons and, therefore, applications were filed on behalf of the petitioner before the trial court in all the aforesaid four R.C. Cases praying therein to direct the Investigating Officer to take up the matters for further investigation with respect to the persons stated above but that was rejected without considering the gravity of the matter and, thereby, the petitioner has moved to this Court, wherein prayer has been made to direct the CBI to take up the matter for further investigation in terms of Section 173 (8) Cr.P.C.
7. A counter affidavit has been filed on behalf of the CBI, wherein it has been stated that it is fact that Late S.B.Sinha had stated about giving of Rs. 1 crore to Nitish Kumar and Rs. 3040 lakhs to Shiva Nand Tiwary through one Bijay Mallick and Umesh Pd. Singh respectively. The statement of Umesh Pd. Singh was recorded during investigation in R.C. 20 (A)/1996 (P) and R.C. 25(A)/1996 (P) and the statement of R.K.Das, an approver, was recorded during investigation in R.C. 22(A)/1996 (P) and as per their recorded statements, money was paid to Nitish Kumar and Shiva Nand Tiwary through Bijay Mallick and R.K.Rana respectively. Further, it has been stated that R.K.Das had stated during investigation under Section 164 Cr.P.C that Nitish Kumar was also given an Air Ticket beside Rs. 1 lakh when he became Member of Parliament.
In this regard, it was pointed out that all the aforesaid R.C. Cases, giving rise to these applications, have been disposed of except R.C. 38(A)/1996 (P) but during trial none of the witnesses depose the fact relating to handing over money to Sri Nitish Kumar and Shri Shiva Nand Tiwary supporting the whisper made by S.B.sinha, R.K.Das and Umesh Pd. Singh. In this regard, it was elaborated that in connection with the investigation of R.C. 20(A)/1996 (P), wherein R.K.Das, S.B.Sinha and Bijay Mallick were the accused, but those accused persons during investigation never stated about the payment being made to Shri Shiva Nand Tiwary and Shri Nitish Kumar.
So far R.C. 25(A)/1996 (P) is concerned, the statement of Umesh Pd. Singh in respect of alleged payment made to Shri Shiva Nand Tiwary and Shri Nitish Kumar, was neither corroborated by R.K.Das nor by Late S.B.Sinha before the investigating Officer.
8. As regards R.C. 33(A)/1996(P), it was stated that the statements of the aforesaid persons, i.e. Late S.B.Sinha, R.K.Das, Bijay Kr. Mallick and Umesh Pd. Singh, were not recorded taking into account that their statements had already been recorded in other Fodder Scam cases.
9. The CBI has further come with the plea, as has been stated in the supplementary counter affidavit that the role of the Accountant General Officials was investigated into and where ever negligence were found on their part, recommendations have been made for taking departmental action. It was further pointed out that in the year 1999 one PIL was filed vide C.W.J.C. No. 7583 of 1999, before the Patna High Court seeking direction upon the CBI to investigate the role of the Accountant General and his officers but that case was dismissed. However, another attempt was made by another person by filing CWJC No. 1617 of 1996, before the Patna High Court, which was also dismissed.
10. Similarly, investigation was conducted in respect of the role being played by the Income Tax Authority and CBDT. The CBI did find acts and omission on the part of Shri A.C.Chaudhary, the then Commissioner of Income Tax, Ranchi and, thereby, he was charge sheeted and has also been convicted in R.C. No. 20(A)/1996(P). Further it was pointed out by the learned counsel appearing for the CBI that the application was filed at the belated stage when the R.C. Case No. 20 (A)/1996 (P) was at the stage of judgment and, thereby, it has rightly been rejected by the Court.
11. Having heard counsel appearing for the parties and on perusal of the records, I do find that the petitioner, on the basis of the statements of the accused and even that accused turned approver and also the statement of one Umesh Pd. Singh, stating therein about the money being paid to the persons, named above, has been intending that the matter be taken by the CBI for further investigation against them and also against the officials of the A.G.Officer as according to the petitioner, primafacie materials have surfaced showing involvement of those persons in the alleged Fodder Scam. It would be worthwhile to mention here that all the aforesaid R.C. Cases giving rise to this application, have been disposed of except R.C. Case No. 38(A)/1996 (P) and that according to the CBI, even the material was not there for submissions of the charge sheet against the persons against whom further investigation has been sought to be taken.
In such situation, when in most of the cases the trial has even concluded and the case which has not been concluded is at the fag end of its conclusion, it would not be desirable to direct the CBI to go for further investigation and also for the reason that similar matter, raised before the Hon'ble Patna High Court, did not find favour as the Patna High Court in CWJC No. 1617 of 1996, was pleased to observe in its order dated 05/10/2001, as follows: "There cannot be any doubt that the role of the Accountant General and its offices should also be looked into, but this Court cannot say as if sitting in appeal that there are materials on the basis of which chargesheet should be submitted against the Accountant General and its officers and staff. The CBI asserts that it has looked into various aspects relating to submission of audit report etc. and it is not possible to either reject or accept the plea. It goes without saying that during the course of trial if any such material comes to the notice of the trial court it is open to it to proceed against concerned officials and staff of the Accountant General's Office in terms of section 319 of the Criminal Procedure Code and summon these to stand trial. Another important aspect of the matter is that chargesheets have been submitted in most of the cases including the cases covering the conspiracy angle and they are now at the stage of trial. Any direction of this court as suggested by the petitioner,may virtually result in reopening of the investigation which may seriously prejudice the trial."
12. That apart, in another case Patna High Court has passed order on 12/05/2000 in CWJC No. 7583 of 1999, to the following effect: "The investigation in conspiracy angle cases was concluded long time back and at this stae it is not possible for this court to issue any direction to the CBI to make further investigation as that would amount to reopening the investigation. We may mention here that in some cases related to conspiracy, chargesheets have been submitted and they are pending trial.
Besides, it appears primafacie that the action of the petitioner is motivated for personal reasons than public interest. We, therefore, do not want to entertain the writ petition, which is accordingly summarily dismissed."
13. Thus, it never appears to be desirable at this stage to direct the CBI to go for further investigation.
14. Under the circumstances, I do find that the trial court was absolutely justified in rejecting the prayer. Accordingly, all these applications stand dismissed.
(R.R.Prasad, J) Mukund/cp.3