Jharkhand High Court
Ajay Kumar Jha vs State Of Jharkhand Through C.B.I on 1 March, 2019
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 1010 of 2018
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Ajay Kumar Jha --- --- Petitioner
Versus
State of Jharkhand through C.B.I --- --- Respondent
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CORAM : The Hon'ble Mr. Justice Aparesh Kumar Singh
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For the Petitioner : Mr. Prashant Pallav, Adv.
Mr. Parth Jalan, Adv.
For the C.B.I : M/s. Rajiv Sinha, ASGI, Rajiv Nandan Pd.
: M/s. Nipun Bakshi, Ashutosh Anand,
Kumar Vaibhav, A.C.
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09/01.03.2019 Petitioner is aggrieved by the order dated 9th March, 2018 passed
in R. C. Case No. 45(A) of 1996-Pat by learned Court of Special Judge-VII, C.B.I. (AHD Scam), Ranchi, whereunder the learned Court has found prima facie case against this petitioner under Section 120(B) read with 420, 467, 468, 471 and 477A of the Indian Penal Code and Sections 13(2) read with 13(1)(c) and (d) of Prevention of Corruption Act. It has further directed the C.B.I. to seek sanction for prosecution from the competent authority and file the same within one month as the petitioner is a Government employee.
2. The extract of the order dated 9th March 2018 as against the present petitioner is as follows:
"It is also clear from perusal of records that C.B.I. Inspector Ajay Kumar Jha conduct investigation in this case, he prepared and drafted of charge-sheet but it is pertinent that in charge-sheet page no.64 that accused persons namely Dr. Md. Sayeed, Shiv Kumar Patwari and Naresh Prasad are to be taken as approver in this case for which separate steps as per law will be taken in due course. It is surprising that when investigation is complete and I.O. found clue that accused persons involve in criminal conspiracy and criminal misappropriation of the government money which was withdrawn from Dumka Treasury during financial year 1991-92 to 1995-96. It is also found that without supplying the material prepared fake and forged vouchers by firms. The AHD employee granted received in favour of funds without receiving supply materials. The Regional Director Shesh Muni Ram and later on Om Prakash Diwakar withdrawn money and illegally paid to the firms. Later on facilitated and hospitalities by this illegal withdrawn money, Ajay Kumar Jha examined in this and P.W.197 dated 6.4.2016 clearly accepted in para-109 that D.C. is custodian of Treasury but do not inquire against D.C. In para-98 accepted that they prepared charge-sheet -2- in the light of documentary and oral evidence in para-99 accepted that Dr. Parimal Chakarborty, time period as Regional Director, AHD, Dumka August 1988 to 14.08.1991 but do not make accused and stated that Parimal Chakarborty is dead. Whereas Parimal Chakarborty is alive and punished in another case. Further in para-66 accepted that Dr. Pitambar Jha who posted in Deoghar suspended due to issued fake supply receipt but they made witness in R.C.64A/1996 as witness and not an accused. Further accepted in para-37 that accused Sanjay Kumar Agarwal live at the resident of Dr. Shesh Muni Ram at Patna and two firm M/s Sanjay Kumar Dumka and others supervise by two boys Pankaj and Niraj S/o Shesh Muni Ram, who also received payment and signature but Ajay Kumar Jha do not inquire and submitted charge-sheet against Pankaj and Niraj S/o Shesh Muni Ram. In this way court found that Ajay Kumar Jha save accused persons of this case and provide a protection of umbrella to accused persons. One more example of A.K.Jha in para-13 and 15 where accepted that Mahendra Prasad conduct account of S.R. Enterprises so they made accused in R.C. 20A/1996 and firm owner Sarswati Chandra do not made accused but in present case R.C. 45A/1996 Sarswati Chandra made accused with her husband Mahendra Prasad because she is firm owner of S.R. Enterprises. Ajay Kumar Jha exercised his power in arbitrary way which shows that they are involved in criminal conspiracy with other fodder scamsters and court found that he misused his post being government employee so he is also liable to prosecute in Prevention of Corruption Act.
In the light of above discussion, court found prima-facie case U/s 120(B) read with Sections 420, 467, 468, 471 and 477A of the Indian Penal Code and Sections 13(2) read with 13(1)(c) and (d) of Prevention of Corruption Act. Ajay Kumar Jha a government employee so C.B.I. is directed to seek sanction for prosecution from competent authority and file within month in the court. O.C. is directed to separate the record from original record and fixed on 12.04.2018 for awaiting sanction order."
3. Learned counsel for the petitioner has placed the order impugned and made submission, both on facts and legal grounds in order to assail the legality and correctness of the case. He submits that this R.C. Case No.45(A)/1996-Pat. under the fodder scam cases specifically relates to Dumka Treasury from where fraudulent withdrawal under the AHD Department took place between the period 1991-92 to 1995-96. The learned CBI Court has framed an opinion based on certain incorrect facts and that too from the charge sheet as well as the deposition of the present petitioner -3- as a prosecution witness no.197 in the instant R.C. Case that he, as an Investigating Officer, had provided an umbrella of protection to several persons referred to therein and not investigated the matter against them and/or chargesheeted them as an accused in the instant case. Learned counsel for the petitioner has divided the observations of the learned CBI Court into sub-parts and dealt with in the following manner :
(I) The learned court carried an impression that petitioner was the Investigating Officer of this case.
Learned counsel for the petitioner in answer to this has categorically submitted that there were four Investigating Officers of this R.C.45(A)/1996-Pat:-
(i) Shri Alok Das Gupta, Inspector CBI who died in 1997
(ii) Shri K.Y. Guru, Dy.S.P., C.B.I. who was the Investigating Officer of this case till 12.11.1999. Thereafter he was transferred to Bengaluru. He was examined as P.W.195 and has categorically stated that he was the Investigating Officer of this case.
(iii) Shri Layak Singh, Inspector, C.B.I. who investigated the case after transfer of Shri K.Y. Guru, Dy.S.P. He was the Investigating Officer as also taken note of in the final judgment dated 9th April 2018 at page-142, part of paragraph no.16.
(iv) On superannuation of Layak Singh one Ashish Prasad took over the investigation from 14th November 2000.
Petitioner was part of the investigating team but not an investigating officer. He has been examined as P.W.197 in the instant case. He had investigated the bank accounts of some of the suppliers who were common to R.C. Case No.20(A)/96 in which the petitioner was the investigating officer. This petitioner was summoned to prove the evidence in addition to the investigation carried out by Shri Alok Das Gupta, the first I.O. who expired at advanced stage of the investigation. Learned counsel for the petitioner submits that final chargesheet in this case was signed by the Investigating Officer Shri Ashish Prasad though submitted before the learned CBI Court through this -4- petitioner. This was pursuant to the letter dated 11 th October 2001 of S.P., CBI, Dhanbad (Annexure-6 to the supplementary affidavit dated 19th June 2018) addressed to the Special Judge, CBI forwarding the chargesheet. The learned Special Court, CBI has taken note of this letter in the order dated 12 th October 2001 (Annexure-7). In the order dated 6th October 2001 whereunder cognizance was taken against 72 chargesheeted accused persons the facts that Ashish Prasad was the Investigating Officer has been taken note of by the learned court. Though petitioner was not the Investigating Officer of this R.C. Case, but so far as the decision to implicate/chargesheet a person as an accused is concerned, the Investigating Officer was not the final authority. In the fodder scam cases which were being monitored by the Hon'ble Patna High Court, decision to chargesheet a person as an accused was taken at the highest level of Director, CBI. Therefore, petitioner though not the Investigating Officer of this case could not have granted any umbrella of protection to any of the persons whose name figures in the order impugned. Learned counsel for the petitioner has made specific reference to the orders passed by the Apex Court in the case of Union of India Vs. Sushil Kumar Modi reported in (1996) 6 SCC 500 in relation to the investigation of fodder scam cases. It was held therein that in case of any difference of opinion between the officers of the CBI in relation to the implication of any individual, the matter would be determined according to the opinion of the learned Attorney General of India. He submits that this order was clarified by the Hon'ble Supreme Court by order dated 24th January 1997 reported in (1997) 4 SCC 770. The Apex Court further clarified its direction by the order dated 7th April 1997 making it clear that no reference would be required to be made by the Director, CBI to the Attorney General if he is of the opinion that an individual has to be prosecuted, irrespective of the difference, if any, amongst -5- other officers of the CBI since in that case the CBI must act promptly to commence the prosecution. It is only if the Director, CBI takes the view that an individual is not to be prosecuted that he cannot close the case and in that event, he must refer the matter to the Attorney General for his opinion. In such a case, if the Attorney General is of the opinion that the individual must be prosecuted then the Director, CBI is to promptly act on that opinion and commence the prosecution. If, however, the Attorney General also concurs with the Director, CBI that the individual is not to be prosecuted, then the matter has to be reported to the court for examination by the Court within the parameters of such a proceeding. Learned counsel submits that in the light of the legal position as devised by the Apex Court the decision to prosecute or not to prosecute did not lie at the level of the Investigating Officer of the CBI. Therefore, even though the petitioner was not investigating officer, petitioner could not have granted an umbrella of protection to the persons whose name figures in the impugned order.
(II) The learned court has made specific reference to the names of Dr. M. Sayeed, Shiv Kumar Patwari and Naresh Prasad, accused persons in this case who were taken as approvers. The learned court has opined from perusal of record that this petitioner as an Inspector of CBI conducted investigation in this case, prepared and drafted the chargesheet where these persons were named as accused and that they have been taken as approvers though they were clearly involved in criminal conspiracy and criminal misappropriation of the government money withdrawn from Dumka Treasury during the period in question.
In answer to the aforesaid observation, learned counsel for the petitioner submits that on the face of it, the observations cannot be made a basis for indictment of the petitioner even assuming that he conducted the investigation and drafted the chargesheet. Since these three persons were chargesheeted and made an accused, the role of an investigating officer had been duly performed. The decision to accept these persons as -6- an approver in support of the CBI was not taken at the level of an Investigating officer but at the highest level of the CBI. These persons were later on adduced as prosecution witnesses also. As such this observation cannot be the basis to form an opinion that he had provided an umbrella of protection to these persons.
(III) It is pointed out by the learned counsel for the petitioner that based upon the deposition of this petitioner as P.W.197 in the instant R.C. Case at para-109 in particular, the learned court has formed an erroneous impression that the role of Anjani Kumar Singh, then Deputy Commissioner, Dumka was not duly inquired into by this petitioner, though he accepted that the Deputy Commissioner is a custodian of Treasury. Learned counsel for the petitioner has reiterated the answers given in above paragraphs.
Learned counsel has referred to deposition of the petitioner and specifically para-109 thereof (Annexure-4). He points out that as per his deposition Anjani Kumar Singh, the then Deputy Commissioner, Dumka had stopped payments of bills above Rs.1 lakh for a year till his order was cancelled by the Divisional Commissioner, Dumka on 31 st May 1994. There is no incriminating statement as against the then Deputy Commissioner, Dumka Anjani Kumar Singh which could be a basis for the learned court to form an adverse inference against this petitioner on that statement. Learned counsel for the petitioner has made specific reference to the order passed in Cr.M.P. No.910/2018 dated 25th January 2019 in the case of Anjani Kumar Singh Vrs. State of Jharkhand through CBI. He submits that the order of arraignment under Section 319 Cr.P.C. by the same learned Special Judge, CBI in R.C. Case No.38A/96-Pat. relating to fraudulent withdrawal from Dumka Treasury under AHD during the period December 1995 to January 1996 was under challenge and the role of the said petitioner as Deputy Commissioner, Dumka during that period was under legal scrutiny. He submits that this Court in the facts of the said case has after consideration of the factual and legal grounds been pleased to quash the order of arraignment also taking note of the fact that the said -7- petitioner as a Deputy Commissioner, Dumka had been instrumental in stopping the withdrawal above Rs.1 lakh on the basis of his instruction dated 27th August 1993 on a proposal placed by the Treasury Officer, Dumka. This order of the Deputy Commissioner, Dumka was later on revoked by the then Divisional Commissioner Mr. S.N. Dubey vide his order dated 31st May 1994 on the proposal of the then Director, AHD Mr. Shesh Muni Ram. He submits that these material facts were before the investigating agency at the time of filing of chargesheet. The CBI on the basis of all these materials had chosen not to prosecute the then Deputy Commissioner, Dumka. As such though the petitioner was not an investigating officer or final authority to chargesheet a person, his statement at paragraph-109 could not be read in a manner that he had granted an umbrella of protection to Anjani Kumar Singh, Deputy Commissioner, Dumka and not chargesheeted him.
(IV) Learned counsel for the petitioner submits that one Dr. Parimal Chakarborty was the Regional Director, AHD, Dumka during the period 1st July 1988 to 31st December 1990 This fact has been certified vide memo no.98 dated 16th March 2018 brought on record as Annexure-3 issued by the Regional Director, Animal Husbandry, Santhal Pargana Division, Dumka. Learned trial court has on the basis of the deposition of this petitioner at para-99 formed an opinion that Dr. Parimal Chakarborty was posted as Regional Director, AHD, Dumka between August 1988 to 14th August 1991 but he had not been made accused and that he is dead.
Learned counsel for the petitioner has countered this findings of learned Court on this score. He has submitted that apart from the fact that there are no incriminating materials referred to or found as against Dr. Parimal Chakarborty from the deposition of this petitioner in the impugned order, his statement at para-99 indicating the period of his posting up to 14th August, 1991 were based on his memory. He also clarified at the end that he does not remember his period of posting. At paragraph-100 of his deposition as P.W.-197 he had also categorically stated that no materials were found as against Dr. Parimal -8- Chakarborty. He submits that since Dr. Parimal Chakarborty was no longer in the service after 31st December, 1990 as certified by the Regional Director, Animal Husbandry Department, Dumka through Memo No. 98 dated 16th March 2018 (Annexure-3) and the fact that the instant prosecution related to the period 1991-92 to 1995-96 of fraudulent withdrawals from Dumka Treasury, there was no occasion for the CBI to charge-sheet Dr. Parimal Chakarborty. This observation of learned Court is again based on a completely misplaced understanding. The learned court has also failed to refer to any other incriminating material evidence adduced during inquiry or trial as against Dr. Parimal Chakarborty so far as his involvement is concerned.
(V) Learned counsel for the petitioner submits that reference is also made to one Dr. Pitamber Jha in the impugned order as being posted in Deoghar and suspended due to issue of fake supply receipt. Learned Court has observed that he was made a witness in R.C Case No. 64(A)/96 and not an accused. This again has been taken as an adverse material against the petitioner in not conducting the investigation in a non-discriminatory manner and leaving out accused persons really involved in the offence from the array of accused persons.
Learned counsel for the petitioner submits in answer thereto that Dr. Pitamber Jha was an accused charge-sheeted in this case as accused no. 43. Cognizance was taken against him by the order dated 6 th December, 2001, part of the supplementary affidavit. He has also been convicted in the instant R.C. Case by learned CBI Court by judgment dated 9th April, 2018. Such observations were uncalled for and also beyond jurisdiction.
(VI) Reference is made to the observation of the learned court regarding one Sanjay Kumar Agrawal at Para-37 of the deposition of this petitioner as P.W.-197 and that he was resident of Dr. Shesh Muni Ram at Patna. The learned court has further observed that two boys, Pankaj and Niraj sons of Dr. Shesh Muni Ram were found to have received payments and inscribed signatures, but this petitioner did not inquire and submit charge-sheet against these two persons. Thus, he tried to save the accused persons by providing a protection of umbrella.
-9-Learned counsel for the petitioner submits that Sanjay Kumar Agrawal and Shesh Muni Ram were both charge-sheeted as accused no. 36 and 1 in the instant R.C. Case by the CBI and cognizance was taken as against these persons by the order dated 6th December, 2001 by the learned CBI Court. Learned counsel for the petitioner submits that the Firm, M/s. Sanjay Kumar, Dumka were proprietary firm of Sanjay Kumar Agrawal with which two boys, Pankaj and Niraj had no legal connection. They were sons of Dr. Shesh Muni Ram. Learned counsel for the petitioner submits that the seizure- list Ext.-77 containing the signature of Pankaj Kumar dated 5.12.1996 were before the investigating agency at the time of filing of charge- sheet and on consideration whereof CBI had not found it necessary and proper to charge-sheet them. Learned counsel for the petitioner submits that merely because these two boys were sons of Dr. Shesh Muni Ram, the then Regional Director, A.H.D., Dumka, the legal liability to face criminal prosecution did not appear to be made out at the time of filing of charge-sheet by the CBI. It is submitted that even as per the observation of learned Court, these two persons were minor/boys at the relevant point of time. Moreover, no other incriminating material evidence has been referred to in the impugned order as against these persons by the learned Court or finds mention in the deposition of this petitioner as P.W.-197. The learned court was required to deal with "evidence" as contemplated in terms of the ratio rendered by the Apex Court in the case of Hardeep Singh Vs. State of Punjab reported in (2014) 3 SCC 92 specifically paragraph 117.1 while forming a prima facie opinion under Section 319 Cr.P.C. As such, any adverse inference against this petitioner so far as non- chargesheeting of these two persons is concerned, is also misplaced and legally unsustainable.
(VII) The learned court has at conclusion, made reference to one Mahendra Prasad who used to conduct account of M/s. S. R. Enterprises and was made an accused in R.C. Case No. 20(A)/96 and that the owner of the Firm was Sarswati Chandra his wife. These statements have been culled out from the deposition of this petitioner as P.W.-197 at -10- Paras-13 and 15. The learned court has made an observation that Sarswati Chandra was not made an accused in R.C. Case No. 20(A)/96. The instant trial relates to R.C. Case No. 45(A)/96-Pat.
In answer thereto, learned counsel for the petitioner makes a categorical statement based on the order of cognizance dated 6th December, 2001 (part of the supplementary affidavit) that both Mahendra Prasad and Sarswati Chandra were charge-sheeted as accused no. 32 and 57 in the instant case. Therefore, it cannot be said that these two persons were granted any umbrella of protection by this petitioner even though assumingly he was an Investigating Officer, though not so. Learned Court seems to have formed an erroneous impression that this petitioner had acted in an arbitrary way in investigating the matter as Sarswati Chandra was not made an accused in R.C. Case No. 20(A)/96 though her husband, Mahendra Prasad was made so. Learned counsel submits that the observation is beyond the scope of the instant case and in relation to a totally different R.C. Case No. 20(A)/96, the facts, records and materials relevant to it were not before the Court.
4. Learned counsel for the petitioner, while summarizing his arguments on these factual aspects, submits that these adverse observations of learned court proceed from an erroneous impression that the petitioner was the Investigating Officer of the case. Learned court failed to make any reference of any incriminating material adduced during inquiry or trial against this petitioner to enable it to form a prima facie opinion which is more than that required at the time of framing of charge and which, if went unrebutted, would lead to petitioner's conviction. This is the legal test required to be satisfied under Section 319 Cr.P.C. to arraign a person as an accused as laid down by the Apex Court in the Constitution Bench Judgment of Hardeep Singh (supra). Learned counsel further submits that no opportunity of hearing or show-cause was issued upon the petitioner before such an adverse order was passed. It is in violation of the principles of natural justice and in teeth of the ratio rendered by the Apex Court in the case of Jogendra Yadav & Ors. Vs. State of Bihar, (2015) 9 SCC 244 para-9.
-11-Learned counsel for the petitioner has also raised a point of law that deposition of the petitioner made as a prosecution witness no. 197 could not be used to incriminate him as an accused in purported exercise of the power under Section 319 of the Cr.P.C as it is in the teeth of the ratio rendered by the Apex Court in the case of R. Dineshkumar @ Deena vs. State reported in (2015) 7 SCC 497, paras 44 and 45. A witness is guaranteed a protection under Article 20(3) of the Constitution of India and under Section 132 of the Evidence Act against self incrimination.
5. Learned counsel for the petitioner further submits that the direction upon the CBI to seek sanction for prosecution from competent authority is in teeth of the settled principles of law laid down by the Apex Court in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 para-14 to 17 and 19. By doing so, the learned court denuded the sanctioning authority from independent exercise of its discretion on consideration of the entire materials available on record whether to grant sanction or to refuse it. As such, the impugned order suffers from various factual and legal infirmities and cannot be sustained in the eyes of law.
6. Learned counsel for the petitioner submits that petitioner is a serving officer of the CBI and has received appreciation for his work by his superiors. He has been a valuable prosecution witness in several R.C. Cases where convictions have been recorded on the basis of the testimony of the prosecution witnesses including this petitioner. Learned counsel for the petitioner submits that learned court after issuance of the order impugned dated 9th March, 2018 had proceeded to direct the CBI to take departmental action against the petitioner vide order dated 19 th April, 2018 which is also under challenge in this petition through I.A. No. 4214 of 2018. The order dated 19th April, 2018 is a consequence of the main impugned order and therefore cannot also survive the test of legal scrutiny. This Court had been pleased to stay the order directing departmental action against the petitioner vide interim order dated 18th May, 2018. Based on these submissions, it is urged that if the impugned order if not set aside, may lead to grave miscarriage of justice.
7. Learned A.S.G.I. representing the CBI has in response made the following submissions :-
-12-He submits on instruction that the decision to chargesheet a person as an accused in any of the fodder scam case was taken by the Director, CBI. In case of difference of opinion in the hierarchy of officers of the CBI, if the Director, CBI was of the opinion that the person concerned should be chargesheeted, then there was no requirement to refer the matter to the Attorney General. If only the Director, CBI was of the opinion that the person concerned should not be chargesheeted, then the opinion of the Attorney General was required to be obtained on the issue. This mechanism was devised by orders of the Apex Court in the Fodder Scam cases.
Learned A.S.G.I. submits that the petitioner was a part of the investigating team. He has made categorical reference to the statements of the petitioner in his deposition at paragraph-11 which shows that one Shri Alok Das Gupta was the Investigating Officer till his death in 1997. Thereafter the charge of investigation was taken over by Shri K.Y. Guru Prasad, Dy.S.P., CBI, Bengalore. After his transfer, Mr. Layak Singh, Inspector took over the charge. On superannuation of Mr. Layak Singh, Mr. Ashish Prasad, Inspector was entrusted with the task of filing of chargesheet. This petitioner was a part of the investigating team which comprised others namely Shri Ram Poojan Tiwari, Shri Ram Swaroop and Shri Om Prakash Sharma, all Inspectors of CBI. He submits that the further statement of this petitioner during trial in the said paragraph only reiterates the legal position prevailing in the matter of filing of chargesheet in the fodder scam cases. Reference is also made to the statement of this petitioner at paragraph-13 which indicates that the petitioner was Investigating Officer in R.C. 20A/1996. At paragraph-32 of his deposition, this petitioner has stated that because of the materials collected during investigation of that case, he was also authorized to assist Mr. Ashish Prasad in preparation of the chargesheet. Learned counsel submits that as per the standard operating procedure, investigations were supervised by the Superintendent of Police, D.I.G. and Inspector General of C.B.I. which is also evident from the statement of this petitioner at paragraph-45 of his deposition. As such petitioner strictly speaking was not the Investigating Officer of the case but was the part of the team of investigators. The impression borne by the learned trial court is therefore far from the correct factual position.
Learned A.S.G.I. has during course of submission also made reference to the observations of the learned court regarding non-implication of -13- one Pankaj Kumar and Niraj Kumar who were reportedly sons of Dr. Shesh Muni Ram. It is submitted that on the basis of the materials found during investigation, CBI had chosen not to chargesheet these two boys Pankaj Kumar and Niraj Kumar who were sons of Dr. Shesh Muni Ram. The statement of this petitioner at paragraph-37 of his deposition referred to in the impugned order also does not bring on record any other evidence adduced during trial. The inference drawn by the learned court that this petitioner did not inquire and submit chargesheet against these two boys are therefore also unwarranted. Learned counsel for the CBI submits that the decision to arraign a person under Section 319 of the Cr.P.C. is to be based on such material evidence adduced during inquiry or trial, which could enable it to form a prima-facie opinion more than that required at the time of framing of charge but short of satisfaction to an extent that if it went unrebutted, would lead to his conviction. This is the legal test laid down in the case of Hardeep Singh (supra). Moreover, the testimony of a witness i.e. the petitioner himself, could not be read as evidence to incriminate him in teeth of protection granted under Section 132 of the Evidence Act and Article 20(3) of the Constitution of India.
Learned counsel for the CBI submits that the impugned order has to cross the legal scrutiny as prescribed by the Apex Court in the case of Hardeep Singh (supra). After summarizing his arguments, learned A.S.G.I. has also submitted that the order dated 19th April 2018 passed in the same case by the learned CBI court to take departmental action against the petitioner is a consequential order to the main order impugned herein. CBI being the employer of the petitioner may be left with the liberty to take any decision in that regard depending upon the outcome of the main challenge.
8. Learned Amicus Curiae has assisted the Court on the legal points raised by the petitioner. He has also scanned the material available on record on the observations made in the impugned order. Learned Amicus Curiae submits that essential requirement of law in exercise of the power under Section 319 Cr.P.C. for the trial court is to assess and evaluate any incriminating evidence which has been brought on record during inquiry or trial against a person, not facing trial, which leads to a prima-facie opinion more than that required at the time of framing of the charge but short of satisfaction to an extent that if the evidence went unrebutted, it could lead to -14- conviction of such a person. In this case the learned trial court has primarily and solely relied upon the testimony of the petitioner himself as a prosecution witness no.197. Learned court has arrived at an inference that this petitioner had not fairly conducted the investigation being the Investigating Officer. Shiv Kumar Patwari and Naresh Prasad referred to in the first part of the order were persons chargesheeted and named as accused in the instant case. The inference of the learned trial court that they were made approvers, may not be attributable to the petitioner. CBI on its part has indicated that decision to chargesheet or accept an accused as an approver was taken at the highest level. There are other observations made regarding one Parimal Chakarborty who was said to be the Regional Director, AHD, Dumka between August 1988 and 14th August 1991 as testified by the petitioner during trial. Petitioner has also stated in the same paragraph that all this was being stated on his memory. On the other hand, the final judgment passed by learned Trial Court in the instant R.C. Case on 19th April, 2018 at paragraph-3 makes it clear that one Dr. Shesh Muni Ram was the Regional Director between January, 1991 and July, 1994. The period of fraudulent withdrawals in this R.C Case No. 45(A)/96 is between 1991-92 to 1995-96. Observations made in respect of Dr. Pitamber Jha mentioned at paragraph-66 of the deposition of this petitioner or in respect of Mahendra Prasad and Sarswati Chandra are in relation to another R.C. Case No. 64(A)/96 and R.C. Case No. 20(A)/96 which were not relatable to the subject- matter of the present R.C. Case No. 45(A)/96.
9. Learned Amicus Curiae submits that law accords protection to a witness against self-incrimination as held by the Apex Court in the case of R. Dineshkumar @ Deena vs. State reported in (2015) 7 SCC 497. He submits that under these legal principles laid down by the Apex Court, the impugned order has to be examined. Learned Amicus Curiae has also placed a latest judgment of the Apex Court dated 27th February, 2019 rendered in Cr. Appeal No.395/2019 (Sunil Kumar Gupta & Ors. Vs. State of Uttar Pradesh & Ors.), which follows the ratio rendered in the case of Hardeep Singh (supra).
10. I have considered the submissions of learned counsel for the petitioner, learned ASGI representing the CBI and the learned Amicus Curiae assisting the Court. I have taken note of relevant materials referred to by the parties and the learned Amicus Curiae borne from the record.
-15-11. On consideration of the rival submissions, it is clear that petitioner was a part of the investigating team conducting investigation in the instant R.C. Case No. 45(A)/96. He was also investigating R.C. Case No. 20(A)/96. Submissions of the learned counsel for the petitioner on this point is supported by learned ASGI representing the CBI that there were four Investigating Officers of the case, namely, Mr. Alok Das Gupta, Mr. Y.K.Guru, Dy.S.P., C.B.I who succeeded him and continued as the Investigating Officer till 12th November, 1999 when he was transferred to Bangalore (examined as P.W.195); Mr. Layak Singh, Inspector, CBI, who took over from him and Mr. Ashish Prasad, Inspector, who was the Investigating Officer at the time of filing of the charge-sheet after superannuation of Mr. Layak Singh. It is also not a question of speculation that the decision to implicate a person upon conclusion of investigation in these fodder scam cases was taken at the level of the Director, CBI. As per the mechanism devised by the Apex Court, it was only in case of difference of opinion between the officials of the CBI and in particular when the Director, CBI did not approve of implication of a person as an accused, that the matter was to be decided as per the opinion of the learned Attorney General. This position is evident from the clarification contained in the order dated 7 th April, 1997 passed by the Apex Court in the case of Union of India Vs. Sushil Kumar Modi reported in (1998) 8 SCC 664 reproduced as under:
"2. It is reiterated that no reference is required to be made by the Director, CBI to the Attorney General if he is of the opinion that an individual has to be prosecuted, irrespective of the difference, if any, amongst other officers of the CBI since in that case the CBI must act promptly to commence the prosecution. It is only if the Director, CBI takes the view that an individual is not to be prosecuted that he cannot close the case and in that event, he must refer the matter to the Attorney General for his opinion. In such a case, if the Attorney General is of the opinion that the individual must be prosecuted then the Director, CBI is to promptly act on that opinion and commence the prosecution. If, however, the Attorney General also concurs with the Director, CBI that the individual is not to be prosecuted, then the matter has to be reported to the Court for examination by the Court within the parameters of such a proceeding."
As such, the inference drawn by learned Trial Court that petitioner was the investigating officer and responsible for taking a decision to -16- implicate a person and/or chargesheet him is not factually and legally correct. The impugned order has indicted the petitioner on the ground that he was exercising his power in an arbitrary manner and persons referred to, though were involved in criminal conspiracy with other fodder scam cases, were not chargesheeted. Petitioner had thus misused his post being a Government employee and was liable to be prosecuted. Observations of the learned trial court have been dealt with by the learned counsel for the petitioner during course of his submission as noted above.
12. Evidently, the accused persons, namely, Md. Sayeed, Shiv Kumar Patwari and Naresh Prasad were chargesheeted persons in the instant R.C. Case. They were later on taken as approvers in the case upon pardon being granted by the learned CBI Court on being satisfied that they had made statements in terms of Section 306 Cr.P.C and made complete and truthful disclosure of the material circumstances relating to the offence and the accused persons. Any contrary inference drawn on this score by learned Trial Court was wholly misplaced. It is to be further noted that the Regional Director, namely Dr. Shesh Muni Ram and Dr. Om Prakash Diwakar, both were accused persons charge-sheeted by the CBI as being responsible for the fraudulent withdrawals during the period 1991-92 to 1995-96 from Dumka Treasury under AHD. Learned Trial Court referred to the statements of this petitioner as P.W.197 at paras- 98 and 99 in context of one Dr. Parimal Chakarborty, as it appeared that he was the Regional Director, AHD, Dumka between August, 1988 to 14th August, 1991 but was not made an accused and that it was stated he was Dead. Learned Trial Court however in the final judgment rendered on 19th April, 2018 in this case itself mentioned the tenure of Regional Director, AHD, Dumka, Dr. Shesh Muni Ram between January, 1991 to July, 1994 based upon the materials contained in the charge-sheet and other materials produced before the Court during trial. The impression gathered by the learned Trial Court on this score is also not true to the records, though there may be a misstatement by the petitioner during his deposition. Petitioner had at the same time also added that such statements were based on his memory. This Court further finds that one Dr. Pitamber Jha was an accused person charge-sheeted in the instant R. C. Case No. 45(A)/96 -17- but the learned Trial Court on the basis of certain statements made by this petitioner at para-66 of his deposition drew an impression that Dr. Pitamber Jha was not made an accused in R. C. Case No. 64(A)/96, but only cited as a witness. This inference was totally uncalled for as the learned Trial Court was in seisin of trial of R.C. Case No. 45(A)/96 while passing this order and not R.C. 64(A)/96. Learned Trial Court has made reference to the statement of this petitioner as P.W.197 at para-109 and observed that he did not inquire against the then Deputy Commissioner. It has been brought to the notice of the Court that arraignment of the then Deputy Commissioner, Dumka Mr. Anjani Kumar Singh in R.C. Case No. 38(A)/96 relating to fraudulent withdrawals between December 1995 to January, 1996 by the same learned CBI Court vide its order dated 5th March, 2018 had been quashed by this Court in Cr.M.P. No. 910 of 2018 vide judgment dated 25th January, 2019. It was pointed out that CBI did not have any reason to implicate the then Deputy Commissioner, Dumka as he was instrumental in exposing the fodder scam and institution of an F.I.R on 2nd February, 1996 as against several AHD officials and others which was later on taken over by the CBI. It is evident from perusal of the impugned order that an impression was gathered by the learned Trial Court that this petitioner had not inquired against the then Deputy Commissioner, Dumka though he was custodian of the Treasury. No further materials have been referred to in that regard as against the present petitioner. It is further evident from perusal of the impugned order that learned Trial Court had arrived at an opinion that this petitioner had not named Sarswati Chandra, a firm owner of S.R. Enterprises as an accused in R.C. Case No. 20(A)/96 though Mahendra Prasad, who conducted its account business was made an accused in that case. The fact of the matter, as evident from the order itself, is that Mahendra Prasad and Sarswati Chandra, both were charge-sheeted as accused persons in the instant R.C. Case No. 45(A)/96. Learned Trial Court, therefore, went beyond his jurisdiction while making observation in relation to implication of a person in another R.C. Case No. 20(A)/96 and thereby indicted this petitioner for arbitrary exercise of power. One finds from the impugned order that this petitioner has also been indicted for not chargesheeting two 'boys', namely Pankaj Kumar and Niraj Kumar, who were sons of Dr. Shesh Muni Ram, as the Court -18- on the statement of this petitioner at paragraph-37 as P.W.-197 felt that these two boys had received payment and inscribed their signatures on certain documents. It would be repetition to state that these are materials which were already before the CBI at the time of filing of charge-sheet. Decision to charge-sheet a person or not was taken at the helm of CBI i.e. at the level of the Director, CBI and in case of difference of opinion, on the basis of opinion of learned Attorney General. However, learned Trial Court has on these materials indicted the petitioner and held him liable to be prosecuted under Section 319 Cr.P.C
13. The legal test for exercise of the power under Section 319 Cr.P.C is no longer res integra in the light of Constitution Bench Judgment of the Supreme Court in the case of Hardeep Singh (supra). The degree of satisfaction required to form a prima facie opinion is more than that required at the time of framing of the charges against others, in respect of whom charge-sheet has been filed. Only where strong and cogent evidence adduced during trial or inquiry occurs against a person from the evidence led before the court that such power should be exercised. The prima facie opinion which is to be required is stronger evidence than mere probability of his complicity. [See Hardeep Singh (Supra), paragraph 106 and 117; S. Mohammed Ispahani Vs. Yogendra Chandak & Ors. reported in (2017) 16 SCC 226 , paragraph-29 which also quotes the opinion in the case of Brijendra Singh & Ors. Vs. State of Rajasthan reported in (2017) 7 SCC 706].
14. This Court does not find that the order passed by learned CBI Court is able to meet the strict prescribed test. The impugned order does not refer to any such material evidence adduced during trial or inquiry, which were incriminating in nature which could form the basis for a prima facie opinion more than that required at the time of framing of charge and which, if remained unrebutted, could lead to conviction of the petitioner. Learned Trial Court has primarily and rather wholly based its inference on the testimony of the petitioner as P.W.197 in the instant R.C. Case. Self incriminating testimony of a witness cannot be taken to implicate him as an accused in the light of the protection granted under Article 20(3) of the Constitution of India read with Section 132 of the Evidence Act as has been authoritatively laid -19- down in the case of R. Dineshkumar @ Deena vs. State reported in (2015) 7 SCC 497. This Court further finds that no opportunity to show cause or hearing was granted to the petitioner, though it is a requirement of law. [See Jogendra Yadav & Ors. Vs. State of Bihar, (2015) 9 SCC 244 para-9]. Needless to say, implication of a person as an accused entails serious adverse consequences and if it is undertaken in exercise of extraordinary and discretionary powers under Section 319 Cr.P.C. such a person does not have an opportunity to seek discharge under Section 227 Cr.P.C, a remedy available to a person initially charge-sheeted as an accused. Therefore, this extraordinary power has to be exercised only where strong and cogent evidence adduced during trial or inquiry occurs against a person from the evidence led before the court.
15. Learned Trial Court has also committed a serious error of law in directing the Director, CBI to obtain sanction for prosecution from the competent authority within a month. The discretion of sanctioning authority to independently exercise its mind on the basis of the materials on record brought before it has been taken away by learned Court by issuing such a direction. It is contrary to the principles laid down by the Apex Court in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC
622.
16. On the basis of the aforesaid detailed discussions and the infirmities found out in the impugned order, this Court is of the view that if the order of arraignment against the petitioner is allowed to sustain, it would lead to grave miscarriage of justice and also an abuse of the process of the Court. Accordingly, the impugned order, so far as it relates to the present petitioner, is quashed. The instant petition stands allowed in the aforesaid term.
17. However, this Court does not feel it proper to make any observation as regards the departmental proceeding, if any, initiated against the petitioner in terms of the order dated 19th April, 2018 passed by the learned Trial Court. CBI is at liberty to take an independent decision in that regard.
-20-18. This Court appreciates the valuable assistance accorded by the learned Amicus Curiae during hearing of the case. The Secretary, High Court Legal Services Committee shall bear the admissible fee/legal remuneration of the learned Amicus Curiae. The Secretary, High Court Legal Services Committee shall do the needful in this regard within a time frame.
(Aparesh Kumar Singh, J.) Shamim/