Jharkhand High Court
Ajay Kumar Jha vs The State Of Jharkhand Through The ... on 8 February, 2019
Equivalent citations: AIRONLINE 2019 JHA 762, 2019 CRI LJ 2984 2019 (2) AJR 735, 2019 (2) AJR 735, 2019 (2) AJR 735 2019 CRI LJ 2984, 2019 CRI LJ 2984
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 974 of 2018
Ajay Kumar Jha ...... Petitioner
Versus.
The State of Jharkhand through the Central Bureau of Investigation, Ranchi.
........ Opposite Party
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioner : M/s Prashant Pallav, Parth Jalan For the CBI : M/s Rajiv Sinha, ASGI, Rajiv Nandan Prasad & Niraj Kumar.
Amicus Curiae : Mr. Kumar Vaibhav, Mr. Ashutosh Anand & Mr. Nipun Bakshi
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15/08.02.2019 Heard learned counsel for the petitioner Mr. Prashant Pallav assisted by learned counsel Mr. Parth Jalan, Learned ASGI assisted by learned Counsel Mr. Rajiv Nandan Prasad representing the C.B.I. and learned Amicus Curie Mr. Vaibhav Kumar, Mr. Ashutosh Anand and Mr. Nipun Bakshi
2. Petitioner is aggrieved by the order dated 5th March 2018 arraigning him as an accused passed by learned court of Special Judge-VII, CBI (AHD Scam), Ranchi in R.C. No.38(A)/1996 (Pat.) in exercise of powers under Section 319 Cr.P.C. The learned CBI Court after conclusion of the trial, posted the matter for judgment and proceeded to pass an order of arraignment against several persons in exercise of powers under Section 319 Cr.P.C. Individual challenges have been made by number of such persons arraigned as an accused before this Court in different criminal miscellaneous petitions. The order of arraignment dated 05.03.2018 passed against the present petitioner contained under Para B is quoted hereunder:
'After perusal of records it is transpires that retired D.G.P, Mr. D.P.Ojha remain posted in State Vigilance for a long time. Witness No.200 Mr. Bidhu Bhushan Divedi examined on 10.06.2011 clearly who deposed that on the basis of Local News Paper Publication he written a letter to the D.G, Vigilance in relating to illegal payment made by AHD, Ranchi in the name of fake supplies. Witness no.200 written a letter dated 24.05.1992 and 25.05.1992 to the then D.G.P, who retired on 31.05.1992. Later on Mr. D.P.Ojha promoted to that post, the letter Exhibit 18/38 and 18/39 and Exhibit 18/40. The file no. BS 38/92 open in the Vigilance Cell which Exhibit 105 on identification. The C.B.I Inspector Mr. A.K. Jha seized this file on 29.12.1996 identified the writing and signature of Mr. Ajay Kumr Jha, Inspector, which Exhibit 1/38 but do not take action in relevant of that 2 information which disclosed by this witness, the then Inspector Ajay Kumar Jha provide umbrella of protection to the then D.G.P, Mr. D.P.Ojha in this way, court found that C.B.I Inspector Mr. Ajay Kumar Jha and retired D.G.P Mr. Dhrub Prasad Ojha both are involve in criminal conspiracy. Court found prima facie case U/s-120(B) r/w Sec-
420,467,468,471 of I.P.C and U/s-13(2) r/w Section -13(i)(c) & (d) of the P.C. Act.
The then C.B.I inspector Ajay Kumar Jha still in service so need the Sanction for prosecution from proper authority. The D.G.P of C.B.I is directed to seek Sanction for prosecution from proper authority and file in the court within a month. Later on the cognizance order will be passed after filing of Sanction order.
3. Learned counsel for the petitioner has placed the order impugned and made following submissions, both on factual and legal grounds in order to assail the legality and correctness of the order:
He submits that this R.C. Case No. 38A/96 under the Fodder Scam Cases, specifically relates to the Dumka Treasury from where fraudulent withdrawal were made under the Animal Husbandry Department between the period December 1995 to January 1996. Learned CBI Court in a cryptic manner has formed opinion that this petitioner being the Inspector of CBI used his position to provide umbrella of protection to one Mr. D.P. Ojha, the then D.G.P Vigilance in conspiracy with him and proceeded to arraign him as an accused for the offences under the Indian Penal Code and Prevention of Corruption Act. Learned Trial Court further proceeded to direct the competent authority to file order of sanction in the Court. It is contended on behalf of petitioner that petitioner was not the Investigating Officer of R.C. Case No.38(A)/1996 rather one Sri Dhirendra Nath Biswas, Dy.S.P. CBI was the Investigating Officer of the case. This fact finds mention in the judgment passed by learned Special Judge-VII, CBI, AHD Scam Cases, Ranchi. The said Mr. Biswas has been examined as P.W.232 in the said case whereas petitioner has been examined as P.W.245 to prove certain scrutiny reports of bills which were made by the Investigating Officer of the case Mr. Biswas. This is also corroborated by the deposition of the petitioner. Learned CBI Court failed to take into consideration the aforesaid fact, while passing the impugned order.
The main allegation against the petitioner is that he provided umbrella of protection to Mr. Dhrub Prasad Ojha, the then DGP, Vigilance by not making him as an accused inspite of incriminating evidence seized from his 3 possession i.e, file BS 38/92. The decision to not arraign Mr. D.P. Ojha as an accused was not and could not have been taken by the petitioner, who was an Inspector at the relevant period and power to chargesheet any person was not vested upon him. The decision not to chargesheet Mr. D.P. Ojha had already under gone judicial scrutiny. The decision not to make Mr. Ojha an accused had been taken on the opinion of the Solicitor General of India. Learned Solicitor General took into consideration the actions taken by Mr. Ojha on the same file i.e., BS 38/92. Learned Solicitor General was of the view that no criminal action against Mr. Ojha could be initiated, however departmental action as per the service rules may be initiated. The opinion of learned Solicitor General was thereafter affirmed by Learned Attorney General on 28.07.2000. It is submitted that opinion was sought after the order of the Hon'ble Apex Court in SLP Number 7853, 784 of 1997 on 7.4.1997 whereby the Apex Court had directed that the opinion of the Attorney General shall be taken in case the Director, CBI decides not to chargesheet a person as an accused and thereafter the same was to be decided by the Courts. The decision of the CBI has undergone judicial scrutiny by the monitoring Bench of this Court, wherein vide order dated 7.12.2001 passed in CWJC No. 293 of 2001 the Additional Director CBI was directed to submit the file to the Director CBI who was to reconsider the same and form his opinion. Based on the fresh opinion on the subject matter, this Court vide order dated 05.04.2004 did not proceed any further in respect of Sri D.P.Ojha.
4. Learned counsel for the petitioner submitted that by the common impugned order under para B as quoted above, learned Court had also taken cognizance against Mr. D.P.Ojha the then D.G.P Vigilance on a misplaced appreciation of the testimony of P.W.200 Mr. Bidhu Bhushan Divedi and certain letters adduced as Ext. No. 18/38, 18/39 and 18/40. The learned Court bore an erroneous impression that this petitioner was instrumental in providing an umbrella of protection to Mr. D.P.Ojha in his capacity as Investigating Officer, whereas this petitioner was in fact not the Investigating Officer of this case R.C. No. 38(A)/96. One Sri Dhirendra Nath Biswas, Dy.S.P. CBI was the Investigating Officer as also mentioned by learned CBI Court in the judgment passed on 19.03.2018 in the instant R.C. Case. Mr. Biswas was examined as P.W.2 232 in the said case. Therefore it was not within the capacity of the petitioner to take decision in respect of filing 4 chargesheet against any accused person including Mr. D.P. Ojha. Learned counsel for the petitioner submits that Mr. D.P. Ojha being aggrieved by his arraignment as an accused by the common impugned order dated 05.03.2018 had preferred Cr.M.P. No. 973 of 2018. This Court has upon consideration of the factual and legal grounds urged on behalf of him and the submission of learned counsel for the CBI and Amicus Curiae, been pleased to quash the order of arraignment so far as it relates to Mr. D.P.Ojha. This Court found that the learned Court neither referred to any such incriminating material evidence adduced during inquiry or trial which were not before the investigating agency before filling of the charge-sheet earlier nor formed a prima facie opinion as required at the time of framing of the charge to an extent that the evidence, if went un-rebutted will lead to conviction of the said person/ petitioner. This Court also took note of the opinion of the learned Attorney General based upon examination of vigilance files including file no. BS 38/96 which finds mention in the impugned order as against the petitioner also at paragraph B. This Court has accordingly held that order impugned did not meet the test laid down in the case of Hardeep Singh Vrs. State of Punjab reported in (2014) 3 SCC 92. This Court also took note of the fact that no notice to show cause or opportunity of hearing was given to the said petitioner before passing an order of arraignment 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. The action of the learned Court is also wanting on these legal grounds in the case of the present petitioner as well since no opportunity of hearing has been granted to him before the learned Court has formed prima facie opinion as against him and has directed the Director CBI to file an order of sanction so that a formal order of cognizance can be passed thereafter. The learned CBI Court failed to notice the ratio rendered by the Apex Court in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 para-18, 19 and 32. It has been held therein that a sanctioning authority has to apply its independent mind upon the material placed before it and exercise its discretion whether to grant sanction or not. A direction to grant sanction issued by the learned CBI Court, on the face of it, left the sanctioning authority practically with no discretion to deny sanction even if on its independent consideration, it may not be satisfied such sanction is necessary for prosecution of the officer concerned.
55. On the basis of these submissions, learned counsel for the petitioner has framed following legal grounds for consideration:
1.Whether the impugned order satisfies the degree of satisfaction as laid down in the case of Hardeep Singh Vrs. State of Punjab reported in (2014) 3 SCC 92 and Brijendra Singh Vs. State of Rajasthan reported in (2017) 7 SCC 706?
2.Whether depriving the petitioner of the opportunity to be heard before passing he impugned order has resulted its miscarriage of justice?
3. Whether the learned Trial Court can order a sanction to be filed before itself for passing of a formal order of cognizance?
4.Whether the impugned order suffers from misconceived understanding of foundational fact as the petitioner is arrayed as accused on an understanding that the petitioner is an Investigating Officer, whereas the fact remains that the petitioner was not the Investigating Officer?
Learned counsel for the petitioner submits that since the order of arraignment of the petitioner Mr. D.P. Ojha has been quashed by this Court in Cr.M.P. No. 973 of 2018, therefore, there is no foundation for the order to survive as against this petitioner. The petitioner has been faithfully serving the organization. Petitioner has diligently conducted investigation in a number of Fodder Scam Cases such as R.C.20A/96, 40A/96,51A/96,68A/96, 78A/96, 03A/01. This petitioner has been adduced as prosecution witness on behalf of the CBI as P.W.245 in the instant R.C. Case as well as in many other R.C. cases. On the basis of the evidence adduced by the prosecution including this petitioner, conviction have been recorded by the learned CBI Court in many such cases. He has also received letters of appreciation from his superiors in discharge of his duty. If the order of arraignment is not set aside, it would lead to miscarriage of justice and an abuse of process of the Court.
6. Learned ASGI assisted by learned counsel Mr. Rajiv Nandan Prasad representing the CBI submits that the petitioner is a responsible officer of the CBI and no incriminating material has been found against him during the conduct of investigation in any of the Fodder Scam Cases for the CBI to indict him or consider initiating any proceeding against him. This petitioner is 6 not the Investigating Officer in the instant R.C. Case No. 38A/96. The Investigating Officer of this case was one Mr. Dhirendra Nath Biswas, Dy.S.P. CBI, who was examined as P.W.232 in the present R.C. Case and this finds reference in the judgment dated 19.03.2018 passed by the learned CBI Court also. He further submits that this petitioner has been adduced as prosecution witness in several R.C. Cases including the present one where he has appeared as P.W.245. No incriminating material has been brought on record during inquiry or trial in connection with the instant R.C. Case against this petitioner to support the findings recorded by the learned CBI Court. He submits that the observations as against the petitioner were to the effect that he had given an umbrella of protection to Sri D.P.Ojha the then DGP Vigilance and not properly investigated the matter, however, this observation is misplaced since petitioner was not the Investigating Officer in the instant case and more over the decision not to charge-sheet Mr. D.P. Ojha was based on the opinion of the learned Attorney General of India as approved by the Monitoring Bench of the Fodder Scam Cases. Petitioner was not responsible in granting any umbrella of protection to Mr. D.P.Ojha. In any case, now, since the order of arraignment as against Mr. D.P.Ojha has been quashed by this Court in Cr.M.P. No. 973 of 2018, the foundation of passing such an order as against the petitioner is also wiped out. The learned Court has also failed to record a satisfaction as required in terms of the ratio rendered by the Apex Court in the case of Hardeep Singh(supra). The order needs to be tested in the light of the well settled legal principles.
7. Learned Amicus Curie has assisted the Court on certain factual score and on the legal principles which governs the exercise of powers under Section 319 Cr.P.C. He has made reference to the Constitution Bench judgment of the Apex Court rendered in the of Hardeep Singh(supra), which has been followed in the case S. Mohammed Ispahani Vs. Yogendra Chandak & Ors. reported in (2017) 16 SCC 226. Learned Amicus Curie has also referred to the case of Labhuji Amratji Thakor Vs. State of Gujarat reported in 2018 (15) Scale 39 wherein also the ratio rendered by the Apex Court in the case of Hardeep Singh(supra) has been followed.
8. I have considered the submission of learned counsel for the parties, the Amicus Curiae and the material pleadings borne on record as noted above. The order impugned extracted above reveals that the learned CBI Court had 7 formed an opinion that this petitioner was responsible for granting umbrella of protection to Mr. D.P.Ojha the then DGP Vigilance. This opinion was based on the statement of P.W.200 Mr. Bidhu Bhushan Divedi who had adduced certain letters Ext. 18/38, 18/39 and 18/40. Further vigilance file no. BS 38/96 was also adduced as Ext.105 on identification which the petitioner as CBI Inspector had seized on 29.12.1996. The signature and writing of this petitioner as Inspector on the same was marked as Ext. 1/38. The learned Court was of the opinion that this petitioner did not take any action on that relevant information which discloses his intention to provide umbrella of protection to Mr. D.P.Ojha the then DGP Vigilance. Thus this petitioner and retired DGP Mr. Dhrub Prasad Ojha were found to be involved in criminal conspiracy. Learned Court found that since the petitioner is still in service, it issued a direction to the DGP, CBI to seek sanction for prosecution from proper authority and file it in the Court within a month. Learned Court thereafter went on to observe that cognizance order will be passed after filing of sanction order. The purport of the order referred to above showed that it had already formed a prima facie opinion on these materials. However, no opportunity to show cause or hearing was given to the petitioner to explain his position. At this juncture it is pertinent to mention that this approach of the learned Court is in teeth of the judgment rendered by the Apex Court in the case of Jogendra Yadav (supra). Para 9 thereof is quoted hereunder:
"9. It was, however, urged by the learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 Cr PC, the only qualification necessary is that the person should be an accused. The learned counsel submitted that there is no difference between an accused since inception and the accused who has been added as such under Section 319 Cr PC. It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 Cr PC, is necessarily heard before being so added. Often he gets a further hearing if he challenges the summoning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 Cr PC, can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court."[emphasis supplied to the original text] 8
9. At the same time it is to be noted that apart from these observations, learned Court did not refer to any other material evidence which were of such incriminating nature that it would have provided a basis to the learned Court to form a prima facie opinion as required at the time of framing of the charge and to an extent that such evidence, if went unrebutted, would lead to his conviction. Learned Court was under legal duty to form an opinion in this regard in the light of the principles laid down in the Constitution Bench Judgment rendered by the Apex Court in the case of Hardeep Singh (supra). The Apex Court in the said case had framed following 5 questions for answer:
"6.1. (i) What is the stage at which power under Section 319 Cr PC can be exercised?
6.2. (ii) Whether the word "evidence" used in Section 319(1) Cr PC could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in- chief of the witness concerned?
6.3. (iii) Whether the word "evidence" used in Section 319(1) Cr PC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? 6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr PC to arraign an accused? Whether the power under Section 319(1) Cr PC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
6.5. (v) Does the power under Section 319 Cr PC extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?"
The Apex had summarized its conclusion at para 117 of its report which reads as under:
"117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii)
-- What is the stage at which power under Section 319 Cr PC can be exercised?
AND
-- Whether the word "evidence" used in Section 319(1) Cr PC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? Answer 117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 Cr PC and the Sessions Judge need not wait till "evidence" under Section 9 319 Cr PC becomes available for summoning an additional accused.
117.2. Section 319 Cr PC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr PC, and under Section 398 Cr PC are species of the inquiry contemplated by Section 319 Cr PC.
Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr PC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
117.3. In view of the above position the word "evidence" in Section 319 Cr PC has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question (ii)--Whether the word "evidence" used in Section 319(1) Cr PC could only mean evidence tested by cross- examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer 117.4. Considering the fact that under Section 319 Cr PC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr PC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv)--What is the nature of the satisfaction required to invoke the power under Section 319 Cr PC to arraign an accused? Whether the power under Section 319(1) Cr PC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer 117.5. Though under Section 319(4)(b) Cr PC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr PC would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question (v)--Does the power under Section 319 Cr PC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 10 Cr PC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr PC has to be complied with before he can be summoned afresh." In answer to question No.(iii), the Apex Court at para 84 and 85 of the report held as under:
"84. The word "evidence" therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr PC ...................
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The "evidence" is thus, limited to the evidence recorded during trial."
What should be the nature of satisfaction required to invoke the power under section 319 Cr.PC to arraign an accused, was dealt with in detail at para-106 in answer to question no. (iv), which reads as under:
"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr PC. ........................
(emphasis supplied to the original text)
10. Evidently the learned CBI Court failed to refer to any such incriminating material evidence against this petitioner which could be the basis to form a prima facie opinion as per the ratio rendered in the case of Hardeep Singh (supra). This petitioner was not even the Investigating Officer in the instant R.C. Case no.38/96. In fact one Mr. Dhirendra Nath Biswas, Dy.S.P. CBI was the Investigating Officer of the case which the learned Court has also taken note of in the final judgment pronounced on 19.03.2018 at internal page 58 of the judgment forming part of para 11. Mr. Biswas was examined as P.W.232 on behalf of the C.B.I. This petitioner was also examined as P.W.245 in the instant R.C. case. It is futile to deal with the issue further as there are no other incriminating materials referred to and brought on record as against this petitioner which could be the basis for the learned 11 Court to form prima facie opinion against him for taking cognizance.
11. Learned Court has proceeded to issue direction upon the Director, CBI to obtain order of sanction from the competent authority and file it in the Court where after the order of cognizance would be passed. It has lost sight of the salient principle on this issue as laid down in the case of Mansukhlal Vithaldas Chauhan (supra). The law on this point is unambiguous. In the said case, the Apex Court held that the grant of sanction is not an idle formality or acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution. It is a safeguard for the innocent but not a shield for the guilty. Sanction would therefore be dependant upon the material placed before the sanctioning authority and the fact that all the relevant material facts and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other materials placed before it. Since the validity of sanction dependent upon applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, sanctioning authority has to apply its independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter. As noted above, in the present cases, learned court overstepped its jurisdiction in directing the CBI to file such a sanction order. It did not leave any discretion in the sanctioning authority to apply its independent mind on the relevant material facts and documents to come to a decision whether sanction for prosecution is required to be given or not. In the face of such a direction, the sanctioning authority had been practicably left with no discretion to deny sanction, even if, on its independent consideration, it is not satisfied that such sanction is necessary for prosecution of the officer concerned.
12. The only impeaching observation against the petitioner was to the effect that he had granted umbrella of protection to the Mr. D.P.Ojha, the then DGP Vigilance and not properly investigated the case. This observation is unfounded in view of the discussion made hereinabove. Moreover, this Court while considering the case of Mr. D.P.Ojha in Cr.M.P. No. 973 of 2018 12 wherein also the same impugned order dated 05.03.2018 passed in R.C. Case No. 38A/1996 by learned Special Judge-VII, CBI (AHD Scam), Ranchi was under challenge, held that order of his arraignment was bad in law on several counts inter alia failing to record satisfaction required in terms of the ratio rendered in the case of Hardeep Singh (supra); failure to refer to any such incriminating material evidence as found during inquiry or trial which, if went unrebutted, would lead to his conviction and also on account of violation of principles of natural justice, as no show cause or notice or opportunity of hearing was given to him.
13. The basis for holding the petitioner liable for acts of criminal conspiracy in connivance with Mr. D.P.Ojha is no longer factually available or tenable. In the wake of all these facts and circumstances and the legal infirmity found in the impugned order, this Court is of the opinion that the impugned order cannot be sustained in the eye of law or on facts. If interference is not made under the inherent powers of this Court under Section 482 of the Cr.P.C, it would lead to grave miscarriage of justice. As such, it is quashed.
14. Accordingly, instant petition is allowed. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae during hearing of this case. The Member Secretary, High Court Legal Services Committee shall bear the fee / legal remuneration of the learned Amicus Curiae.
(Aparesh Kumar Singh, J) A.Mohanty