Jharkhand High Court
Dhruva Prasad Ojha @ Dhrub Prasad Ojha vs The State Of Jharkhand Through The ... on 8 February, 2019
Equivalent citations: AIRONLINE 2019 JHA 774
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 973 of 2018
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Dhruva Prasad Ojha @ Dhrub Prasad Ojha --- --- Petitioner Versus The State of Jharkhand through the Central Bureau of Investigation (C.B.I.). --- --- Opp. Party
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CORAM : The Hon'ble Mr. Justice Aparesh Kumar Singh
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For the Petitioner : M/s. Manish Mishra
& Amit Kumar Verma, Advs.
For the C.B.I. :Mr. Rajiv Sinha, ASGI, Rajiv Nandan
Prasad, Niraj Kumar
For the Amicus Curiae : M/s. Ashutosh Anand, Nipun Bakshi &
Kumar Vaibhav
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15/08.02.2019 Heard learned counsel for the petitioner, learned ASGI
representing the CBI and learned Amicus Curiae.
2. Petitioner is aggrieved by the order of his arraignment as an accused dated 5th March, 2018 passed in R.C. Case No. 38(A)/96 by the learned court of Special Judge-VII, C.B.I. (AHD Scam), Ranchi in exercise of power under Section 319 of the Cr.P.C.
3. At the outset, learned counsel for the petitioner has given a brief background of the initiation of the Fodder Scam Cases and referred to the order passed by Hon'ble Supreme Court of India and Hon'ble Patna High Court in matter relating to investigation and monitoring of the Fodder Scam Cases. It has been pointed out that these background facts also concerns the petitioner since his case was examined by the learned Attorney General of India in terms of the order passed by the Apex Court in the case of Union of India -Vs. Sushil Kumar Modi [(1996) 6 SCC 500]. It has been taken note of by this court in the judgment dated 02.11.2018 passed in Cr. M.P. No. 253/2018 in the case of the present petitioner in connection with a similar order of arraignment passed by same Learned Special Judge-VII, CBI (AHD Scam), Ranchi in R. C. Case No. 64(A)/1996-Pat in exercise of power under section 319 of the Cr. P.C under the relevant provisions of the Indian Penal Code and the Prevention of Corruption Act. The order of arraignment as against the petitioner has been quashed by this Court upon consideration of all factual and legal grounds urged by the petitioner. He seeks to refer to the discussion made, particularly at paragraphs-36 and 37 of the judgment dated 02.11.2018. Learned counsel for the petitioner has heavily relied upon the judgment dated 2. 2nd November, 2018 as according to him all the factual and legal grounds raised herein have been fully dealt with by this Court while quashing the order of arraignment of this petitioner therein. Learned counsel for the petitioner has summarized his submissions on this point and submitted that the role of the present petitioner as Director General (Vigilance), Bihar was inquired into and investigated by the CBI. Some of the Investigating Officers took a view that the petitioner should be prosecuted as an accused in the Fodder Scam. However, some other officers of the CBI took a contrary view. In the light of the difference of opinion, the matter was placed before the Attorney General of India, as per the direction of Hon'ble Supreme Court. The Attorney General of India sought view of Solicitor General of India. Upon a detailed consideration of the matter, it was opined that there was insufficient material to justify the prosecution of the petitioner. Such opinion was concurred by the learned Attorney General of India. On this basis, a decision was taken by the CBI not to prosecute the petitioner. The opinion of Attorney General of India is enclosed as Annexure-2 in the present petition also. When the matter was placed before the monitoring Bench of Hon'ble Patna High Court, it directed the then Director, CBI to reconsider and re-examine the matter relating to the petitioner.
4. On 07.02.2002, the then Director, CBI re-examined the matter against the petitioner and was of the view that prosecution of the petitioner on that basis is not warranted. This decision not to prosecute the petitioner was again placed before the Hon'ble High Court. The Hon'ble Patna High Court upon consideration of the matter on 05.04.2002 after seeing the notings on the file of various officials presented in a sealed cover including the then Director of CBI, recorded on 07.02.2002 and the opinion of learned Solicitor General as concurred by learned Attorney General, arrived at an opinion that the matter need not to be proceeded any further as far as D.P. Ojha, i.e., the petitioner is concerned.
5. The order impugned passed in the instant R.C. Case No. 38(A)/96 dated 05.03.2018, also refers to the same Vigilance File BS-38/92, which was taken into account by the learned Attorney General while concurring with the opinion of learned Solicitor General of India. On consideration thereof, including the opinion of the then Director, CBI, the Monitoring Bench did not find any reason to proceed against the petitioner further. Learned counsel has further submitted that the learned Attorney General in his opinion at para-22, had also observed that in absence of any evidence of association, receipt of money or 3. benefit or conferment of any hospitality etc. or of disproportionate assets, laying a charge of conspiracy against D.P. Ojha, it would be difficult to charge him for any penal offences. These materials contained in Vigilance File No. BS 38/92 and the letters exhibits 18/38, 18/39 and 18/40 adduced by prosecution witness no. 200, Bidhu Bhushan Dwivedi, as referred to at paragraph-B of the impugned order were already there during investigation by the CBI. On consideration thereof, the CBI had not found sufficient material to implicate the petitioner for the aforesaid offences. Therefore, arraignment of the petitioner under section 319 of the Cr. P.C could have been made by the learned CBI court only and only if evidence, as contemplated under section 319 of the Cr.P.C was brought on record during enquiry or trial. This issue has been answered at Para-117(i) of the report by the Apex Court in the case of Hardeep Singh Vs. State of Punjab reported in (2014) 3 SCC 92. Such evidence should have been of a nature which, if went unrebutted, could lead to the conviction of the person, as has been held at paragraph-106 of the report in the case of Hardeep Singh (Supra). Learned Trial Court has erred on both counts in the light of the settled principles of law. It has made reference to the statement of Mr. Bidhu Bhushan Dwivedi, who was examined as Prosecution Witness no.-200 on 10.06.2011 itself in the instant case and the letters adduced by him as exhibits being Ext.-18/38, 18/39 and 18/40, two of which are dated 10.03.1993 and 24.05.1992. These materials which were already before the investigation and in the file BS 38/92 i.e., the subject matter of the opinion of the learned Attorney General and the Monitoring Bench of Patna High Court. These materials, in itself, could not have been made the basis to arraign the petitioner at a stage when the trial had concluded and the case was being posted for pronouncement of the judgment.
6. Learned counsel for the petitioner has referred to the statement of Sri Bidhu Bhushan Dwivedi made under section 161 of the Cr.P.C before the C.B.I in connection with R.C. Case No. 20(A)/1996 (Annexure-3) and in particular his statements at internal page-5 at the second paragraph. Learned counsel has also referred to the testimony of this P.W-200 made during the trial in R.C. Case No. 20(A)/1996 which was adopted in R.C. Case No. 38(A)/1996 (Annexure-4) in particular paragraphs-10,11 & 12. He submits that the statements made at both the places are in sum and substance the same. He has stated that despite having written letters and pursued the matter before the then Director General, Vigilance and his successor the present petitioner who took over from 01.06.1992 to inquire into allegations of fraudulent withdrawal, this 4. petitioner did not act upon it, rather reprimanded the said officer. As such, there was no new material brought on record during evidence by this P.W-200. Even if his statements made on oath during trial are taken into account, they do not reveal any such incriminating material showing any association, receipt of money or benefit or conferment of any hospitality or creation of any disproportionate assets by him to enable the learned Trial Court to form a prima facie opinion which is of a standard that the evidence so recorded, if went unrebutted, could lead to conviction of this petitioner. Learned Trial Court has merely by referring to the statement of P.W-200, as above, and by passing an observation that the CBI Inspector, Mr. A.K. Jha did not duly investigate the matter and provided an umbrella of protection to Mr. D.P. Ojha, proceeded to form a prima facie opinion that he is liable for being proceeded under section 120 (B) read with 420, 467,468 and 471 of the Indian Penal Code and section 13(2) read with section 13(i)(c)(d) of the Prevention of Corruption Act. In that process, learned CBI Court also committed serious error of law 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 on the point of opportunity of hearing or show-cause before such an order of arraignment is passed. It also failed to take into account that though, the petitioner had superannuated, but the protection under section 197 of the Cr. P.C was still available to him, as held by the Apex court in the case of State of Punjab Vrs. Labh Singh, (2014) 16 SCC 807 and Surinderjit Singh Mand & Anr. Vs. State of Jharkhand & Anr., (2016) 8 SCC 722. Learned counsel for the petitioner submits that the summoning of the petitioner as an accused in the instant R.C. Case, therefore, suffers from serious errors of law and fact and is fit to be set aside. Learned counsel for the petitioner on the basis of the aforesaid factual position and legal submissions, articulated the following issues for adjudication:
(a) What is the material/evidence that the Learned Court can utilise while taking cognizance against any person under Section 319 of the Cr.P.C.? What is the level of evidence required to arraign any person as an accused by a Court exercising powers under Section 319 of the Cr.P.C?
(b) Whether the accused has a right to be heard before taking cognizance under Section 319 of the Cr.P.C.?
( c) Whether the order dated 05.03.2018 of the Learned Trial Court summoning the Petitioner ( a retired public servant) could have 5. been passed without sanction order from the competent authority? Whether sanction under Section 197 of the CrPC is a mandatory prerequisite when a Court exercises its powers under the provisions of S. 319 of the CrPC?
7. In support of the aforesaid legal questions, he has placed reliance upon the judgment of the Apex Court in the case of Hardeep Singh (Supra), Jogendra Yadav (Supra) and also in the cases of Labh Singh (Supra) and Surinderjit Singh Mand (Supra). He submits that in case the order impugned is not set aside, it would lead to grave miscarriage of justice.
8. Learned Amicus Curiae has assisted the Court on certain factual scores as also the principles of law governing the exercise of power under Section 391 of the Cr.P.C as settled by the judgments of the Apex Court. On the factual score, he has referred the opinion of Attorney General of India at Annexure-2, which was rendered on 28th July, 2000. He submits that after the said opinion, if any incriminating material evidence came against the petitioner and satisfies the test laid down by the Apex Court in the case of Hardeep Singh (supra), petitioner was liable to be arraigned as an accused under Section 319 of the Cr.P.C. Learned Amicus Curiae has also referred to the statement of Mr. Bidhu Bhushan Dwivedi made under Section 161 of the Cr.P.C (Annexure-2) on 22nd November, 1996. He has also made reference to certain statements made under Section 164 of the Cr.P.C by Mr. Dwivedi in November, 2003 which is Annexure-4 to the petition. Learned Amicus Curiae has referred to the deposition of Mr. Bidhu Bhushan Dwivedi as prosecution witness no. 184 in R. C. Case No. 20(A)/96 which stood adopted in the instant R.C. Case No. 38(A)/96 on his production as prosecution witness no. 200, in particular paragraph nos. 10, 11 and 12. Learned Amicus Curiae has however not been able to point out any such incriminating material evidence which were evident of his association or receipt of money or benefit or conferment of any hospitality or of creation of any disproportionate assets to create a link with the other conspirators of the offence who were tried before the learned CBI Court. Learned Amicus Curiae has fairly submitted that the only reference to any such material is at Para-B of the impugned order where the statement of P.W. 200 Mr. Bidhu Bhushan Divedi and reference of these three letters exhibits i.e., 18/38, 18/39 and 18/40 have been made. These letters 6. were of the year 1992 and 1993 written to the Director General (Vigilance). Learned Amicus Curiae has on the basis of these factual submissions urged the court to test the correctness and legality of the impugned order in the light of the salutary principles laid down in the case of Hardeep Singh(supra) and the other later judgments following it i.e., (2017) 7 SCC 706 [Brijendra Singh & Ors. Vs. State of Rajasthan] and (2017) 16 SCC 226 [S. Mohammed Ispahani Vs. Yogendra Chandak and others ].
9. Learned counsel for the CBI has made a categorical submission that no further incriminating material evidence were adduced on behalf of the prosecution during trial against this petitioner. The Exhibits no. 18/38, 18/39 and 18/40 were letters written by P.W.-200 Mr. Bidhu Bhushan Divedi in the year 1992 and 1993, two of which are dated 24th May, 1992 and 10th March, 1993. They were already before the Investigating Authority CBI at the time of furnishing of the charge-sheet. Learned ASGI also does not dispute that these materials were also available before learned Attorney General in the form of vigilance files such as BS 32/1992 upon which the opinion was rendered in favour of the petitioner. It is also submitted that the inference drawn by learned Trial Court that the Investigating Officer, Ajay Kumar Jha had given protection to this petitioner is not based on any foundation in the light of the aforesaid facts and circumstances. As such, the prosecuting agency had no occasion to seek arraignment of this petitioner under Section 319 of the Cr.P.C since there were no material incriminating evidence brought on record during inquiry or trial as against him. In effect, learned ASGI has not supported the impugned order.
10. I have considered the submission of learned counsel for the petitioner, Mr. Manish Mishra, learned ASGI assisted by learned counsel, Mr. Rajiv Nandan Prasad for the CBI and learned Amicus Curiae. I have also gone through the impugned order and the materials on record.
11. The order of arraignment dated 5th March, 2018 passed under Section 319 of the Cr.P.C. by learned CBI Court shows that the trial had concluded and the case was being posted for judgment. There were no applications on behalf of the prosecuting agency, CBI or any other person including any accused to seek arraignment of this petitioner and others against whom the learned court proceeded thereafter on the same day to take cognizance under Section 319 of the Cr.P.C. The aggrieved persons including 7. this petitioner have assailed their arraignment in respective criminal miscellaneous petitions arising out of the same impugned order. This Court has upon independent considerations dealt with their respective cases on factual and legal grounds. The order of arraignment so far as it concerns individual petitioners like Vijay Shankar Dubey (Cr. M. P. No. 901 of 2018); Dipesh Chandak (Cr.M.P. No.906 of 2018); Anjani Kumar Singh (Cr.M.P. No.910 of 2018) and Shiv Kumar Patwari (Cr. M. P. No. 915 of 2018) have been quashed by separate orders passed by this Court. It is also pertinent to mention here that the learned Special Judge-VII CBI (AHD Scam), Ranchi had passed a similar order of arraignment as against this petitioner and one other Sukhdeo Singh on 23rd December, 2017 in exercise of powers under Section 319 of the Cr.P.C in R.C. Case No. 64(A)/96-Pat after pronouncement of the judgment on the same date. By the judgment dated 2nd November, 2018, this Court upon consideration of all the factual and legal grounds urged on behalf of the parties and the learned Amicus Curiae quashed the order of arraignment holding that the order of arraignment suffered on more than one counts such as; (i) that there were no material evidence adduced during the inquiry or trial of the said case nor referred to or discussed by learned Court while taking cognizance against these persons. (ii) Learned Court had also failed to record the desired satisfaction that the evidence, if went un-rebutted, would lead to the conviction of those persons, as per the ratio rendered in the case of Hardeep Singh(supra) in answer to question no. (iv) dealt with at Para-106 of the report. This Court also found that no notice or opportunity of hearing was given to the petitioner and the other person sought to be arraigned as an accused in teeth of the principles enshrined in the judgment of the Apex Court in the case of Jogendra Yadav & others -Vs.- State of Bihar reported in (2015) 9 SCC 244. Learned Court had also committed an error in observing that there was no requirement for sanction for prosecution as against this petitioner since he had superannuated from the Indian Police Service in 2002 itself. This approach of learned Court was found in teeth of the principles settled by the Apex Court in the case of State of Pubjab Vrs. Labh Singh [ (2014) 16 SCC 807 Paras- 9 and 10, which related to the case of a retired officer and reiterated in the case of Surinderjit Singh Mand & Anr. Vs. State of Jharkhand & anr. [(2016) 8 SCC 722, Paragraphs-30 and 31.
12. The present challenge, however, has to be tested on independent 8. considerations and whether the finding of the learned Court satisfied the legal test laid in the case of Hardeep Singh (Supra) and the other cases cited above. This is all the more significant since the power conferred upon a Court under Section 319 of the Cr.P.C is both an extraordinary and discretionary one as held in the case of S. Mohammed Ispahani Vs. Yogendra Chandak and others (supra), where the Apex Court has quoted the opinion rendered in the case of Brijendra Singh & Ors. Vs. State of Rajasthan (supra) at Para-29, whereunder the principles laid down in the case of Hardeep Singh (Supra) have been further explained in the following manner:
"13. In order to answer the question, some of the principles enunciated in Hardeep Singh case5 may be recapitulated: power under Section 319 CrPC can be exercised by the trial court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some *"evidence"* against such a person on the basis of which evidence it can be gathered that he appears to be guilty of the offence. The *"evidence"* herein means the material that is brought before the court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."
13. Evidently, the degree of satisfaction required to be exercised by the Court is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. The Apex Court has given a note of caution that it should not be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
14. In that light in order to test the correctness and legality of the 9. order impugned, it is appropriate to extract the relevant part of the impugned order under Paragraphs-B and C hereunder:
"B. 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 Kumar Jha, Inspector, which Exhibit. 1/38 but do not take action in relevant of that 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 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.
(C). The then D.G.P., Mr. Dhrub Prasad Ojha is superannuated so no need of sanction for prosecution. Hence, cognizance in above section is taken against accused Mr. D.P.Ojha, O.C is directed to issue summon against accused Dhrub Prasad Ojha for appearance in the court and face the trial.
15. A perusal of the aforesaid extract shows that the learned Court had before it the evidence of prosecution witness no. 200, Bidhu Bhushan Divedi, whose deposition in R.C. Case No. 20(A)/96 as P.W. 184 was adopted 10. in the instant R.C. Case on 10th June, 2011. It refers to letters dated 24th May, 1992 and 25th May, 1992 written to the then D.G.P., who had retired on 31 st May, 1992 whereafter this petitioner had been promoted to that post. These letters are adduced as Exhibits 18/38, 18/39 and 18/40. The vigilance file BS 38/1992 was opened in the Vigilance Department which has also been adduced as Exhibit-105 on identification. The CBI Inspector, Mr. A. K Jha had seized this file on 29th December, 1996 and was adduced as Ext. 1/38. These were the materials available before the CBI during investigation on examination of which CBI did not proceed to charge-sheet against this petitioner. The investigations in the Fodder Scam Cases were monitored by the Patna High Court in a writ petition bearing CWJC Nos. 1617 of 1996 and 602 of 1996. Instances arose during investigation of these cases due to difference of opinion in the agency amongst the CBI officials on whether a person should be charge-sheeted or not. In those circumstances, a mechanism was devised under orders of the Apex Court passed in the case of Union of India-Vs.- Sushil Kumar Modi reported in (1996) 6 SCC 500 as under:
"13. We make it clear that in case of any difference of opinion between the officers of the CBI in relation to the implication of any individual in the crimes or any other matter relating to the investigation, the final decision in the matter would not be taken by the Director, CBI, himself or by him merely on the opinion of the Legal Department of the CBI; and in such a situation, the matter would be determined according to the opinion of the Attorney General of India for the purpose of the investigation and filing of the charge-sheet against any such individual. In that event, the opinion would be sought from the Attorney General after making available to him all the opinions expressed on the subject by the persons associated with the investigation as a part of the materials."
16. The Hon'ble Supreme Court clarified this order by order dated 24th January, 1997 reported in (1997) 4 SCC 770. The Apex Court further clarified the direction by the order dated 7th April, 1997 in the following manner:
"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 11. 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."
17. There was a difference of opinion amongst the officials of CBI on the role and involvement of this petitioner. Some of the Investigating Officers took a view that the petitioner should be prosecuted as an accused in the Fodder Scam while some other officers of the CBI took a contrary view. In the light of difference of opinion, the matter was placed before the Attorney General of India as per direction of Hon'ble Supreme Court. Attorney General of India sought view of the Solicitor General of India. Upon a detailed consideration of the matter, it was opined that there was insufficient material to justify the prosecution of the petitioner. Such opinion was concurred by the Attorney General of India. On that basis, a decision was taken by the CBI not to prosecute the petitioner. The opinion of Attorney General of India and Solicitor General of India are enclosed as Annexure-2 to this petition. The matter was placed before the Monitoring Bench of Hon'ble Patna High Court. Patna High Court directed the then Director, CBI to reconsider and re-examine the matter relating to the petitioner.
18. On 7th February, 2002, the then Director of CBI re-examined the matter against the petitioner and was of the view that prosecution of the petitioner on that basis is not warranted. This decision not to prosecute the petitioner was again placed before Hon'ble High Court. The Hon'ble Patna High Court upon consideration of the matter on 5th April, 2002 passed the following order:
"In the order dated 01.02.2002 we had directed the Director, CBI to re-examine and reconsider the issue relating to the prosecution of Shri D.P.Ojha. We have been handed over the original CBI file in a sealed cover. We had seen the notings on this file of various officials, including the present Director of CBI recorded on 07.02.2002 and find that based on the opinion of the learned Solicitor General as concurred by the learned 12. Attorney General on the appreciation of the material available on the record, the CBI has taken a definite stance that there is not enough material to warrant his prosecution and that instead, departmental action against him is warranted. In view of the aforesaid, we wish to proceed no further in so far as D.P.Ojha is concerned. The original file of the CBI is returned to Mr. Rakesh Kumar, learned counsel for the C.B.I."
As such, this petitioner was not named as an accused in any F.I.R. pertaining to the Fodder Scam Cases, nor was implicated as an accused in any charge-sheet or supplementary charge-sheet filed by the CBI in any of the Fodder Scam cases as pointed out by learned counsel for the petitioner. The learned CBI Court therefore had no occasion to take cognizance against the petitioner after filing of the charge-sheet on the basis of the materials found during investigation in exercise of the power under Section 193 of the Cr.P.C . The trial commenced thereafter. Arraignment of a person under Section 319 of the Cr.P.C required evidence adduced during the inquiry or trial as held by the Apex Court at paragraph-117.1 to 117.4 in Hardeep Singh (supra). The evidence, incriminating in nature brought during inquiry or trial should be of such a nature which could enable the trial court to form a prima facie opinion as required at the time of framing of charge but short of satisfaction to an extent that the evidence, if went unrebutted, would lead to conviction of the person concerned. At para-106 of the report in the case of Hardeep Singh (supra), the Apex Court has coined the nature of satisfaction required to invoke the power under Section 319 Cr.P.C to arraign an accused. In absence of such satisfaction, the Court should refrain from exercising power under Section 319 Cr.P.C.
19. A perusal of the impugned order when examined in the light of these settled legal principles shows that these very materials in the nature of the letters/exhibits no. 18/38, 18/39 and 18/40 written by Bidhu Bhushan Dwivedi to the then Director General of Police Vigilance and this petitioner also were before the investigating agency and also the vigilance file no. BS 38/92 on which the learned Attorney General gave his opinion that it was not proper to arraign the petitioner as an accused. Learned Trial Court has completely failed to refer to any incriminating material adduced during inquiry or trial in the instant case which evidence, if went unrebutted, would lead to his conviction. It, therefore, appears that 13. there were no material incriminating evidence brought on record during inquiry or trial against the petitioner and at the same time the learned Court completely failed to record a satisfaction that such evidence, if went unrebutted, would lead to his conviction. The order impugned therefore fails to satisfy such legal scrutiny.
20. This Court also finds that no notice to show cause or opportunity was given to the petitioner before passing the order of arraignment. In the case of Jogendra Yadav &others (supra), the Apex Court at Para-9 of the report has clearly held that "a person who is added as an accused under Section 319 Cr.P.C has to be necessarily heard before being so added." The rationale behind such a requirement has also been explained in the said judgment. An accused since inception is not necessarily heard before he is added as an accused. He has also an opportunity to seek discharge under Section 227 of the Cr.P.C which remedy is not available to a person arraigned under Section 319 of the Cr.P.C. Therefore, such an extraordinary power can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court. The order impugned therefore is bad in law and in violation of principles of natural justice on that score as well.
21. This Court further finds that the learned Trial Court proceeded on an erroneous premise that since the petitioner had superannuated the protection under Section 197 of the Cr.P.C was not available to him. The opinion of the Apex Court in the case of State of Punjab Vrs. Labh Singh reported in (2014) 16 SCC 807, paragraphs- 9 and 10 illuminatingly lays down the principles on this issue. The judgment in the case of Surinderjit Singh Mand & Anr. Vs. State of Punjab & Anr. reported in (2016) 8 SCC 722, paragraphs- 30 and 31 also lay down the principles so far as the protection from prosecution available to a government employee under Section 197 of the Cr.P.C is concerned. In case, the acts constituting the offence could not be complete without proving the official acts, protection from prosecution is also available to a retired government employee under Section 197 of the Cr.P.C.
22. This Court has dealt with each of these legal submissions at length in the case of the present petitioner in Cr.M.P. No. 253 of 2018. This petitioner had faced a similar order of arraignment by the learned 14. Court of Special Judge VII CBI (AHD Scam), Ranchi in R.C. Case No. 64(A)/1996-Pat. Upon consideration of these common grounds and few other legal grounds the order of arraignment as against this petitioner and the other co-petitioner Sukhdeo Singh (Cr.M.P. No. 120 of 2018) was quashed by this Court vide judgment dated 2nd November, 2018. The petitioner is entitled to draw support from the findings therein on the legal grounds common to this case.
23. I have dealt with the contentious issues raised by the petitioner, in detail in the foregoing paragraphs. The Trial Court has fallen in error on several counts as held hereinabove. A note of caution has been given by the Apex Court in the case of Brijendra Singh(supra) at para-13 that such extraordinary power has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than that warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence 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 formed requires stronger evidence than mere probability of his complicity. It should not be exercised in a casual or a cavalier manner.
24. As an upshot of the aforesaid discussions and in view of the detailed reasons recorded hereinabove, this Court is of the opinion that the order impugned deserves to be quashed, so that it may not lead to miscarriage of justice. Accordingly, the impugned order as against the petitioner is quashed. The instant petition is allowed.
25. While parting, 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.
jk/ (Aparesh Kumar Singh, J.)