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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 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 :

(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 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 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.

7. Learned A.S.G.I. representing the CBI has in response made the following submissions :-

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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.