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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 :-

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.

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.

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: