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Accordingly cognizance is taken by this court against Phool Jha. O.C. is directed to issue summon against above accused for appearance in the court and face the trial in above sections."

Learned counsel for the petitioner has assailed the order taking cognizance both on grounds of fact and in law inter-alia as under :-

It is submitted that the instant R.C. Case No. 38(A)/1996 relates to the subject period December 1995 to January 1996 relating to fraudulent withdrawal on the basis of fake allotment orders under AHD Department from Dumka Treasury to the tune of Rs.3,76,38,853/- against an allotment of Rs.1.5 Lakhs only. A number of suppliers, doctors, officials of A.H.D. and politicians were made accused. CBI submitted charge sheet on 11.05.2000 and a supplementary charge sheet on 24th June 2003. Petitioner was working as a Section Officer in Bihar Legislative Assembly posted on deputation in Public Accounts Committee between the periods 1990 to April 1996. During investigation the statement of this petitioner was recorded under Section 164 of the Cr.P.C. in connection with R.C. Case No.20(A)/1996 on 28.01.1997 which related to fraudulent withdrawal from A.H.D. Department under Chaibasa Treasury. Petitioner was not made an accused in any of the fodder scam cases including the present one. During trial in R.C. Case No.20(A)/1996 he was adduced as P.W.175, but he turned hostile. However, no such order of arraignment as an accused was passed against him by the then C.B.I. Court. During trial in the instant R.C. Case No.38(A)/1996 petitioner was examined as P.W.116 on 25th July 2007. He was however, declared hostile on the request of prosecution and thereafter cross-examined. He denied the statements made under Section 164 of the Cr.P.C. in connection with R.C. Case No.20(A)/1996. Petitioner during his statements made as P.W.116 clearly stated at paragraph nos.49 and 59 that he was tortured and he does not know how his statement was recorded as he did not utter anything. He was nervous. Contents of the statements made under Section 164 Cr.P.C., if read in totality, were to the effect that he had received the relevant records to be taken to Patna on paper for verification by the Public Accounts Committee but as a P.W.116 he denied having received the record on paper and that he did not take them to Patna. Though a show-cause notice was issued upon the petitioner by the then learned C.B.I. Court to explain as to why proceedings be not initiated against him for making false statement vide order dated 26th July 2007, but no order of cognizance or perjury was passed against him. However, learned C.B.I. Court at the fag end of the trial, 14 days before pronouncement of the judgment invoked the power under Section 319 Cr.P.C. without giving any notice to him or any other such persons and took cognizance of the offences under Sections 120(B) r/w 420, 467, 468, 471 I.P.C. and U/s 13(2) r/w 13(i)(c) & (d) of Prevention of Corruption Act. Petitioner was a Section Officer of the Bihar Legislative Assembly and had the protection under Section 197 of the Cr.P.C. even though he had retired in 2014. The impugned order would show that the learned trial court has not made reference to any other evidence adduced during inquiry or trial as the basis for taking cognizance. The Apex Court in the case of Hardeep Singh (supra) has clearly held that evidence has to be understood in its wider sense both at the stage of trial or even at the stage of inquiry, but definitely not any of the materials collected during investigation. Petitioner's statement made under Section 164 of the Cr.P.C. during the stage of investigation could not be treated as evidence in the eye of law unless corroborated during trial. There is no other evidence referred to by the learned court in the impugned order made by any other witness which incriminates the petitioner of having committed any of the cognizable offences for which cognizance could have been taken under Section 319 of the Cr.P.C. Declaration of hostile during trial could not be a legal basis to invoke the power under Section 319 of the Cr.P.C. A protection is granted under Section 132 of the Evidence Act against self-

On behalf of the CBI a counter affidavit has been filed. Learned ASGI submits that the present case is one of the fodder scam cases i.e., R.C. Case No.38(A)/1996-Pat. in which after conclusion of investigation, charges were framed on 17th May, 2005 by the learned Special Judge, CBI for the offences under Indian Penal Code and the Prevention of Corruption Act against the accused persons including public servants, apart from the suppliers. This petitioner had earlier made a statement under Section 164 Cr.P.C in connection with R.C Case No. 20(A)/1996. He was examined as P.W. 116 in the instant R.C. Case, but was declared hostile. No document was got exhibited by him in this case on behalf of the prosecution. During his cross-examination he had exhibited one defence document on behalf of the accused Dr. Jagdish Sharma i.e. photo copy of letter no.1744 dated 23rd December, 1994 marked as 'X'. He did not confirm the contents of the statement recorded under Section 164 Cr.P.C but only identified his signature on the said statement dated 28th January, 1997 recorded by the learned Judicial Magistrate, 1st Class, Dumka marked as Ext.-44/3. In R.C. Case No. 20(A)/1996 also on being examined as P.W.175 he was declared hostile. During trial he did not support his earlier version or statements given before the Investigating Officer as well as under Section 164 Cr.P.C.