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4. Petitioner 'D', an Officer of Indian Police Service was posted since 1990 in the Vigilance Department in various capacities as Deputy Inspector General and thereafter Inspector General, Additional Director General and also as Director General till January, 2002. Writ petitions bearing CWJC Nos. 1617/1996 and 602/1996 were filed before Hon'ble High Court of Judicature at Patna alleging large scale misappropriation of public funds to the extent of several hundred crores of rupees by indulging in fraudulent transactions and falsification of accounts in the Animal Husbandry Department in the State of Bihar over a long period between 1977-78 to 1995-96. This came to be commonly known as 'Fodder Scam'. Patna High Court directed investigation of the scam by C.B.I. Hon'ble Supreme Court placed the investigation into Fodder Scam under the control and supervision of Chief Justice of Hon'ble Patna High Court by order passed in the case State of Bihar Vs. Ranchi Zila Samta Party [(1996) 3 SCC 682]. On 5th November, 1996, the Hon'ble Supreme Court passed further directions in relation to investigation of the Fodder Scam cases in the case of Union of India -Vs. Sushil Kumar Modi [(1996) 6 SCC 500] to the effect that in case of any difference of opinion between the officers of C.B.I in relation to the implication of any individual in the crime, the matter would be determined according to the opinion of the Attorney General of India. The Apex Court observed as under:

8. Learned counsel for the petitioner contended that the petitioner was never 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 a result of the examination of the case of the petitioner, a decision was taken not to proceed against the petitioner in any of the Fodder Scam Cases. In the instant R. C. Case No. 64A/1996-Pat, F.I.R was registered by the CBI against several persons under the provisions of Indian Penal Code and Prevention of Corruption Act on the allegations that between the period 1990-1994, certain public servants posted in the Animal Husbandry Department, Deoghar had entered into a criminal conspiracy with 24 private Firms and had misappropriated or allowed misappropriation of large sums of Government money from the District Treasury, Deoghar in excess of actual allotment and on the basis of forged allotment and sub-allotment letters. On 28th October, 1997, a charge-sheet was filed by CBI against 34 persons in which petitioner's name was not included. Learned trial court took cognizance of the offences under Sections 120-B read with sections 418, 420, 467, 468, 471, 477A, 409, 201 and 511 of the Indian Penal Code read with Sections 13(2) and Section 13(1)(c) and

10. Learned trial court however, after pronouncement of the judgment erroneously proceeded to take suo moto cognizance against the petitioner on the basis that (a) petitioner then posted in State Vigilance Department had ordered "do not investigate" in relation to Case no. 34/1990 PS State Vigilance, Patna "related to Fodder Scam Case" on the basis of letters dated 23 rd August, 1990 and 15th November, 1990 written by the then opposition leader Jagarnath Mishra "accused no. 2" to the then Chief Minister Lalu Prasad Yadav "accused no. 1". (b) Charge-sheet revealed that in relation to File No. BS 23/94 of Vigilance Department "related to Fodder Scam" in or around June, 1994, letters were written by Jagdish Sharma, the then Chairman of Public Accounts Committee and accused no. 4 to the then Chief Minister Lalu Prasad Yadav (accused no. 1) directing him to restrict the inquiry of the Vigilance Department. Such letters were marked to the Vigilance Department and were dealt with by the petitioner by seeking clarification from the Government. The relevant file was forwarded to the Office of then Chief Minister and was not returned for a period of 16 months during which period, the inquiry remained stalled. It showed that petitioner was actively participating in criminal conspiracy with other co-accused Jagdish Sharma and Lalu Prasad Yadav. Therefore, prima facie case of offence was made out against him as he was working in the State Vigilance at the relevant point of time. Petitioner has sought quashing of the order taking cognizance and the order dated 3rd January, 2018 so far as it relates to the petitioner, whereunder learned trial court has directed the CBI to file a sanction order in relation to the petitioner.

15. Learned counsel for both the petitioners have more or less urged the common grounds of law in support of the challenge to the impugned orders. At the same time, few specific grounds based on facts of their individual cases, have also been urged which are also dealt with hereinafter. Legal submissions on behalf of the petitioners:-

16. Learned counsel for the petitioner 'D' has endeavoured to point out that the case against the petitioner on his alleged involvement in the fodder scam was examined at various levels of the C.B.I., by the learned Solicitor General and learned Attorney General and finally by the monitoring bench of Hon'ble Patna High Court. The result of such examination was that a decision was taken not to proceed against the petitioner in any of the fodder scam cases. Learned trial court, however, erroneously took suo-moto cognizance of the offences and issued process against the petitioner on the basis that: