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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 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.

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 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:

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.