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2. The accused is the revision petitioner. He challenges the order passed by the Special Judge-ll, CBI (AHD), Ranchi. On 20.1.2004 in RC 54/[A]/96-Pat by which the Special Judge dismissed a petition filed by the accused, the petitioner before me, seeking his removal from the array of the accused and to desist from framing any charge against him in the particular prosecution. According to the revision petitioner, the present case was one of the several cases registered in respect of fraudulent withdrawal of money from the Treasuries in Bihar on the strength of forged and fabricated allotment letters for making payments to suppliers for non-existent supplies of feed/fodder, medicines and other equipments, called fodder scam cases.

3. According to the revision petitioner, since he had been accepted as an approver in certain other fodder scam cases, including in one before the same Special Court, he could not be arrayed as an accused in the case on hand and since the prosecution has also agreed to treat him as an approver in the present case also, the Court was bound to treat him as an approver and remove him from the array of the accused. He contended that the evidence given by him in cases in which he had been treated as an approver, would be adversely affected if he is not made an approver in the present case also and that since the prosecution has agreed to treat him as an approver in the present case as well, the Court was obliged to drop him from the array of the accused and treat him as an approver, subject, of course, to the conditions in that behalf. The prosecution supported this plea of the revision petitioner, the accused. But the learned Special Judge took the view that he was one of the prime accused in the particular case and it would not be appropriate to treat him as an approver and that he had to be retained in the array of the accused. The Special Judge thus dismissed the application made by the accused and proceeded to frame charges against him. This revision challenges the order dismissing the applications of the accused to treat him as an approver in the present prosecution also.

5. Learned counsel for the revision petitioner submitted that the petitioner was treated as an approver by the very Court in another case and he had also been treated as approver in four other cases which were all part of the fodder scam cases and in that situation, the revision petitioner should have been treated as an approver in the present case also, notwithstanding the fact that he has been charged with misappropriation of a substantial part of the amount allegedly misappropriated in the present case. He also submitted that the treating of an accused as an approver was a matter of agreement between the accused and the prosecution, on the approver fulfilling his obligations under Section 306 of the Code of Criminal Procedure and when the prosecution has agreed to treat the revision petitioner as an approver, it was not open to the Court of Sessions or the Special Judge, to refuse to treat the revision petitioner as an approver. He went to the extent of arguing that there was no discretion in the Court in that regard and the Court was bound to affix its stamp of approval on the agreement between the prosecution and one of the accused who is willing to turn approver. Learned counsel referred to the decision of the Supreme Court in Pascal Femandes v. State of Maharashtra, AIR 1968 SC 594, with particular reference to paragraph 15 thereof, Therein Mr. Justice M. Hidayatullah, as he then was, speaking for the Supreme Court stated thus :--

10. The argument that the revision-petitioner having been treated as an approver in other cases including in one case before the same Court, it was obligatory on the Court to treat him as an approver in the present case also, cannot be accepted. In the State (Delhi Administration) v. Jaggit Singh referred to earlier, pardon was granted in respect of one offence whereas that person figured as an accused in four other cases. An argument was raised that since he was an accused in four other cases he could not be examined as an approver in the case in which he was recognised as such. It must be noted that; that was a case of joint trial, whereas there is no joint trial in the present case or in any other fodder scam cases. Inspite of it being a joint trial, the Supreme Court rejected the contention that the approver could not be examined as an approver in one case since he has been arrayed as an accused in the other cases. Therefore, this argument also cannot persuade this Court to interfere with the orders of the Sessions Court. Once the position is reached that the Court itself has discretion in the matter of acceding to a request to treat one of the accused as an approver and it was not merely a matter of contract between the prosecution and one of the accused, it cannot be said that the order passed by the Court below in the present case is one without jurisdiction. Then the only question is whether the Court below has acted unreasonably in exercising its discretion in not permitting the revision-petitioner to be treated as an approver. On going through the order of the Court below I find that the Court below was justified in adopting the stand it did, in the circumstances of the case. As observed by the Supreme Court in State of U.P. v. Kailash Nath, AIR 1973 SC 2210, an order granting pardon may be open to revision. But, whether the Court whose powers are invoked for that purpose will interfere or not is a matter depending upon the circumstances of each case. Incidentally, it may be noticed that the above decision also indicates that the tender of pardon is a proceeding of a criminal Court amenable to revisional jurisdiction indicating thereby that it is not merely a matter of contract between the prosecution and the accused. Good reasons are given by the Special Judge for refusing to accede to the prayer of the accused to treat him as an approver and in my view, the said reasons cannot be said to be unsound or untenable, calling for interference by this Court in revision.