Rakesh Ranjan Prasad, J. - (1.) Since, the issue involved in the aforesaid four cases is the same, it were heard together and are being disposed of by the common order though all the cases do arise out of the different R.C. Cases. Pursuant to the order passed by the Hon'ble Supreme Court as well as the Patna High Court, the CBI took up the matter for investigation during which it registered 64 cases, including R.C. Case Nos. 25(A)/1996, 33(A)/1996, 38(A)/1996 and 20(A)/1996, which are the subject -matters of these cases.
(2.) According to Mr. Pandey, learned senior counsel appearing for the petitioner, when the CBI took up the matter for investigation of the Fodder Scam cases, it recorded the statements of one S.B. Sinha, (since died) a kingpin of the Scam known as Fodder Scam. He, in his statements, named all those persons, who were involved in one way or the other in defrauding the State and misappropriating a colossal amount. On that basis Clerks, Peons, TVOs of the Animal Husbandry Department and also the Treasury Officers and Treasury Clerks, who were the beneficiaries, were made accused. However, the beneficiaries at the highest level were left out though their names did find figure in the statements of S.B. Sinha. However, some big personalities like Jagannath Mishra and Laloo Prasad Yadav, the former Chief Minister of the State of Bihar, were made accused. The entire focus of the investigation was against them and, thereby, the CBI did not care to look or take into account the culpabilities of others though they were equally responsible as they were also the beneficiaries of the Scam. In that event, the petitioner, being a social activists, when was able to get hold of certain documents, came to know that Dr. Shyam Bihari Sinha had made statements in connection with R.C. Case No. 32/1996, wherein it was disclosed that the payments to the politician were made through one Umesh Pd. Singh, the then Sec. Officer, Cabinet Vigilance Department, Government of Bihar and, therefore, he was arrested but he did not confirm the statement of S.B. Sinha of payment being made to Nitish Kumar and Shiva Nand Tiwary though S.B. Sinha, in his statement, was quite categorical that Rs. 1 crore had been given to Nitish Kumar and around Rs. 30 -40 lakhs to Shiva Nand Tiwary. According to the statements made by S.B. Sinha, one Bijay Kumar Mallick was directed to pay one crore to Umesh Pd. Singh for being paid to Mr. Nitish Kumar and, thereby Bijay Kumar Mallick paid one crore to Umesh Pd. Singh at New Delhi, which seems to have been paid to him as Mr. Nitish Kumar confirmed telephonically about receipt of the money. Such statement of S.B. Sinha also gets corroboration from the statement of Umesh Pd. Singh, who, in his statement, confirmed that Bijay Kr. Mallick was a person, who used to give money to conduits for making payment to big politician and that Bijay Mallick at the instance of S.B. Sinha handed over Rs. 4 lakhs in Marina Hotel to Mr. Shiva Nand Tiwary. On account of culpability of Umesh Pd. Singh being there, he was taken into custody. When the bail application was moved on his behalf, it was opposed by the CBI and the bail application was rejected by the Court. Thereupon, Umesh Pd. Singh filed a writ of habeas corpus (Cr.W.J.C. No. 842/1996) in which one Javed Ahmad, the then Superintendent of Police, S.P.E., CBI, Patna, filed a counter affidavit, wherein it was stated that the petitioner (Umesh Pd. Singh), was offered by one of the prime suppliers/accused of the case, a huge amount of money in crores to influence the then political personalities and the petitioner (Umesh Pd. Singh) was used as a conduit and, thereby, the petitioner (Umesh Pd. Singh) was deeply involved along with other accused persons whereby crores and crores of rupees were misappropriated. The aforesaid accusation also gets confirmed from the statements of R.K. Das, one of the accused whereby he, in his 164 statement, had stated that S.B. Sinha had disclosed that Nitish Kumar is being paid money by R.K. Rana.
(3.) According to Mr. Pandey, learned senior counsel, had the investigation being made in right perspective against Nitish Kumar and Shiva Nand Tiwary on the basis of the materials surfaced against them, sufficient materials could have been collected for submitting charge -sheet like that of Laloo Prasad Yadav, Jagannath Mishra and others. In this regard, it was further submitted that the CBI may not have submitted charge -sheet against them probably by forming an opinion that sufficient materials are not there, which prerogative the investigating agency does have but such opinion formed by the investigating agency is not final as it is always subject to scrutiny by the Court who has a right under the statute either to accept or reject or can direct for further investigation but the CBI never placed materials collected against those two persons before the Court and, thereby, the Court had no opportunity to scrutinize it. Had those materials been brought, the Court would have scrutinized it as it is the duty of the Court to see that no innocent person is harassed but at the same time no guilty should be spared and, therefore, even if according to CBI, there was no sufficient materials, those materials should not have been brought to the notice of the Court so that the Court may have or may not have taken cognizance or could have passed order for further investigation if the court would have felt necessity of it. In this regard, learned counsel referred to a decision rendered in a case reported in " : AIR 2012 SC 2326", wherein it has been held that "The Court is vested with very wide powers in order to equip it adequately to be able to do complete justice." At the same time the Hon'ble Supreme Court also did observe that "the Court's has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation.";