Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the petitioner, C.B.I. and the Amicus Curie.
(2.) Petitioner has assailed the order dated 5th March 2018 arraigning him as an accused in exercise of powers under Section 319 Cr.P.C. passed by learned court of Special Judge-VII, CBI (AHD Scam), Ranchi in R.C. No.38(A)/1996 (Pat.). For better appreciation the relevant part of the impugned order dated 5th March 2018 so far as it relates to the present petitioner are being quoted hereunder :- 'In brief the Fodder Scam story is that fraudulently allotment letter prepared in the Finance Department of the then Bihar Government. The prepared allotment letter directly received by Regional Director AHD Department, Santhal Pargana, Dumka. The Regional Director sub-allotted to District Animal Husbandry Officers, (DAHO). The Regional Director and other Officers post in AHD Department had registered firms in the name of their relatives, who only received supply order and prepared fake vouchers relating to supply in the AHD Offices. The Veterinary Doctor granted receiving relating to supply which is fake and forge in real sense no any supply in the department was made but on the basis of false vouchers and receiving the bill was prepared in the department. Such prepared bill send to District Treasury. The Treasury Officer by post D.C. delegate his power to another person as Treasury Officers, who pass the bill of AHD Department without perusal of budget allotted in respected department. The D.C., Deoghar written a letter to D.C., Dumka for sending an allotment letter which received in R.D., AHD Department, Santhal Pargana, Dumka. After disclosing six false and fabricated allotment letter in Deoghar, Treasury by which withdrawn Rs.50,00,000/- (fifty lacs) against valid allotment which was only Rs.6,000/- (six thousand). The Executive Magistrate, Sri S.S. Tiwary after inquiry submitted report by letter no.157 dated 11.3.1994 to the D.C., Deoghar and D.C., Deoghar written a letter to the D.C., Dumka. (A) The then D.C., Dumka Mr. Anjani Kumar Singh do not taken any action since a long time and fraudulently money withdrawn from Dumka Treasury. The Deputy Collector, Dumka Sri Brij Kishore Pathak conducted an inquiry in Treasury, Dumka and found that in financial year 1995-96 non-planning 2403 allotted Rs.1,50,000/- only by letter no.7559 dated 30.12.1995 to Animal Husbandry Department whereas in two months December 1995 and January 1996, the Regional Director withdrawn Rs. 3,76,38,853/- illegally. The D.C. Sri Anjani Kumar Singh who was the Addl. Secretary Finance, Government of Bihar during 1992-93, later on posted as Deputy Commissioner, Dumka and passed an order on 17.08.1993 that bills of above Rs.1,00,000/- (one lakh) be placed before him, when bills of AHD were sent to him by the District Treasury seeking the approval for payment. From perusal of record it appears that the Finance Secretary Sri V.S. Dubey taking charge in August 1995 and illegally withdrawn money in the month December 1995 and January 1996 above both public officers do not perform his duty so legal way and remain negligent regarding his powers duty as allotted by Indian Constitution. From perusal of oral and documentary evidence as on record, court found Anjani Kumar Singh and V.S. Dubey prima facie liable for criminal conspiracy in forged withdrawal of money from Dumka Treasury in the month December 1995 and January 1996.' '(E) The then Finance Secretary Sri Vijay Shankar Dubey is superannuated from service so no need to seek sanction from proper authority. After perusal of oral and documentary evidences, on record prima facie case is made out U/s.120(B) r/w Section 420, 467, 468, 471 of I.P.C. and U/s 13(2) r/w Sec.13(i)(c) & (d) of P.C. Act. Accordingly, cognizance is taken against Vijay Shankar Dubey and O.C. is directed to issue summon for appearance in the court and face the trial.'
(3.) Learned counsel for the petitioner has urged both factual and legal grounds in support of the challenge. Briefly stated it is the case of the petitioner that the learned trial court had no material evidence on record to arraign the petitioner neither was such a case set up by the CBI. Petitioner was the Finance Secretary of the Government of Bihar during the period 27th July 1995 to 17th June 1998. It was he who on noticing the fraudulent withdrawal from a period starting from 1988-89 under A.H.D., directed through FAX message dated 19th January 1996 to all the District Magistrates to furnish all details of drawls bill wise, minor head and unit wise from the Animal Husbandry Department from the months of November 1995 to December 1995. It is only because of his action that AHD scam got exposed. Learned CBI Court has proceeded to take cognizance under the offences of Indian Penal Code as well as Prevention of Corruption Act against him and erroneously held that no sanction for prosecution is required as he has already superannuated from service though such requirement is mandatory for proceeding under the offences of I.P.C. even if the officer has retired. No show-cause was issued to the petitioner before arraigning him as an accused in teeth of the judgment of the Apex Court in the case of Jogendra Yadav & Ors. Vs. State of Bihar, 2015 9 SCC 244.;