Aparesh Kumar Singh, J. - (1.) Petitioner has been arraigned as an accused by the impugned order dated 23rd December, 2017 passed by the learned Special Judge-VII, CBI (AHD Scam), Ranchi in R.C. No. 64(A)/1996 (Pat) in exercise of the powers under section 319 of the Criminal Procedure Code, 1973 wherein cognizance has been taken for the offences under Section 120-B read with Sections 420, 467, 468,' 471, 477-A of the Indian Penal Code and under Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act. This has been assailed by the petitioner inter alia on the following grounds:- (i) There exists no such evidence on record to enable the learned Court to arrive at such an opinion. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to the extent that the evidence, if goes unrebutted, would lead to conviction. Learned Counsel for the petitioner has referred to the charge-sheet, the deposition of the petitioner as a prosecution witness No. 54 and Exts. D-7 and D/8 series in support of the aforesaid contention that not only did the prosecuting agency CBI did not find any complicity of the petitioner to be added as an accused for the alleged acts during period of his posting as Deputy Commissioner, Deoghar between 23rd June, 1993 to 31st May, 1994 nor withdrawal continued in the fashion for the previous financial years 1991-92, 1992-93 during his period of posting, rather the same was stopped. Reference is made to one or the other letters by which the petitioner ordered an enquiry and also communicated to the Secretary, AHD, Bihar about absence of original allot ment letters for withdrawal of such large sums from the Deoghar Treasury in respect of the Animal Husbandry Department and for taking necessary action. (ii) The learned Special Judge, CBI pronounced the judgment in R.C. No. 64(A)/96 (Pat.) on 23rd December, 2017. The trial concluded by conviction or acquittal of one or the other accused. Therefore, exercise of power to arraign the petitioner as an accused under Section 319, Cr PC is without jurisdiction. Reliance is placed upon a Constitution Bench judgment rendered by the Apex Court in the case of Hardeep Singh v. State of Punjab and others, reported in (2014) 3 SCC 92 paras 40 and 47 thereof. Reliance is also placed upon the judgment rendered by the Apex Court in the case of Brijendra Singh and others v. State of Rajasthan, reported in (2017) 7 SCC 706 para 10. (iii) The learned trial Court has proceeded to take cognizance for the offences under the Indian Penal Code and the Prevention of Corruption Act without any order of sanction from the Competent Authority. Reliance is placed upon the judgment rendered by the Apex Court in Surindexjit Singh Mand and another v. State of Punjab and another, reported in (2016) 8 SCC 722 paras 27 and 30, Mansukhlal Vithaldas Chauhan v. State of Gujarat, reported in (1997) 7 SCC 622, paras 14 to 17 in support of the aforesaid submission. (iv) Learned Trial Court, by issuing a direction upon the CBI to file sanction order of the petitioner and one other person, has committed serious error in law as it has left the sanctioning authority with no other alternative than to grant sanction of prosecution. The discretion to order sanction or not is vested in the Competent Authority which has to be exercised after complete application of mind on the basis of the materials on record; whether any case is made out so as to prosecute a person as an accused. The discretion not to sanction to prosecute was taken away by the impugned direction. He relies upon the judgment rendered by the Apex Court in Sanjay Singh Ramrao Chavan v. Dattatray Gulabrao Phalke and others, reported in (2015) 3 SCC 123 para 90 thereof.
(2.) Based on these submissions, learned counsel for the petitioner has sought quashing of the impugned order. He further submits that the charge-sheet was filed in 1997, trial has concluded on 23rd December, 2017 and the arraigning of the petitioner as an accused after 20 years of filing of the charge-sheet would result in an abuse of the process of the Court which should be prevented in exercise of the powers under section 482 of the Criminal Procedure Code, 1973 by this Court.
(3.) Learned ASGI representing CBI has made the following two-fold legal submissions on the point of jurisdiction and authority of the CBI Court to array the petitioner as an accused:- (i) The power of the learned CBI Court did not get exhausted on the pronouncement of the judgment on 23rd December, 2017 as the order taking cognizance was passed on the same day against the petitioner and other persons. He also placed reliance upon paragraphs 40 and 47 of the judgment rendered by the Apex Court in the case of Hardeep Singh (supra). (ii) Learned counsel submits that the order of sanction is automatic in view of the judgment rendered by the Apex Court in the case of Lalu Prasad @ Lalu Prasad Yadav v. State of Bihar through CBI, reported in (2007) 1 SCC 49. Reliance is placed on the opinion of the Apex Court at paragraph-10 of the report. ;