Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the petitioner Mr. Prashant Pallav assisted by learned counsel Mr. Parth Jalan, Learned ASGI assisted by learned Counsel Mr. Rajiv Nandan Prasad representing the C.B.I. and learned Amicus Curie Mr. Vaibhav Kumar, Mr. Ashutosh Anand and Mr. Nipun Bakshi
(2.) Petitioner is aggrieved by the order dated 5th March 2018 arraigning him as an accused passed by learned court of Special Judge-VII, CBI (AHD Scam), Ranchi in R.C. No.38(A)/1996 (Pat.) in exercise of powers under Section 319 Cr.P.C. The learned CBI Court after conclusion of the trial, posted the matter for judgment and proceeded to pass an order of arraignment against several persons in exercise of powers under Section 319 Cr.P.C. Individual challenges have been made by number of such persons arraigned as an accused before this Court in different criminal miscellaneous petitions. The order of arraignment dated 05.03.2018 passed against the present petitioner contained under Para B is quoted hereunder: 'After perusal of records it is transpires that retired D.G.P, Mr. D.P.Ojha remain posted in State Vigilance for a long time. Witness No.200 Mr. Bidhu Bhushan Divedi examined on 10.06.2011 clearly who deposed that on the basis of Local News Paper Publication he written a letter to the D.G, Vigilance in relating to illegal payment made by AHD, Ranchi in the name of fake supplies. Witness no.200 written a letter dated 24.05.1992 and 25.05.1992 to the then D.G.P, who retired on 31.05.1992. Later on Mr. D.P.Ojha promoted to that post, the letter Exhibit 18/38 and 18/39 and Exhibit 18/40. The file no. BS 38/92 open in the Vigilance Cell which Exhibit 105 on identification. The C.B.I Inspector Mr. A.K. Jha seized this file on 29.12.1996 identified the writing and signature of Mr. Ajay Kumr Jha, Inspector, which Exhibit 1/38 but do not take action in relevant of that information which disclosed by this witness, the then Inspector Ajay Kumar Jha provide umbrella of protection to the then D.G.P, Mr. D.P.Ojha in this way, court found that C.B.I Inspector Mr. Ajay Kumar Jha and retired D.G.P Mr. Dhrub Prasad Ojha both are involve in criminal conspiracy. Court found prima facie case U/s-120(B) r/w Sec420,467,468,471 of I.P.C and U/s-13(2) r/w Section -13(i)(c) & (d) of the P.C. Act. The then C.B.I inspector Ajay Kumar Jha still in service so need the Sanction for prosecution from proper authority. The D.G.P of C.B.I is directed to seek Sanction for prosecution from proper authority and file in the court within a month. Later on the cognizance order will be passed after filing of Sanction order.
(3.) Learned counsel for the petitioner has placed the order impugned and made following submissions, both on factual and legal grounds in order to assail the legality and correctness of the order: He submits that this R.C. Case No. 38A/96 under the Fodder Scam Cases, specifically relates to the Dumka Treasury from where fraudulent withdrawal were made under the Animal Husbandry Department between the period December 1995 to January 1996. Learned CBI Court in a cryptic manner has formed opinion that this petitioner being the Inspector of CBI used his position to provide umbrella of protection to one Mr. D.P. Ojha, the then D.G.P Vigilance in conspiracy with him and proceeded to arraign him as an accused for the offences under the Indian Penal Code and Prevention of Corruption Act. Learned Trial Court further proceeded to direct the competent authority to file order of sanction in the Court. It is contended on behalf of petitioner that petitioner was not the Investigating Officer of R.C. Case No.38(A)/1996 rather one Sri Dhirendra Nath Biswas, Dy.S.P. CBI was the Investigating Officer of the case. This fact finds mention in the judgment passed by learned Special Judge-VII, CBI, AHD Scam Cases, Ranchi. The said Mr. Biswas has been examined as P.W.232 in the said case whereas petitioner has been examined as P.W.245 to prove certain scrutiny reports of bills which were made by the Investigating Officer of the case Mr. Biswas. This is also corroborated by the deposition of the petitioner. Learned CBI Court failed to take into consideration the aforesaid fact, while passing the impugned order. The main allegation against the petitioner is that he provided umbrella of protection to Mr. Dhrub Prasad Ojha, the then DGP, Vigilance by not making him as an accused inspite of incriminating evidence seized from his possession i.e, file BS 38/92. The decision to not arraign Mr. D.P. Ojha as an accused was not and could not have been taken by the petitioner, who was an Inspector at the relevant period and power to chargesheet any person was not vested upon him. The decision not to chargesheet Mr. D.P. Ojha had already under gone judicial scrutiny. The decision not to make Mr. Ojha an accused had been taken on the opinion of the Solicitor General of India. Learned Solicitor General took into consideration the actions taken by Mr. Ojha on the same file i.e., BS 38/92. Learned Solicitor General was of the view that no criminal action against Mr. Ojha could be initiated, however departmental action as per the service rules may be initiated. The opinion of learned Solicitor General was thereafter affirmed by Learned Attorney General on 28.07.2000. It is submitted that opinion was sought after the order of the Hon'ble Apex Court in SLP Number 7853, 784 of 1997 on 7.4.1997 whereby the Apex Court had directed that the opinion of the Attorney General shall be taken in case the Director, CBI decides not to chargesheet a person as an accused and thereafter the same was to be decided by the Courts. The decision of the CBI has undergone judicial scrutiny by the monitoring Bench of this Court, wherein vide order dated 7.12.2001 passed in CWJC No. 293 of 2001 the Additional Director CBI was directed to submit the file to the Director CBI who was to reconsider the same and form his opinion. Based on the fresh opinion on the subject matter, this Court vide order dated 05.04.2004 did not proceed any further in respect of Sri D.P.Ojha.;