Both these petitioners have been arraigned as accused by the common impugned order dated 23rd December, 2017 passed by learned Spl. Judge-VII, C.B.I (A.H.D. Scam) Ranchi in R. C Case no. 64(A)/96-Pat in exercise of the powers under Section 319 of Criminal Procedure Code, whereunder cognizance has been taken against the petitioner D. P. Ojha under Section 120-B read with Sections 420 of the Indian Penal Code and Section 13(2) read with Section 13(1)(c)(d) of Prevention of Corruption Act. Cognizance has been taken against the petitioner Sukhdeo Singh under Sections 120-B read with Sections 420, 467, 468, 471, 477A of the Indian Penal Code and under Section 13(2) read with Section 13(1)(c)(d) of Prevention of Corruption Act. Both have been directed to appear.

2. Both the petitioners have raised common grounds of law in support of the challenge to the impugned order.

3. Factual grounds urged by each of the petitioners are being referred to separately hereinafter.

Petitioner D.P.Ojha (‘D’) superannuated from the post of Director General of Police, Bihar while Petitioner Sukhdeo Singh (‘S’) is an officer of the Indian Administrative Service presently serving under Government of Jharkhand.

Cr. M. P. No. 253 of 2018

4. Petitioner ‘D’, an Officer of Indian Police Service was posted since 1990 in the Vigilance Department in various capacities as Deputy Inspector General and thereafter Inspector General, Additional Director General and also as Director General till January, 2002. Writ petitions bearing CWJC Nos. 1617/1996 and 602/1996 were filed before Hon’ble High Court of Judicature at Patna alleging large scale misappropriation of public funds to the extent of several hundred crores of rupees by indulging in fraudulent transactions and falsification of accounts in the Animal Husbandry Department in the State of Bihar over a long period between 1977-78 to 1995-96. This came to be commonly known as ‘Fodder Scam’. Patna High Court directed investigation of the scam by C.B.I. Hon’ble Supreme Court placed the investigation into Fodder Scam under the control and supervision of Chief Justice of Hon’ble Patna High Court by order passed in the case State of Bihar Vs. Ranchi Zila Samta Party [(1996) 3 SCC 682]. On 5th November, 1996, the Hon’ble Supreme Court passed further directions in relation to investigation of the Fodder Scam cases in the case of Union of India Vs. Sushil Kumar Modi [(1996) 6 SCC 500] to the effect that in case of any difference of opinion between the officers of C.B.I in relation to the implication of any individual in the crime, the matter would be determined according to the opinion of the Attorney General of India. The Apex Court observed as under:

“13. We make it clear that in case of any difference of opinion between the officers of the CBI in relation to the implication of any individual in the crimes or any other matter relating to the investigation, the final decision in the matter would not be taken by the Director, CBI, himself or by him merely on the opinion of the Legal Department of the CBI; and in such a situation, the matter would be determined according to the opinion of the Attorney General of India for the purpose of the investigation and filing of the charge-sheet against any such individual. In that event, the opinion would be sought from the Attorney General after making available to him all the opinions expressed on the subject by the persons associated with the investigation as a part of the materials.”

Supreme Court clarified this by order dated 24th January, 1997 reported in (1997) 4 SCC 770. Apex Court further clarified the direction by the order dated 7th April, 1997 in the following manner:

“2. It is reiterated that no reference is required to be made by the Director, CBI to the Attorney General if he is of the opinion that an individual has to be prosecuted, irrespective of the difference, if any, amongst other officers of the CBI since in that case the CBI must act promptly to commence the