2018 Supreme(Jhk) 1578

IN THE HIGH COURT OF JHARKHAND AT RANCHI
APARESH KUMAR SINGH, J.
Vijay Shankar Dubey – Petitioner
Versus
Central Bureau of Investigation, Economic Offences Wing, Ranchi - Opposite Party
Cr. M.P. No. 901 of 2018
Decided On : 14-12-2018

Headnote:

Indian Penal Code, 1860 – Sections 120(B) r/w Section 420, 467, 468, 471 – Prevention of Corruption Act – Section 13 – Code of Criminal Procedure, 1973 – Section 197 – Withdrawal – 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. – 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. – Held, It is pertinent to mention here that the Apex Court has in the case of Brijendra Singh Vs. State of Rajasthan reported in (2017) 7 SCC 706 further explained the principles laid down in the case of Hardeep Singh. – It has given a note of caution that the discretionary power under Section 319 Cr.P.C. being also an extra-ordinary one has to be exercised sparingly and in case circumstances so warranted. – Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. – It is not to be exercised in a casual or a cavalier manner. – The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. – The pronouncement of the Apex Court in essence reverberates the concept of fair Trial i.e. real culprit should not get away unpunished. – It is based on the doctrine judex damnatur cum nocens absolvitur. – Trial Court has also proceeded on an erroneous understanding of law that since the petitioner has superannuated, there was no requirement of sanction. – Reliance is placed upon the opinion of the Apex Court in the case of Labh Singh (supra) para 9 & 10, which related to the case of a retired officer and also in the case of Surinderjit Singh Mand (supra) para 30 & 31. – Protection from prosecution is also available to a retired Government employee under Section 197 of the Cr.PC. – In case, the acts constituting offence could not be complete without proving the officials Acts, sanction is required for prosecuting even a retired Public Servant. – The Apex Court in the aforesaid cases has held that sanction for prosecution is required both in respect of serving and retired government employee under Section 197 of the Cr.P.C. Sanction for prosecution is also required against a serving government employee in case the offence prosecuted are under the P.C Act. – It is surprising that learned Court was unaware of the settled principle of law on this point. – It completely failed to address the issue germane in exercise of power under Section 319 of the Cr.P.C in the light of the above principles. – Court have carefully dealt with each of the contentious issues involved in the instant case as discussed herein above, in detail. – The impugned order cannot be sustained in law and on facts on several counts. – In the aforesaid facts and circumstances and in view of the detailed discussion and the reasons recorded herein above, this Court is of the opinion that the exercise of power under Section 319 of the Cr.P.C was not proper in the eye of law and on facts. – It deserves to be quashed in order to prevent the abuse of the process of Court, lest it may lead to miscarriage of justice. – Impugned order is quashed – Petition Allowed