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2019 Supreme(Jhk) 405
IN THE HIGH COURT OF JHARKHAND AT RANCHI
APARESH KUMAR SINGH, J.
Anjani Kumar Singh - Petitioner
Versus
The State of Jharkhand through C.B.I - Opposite Party
Cr. M.P. No. 941 of 2018
Decided On : 01-03-2019
Subject
Criminal Law - Trial and Conviction
Act Referred
Headnote
Criminal Procedure Code, 1973 - Section 482 – Indian Penal Code - Section 409,420, 467,468,471 and 477A - Quashing of the order - Formed requires stronger evidence – Jurisdictions - After conclusion of investigation persons were charge-sheeted as accused, 17 died during trial and charges were framed against 42 persons - Certain accused persons like were later on produced as approver after they were granted pardon by learned Court on acceptance of their complete and truthful disclosure of the material circumstances in relation to offence and to accused persons - A total of prosecution witnesses were examined - This petitioner was posted as Deputy Commissioner between fact that this R.C. case was registered by the CBI after taking over lodged by informant on basis of a written complaint bearing letter connection with fraudulent withdrawal under AHD during financial year 1991-96 under have been taken note of in opening paragraph of the impugned order as well – Held, It is pertinent to mention here that the Apex Court in answer to question posed had at held that if a person is not named as an accused, but against whom materials are available from the papers filed by the police after completion of the investigation, cognizance can be taken under section 319 Cr. PC and the Sessions Judge need not wait till evidence under section 319 Cr. PC becomes available for summoning an additional accused - Learned Trial Court which took cognizance of the offence at the initial stage after filing of the charge sheet at the relevant point of time, did not feel it necessary to take cognizance on the basis of the materials found during investigation as against this petitioner who was not named as an accused in the charge sheet. In the absence of any incriminating material evidence brought on record during trial or inquiry as against the petitioner, the learned Trial Court had no occasion to exercise such power. The inference drawn by the learned Trial Court that he was involved in criminal conspiracy with other co-accused in the Fodder Scam, does not follow from the discussions made in the impugned order as the materials on record shows that the petitioner was responsible for exposing the Scam and instrumental in institution of the FIR as against AHD officials and others. Learned Trial Court has itself taken note of the evidence of the informant Probationary I.A.S. Officer, who in his deposition has stated that it was only upon the direction of the petitioner, the then Deputy Commissioner that FIR was instituted. Learned Trial Court does not make any reference of evidence which shows that reaps or the fruits of the fraudulent withdrawal by the Fodder Scam accused passed on to this petitioner. Considered in this light this court is of the opinion that the findings of the learned Court failed to pass muster the strict legal test prescribed in case of and other later judgments of the Apex Court on the same line - This court also finds that no opportunity of hearing or notice to show-cause was given to the petitioner before the learned Court proceeded to form an adverse opinion against him. Learned Court fell short of following the principles of natural justice, as laid down in the case of State of Bihar necessity to give such an opportunity and the rationale behind it, has also been dealt with in same paragraph. A person arraigned as an accused under section 319 of the Cr. PC does not have an opportunity to seek discharge under section 227 of Cr. PC, which an accused person originally charge sheeted can avail of – Petition allowed
Advocate Appeared:
For the Petitioner: M/s Bindhyachal Singh, Subodh Kr. Dubey
For the CBI : Mr. Rajiv Nandan Prasad
For the Amicus Curiae : Mr. Kumar Vaibhav, Mr. Ashutosh Anand & Mr. Nipun Bakshi
JUDGMENT :
1. Heard learned counsel for the petitioner, the C.B.I and learned Amicus Curiae.
2. This petition has been filed invoking the inherent power of this Court under Section 482 of the Criminal Procedure Code, 1973 for quashing of the order dated 09.03.2018 passed in R.C. Case No. 45(A)/1996-Pat by learned Special Judge-VII, CBI (AHD Scam), Ranchi where under the learned Trial Court in exercise of powers under Section 319 Cr.P.C has found a prima facie case made out against the petitioner under Section 120(B) r/w Section 409,420, 467,468,471 and 477A of the I.P.C and under Sections 13(2) r/w 13(1)(c) &(d) of the P.C. Act and directed the C.B.I to seek sanction for his prosecution from the competent authority and file it within 1 month as the petitioner is an I.A.S Officer.
3. It is relevant to mention here that this R.C. case related to fraudulent withdrawal under Animal Husbandry Department (AHD) from Dumka Treasury for the financial year 1991-1996 one of the commonly known Fodder Scam Cases. By this common impugned order the learned Court has in exercise of its power under Section 319 Cr.P.C found prima facie case as against several persons including the petitioner, all of whom have assailed their arraignment in respective criminal miscellaneous petition. The final judgment of this case was pronounced on 09.04.2018 where by certain accused were convicted and some of them were acquitted.
It has been pointed out by learned counsel for the CBI that the instant R.C. case no.45(A)/1996-Pat was taken over for investigation upon the directions of the Hon’ble Patna High Court in a public interest litigation from Dumka (Town) P.S. Case No.22/1996 lodged on 22.02.1996 by the informant, an IAS officer Rajeev Arun Ekka, Probationary Assistant Collector cum Executive Magistrate. He was examined as P.W.1 in the instant case and has supported the case of the prosecution. After conclusion of the investigation 72 persons were charge-sheeted as accused, 17 died during trial and charges were framed against 42 persons. Certain accused persons like Shiv Kumar Patwari, Dr. Md. Syeed were later on produced as approver after they were granted pardon by the learned Court on acceptance of their complete and truthful disclosure of the material circumstances in relation to the offence and to the accused persons. A total of 197 prosecution witnesses were examined. This petitioner was posted as Deputy Commissioner, Dumka between June 1993 to June 1996. The fact that this R.C. case was registered by the CBI after taking over the Dumka(T) P.S. Case No. 22/1996 lodged by the informant Rajeev Arun Ekka, IAS on the basis of a written complaint bearing letter no. 480 dated 21.02.1996 in connection with fraudulent withdrawal under AHD, Dumka during the financial year 1991-96 under Head No. 2403 have been taken note of in the opening paragraph of the impugned order as well.
4. The question posed before this Court is whether the order of arraignment passed under Section 319 Cr.P.C meets the test laid down by the Apex Court in the Case of Hardeep Singh Vrs. State of Punjab reported in (2014) 3 SCC 92. Petitioner has, while relying upon a judgment rendered by the Apex Court in the case of Jogendra Yadav & Ors. Vs. State of Bihar, (2015) 9 SCC 244, para 9, taken the plea of violation of principles of natural justice. Petitioner has also questioned legality and correctness of the impugned order, directing the CBI to produce the sanction order for prosecuting the petitioner in the light of the legal position laid down in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622.
5. It is considered proper to reproduce the extract of the order dated 09.03.2018 so far as it concerns the petitioner herein:
“During argument, it is noticed that during investigation many accused persons left by the I.O but evidence on record shows their involvement in the occurrence of the case. After perusal of oral and documentary evidence as on record the following
