Dhruva Prasad Ojha @APPELLANT@Hash State of Jharkhand

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.

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

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

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 â€"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.â€​

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 prosecution. It is only if the Director, CBI takes the view that an individual is not to be prosecuted that he cannot close the case and in

that event, he must refer the matter to the Attorney General for his opinion. In such a case, if the Attorney General is of the opinion that the individual

must be prosecuted then the Director, CBI is to promptly act on that opinion and commence the prosecution. If, however, the Attorney General also

concurs with the Director, CBI that the individual is not to be prosecuted, then the matter has to be reported to the Court for examination by the Court

within the parameters of such a proceeding.â€​

C.B.I conducted detailed preliminary enquiry and registered several F.I.R for various offences relating to the Fodder Scam and examined the role

of various public servants of different departments. As and when any disagreement or difference of opinion arose regarding the prosecution of any

specific person, the same was decided in accordance with the decision of the Hon’ble Supreme Court.

Petitioner contends that he was also one of the Public Servants whose role and involvement was inquired into / investigated by the CBI. Some of

the Investigating Officers took a view that the petitioner should be prosecuted as an accused in the Fodder Scam. However, some other officers of

the CBI took a contrary view in the light of the difference of opinion. The matter was placed before the Attorney General of India as per direction of

Hon’ble Supreme Court. Attorney General of India sought view of the Solicitor General of India. Upon a detailed consideration of the matter, it

was opined that there was insufficient material to justify the prosecution of the petitioner. Such opinion was concurred by the Attorney General of

India. On this basis, a decision was taken by the CBI not to prosecute the petitioner. The opinion of Attorney General of India and Solicitor General of

India are enclosed as Annexure-1 to the petition. The matter was placed before the Monitoring Bench of Hon’ble Patna High Court. Patna High

Court directed the then Director, CBI to reconsider and re-examine the matter relating to the petitioner.

On 7th February, 2002, the then Director of CBI re-examined the matter against the petitioner and was of the view that prosecution of the

petitioner on that basis is not warranted. This decision not to prosecute the petitioner was again placed before Hon’ble High Court. The

Hon’ble Patna High Court upon consideration of the matter on 5th April, 2002 passed the following order:

“In the order dated 01.02.2002 we had directed the Director, CBI to re-examine and reconsider the issue relating to the prosecution of Shri

D.P.Ojha. We have been handed over the original CBI file in a sealed cover. We had seen the notings on this file of various officials, including the

present Director of CBI recorded on 07.02.2002 and find that based on the opinion of the learned Solicitor General as concurred by the learned

Attorney General on the appreciation of the material available on the record, the CBI has taken a definite stance that there is not enough material to

warrant his prosecution and that instead, departmental action against him is warranted. In view of the aforesaid, we wish to proceed no further in so

far as D.P.Ojha is concerned. The original file of the CBI is returned to Mr. Rakesh Kumar, learned counsel for the C.B.I.â€​

Learned counsel for the petitioner contended that the petitioner was never named as an accused in any F.I.R pertaining to the Fodder Scam cases,

nor was implicated as an accused in any charge-sheet or supplementary charge-sheet filed by the CBI in any of the Fodder Scam cases. As a result

of the examination of the case of the petitioner, a decision was taken not to proceed against the petitioner in any of the Fodder Scam Cases. In the

instant R. C. Case No. 64A/1996-Pat, F.I.R was registered by the CBI against several persons under the provisions of Indian Penal Code and

Prevention of Corruption Act on the allegations that between the period 1990-1994, certain public servants posted in the Animal Husbandry

Department, Deoghar had entered into a criminal conspiracy with 24 private Firms and had misappropriated or allowed misappropriation of large sums

of Government money from the District Treasury, Deoghar in excess of actual allotment and on the basis of forged allotment and sub-allotment

letters. On 28th October, 1997, a charge-sheet was filed by CBI against 34 persons in which petitio ner’s name was not included. Learned trial

court took cognizance of the offences under Sections 120-B read with sections 418, 420, 467, 468, 471, 477A, 409, 201 and 511 of the Indian Penal

Code read with Sections 13(2) and Section 13(1)(c) and (d) of the Prevention of Corruption Act by order dated 2nd July, 1998.

C.B.I filed a supplementary charge-sheet against various accused persons on 25th August, 2004 but did not name the petitioner, wherein four

additional persons were summoned to face trial. Prosecution had set up a case that fraudulent withdrawal of Rs. 95,08,140.10 took place from

Deoghar Treasury during the Financial Years 1991-92 to 1993-94 on the basis of forged and fabricated allotment letters and spurious bills submitted by

the accused persons (suppliers/private firms). Payments were paid from Deoghar Treasury without effecting any supply or transporting any material.

Fraud was carried out at three levels (i) the lower level functionaries at the district level (ii) the supervisory level officers at the regional level who

were engaged in creating conditions for fictitious allotment orders for fictitious bills against non-supply and (iii) the top management of the Animal

Husbandry Department, Government and other statutory bodies like Public Accounts Committee and politicians who offered protection and patronage

to these nefarious activities. In return, the politicians and bureaucrats enjoyed hospitalities and also received pay-offs from co-conspirators. Learned

trial court framed charges on 26th September, 2005 against various persons under Sections 120-B read with Sections 409, 420, 465, 467, 468,

471,477A and Section 13(2) and 13(i) (c ) and (d) of the Prevention of Corruption Act. 22 persons pleaded not guilty and faced trial.

CBI examined 156 persons as prosecution witnesses during trial. Accused persons examined 16 witnesses in their defence. Petitioner was

examined as Defence Witness no. 15 and was cross-examined by the CBI. Learned trial court also examined one person as Court witness. The trial

concluded and the matter was reserved for judgment on 13th December, 2017. On 23rd December, 2017, learned trial court pronounced its judgment

in the matter and convicted 16 persons under Sections 120-B read with Sections 420, 467, 468, 471 and 477-A of the Indian Penal Code and under

Section 13(2), Section 13(1)(d) of Prevention of Corruption Act. Six other persons were acquitted of all the charges.

Learned trial court however, after pronouncement of the judgment erroneously proceeded to take suo moto cognizance against the petitioner on

the basis that (a) petitioner then posted in State Vigilance Department had ordered “do not investigate†in relation to Case no. 34/1990 PS State

Vigilance, Patna “related to Fodder Scam Case†on the basis of letters dated 23rd August, 1990 and 15th November, 1990 written by the then

opposition leader Jagarnath Mishra “accused no. 2†to the then Chief Minister Lalu Prasad Yadav “accused no. 1â€. (b) Charge-sheet

revealed that in relation to File No. BS 23/94 of Vigilance Department “related to Fodder Scam†in or around June, 1994, letters were written by

Jagdish Sharma, the then Chairman of Public Accounts Committee and accused no. 4 to the then Chief Minister Lalu Prasad Yadav (accused no. 1)

directing him to restrict the inquiry of the Vigilance Department. Such letters were marked to the Vigilance Department and were dealt with by the

petitioner by seeking clarification from the Government. The relevant file was forwarded to the Office of then Chief Minister and was not returned for

a period of 16 months during which period, the inquiry remained stalled. It showed that petitioner was actively participating in criminal conspiracy with

other co-accused Jagdish Sharma and Lalu Prasad Yadav. Therefore, prima facie case of offence was made out against him as he was working in

the State Vigilance at the relevant point of time. Petitioner has sought quashing of the order taking cognizance and the order dated 3rd January, 2018

so far as it relates to the petitioner, whereunder learned trial court has directed the CBI to file a sanction order in relation to the petitioner.

Cr. M. P. No. 120 of 2018

Petitioner ‘S’ is an officer of Indian Administrative Service Cadre. He was posted as Deputy Commissioner, Deoghar on 23rd June, 1993

and continued till 31st May, 1994 i.e. brief period of 11 months in the Financial Year 1993-94. As per F.I.R and charge-sheet, the maximum excess

withdrawal had been made in the Financial Year 1991-92 and 1992-93. Petitioner was not posted as Deputy Commissioner, Deoghar during this

period. As per the charge-sheet during 1991-92, the excess withdrawals were to the tune of Rs. 43,44,329/- against an allotment of Rs. 2 Lakhs and

for the year 1992-93, the excess withdrawals were to the tune of Rs. 38,25,764/- as against an allotment of Rs. 96,000/- According to this petitioner,

an organization named as “Bihar Anti-Corruption Campaign Sangh†wrote a letter on 10th February, 1993 to all Treasury Officers and others

regarding withdrawal of money from Treasury on the basis of bogus medicine bills. This letter was received in the office of Deputy Commissioner,

Deoghar prior to the joining of the petitioner, but had not been acted upon. Petitioner, however acted upon it promptly. During the Financial Year from

1st April, 1993 upto 23rd June, 1993 i.e., the period prior to the joining of the petitioner as Deputy Commissioner, against an allotment of Rs. 1,77,000/-

for the year 1993-94, an amount of Rs. 7,57,069.85 was withdrawn, therefore, the amount withdrawn was in excess to the extent of Rs. 5,80,069.85/-

for the year 1993-1994.

Petitioner contended that he is an upright honest officer having put in 30 years of service by now. As such, after receipt of the complaint of Dr.

Surjeet Singh dated 2nd July, 1993, petitioner directed the Treasury Officer to get a copy of allotment letter from District Animal Husbandry Officer

and to tally the same with the file of allotment funds. Thereafter, the file was placed before him on 27th July, 1993. Petitioner ordered for a thorough

inquiry thereupon on 28th July, 1993. He directed the Treasury Officer to obtain copy of allotment letters of all the bills of inquiry. Photocopies of six

bills pertaining to 4th July, 1992 to 20th October 1992 were given to Treasury Officer. When the file was put before the petitioner on 7th August,

1993, he directed the Treasury Officer to obtain the original allotment orders issued by the Government from the Regional Director, AHD, Dumka on

the basis of which, he had issued sub allotment orders. Pursuant thereto, Treasury Officer sought the original allotment letter from Regional Director,

Dumka vide letter dated 13th August, 1993 and a reminder was also sent on 4th September, 1993.

The Treasury Officer also sought a copy of allotment letter from D.A.H.O vide letter dated 30th September, 1993 for perusal of the petitioner.

Petitioner was not satisfied with the copies of sub allotment letters made available by DAHO and issued by Regional Director, (AHD), Dumka.

Regional Director (AHD) in his reply stated that he will not be able to make the requisite documents available as these were seized by Public

Accounts Committee. Petitioner being not satisfied with this reply apprised the Divisional Commissioner, Dumka on 17th November, 1993. Since, he

did not receive any response he wrote a D.O. letter on 16th May, 1994 to the Divisional Commissioner, Dumka requesting him to depute an Executive

Magistrate for raiding the office of Regional Director(AHD) Dumka for procuring original allotment letters on the basis of which sub allotments were

issued by Regional Director (AHD), Dumka. Thereafter, petitioner was transferred in a premature manner from the post of Deputy Commissioner,

Deoghar on 31st May, 1994 within two weeks of the letter dated 16th May, 1994. Petitioner had in the meantime also received a copy of complaint

regarding misuse of administrative powers by the then D.A.H.O., Deoghar. These complaints were not relating to illegal/ excess withdrawal from the

Treasury.

Petitioner took prompt action and directed Shri S. S. Tiwari, Executive Magistrate to inquire into the allegations leveled against D.A.H.O, Deoghar

vide letter dated 16th February, 1994 and also vide endorsement dated 23rd February, 1994. Shree S. S Tiwari submitted his report vide letter dated

11th March, 1994, in which he made observations regarding various administrative acts of commission and omission on the part of D.A.H.O, Deoghar.

The report further referred that he received the allegation regarding illegal withdrawal of Rs. 50 Lakhs in the year 1992-93 i.e, prior to the posting of

the petitioner and recommended that the allegation be verified by correspondences with Secretary/Director, Animal Husbandry Department, Govt. of

Bihar. Petitioner had in the meantime independently pursued the said inquiry and also reported to the Commissioner, Dumka and in view of the

recommendation of Shree S. S. Tiwari, he forwarded the inquiry report vide its letter dated 4th March, 1994 to the Secretary, Animal Husbandry

Department, Government of Bihar for appropriate action. It has also come in the charge-sheet filed by the CBI that the letter of the petitioner dated

4th April, 1994 and the report of Shree S. S Tiwari dated 11th March, 1994 were destroyed by the accused persons The charge-sheet of the CBI

mentioned that illegal withdrawals took place only upto to August, 1993.

Petitioner had joined on 23rd June 1993 as Deputy Commissioner, Deoghar at the end of the first quarter of the Financial Year 1993-94 and within

two months of his joining, due to his prompt action, illegal withdrawals had stopped. In the charge-sheet, it has further been stated by the CBI that on

account of the action taken by the petitioner, the DAHO was compelled to withdraw 11 treasury bills totaling Rs. 10,96,830/-, thereby averting illegal

withdrawal of the said amount. Report of the Executive Magistrate S.S. Tiwari dated 11th March, 1994 and letter of the petitioner dated 4th April,

1994 forwarding the said report of S.S. Tiwari to the Secretary, Animal Husbandry for appropriate action are marked as Annexures-3 & 4 to the

petition. They were also exhibited as documentary evidence during trial. Petitioner was examined as P.W. 54 on behalf of the prosecution, while Mr.

S.S.Tiwari was examined as P.W. 42 by the CBI.

It is the case of the petitioner that due to prompt action taken by him, excess withdrawal had come to be stalled during tenure of his posting.

Petitioner had acted honestly and diligently and neither been named in the F.I.R nor in the charge-sheet as an accused person, rather called as a

witness to prove the prosecution case. Investigating Officer considered the preventive role and corrective measures taken by the petitioner as Deputy

Commissioner as he himself had ordered an inquiry upon complaints and made correspondence calling for the allotment letters which resulted in

stalling of further fraudulent withdrawal. In the charge-sheet submitted by the CBI on 28th October, 1997, 34 persons were made accused including

Government officers posted at A.H.D office, Deoghar, Regional Deputy Director’s Office and Senior Bureaucrats at AHD Department, Patna

along with legislators and the then Chief Minister, who had conspired and participated in the withdrawal of excess payment from the Treasury. Apart

from the above, the contractor and suppliers were also charge-sheeted. The Investigating Officer has in the charge-sheet found the excess

withdrawal made during the period November, 1991 to August, 1993 and thereafter it had come to a stall on account of the action taken by the

petitioner. However, it continued in the other districts of Dumka region. Photocopy of charge-sheet has been annexed as Annexsure-6.

It is the case of the petitioner that no irregularity or negligence was attributed upon him, rather his bonafide and prompt action was taken note of

by the CBI while filing the charge-sheet. Petitioner, who was examined as prosecution witness no. 54, has fully supported the case of the prosecution

and was cross-examined by the accused persons, who failed to elicit any contradiction in his deposition. The files and notings and the correspondences

made by the petitioner in relation to the allotment letters and report of the Executive Magistrate and its forwarding to the Secretary, AHD, all have

been exhibited during trial. It is the case of the petitioner that during the entire investigation and trial, nothing incriminating material had transpired in

relation to the role of the petitioner in the conspiracy. There was no application either by the accused or by the prosecution to add the petitioner as an

accused during trial.

The nature of allegation is supported by the documentary evidence, all of which were placed before the learned Court during the entire trial. No iota of

evidence was produced to proceed against the petitioner. Arguments were concluded and the judgment was pronounced on 23rd December, 2017.

Once the matter was posted for judgment, the trial stood concluded and the learned Judge becomes functus officio. However, learned CBI Court after

passing the judgment of conviction and acquittal of the accused persons facing trial, proceeded to render findings contrary to the materials on record

and held that a prima facie case under Section 120B read with Sections 420, 467, 468, 471, 477-A of the Indian Penal Code read with section 13(2)

and (13)(i) (c) (d) of Prevention of Corruption Act, 1988 has been made out against the petitioner. Learned Court directed issuance of summon

against him without any order of sanction of prosecution. The impugned order is passed in purported exercise of the powers under Section 319 Cr.

P.C but wholly in teeth of the Constitution Bench Judgment rendered in the case of Hardeep Singh Vs. State of Punjab reported in (2014) 3 SCC 92

and other judgments rendered by the Apex Court as well.

Learned counsel for both the petitioners have more or less urged the common grounds of law in support of the challenge to the impugned orders.

At the same time, few specific grounds based on facts of their individual cases, have also been urged which are also dealt with hereinafter.

Legal submissions on behalf of the petitioners:-

Learned counsel for the petitioner ‘D’ has endeavoured to point out that the case against the petitioner on his alleged involvement in the

fodder scam was examined at various levels of the C.B.I., by the learned Solicitor General and learned Attorney General and finally by the monitoring

bench of Hon’ble

Patna High Court. The result of such examination was that a decision was taken not to proceed against the petitioner in any of the fodder scam cases.

Learned trial court, however, erroneously took suo-moto cognizance of the offences and issued process against the petitioner on the basis that:

(a) Petitioner had ordered “Do not investigate†in relation to Case No.34/1990 P.S. State Vigilance, Patna on the basis of letters dated 23rd

August 1990 and 15th November 1990 written by the then opposition leader Jagarnath Mishra accused no.2 to the then Chief Minister Lalu Prasad

Yadav accused no.1 before the trial court. He further points out that vide judgment dated 23rd December 2017, learned trial court acquitted Jagarnath

Mishra of the charges in the case arising out of the F.I.R.

(b) Charge-sheet revealed that in connection to File No. BS 23/94 of the Vigilance Department relating to fodder scam in or around June 1994, letters

were written by Jagdish Sharma accused no.4, the then Chairman of Public Accounts Committee to the then Chief Minister accused no.1 asking him

to restrict the inquiry of the vigilance department. Such letters were marked to the Vigilance Department and dealt by the petitioner by seeking

clarification from the Government. The relevant file was forwarded to the office of the then Chief Minister and not returned for a period of 16 months

during which period the inquiry / investigation remained stalled. On this basis, learned trial court observed that the petitioner was deeply concerned

with the fodder scam and actively participated in the criminal conspiracy.

Learned counsel for the petitioner has painstakingly pointed out that the same facts and circumstances and documents mentioned above at (a) and

(b) were considered and found insufficient by the C.B.I. as monitored by the Hon’ble High Court, learned Attorney General, learned Solicitor

General, another high ranking officers of the C.B.I. including the then Director, C.B.I. and legal advisor, C.B.I. for prosecuting the petitioner. On this

foundational facts, following legal grounds have been urged:-

(A) The trial court had no other material or evidence beyond what was available before the Attorney General to hold that the petitioner is liable to be

arraigned as an accused. Relying upon the Constitution Bench judgment of the Apex Court in the case of Hardeep Singh (Supra) at paragraphs-78, 83,

84, 85 and 95 it has been submitted that the degree of satisfaction required for exercise of powers under Section 319 of the Cr.P.C. is more stricter

than a prima-facie case. Such power can be exercised only on the basis of evidence adduced before the court during trial. The word ‘evidence’

has to be understood in its wider sense as brought on record both at the stage of trial and at the stage of inquiry. Reliance has also been placed on the

judgment of the Apex Court in the case of Brijendra Singh & Ors. Vs. State of Rajasthan reported in (2017) 7 SCC 706 specifically para-9, 10 and 11

thereof. Learned counsel for the petitioner has also relied on the case of Jogendra Yadav & Ors. Vs. State of Bihar, (2015) 9 SCC 244 para-9 and 10

and submitted that extra-ordinary powers under Section 319 Cr.P.C. can be exercised only when a very strong and cogent evidence occurs against a

person from the evidence led before the Court. The standard of proof employed for summoning a person under Section 319 Cr.P.C. is higher than the

standard of proof employed for framing a charge against an accused. Exercise of power under Section 319 Cr.P.C. must be placed on a higher

pedestal. The arraignment of the petitioner was not based upon evidence laid before it during trial and also not based upon strong and cogent evidence.

As such, it is rendered bad in law and void ab-initio.

(B) The court had become functus officio after pronouncement of the judgment dated 23rd December 2017 wherein some accused were held guilty

while some others were acquitted. Reliance is placed on the case of State of Punjab Vs. Davinder Pal Singh Bhullar & Ors., (2011) 14 SCC 770

para-44. Relying upon the observation made at para-47 in the case of Hardeep Singh (Supra), it is submitted that power under Section 319(1) Cr.P.C.

can be exercised at any time after the charge sheet is filed and before pronouncement of the judgment. Learned counsel has also referred to the case

of Brijendra Singh & Ors. Vs. State of Rajasthan reported in (2017) 7 SCC 706 para 10. The meaning of the word “course†occurring in Section

319 Cr.P.C.†clearly indicates that the power can be exercised only during the period when the inquiry has been commenced is going on or the trial

which has commenced and is going on. It covers the entire wide range of the process of pre-trial and trial stage. The word “course†therefore

allows the court to invoke this power to proceed against any person from initial stage of inquiry up to the stage of conclusion of the trial. Observation

made at para-40 in the case of Hardeep Singh (Supra) has been relied upon in support of the aforesaid submission. Learned counsel for the petitioner

has also referred to the judgment of the Delhi High Court and this Court in the case of Rakesh Kanojia Vs. State Government of NCT of Delhi &

Anr. reported in 2012 page 129 DRJ 187 (DB) and in the case of Kartic Mahto Vs. State of Jharkhand reported in 2016 SCC Online Jhar 1212 that

power under Section 319 Cr.P.C. cannot be exercised after pronouncement of the judgment, even if on the same day.

(C) An accused arraigned under Section 319 of Cr.P.C. is required to be tried along with other accused. The Apex Court has in the case of Hardeep

Singh (Supra) answered the question no.5 at para-117.6 that a person not named in the F.I.R. or though named in the F.I.R. but not charge-sheeted or

one who has been discharged, can be summoned under Section 319 of the Cr.P.C. provided from the evidence it appears that such person can be

tried along with the accused already facing trial. It is submitted that there was no matter pending before the trial court on which the trial court would

exercise the power under Section 319. The Court if had found some material incriminating against a non-accused from the evidence on record, would

have postponed the judgment before exercising the power under Section 319. As such, the Court had become functus officio after passing of the

judgment on 23rd December 2017.

(D) The accused has a right to be heard before cognizance is taken under Section 319 Cr.P.C. Relying upon the case of Jogendra Yadav & Ors. Vs.

State of Bihar, (2015) 9 SCC 244 para-9 and 11 to 13, it has been submitted that no person can be made an accused by a court in exercise of power

under Section 319 of Cr.P.C. without giving an opportunity of hearing to the person sought to be arraigned as an accused. A person who is added as

an accused under Section 319 Cr.PC has to be necessarily heard before being so added. Petitioner was never heard before being added as an

accused and failure to do so rendered the impugned order illegal and bad in law.

(E) The order dated 23rd December 2017 taking cognizance against the petitioner could not have been passed without a sanction order from the

competent authority. Petitioner, a retired Public Servant, was entitled to protection under the provisions of Section 197 of Cr.P.C. Reliance is placed

on the case of State of Punjab Vrs. Labh Singh, (2014) 16 SCC 807 para-9 and 10. Reliance is also placed on the case of Surinderjit Singh Mand &

Anr. Vs. State of Jharkhand & Anr., (2016) 8 SCC 722, paragraphs-27, 30 and 31 in support. It is submitted that the learned court first took

cognizance and then directed the C.B.I. to produce the sanction order. As such, the order taking cognizance is bad in law and fit to be quashed.

(F) The learned trial court could not issue a direction upon the CBI to file sanction order positively. Grant or denial of sanction for prosecution depends

upon the application of mind by the sanctioning authority to the facts of the case as also the materials and evidence collected during investigation.

Reliance has been placed on the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 para-18, 19 and 32 to support the

submission that the sanctioning authority has a discretion to grant or not to grant sanction. Any direction to grant sanction would close all other

alternatives and compel the sanctioning authority to proceed only in one direction namely to sanction the prosecution of the petitioner. This discretion

not to sanction the prosecution has been taken away by the order of the CBI Court. Learned counsel has also relied upon the judgment of the Apex

Court in the case of Devinder Singh & Ors. Vs. State of Punjab through CBI, (2016) 12 SCC 87 para-39.5.

Based on these grounds, it is submitted that the impugned order also suffers from serious errors of law and facts and deserves to be quashed in

order to prevent miscarriage of justice.

Learned counsel for the petitioner ‘S’ has adopted the legal grounds urged by Mr. Manish Mishra, learned Counsel representing ‘D’.

Adverting to the facts of the case, as noted above, it is submitted that the petitioner ‘S’ had a brief tenure of 11 months between 23rd June 1993

to 31st May 1994 as the Deputy Commissioner, Deoghar. During this period, the fraudulent withdrawal stopped in the District of Deoghar on account

of prompt action taken by the petitioner. That had continued uninterrupted in other Districts under Dumka Division. Learned counsel for the petitioner

has referred to the charge-sheet filed by the CBI in particular to show that the petitioner after receipt of the letter dated 2nd July 1993 of Dr. Surjit

Singh, directed an inquiry into the matter. The investigation by CBI also reveals that the Regional Director, AHD, Dumka had informed the Treasury

Officer, Deoghar that records were taken away by the Public Accounts Committee for inquiry. Petitioner vide his letter dated 16th May 1994 written

to the Commissioner, Santhal Pargana to inquire into the matter and depute an Executive Magistrate to seize the papers of original allotment letters

from the office of Regional Deputy Director AHD, Dumka.

Petitioner also directed an inquiry through the Executive Magistrate Mr. S.S. Tiwari against the D.A.H.O., Deoghar Dr. Mukteshwar Prasad. The

inquiry report dated 11th March 1994 was forwarded to the Secretary, Animal Husbandry Department through letter dated 14th April 1994 by the

petitioner asking for initiation of departmental inquiry against Dr.Mukteshwar Prasad. It has also been referred to in the charge sheet that the inquiry

report of Mr. S.S.Tiwari forwarded to the Directorate was destroyed. The petitioner as a prosecution witness no.54 supported the prosecution case

set up by the CBI during trial. Mr. S.S. Tiwari was also examined as P.W.No.42 by the CBI in this case. The CBI had, after a thorough investigation,

found no material to implicate the petitioner as an accused. On the contrary, it was found by the CBI that during his tenure, all illegal withdrawals had

come to an end. No incriminating evidence had come during trial against the petitioner. P.W. no.42 Mr. S.S. Tiwari also had not stated anything to

impeach the role of this petitioner as Deputy Commissioner, Deoghar during that period. Therefore, while on the one hand, materials investigated by

the CBI supported the innocence of the petitioner, on the other hand, there was no evidence during trial which could enable the learned CBI Court to

arraign him as an accused.

On behalf of this petitioner also, it has been strenuously urged that there was no occasion for the learned CBI Court to exercise the suo-moto

powers purportedly under Section 319 Cr.P.C. as neither was there any evidence on record to justify the same, nor any application was made by the

CBI for arraignment of the accused.

Learned counsel for the petitioner has placed great emphasis on the ground that the learned CBI Court had become functus officio after

pronouncement of the judgment in terms of Section 353 of Cr.PC As per the provisions of Section 353 of the Cr.PC judgment is pronounced only after

termination of the trial. He has also relied upon the case of Hardeep Singh (supra) and Brijendra Singh (supra) in support of the legal grounds

canvassed. The judgment rendered by the Delhi High Court and this Court in the case of Rakesh Kanojia (supra) and in the case of Kartic Mahto

(supra), have also been reiterated in support of the submission that the learned trial court had become functus officio after pronouncement of the

judgment on 23rd December 2017. Reliance is placed also on the judgments of the Apex Court on the legal points i.e, right to he heard before exercise

of the powers under Section 319 Cr.P.C.; the mandatory requirement of sanction under Section 197 of the Cr.PC and Section 19 of the Prevention of

Corruption Act before cognizance could be taken and further, that the direction issued by the learned trial court upon CBI to produce sanction order,

was bad in law as it took away the discretion of the sanctioning authority to independently apply its mind on the basis of materials before it either to

grant or refuse sanction. Learned counsel submits that powers under Section 319 Cr.P.C. require satisfaction of a higher pedestal than a mere prima-

facie case. Learned trial court while exercising such power on the basis of material evidence adduced during trial or inquiry, has to come to a finding

that the evidence on record would be sufficient to ultimately establish the guilt of the person upon such arraignment.

Learned counsel for the petitioner ‘S’ has also summarized his submissions on the aforesaid grounds and prayed that the impugned order

deserves to be quashed as being wholly illegal, void and bad in law. Interference is required by this Court in exercise of its inherent powers under

Section 482 of Cr.P.C. to prevent miscarriage of justice and abuse of the process of law.

CBI has filed a counter affidavit in Cr. M.P. No. 120/2018, but no counter affidavit has been filed in Cr. M.P. No. 253/2018. On behalf of CBI,

learned ASGI has based his submissions on the pleadings contained in Cr. M.P. No. 253/2018. In the case of ‘S’, it is submitted that except

Annexure-3 & 4, CBI did not produce any incriminating material against him, nor CBI court has found any such material. Learned CBI Court, apart

from Annexure-3 & 4, has not found any material against him. Total 156 prosecution witnesses were examined on behalf of the CBI, amongst whom

petitioner was examined as PW-54. Documentary evidence adduced by the CBI was also voluminous i.e., from Annexure-1 to Annexure-190. Upon

conclusion of the investigation, supplementary charge sheet was filed against 4 accused persons on 25.08.2004; 11 accused persons died during the

trial; 02 persons were convicted on their confession in the year 2007; 03 persons were taken as approver. Learned CBI court convicted 16 out of 22

accused persons facing trial vide judgment dated 23.12.2017.

Petitioner ‘S’ was Deputy Commissioner, Deoghar during the period of alleged occurrence and is now working as Finance Secretary of the

State of Jharkhand. Contention of the petitioner at para-11 and 12 regarding complaint received by him alleging fraudulent payment and in course of

inquiry, original allotment letters were requisitioned by him, are also facts discovered during investigation of the case. Statement relating to verification

of another complaint relating to office of DAHO, Deoghar in the year 1994 by the petitioner and the report submitted by Mr. S.S. Tiwary thereafter is

also a matter of record. Regarding the statement made at para-15 of the petition, it has been stated that forwarding the verification report regarding

fraudulent payments to the Secretary, AHD for taking follow up action, is also a matter of record. Said Secretary was arraigned as an accused and

convicted upon conclusion of the trial. Contention relating to letter sent by the petitioner ‘S’ to the Divisional Commissioner, Dumka for deputing

one Magistrate to seize original allotment letters for purchase of veterinary medicines, is also a matter of record.

It is further stated that the Divisional Commissioner also was found to be a co-conspirator and was convicted upon conclusion of the trial. Contention

of the petitioner at para-18 regarding no fraudulent withdrawal payment made from Deoghar Treasury following inquiry made into complaint during

1994-95, is a matter of record. This petitioner in his deposition had supported the prosecution case and was therefore not declared hostile. Further, no

application was filed either by the Public Prosecutor or any other accused persons before Trial Court to arraign the petitioner as an accused in the

case during trial. At para-46 of their counter affidavit, it has been stated that it is incorrect to contend on behalf of the petitioner that Judge have

become functus officio after pronouncement of order / judgment on 23.12.2017. Learned ASGI has also relied upon the case of Hardeep Singh

(Supra) and submitted that the order of arraignment was passed on the same day after pronouncement of the judgment, therefore, it cannot be said to

be after conclusion of the trial. The legal plea of mandatory requirement of sanction raised by the petitioner has also been contested by relying upon

the case of Lalu Prasad Alias Lalu Prasad Yadav Versus State of Bihar through CBI(AHD) Patna [(2007) 1 SCC 49].

Submission on behalf of Amicus Curiae

Learned Amicus Curiae have addressed the Court inter-alia on the following counts.

Relying upon the case of Shashikant Singh Versus Tarkeshwar Singh and another [(2002) 5 SCC 738 para-1 and 9], it is submitted that the expression

“could be tried together with the accused under section 319 Cr.PC†is only directory. As such, it is not mandatory to try an accused arraigned

under section 319 Cr.PC with the other accused already facing trial. This judgment had not been noticed in any later judgment or in the case of

Hardeep Singh (Supra). Regarding the scope of power under section 319 of the Cr.PC, learned Amicus Curiae has referred to the judgment of the

Apex Court in the case of Palanisamy Gounder and another vs. State represented by Inspector of Police [(2005) 12 SCC 327]], Kavuluri

Vivekananda Reddy & another Versus State of A.P. & another [(2005) 12 SCC 432], Bholu Ram Versus State of Punjab & another [(2008) 9 SCC

140]. Based upon the opinion rendered by the Apex Court in these cases, it is submitted that the power under section 319 Cr.PC cannot be exercised

to conduct a fishing inquiry. It can also not be exercised on the basis of general statement. Discretion under this provision is to be exercised judicially

and judiciously.

Learned Amicus Curiae has further submitted that pronouncement of judgment of conviction or acquittal does not amount to conclusion of trial.

Trial comes to an end only after sentence is passed. In this regard, he has placed reliance on the judgment of the Apex Court in the case of Rajendra

Singh Versus State of U.P. & another [(2007) 7 SCC 378, para-11;

Venkatadeswara Enterprises versus Rajasekharan Nair [2007 Cri. L.J. 1626] and Imran Versus State of U.P. [2013 (6) All L.J. 69] rendered by the

Kerala High Court and Allahabad High Court. Reliance is also placed in the case of Nirpal Singh & others versus State of Haryana [(1977) 2 SCC

131] and Ram Narang Versus Ramesh Narang & others [(1995) 2 SCC 513]. It has been submitted that Chapter-XVIII of Cr.PC contains the

provisions relating to trial. Relying on these judgments, learned Amicus Curiae has raised a point that the court did not become functus officio on

pronouncement of judgment as the order of sentence was pronounced later on. In this regard, opinion of the Apex Court in the case of Hardeep Singh

(Supra) in answer to the issue no. 1 as to the stage when power under section 319 Cr.PC can be exercised has also been relied upon.

Learned Amicus Curiae submitted that the learned Trial Court while exercising power under section 319 Cr.PC in the case of ‘D’, made

reference of File No. BS-23/95. This has been specifically countered on behalf of the petitioner stating that the same material forms the basis of

opinion of the learned Attorney General which was approved by the Coordinate Bench of Patna High Court and it was ordered not to proceed further

in the matter. No other material evidence have been found by the Trial Court after filing of the charge sheet during any inquiry or during trial. As

regards the case of ‘S’, it has been submitted by the learned Amicus Curiae that the learned Trial Court probably proceeded on a premise that

fraudulent withdrawal continued after the petitioner ‘S’ took over and he did not take any steps to stop the withdrawals. This contention has

also been specifically countered by the learned counsel for the petitioner reiterating the submission made earlier. He has emphatically submitted that it

was only because of the active steps taken by the petitioner that during his tenure as Deputy Commissioner, Deoghar, fraudulent withdrawal came to

a complete stop. This has also been acknowledged by the CBI in the charge sheet.

Both the learned counsel for the petitioners in their reply had harped upon the provisions of section 353 Cr.PC and opinion of the Constitution

Bench of the Apex Court in the case of Hardeep Singh (Supra) at para-40 and 47. It is submitted that power under section 319 Cr.PC cannot be

exercised after conclusion of the trial. Judgment is pronounced only upon termination of the trial as per clear prescription of law contained in section

353 Cr.PC.

Discussion:

Considered the submissions of learned counsel for the petitioners, CBI and Amicus Curiae in the light of the facts and circumstances pleaded and

taken note above. I have also gone through the judgment cited by the learned counsel for the parties.

It is a case where the learned CBI court took cognizance for the offences against these petitioners after pronouncements of the judgment on

23.12.2017 purportedly in exercise of powers under section 319 of the Cr.PC. Learned court has, subsequently by order dated 03.01.2018, directed

the CBI to file sanction order in respect of these two petitioners. In the light of the elaborate submissions made and the grounds urged on behalf of the

petitioners, following issues arise for determination.

i. Whether the exercise of power under section 319 of the Cr.PC was proper in the eye of law and on facts?

ii. Whether there was material evidence recorded during trial or at the stage of inquiry to invoke powers under section 319 of the Cr.PC?

iii. Whether the exercise of such power by the learned CBI court satisfy the test i.e. one which is more than prima facie case as exercised at the time

of framing of charge, but short of satisfaction to an extent that evidence if goes unrebutted, will lead to conviction of the petitioners?

iv. Whether the power has been exercised at a proper stage as is permissible in law? Whether the learned court had become functus officio after

pronouncement of the judgment?

v. Whether petitioners had a right to be heard before being arraigned as an accused under section 319 of the Cr.PC?

vi. Whether in the absence of sanction for prosecution, cognizance could have been taken against the petitioners under the relevant provisions of

Indian Penal Code and Prevention of Corruption Act?

vii. Whether the court’s direction to file sanction order upon the CBI was proper in the eye of law?

In order to seek an answer to the above, it is proper to refer to Section 319 of the Cr.PC which reads as under:

“319. Power to proceed against other persons appearing to be guilty of offence.â€"(1) Where, in the course of any inquiry into, or trial of, an

offence, it appears from the evidence that any person not being the accused had committed any offence for which such person could be tried together

with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of the case may require, for the purpose

aforesaid.

(3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or

trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under sub-section (1) thenâ€

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses reheard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the

offence upon which the inquiry or trial was commenced.â€​

Scope of power under section 319 of the Cr.PC has been answered by the Constitution Bench of the Hon’ble Supreme Court in the case of

Hardeep Singh Versus State of Punjab [(2014) 3 SCC 92]. Following questions were framed for answer by the Apex Court in the said judgment.

“6.1. (i) What is the stage at which power under Section 319 Cr PC can be exercised?

6.2. (ii) Whether the word “evidence†used in Section 319(1) Cr PC could only mean evidence tested by cross-examination or the court can

exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

6.3. (iii) Whether the word “evidence†used in Section 319(1) Cr PC has been used in a comprehensive sense and includes the evidence collected

during investigation or the word “evidenceâ€​ is limited to the evidence recorded during trial?

6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr PC to arraign an accused? Whether the power

under Section 319(1) Cr PC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

6.5. (v) Does the power under Section 319 Cr PC extend to persons not named in the FIR or named in the FIR but not charged or who have been

discharged?â€​

While answering the first question, the Apex Court opined that the word ‘course’ occurring in section 319 Cr.PC clearly indicates that the

power can be exercised only during the period when inquiry has been commenced and is going on or the trial which commenced and is going on. It

covers the entire wide range of the process of pre-trial and trial stage. The word ‘course’ therefore allows the court to invoke this power

against any person from the initial stage of inquiry up to the stage of conclusion of the trial. [See: para-40}. At para-47, it has been held as under:

“Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences,

and therefore, the power under Section 319(1) Cr PC can be exercised at any time after the charge-sheet is filed and before the pronouncement of

judgment, except during the stage of Sections 207/208 Cr PC, committal, etc. which is only a pre-trial stage, intended to put the process into

motion………………………………(emphasis supplied)â€​

In answer to the question no. (iii), the Apex Court at para-84 and 85 of the report held as under:

“84. The word “evidence†therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the

stage of inquiry, as used under Section 319 Cr PC ………………. (emphasis supplied).

In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence

recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only

for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 CrPC. The “evidence†is thus, limited

to the evidence recorded during trial.â€​

The word ‘evidence’ therefore has to be understood in its wider sense both at the stage of trial and even at the stage of inquiry, as used under

section 319 Cr.PC.

At para-92 of the report, question no. (ii) was answered in the following manner:

“92. Thus, in view of the above, we hold that power under Section 319 Cr PC can be exercised at the stage of completion of examination-in-chief

and the court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered

from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.â€​

What should be the nature of satisfaction required to invoke the power under section 319 Cr.PC to arraign an accused, was dealt with in detail at

para-106 in answer to question no. (iv), which reads as under:

“106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the

anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. 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 an extent that the evidence, if goes unrebutted,

would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr PC.

……………………………………(emphasis supplied to the original text) Question no. (v) was answered at paragraph-116 as under:

“116. Thus, it is evident that power under Section 319 Cr PC can be exercised against a person not subjected to investigation, or a person placed in

Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a

person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr PC without taking recourse to

provisions of Section 300(5) read with Section 398 Cr PC.â€​

The Apex Court summarized the conclusions at para-117 of the report as under:

“117. We accordingly sum up our conclusions as follows:

Questions (i) and (iii) â€" What is the stage at which power under Section 319 Cr PC can be exercised?

AND

â€" Whether the word “evidence†used in Section 319(1) Cr PC has been used in a comprehensive sense and includes the evidence collected

during investigation or the word “evidenceâ€​ is limited to the evidence recorded during trial?

Answer

117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not

named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such

cognizance can be taken under Section 193 Cr PC and the Sessions Judge need not wait till “evidence†under Section 319 Cr PC becomes

available for summoning an additional accused.

117.2. Section 319 Cr PC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing

of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr PC, and under Section 398 Cr PC are

species of the inquiry contemplated by Section 319 Cr PC. Materials coming before the court in course of such inquiries can be used for corroboration

of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr PC, and also to add an accused

whose name has been shown in Column 2 of the charge-sheet.

117.3. In view of the above position the word “evidence†in Section 319 Cr PC has to be broadly understood and not literally i.e. as evidence

brought during a trial.

Question (ii)â€"Whether the word “evidence†used in Section 319(1) Cr PC could only mean evidence tested by cross-examination or the court

can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

Answer

117.4. Considering the fact that under Section 319 Cr PC a person against whom material is disclosed is only summoned to face the trial and in such

an event under Section 319(4) Cr PC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not

wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

Question (iv)â€"What is the nature of the satisfaction required to invoke the power under Section 319 Cr PC to arraign an accused? Whether the

power under Section 319(1) Cr PC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

Answer

117.5. Though under Section 319(4)(b) Cr PC the accused subsequently impleaded is to be treated as if he had been an accused when the court

initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr PC would be the

same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on

account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are

disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for

summoning the accused (original and subsequent) has to be different.

Question (v)â€"Does the power under Section 319 Cr PC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who

have been discharged?

Answer

117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged

can be summoned under Section 319 Cr PC provided from the evidence it appears that such person can be tried along with the accused already facing

trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr PC has to be complied with

before he can be summoned afresh.â€​

Earlier judgments rendered by the Apex Court have been cited by the learned Amicus Curiae on the scope of power under section 319 of the

Cr.PC. In the case of Palanisamy Gounder and another vs. State represented by Inspector of Police [(2005) 12 SCC 327], the Apex Court have

observed that such powers should not be exercised to conduct a fishing inquiry; provisions of section 319 of the Code are required to be used

sparingly. It should not be exercised on the basis of general statement. In the case of Bholu Ram Versus State of Punjab & another [(2008) 9 SCC

140], it was held at para-22 of the report that such power can be exercised either on an application made to the court or by the court suo-motu.

Discretion of the court to take an action under the said provision is to be exercised judicially and judiciously having regard to the facts and

circumstances of each case. Judgment of the Constitution Bench in the case of Hardeep Singh (Supra) has been followed in the case of S.

Mohammed Ispahani versus Yogendra Chandak and others [(2017) 16 SCC 226]. At para-29, the Apex Court quoted the opinion rendered in the case

of Brijendra Singh & Ors. Vs. State of Rajasthan reported in (2017) 7 SCC 706, whereunder the principles laid down in Hardeep Singh (Supra) have

been further explained.

“13. In order to answer the question, some of the principles enunciated in Hardeep Singh case5 may be recapitulated: power under Section 319

CrPC can be exercised by the trial court at any stage during the trial i.e. before the conclusion of trial, to summon any person as an accused and face

the trial in the ongoing case, once the trial court finds that there is some *“evidenceâ€* against such a person on the basis of which evidence it can

be gathered that he appears to be guilty of the offence. The *“evidenceâ€* herein means the material that is brought before the court during trial.

Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the

evidence recorded by the court to invoke the power under Section 319 CrPC. No doubt, such evidence that has surfaced in examination-in-chief,

without cross-examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the court under

Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case

so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of

whom charge-sheet was filed. 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.â€​

Pronouncements of the Apex Court in its essence reverberate the concept of a fair trial which proceeds with the object i.e. real culprit should not

get away unpunished. It is based on the doctrine judex damnatur cum nocens obsolvitur. A constructive and purposive interpretation should be adopted

so as to advance the object and cause of justice. Keeping in view the aforesaid scope of section 319 of the Cr.PC, I now proceed to examine the case

of the present petitioners.

Learned court proceeded to take suo-motu cognizance against the petitioner ’D’ on the basis that the petitioner while posted in the State

Vigilance Department between 1990 to 2001, ordered ‘do not investigate’ in relation to case no. 34/1990 P.S. State Vigilance Patna which

relate to the fodder scam, on the basis of two letters of the then opposition leader Jaggarnath Mishra (accused no. 2) to the then Chief Minister Lalu

Prasad Yadav (accused no. 1). Learned court also observed that Charge-sheet revealed that in relation to File No. BS 23/94 of Vigilance Department

related to “Fodder Scamâ€, letters were written by Jagdish Sharma ,the then Chairman of Public Accounts Committee (accused no. 4) to the then

Chief Minister Lalu Prasad Yadav (accused no. 1) asking him to restrict the inquiry of the Vigilance Department. Such letters were marked to the

Vigilance Department and were dealt with by the petitioner by seeking clarification from the Government. It was forwarded to the office of the then

Chief Minister and did not return for 16 months, during which period inquiry remain stalled. It showed that the petitioner was actively participating with

other accused Jagdish Sharma and Lalu Prasad Yadav in criminal conspiracy. This formed the basis for the learned Trial Court to take cognizance

against him.

Learned counsel for the petitioner ‘D’ at length referred to the opinion of the learned attorney general of India dated 21.07.2000 and the

order passed by the monitoring Bench of Patna High Court. According to him, these were the very same material which, apart from others, was

referred for opinion to the learned Attorney General in view of the difference of opinion which had arisen in relation to levy of charges against D.P.

Ojha in the light of the order of the Apex Court dated 05.11.1996 passed in the case of Union of India Versus Sushil Kumar Modi [(1996) 6 SCC

500]. Para-7 of the opinion refers to the allegation against the petitioner ‘D’ in relation to Vigilance Case No. 34/90. Para-11 of the opinion

refers to the material allegation against the petitioner relating to Vigilance File No. BS-23/94, both of which were the basis for taking cognizance

against the petitioner by the learned CBI court in the order impugned. There were other allegations as well relating to the petitioner, on which opinion

was sought from the learned Attorney general. Para-24 contains the conclusion of learned Solicitor General of India dated 21.07.2000 which were

concurred by the learned Attorney General of India, as per his opinion dated 28.07.2000. Learned Solicitor General observed that the view taken by

the A.L.A. that for the present, charge of conspiracy be not laid against D.P. Ojha, is correct.

However, all the materials gathered by the CBI should be made available immediately to the appropriate authority to initiate appropriate action under

the service rules against D.P. Ojha. CBI should ensure that if any evidence as aforesaid at a later stage does appear which links Shri D.P. Ojha to the

conspiracy, then at that stage, charges are brought against him. It bears repetition when D.P. Ojha’s behavior was extremely suspicious. A strong

possibility that he was also a beneficiary or associated with the conspirator cannot be ruled out just that at the present, evidence does not warrant

laying a charge. The opinion of the learned Solicitor General of India as concurred by the learned Attorney General of India was placed before the

Monitoring Bench of Patna High Court. The Patna High Court in its order dated 05.04.2002, after perusal of the notings on the file of various officers

including the then Director of CBI, found that the CBI has taken a definite stance that there was not enough material to warrant his prosecution on the

basis of the opinion of the learned Solicitor General as concurred by the learned Attorney General. Instead a departmental action against him was

warranted. In view of the aforesaid, the learned Division Bench of the Patna High Court observed that that it does not wish to proceed further in so

far as D.P. Ojha is concerned.

It is pertinent to mention here that during the trial, CBI has examined 156 prosecution witnesses and adduced voluminous documentary evidence

supported through Ext.-1 to Ext.-1/190.

CBI has not filed any counter affidavit in this case. It is apparent from perusal of the impugned order that no other material evidence has been

even referred to by the learned CBI court while taking cognizance against the petitioner ‘D’. During course of submission also, no other

evidence adduced during trial which was against the petitioner has been brought to the notice of this Court even by the CBI to form such an opinion.

The test that has to be applied in such a case is one which is more than a prima facie as exercised at the time of framing of charge but short of

satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. The impugned order reveals that no such material evidence, as

required in the eye of law, was referred to or before the learned CBI court. It also completely failed to record the satisfaction required as per the test

prescribed under law for taking cognizance under section 319 of the Cr.PC against the petitioner ‘D’. It is an extraordinary power conferred

upon the Trial Court to be exercised with discretion in a judicious manner and not in a casual or cavalier manner.

The order impugned was passed after conclusion of the trial and even after the pronouncement of the judgment on 23.12.2017. On this point, rival

argument has been made both by the learned ASGI and learned Amicus Curiae. Learned Amicus Curiae has, by referring to the case of Nirpal Singh

& others versus State of Haryana [(1977) 2 SCC 131]., Rajendra Singh Versus State of U.P. & another [(2007) 7 SCC 378, para-11 and the

judgment of Kerala High Court in the case of Venkatadeswara Enterprises versus Rajasekharan Nair [2007 Cri. L.J. 1626] and Allahabad High Court

in the case of Imran Versus State of U.P. [2013 (6) All L.J. 69], canvassed that the trial does not come to an end till the sentence is pronounced.

Learned counsel for the petitioners have rebutted the contention of the learned Amicus Curiae relying upon section 353 of the Cr.PC and also the

judgment rendered by the learned Single Bench of this Court in the case of Kartic Mahto & another versus The State of Jharkhand & another [2016

SCC Online 1212] and in the case of Rakesh Kanojia Versus State Govt of NCT of Delhi & another [2012 (129) DRJ 187 (DB) by the Delhi High

Court. According to them, Constitution Bench judgment in the case of Hardeep Singh (Supra) rendered on the same issue, holds the field as judgment

relied upon by the learned Amicus Curiae were of smaller Benches, wherein the issue was not directly in relation to exercise of powers under section

319 of the Cr.PC.

Para-40 & 47 containing the opinion of the Apex Court on this issue has been referred to in the foregoing paragraphs. While dealing with the

question no. (i) what is the stage on which power under section 319 of the Cr.PC can be exercised by the Apex Court at para-40 of the Report

observed as under:

“40. Even the word “course†occurring in Section 319 Cr PC, clearly indicates that the power can be exercised only during the period when

the inquiry has been commenced and is going on or the trial which has commenced and is going on. It covers the entire wide range of the process of

the pre-trial and the trial stage. The word “course†therefore, allows the court to invoke this power to proceed against any person from the initial

stage of inquiry up to the stage of the conclusion of the trial. The court does not become functus officio even if cognizance is taken so far as it is

looking into the material qua any other person who is not an accused……………….â€​

Again at para-47, the Apex Court opined in the following words:

“47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial

commences, and therefore, the power under Section 319(1) Cr PC can be exercised at any time after the charge-sheet is filed and before the

pronouncement of judgment, except during the stage of Sections 207/208 Cr PC, committal, etc. which is only a pre-trial stage, intended to put the

process into motion………………………..â€​

In the case of Hardeep Singh (Supra), the very issue was the scope of power exercised under section 319 of the Cr.PC. The Constitution Bench

of the Apex Court was specifically examining the stage on which such power can be exercised. As held by the Apex Court, power under section

319(1) Cr.PC can be exercised at any time after the charge sheet is filed and before pronouncement of the judgment. The word ‘course’ allows

the court to invoke this power against any person from initial stage of enquiry up to the stage of conclusion of the trial.

In the case of Nirpal Singh & others (supra), relied upon by the learned Amicus Curiae, the Apex Court at para-30 while dealing with the applicability

of ratio rendered in Payare Lal’s case in context of the provisions of section 235(2) of Code of Criminal Procedure, 1973, had held that the second

part of the trial is restricted only to the question of sentence. In this context, it was observed that when a case is remitted to the Sessions Court for

giving a hearing on the question of sentence under section 235 (2) of the Cr.PC, the principle that Sessions Court may not act on evidence already

recorded before his predecessor and must conduct a de novo trial, would not be violated. Evidently, the issue involved therein was in relation to the

question of sentence to be passed on hearing the accused after his conviction. In the case of Rajendra Singh (Supra), the Apex Court comprising a

Bench of Hon’ble two Judges at para-11, observed in the light of the judgment rendered earlier in the case of Shashikant Singh Versus

Tarkeshwar Singh (Supra) that the words ‘could be tried together with the accused’ in section 319(1), appear to be only directory.

The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the

newly added person cannot be tried together with the accused, who was before the court when order under section 319(1) was passed, the order

would become ineffective and inoperative. It appears therefrom that the order under section 319(1) of the Cr.PC was passed arraigning a person as

an accused before the trial had concluded. In view of the opinion of the Constitution Bench of the Apex Court in the case of Hardeep Singh (Supra),

judgment of Kerala High Court and Allahabad High Court, referred to by the learned Amicus Curiae, could no longer be applicable on the issue at

hand. In such circumstances, in terms of the ratio rendered by the Constitution Bench of the Apex Court in the case of Hardeep Singh (Supra), the

power under section 319(1) of the Cr.PC is to be exercised by the trial court up to the stage of conclusion of the trial and before pronouncement of

the judgment. In the facts of the instant case, learned CBI Court had, after pronouncement of the judgment on 23.12.2017, proceeded to exercise the

powers under section 319 of the Cr.PC to arraign these petitioners as an accused. As such, the learned court committed a serious error of jurisdiction

while passing such order.

I now proceed to examine the case of the petitioner ‘S’ on the issue whether the order taking cognizance under section 319 of the Cr.PC is

proper in the eye of law and meets the test laid down in the case of Hardeep Singh (Supra) or not? Learned Trial Court had formed the opinion that

this petitioner was involved in criminal conspiracy with AHD officials who fraudulently withdrew money from the Treasury and obliged politicians and

higher authorities and caused loss to the State Government. Being the then Deputy Commissioner, Deoghar, he had full knowledge about the fake

allotment and excess withdrawal from Deoghar Treasury. According to the learned court, perusal of oral and documentary evidence on record made

out a prima facie case for taking cognizance against him for the said offence. Learned Trial Court records that the petitioner as Deputy

Commissioner, Deoghar had ordered inquiry by the Executive Magistrate Mr. S.S. Tiwary in the office of District Animal Husbandry Officer,

Deoghar. The report was submitted by Mr. S. S. Tiwary by letter no. 157 dated 11.03.1994. He informed that Rs. 6000/- was allotted and paid to the

AHD, against which Rs. 50.00 lakhs have been fraudulently withdrawn by D.A.H.O., Deoghar and that it was a case of fraud and misappropriation.

He recommended information to the higher authorities. This report was received by the petitioner as Deputy Commissioner, Deoghar on 12.03.1994

and forwarded to the Secretary, AHD, Patna vide letter no. 886 dated 04.04.1994 for verification of the alleged information. Learned CBI Court was

of the opinion that the petitioner who was also holding the post of Treasury Officer, Deoghar, did not take any action against the officer who

fraudulently prepared the papers and passed huge amount of bills from Deoghar Treasury. Annexure-3 and 4 are the report dated 11.03.1994 and

letter dated 04.04.1994 whereby report was forwarded to the Secretary, AHD, Bihar.

On behalf of the petitioner, it has been stated that the petitioner was posted as Deputy Commissioner for a brief period of 11 months from

23.06.1993 to 31.05.1994. One Dr. Surjit Singh of Anti Corruption Campaign had made a complaint through letter dated 02.07.1993 to Deputy

Commissioner, Deoghar and other districts stating that false allotment letters are being issued by AHD. He also requested to get a copy of the

allotment letter from Regional Director, AHD, Dumka. Letter was placed before the petitioner in the file (Ext.-D/7) upon which, he inquired from the

Treasury Officer regarding withdrawals during 1993-94. Thereafter, petitioner during the course of inquiry, found that a total sum of Rs. 38,25,764.57

was withdrawn by DAHO, Deoghar in 1992-93. Petitioner ordered an inquiry on 28.07.1993 and directed the Treasury Officer to obtain allotment

letters for verification. However, only the photocopy of the allotment letters were made available to him. petitioner being not satisfied with it, ordered

the Treasury Officer to obtain the original allotment orders issued by the Government from the Regional Director, AHD, Dumka on the basis of

which, sub allotment orders were procured. On his direction, Treasury Officer, Deoghar sought certified copy of the original allotment letter from

Regional Director, Dumka on 13.08.1993 and also issued a reminder. Regional Director through his letter dated 28.10.1993 informed the Treasury

Officer that Public Accounts Committee had seized the entire records for conducting an inquiry.

This letter also revealed that ban had been imposed on withdrawals. Petitioner through letter dated 17.11.1993 referred the complaint of Dr. Surjit

Singh to the Commissioner and informed that in the year 1992-93 on the basis of sub allotment letter of Rs. 50.00 lakhs, a sum of Rs. 38,25,764.57

have been withdrawn. That Regional Director had informed through letter dated 20.10.1993 that the records have been seized by the PAC. Petitioner

also informed that inquiry could not proceed for verification of the withdrawal of the above amount in absence of original allotment letters. In the

meantime, on 16.02.1994 petitioner received a complaint against DAHO Dr. Mukteshwar Prasad regarding misuse of official vehicle, disbursement of

salary to Travelling Veterinary Officers, indiscriminate transfer of Class-IV employee on large scale. He accordingly directed inquiry by Mr. S.S.

Tiwary, Executive Magistrate through letter dated 16.02.1994 (Annexre-2). The Executive Magistrate submitted his report on 11.03.1994 through

letter no. 457 indicting the DAHO of dereliction of duty. During inquiry, he also found allegations of fake allotment of Rs. 50.00 lakhs and withdrawals

against the same. He also referred to the allotment letters sent by Dr. Sesh Muni Ram, Regional Deputy Director, Dumka to the tune of Rs. 50.00

lakhs through letters dated 20.10.1992, 28.10.1992, 17.10.1992, 19.08.1992, 07.07.1992 and 04.07.1992. DAHO had supported the fact and alleged

that there was a conspiracy under which such withdrawals were made and therefore, he did not want to retain Dr. Krishna Kumar Pasad. Mr. S.S.

Tiwary also reported that Dr. Mukteshwar Prasad was not following the orders of his superiors and one Dr. Krishna Kumar, Travelling Veterinary

Officer, Deoghar was relieved by DAHO through Memo No. 53 dated 15.01.1994 despite an order of stay by the Regional Deputy Director, AHD,

Dumka and Director, AHD, Bihar. Mr. Tiwary also reported that it would be proper to enter into correspondence with the Secretary, AHD and

Director, AHD to unearth the truth about fraudulent withdrawals.

On receipt of the report of Mr. S.S. Tiwary, petitioner forwarded it to the Secretary, Animal Husbandry Department and recommended immediate

departmental inquiry against the delinquent vide his letter dated 04.04.1994. Petitioner thereafter also requested the Commissioner, Dumka through

letter dated 16.05.1994 to depute a Magistrate to seize the records from the office of Regional Director, AHD, so that inquiry into the matter can be

completed. Learned counsel for the petitioner further submitted that as per the investigation conducted by the CBI and charge sheet, in the financial

year 1991-92, 1992-93, 1993-94, a sum of Rs. 89,27,164.15 had been withdrawn illegally against the allotment of Rs. 4,73,400/-. Withdrawals in the

year 1993-94 was Rs. 7,57,069.85. CBI had also stated in the charge sheet that a sum of Rs. 13.00 lakh was surrendered by DAHO, Deoghar to the

Regional Director, Dumka. As per the instruction of Dr. Seshmuni Ram, 11 bills aggregating Rs. 10,96,830/- were presented before the Treasury

Officer by the DAHO, Deoghar which had to be taken back on 12.08.1993 as the same were not passed by the Treasury Officer, Deoghar because

of the initiation of inquiry by the petitioner as Deputy Commissioner, Deoghar. CBI therefore found no reason to submit a charge sheet against the

petitioner. Based on these facts and documents, it has been submitted that there was no material evidence beyond what was found during investigation

for the learned CBI Court to form an opinion that the petitioner was liable to be arraigned as an accused for facing trial for the aforesaid offences.

Consideration of these facts and circumstances and perusal of the impugned order shows that the Learned Trial Court on the basis of same

document which were found during investigation and on which, CBI did not consider it proper to implicate the petitioner of charges of criminal

conspiracy together with other accused persons, has proceeded to form the opinion that a prima facie case under the provisions of IPC and PC Act

has been made out against the then Deputy Commissioner, petitioner ‘S’ herein. Petitioner was posted as Deputy Commissioner, Deoghar

between 23.06.94 to 31.05.94 for 11 months. On receipt of complaint of Dr. Surjeet Singh of Anti Corruption Campaign on 02.07.93, petitioner

ordered an inquiry on 28.7.93 and directed Treasury Officer to obtain allotment letters for verification. He directed Treasury Officer, Deoghar to

obtain original allotment letters from Regional Director, Dumka on the basis of which, sub-allotment letters were procured. Regional Director, after

reminder, informed that Public Accounts Committee had seized the records. On 17.11.93 petitioner ‘S’ referred the complaint to the

Commissioner, Santhal Paragana informing him of withdrawal of Rs. 38,25,764.57 during 1992-93 on the basis of allotment letters. According to the

petitioner, in the meantime, 11 Bills for Rs. 10,96,830/- presented to Deoghar Treasury by DAHO, Deoghar were taken back on 12.08.93 as they

were not passed by the Treasury Officer, Deoghar because of initiation of inquiry by the petitioner as then Deputy Commissioner, Deoghar.

Withdrawal in the year 1993-94 were Rs. 7,57,069.85/-. On the other hand, on receipt of a complaint against Dr. Mukteshwar Prasad, DAHO,

Deoghar on 16.02.94 regarding misuse of official vehicles; disbursement of salary to TVO; indiscriminate transfer of Class-IV employees, an inquiry

was ordered by him on 16.2.94. The report submitted by Mr. S.S. Tiwary, Executive Magistrate found that DAHO was not obeying the orders of the

superiors. It also referred to allegation of fraudulent withdrawals against 06 allotment letters issued by Dr. Sesh Muni Ram for Rs. 50.00 lakhs

between 04.07.92 to 28.10.92. Mr. Tiwary also reported that correspondence should be made with the Secretary and Director, AHD to unearth the

truth. Petitioner through his letter dated 04.04.94 forwarded his report dated 11.03.94 to the Secretary, AHD recommending immediate departmental

inquiry against Dr. Mukteshwar Prasad, DAHO. On 16.05.94 he requested the Commissioner, Dumka to depute an Executive Magistrate to seize the

allotment letters from the office of Regional Director, AHD, Dumka. On 31.05.94 he was transferred from the post of Deputy Commissioner,

Deoghar. These were the materials found during investigation by the CBI and have been referred to in the charge sheet. However, on these materials,

CBI did not consider it proper to implicate this petitioner as an accused for any offence under the IPC or the P.C. Act. In these background facts, it is

worthwhile to mention that the learned CBI court has failed to refer to any other ‘evidence’ adduced during enquiry or trial which could form

the basis to take cognizance and arraign this petitioner as an accused to face trial in exercise of power under section 319 of Cr.PC.

Learned court completely failed to make a reference to any other material evidence adduced during trial or inquiry which could form the basis for

forming the opinion that such evidence if goes unrebutted, could lead to his conviction. For the exercise of powers under section 319 of the Cr.PC 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 an

extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising

power under Section 319 Cr PC.

CBI on its part has stated that the petitioner was examined as PW54. Learned ASGI submitted that apart from Annexure-3 and 4 which were

materials found during investigation, no further incriminating materials were produced by it against him. In the aforesaid facts and circumstances, it

can be concluded that the exercise of power under section 319 Cr.PC to arraign the petitioner as an accused failed to satisfy the test laid down in the

case of Hardeep Singh (Supra) and was therefore not proper in the eye of law. In the case of this petitioner also, by the same common impugned

judgment dated 23.12.2017, cognizance was taken upon conclusion of the trial and after pronouncement of the judgment which as observed

hereinabove, were not exercised at the proper stage as per the opinion of the Apex Court in the case of Hardeep Singh (Supra). Opinion of the Apex

Court at para-13 in the case of Brijendra Singh & Ors. Vs. State of Rajasthan reported in (2017) 7 SCC 706, extracted above, is also relied upon. The

Apex Court opined that the “evidence†under section 319 Cr.PC means the material that is brought before the court during trial. So far as

materials coming before the court in course of inquiry is concerned, it can be utilized for corroboration and to support the evidence recorded by the

court to invoke the power under section 319 of the Cr.PC. In the facts of the present case, it is clear that the learned Trial Court has miserably failed

to record or refer to any such “evidence†to support its findings that the petitioner is prima facie liable for being arraigned as an accused for

facing trial.

Trial has proceeded for 16 years or more wherein 156 prosecution witnesses were examined and voluminous documentary evidences were

produced. If any such material evidence came before the court during trial, such power could have been exercised suo-motu even in the absence of

application of prosecution. It is inexplicable as to why such an exercise, if at all warranted, should have been undertaken after pronouncement of the

judgment. Moreover, the learned CBI Court completely failed to make reference of any such material ‘evidence’ brought before the court dur

ing trialwhich could be the basis to come to a prima facie opinion that such evidence, if goes unrebutted, could lead to the conviction of such person

sought to be arraigned.

Having dealt with the case of the individual petitioners on the aforesaid issues, I now consider it proper to proceed to deal with the other legal

questions posed:

v. Whether petitioners had a right to be heard before being arraigned as an accused under section 319 of the Cr.PC?

vi. Whether in the absence of sanction for prosecution, cognizance could have been taken against the petitioners under the relevant provisions of

Indian Penal Code and Prevention of Corruption Act?

vii. Whether the court’s direction to file sanction order upon the CBI was proper in the eye of law?

That there is a necessity to accord opportunity to be heard before an order of arraignment under section 319 of the Cr.PC is passed, have been

held by the Apex Court in the case of Jogendra Yadav & Ors. Vs. State of Bihar, (2015) 9 SCC 244. It is profitable to quote the illuminating opinion

of the Hon’ble Supreme Court at para-9 of the report.

“9. It was, however, urged by the learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 Cr PC,

the only qualification necessary is that the person should be an accused. The learned counsel submitted that there is no difference between an

accused since inception and the accused who has been added as such under Section 319 Cr PC. It is, however, not possible to accept this submission

since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However,

a person who is added as an accused under Section 319 Cr PC, is necessarily heard before being so added. Often he gets a further hearing if he

challenges the summoning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to

mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the ground

that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 Cr PC, can be exercised only if

very strong and cogent evidence occurs against a person from the evidence led before the Court.â€​[emphasis supplied to the original text]

On account of failure of the learned Trial Court to do so, petitioners could not get an opportunity to show that there was no such material evidence

to arraign them as an accused and that such ‘evidence’ if goes unrebutted, could lead to their conviction. Accused persons arraigned as an

accused do not have remedy to seek discharge under section 227 of the Cr.PC, as held by the Apex Court in the case of Jogendra Yadav (Supra).

Elaborate arguments made before this Court and the materials being relied upon in support during the hearing, in itself, is an indicator that an

opportunity to show-cause was required to be given before any such prima facie opinion was formed by the learned Trial Court. Unfortunately,

learned court seems to have been completely oblivious of the principles of law well settled by the pronouncement of the Apex Court while proceeding

to exercise extraordinary power conferred on it under section 319 of the Cr.PC. Arraignment as an accused, in itself, entails serious adverse

consequences both in terms of facing a long drawn trial to vindicate his innocence and a serious slur on the reputation of such person arraigned as an

accused.

The order impugned is bad in law and in violation of principles of natural justice on that score as well. Learned court also did not consider it proper to

wait for the sanction for prosecution against these two petitioners from the competent authority before cognizance was taken. The protection under

section 197 of the Cr.PC is available both to a serving officer as well as a retired office. Petitioner ‘D’ has retired in 2002 from Indian Police

Service while petitioner ‘S’ is in the Indian Administrative Service cadre under the Government of Jharkhand.

Learned counsel for the petitioners have relied upon the following judgments in support of their pleas in the case of State of Punjab Vrs. Labh

Singh, (2014) 16 SCC 807 para-9 and 10 which relate to the case of a retired officer and Surinderjit Singh Mand & Anr. Vs. State of Jharkhand &

Anr., (2016) 8 SCC 722, paragraphs- 30 and 31. In the case of Surinderjit Singh Mand, cognizance was taken against the appellant under section 319

of the Cr.PC which the appellants contested asserting that their prosecution was unsustainable in law because no sanction was obtained under section

197 of the Code before cognizance was taken against them. The Apex court examined the precedent rendered earlier and held as under:

“30. The law declared by this Court emerging from the judgments referred to hereinabove, leaves no room for any doubt that under Section 197 of

the Code and/or sanction mandated under a special statute (as postulated under Section 19 of the Prevention of Corruption Act) would be a necessary

prerequisite before a court of competent jurisdiction takes cognizance of an offence (whether under the Penal Code, or under the special statutory

enactment concerned). The procedure for obtaining sanction would be governed by the provisions of the Code and/or as mandated under the special

enactment. The words engaged in Section 197 of the Code are, “… no court shall take cognizance of such offence except with previous

sanction…â€​.

Likewise sub-section (1) of Section 19 of the Prevention of Corruption Act providesâ€

“19. Previous sanction necessary for prosecution.â€"(1) No court shall take cognizance … except with the previous sanction ….â€​

The mandate is clear and unambiguous that a court “shall not†take cognizance without sanction. The same needs no further elaboration.

Therefore, a court just cannot take cognizance without sanction by the appropriate authority. Thus viewed, we find no merit in the second contention

advanced at the hands of the learned counsel for the respondents that where cognizance is taken under Section 319 of the Code, sanction either under

Section 197 of the Code (or under the special enactment concerned) is not a mandatory prerequisite.

According to the learned counsel representing Respondent 2, the position concluded above would give the impression that the determination

rendered by a court under Section 319 of the Code is subservient to the decision of the competent authority under Section 197. No, not at all. The

grant of sanction under Section 197 can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction can

similarly be assailed by the complainant or the prosecution.â€​

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. It is thus clear that sanction for prosecution is required both in respect of a serving and

retired Government employee. In the case of Lalu Prasad Alias Lalu Prasad Yadav Versus State of Bihar through CBI (AHD), Patna [(2007) 1 SCC

49], as referred to by the learned ASGI, the Apex Court had observed that Section 197 of the Cr.PC and Section 19 of the P.C. Act, 1988 operate in

conceptually different fields. Under the P.C. Act, sanction is of automatic nature. Conversely in a case relatable to Section 197 Cr.PC, the substratum

and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. The learned court

therefore committed a serious error of law in holding that no sanction was required in case of ‘D’.

Learned Trial Court not only took cognizance without an order of sanction for prosecution, but in fact directed the CBI to file sanction vide its

order dated 03.01.2018. The law on this point is unambiguous. In the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622,

the Apex Court held that the grant of sanction is not an idle formality or acrimonious exercise, but a solemn and sacrosanct act which affords

protection to Government servants against frivolous prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious

prosecution. It is a safeguard for the innocent but not a shield for the guilty. Sanction would therefore be dependant upon the material placed before

the sanctioning authority and the fact that all the relevant material facts and evidence have been considered by the sanctioning authority. Consideration

implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other materials

placed before it. Since the validity of sanction dependent upon applicability of mind by the sanctioning authority to the facts of the case as also the

material and evidence collected during investigation, sanctioning authority has to apply its independent mind for the generation of genuine satisfaction

whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter. As noted

above, in the present cases, learned court overstepped its jurisdiction in directing the CBI to file such a sanction order. It did not leave any discretion in

the sanctioning authority to apply its independent mind on the relevant material facts and documents to come to a decision whether sanction for

prosecution is required to be given or not. In the face of such a direction, the sanctioning authority has been practicably left with no discretion to deny

sanction, even if, on its independent consideration, it is not satisfied that such sanction is necessary for prosecution of the officer concerned.

In the case of Devendra Singh & others versus State of Punjab through CBI [(2016) 12 CC 87, the Apex Court examined the principles emerging

from its earlier decisions on the question of sanction for prosecution and summarized them at para-39, reproduced hereunder:

“39. The principles emerging from the aforesaid decisions are summarised hereunder:

39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public

duty. However, authority cannot be camouflaged to commit crime.

39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide

construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to

be construed narrowly and in a restricted manner.

39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under

Section 197 Cr PC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it

possible to lay down such rule.

39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section

197 Cr PC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official

duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the

provisions of Section 197 CrPC would apply.

39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective

assessment. The court is not to be a sanctioning authority.

39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same

comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It

may arise at inception itself. There is no requirement that the accused must wait till charges are framed.

39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to

decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction

is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of

sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it

would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in

support of his case on merits.

39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence.

Question of good faith or bad faith may be decided on conclusion of trial.â€​

Evidently, the Trial Court fell in error on this score as well. It has completely failed to address the issue in light of the above principles. I have

carefully dealt with each of the contentious issues involved in these matters, as discussed hereinabove, in detail. The impugned order is vulnerable on

several counts. Court exercising original and extraordinary power under section 319 of the Cr.PC is expected to be abreast of the well settled position

in law on the subject. The learned court by issuing a direction to file sanction order was evidently satisfied that sanction for prosecution was necessary

against the petitioners. In that case, the order of cognizance was bad in law as sanction for prosecution was mandatory requirement. The Apex Court

in the case of Brijendra Singh(Supra) at para-13 has given a note of caution that such extraordinary power has to be exercised sparingly and only in

those cases where circumstances of the case so warrants. The degree of satisfaction is more than that warranted at the time of framing of the

charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence

led before the court that such power should be exercised. The prima facie opinion which is to be formed requires stronger evidence than mere

probability of his complicity. It should not be exercised in a casual or cavalier manner.

In the aforesaid facts and circumstances and in view of the detailed discussions and the reasons recorded hereinabove, this Court is of the firm

view that the order impugned deserves to be quashed in order to prevent the miscarriage of justice. Accordingly, the impugned orders are quashed.

Petitions are allowed.

While parting, this Court records its appreciation to the valuable assistance accorded by the learned Amicus Curiae during hearing of this case. The

Member Secretary, High Court Legal Services Committee shall bear the fee / legal remuneration of the learned Amicus Curiae.