D.S. Dhaliwal, J.
1. This order will also dispose of Cr. Misc. No. 11995/97 and Cr. Misc. No. 13123/97 as all the three applications for bail arise out of one and the same case, R.C. Case No. 20-A of 1996 (Special Case No. 22/96) for offences under Sections 409, 420, 467, 471, 477, 477A, 201, 511 read with 120 of the Indian Penal Code and Section 13(2) read with Sections 13(1) (c) and (d) of the Prevention of Corruption Act.
2. The aforesaid criminal case was initially registered as FIR Case No. 12/96 of Police Station, Chaibasa, on the basis of a written report of Sri Amit Khare, the Deputy Commissioner, West Singhbhum, Chaibasa in respect to fraudulent withdrawals from the Government Treasury by the officials of Animal Husbandry Department, in pursuance of a criminal conspiracy of the accused persons named therein. Subsequently, a batch of the writ applications were filed in the High Court and in view of the orders passed therein and as modified by the Hon'ble Supreme Court in SLP (Civil) No. 5811/96 the Central Bureau of Investigation (for short 'CBI') took over the investigation of all the other cases registered in various Police Stations regarding fraudulent withdrawals by the Animal Husbandry Department, which chain of the cases in common parlance came to be called as 'Fodder Scam' and as a consequence thereof Chaibasa Sadar PS Case No. 12/96 came to be registered as RC No. 20-A/96 Patna (Special Case No.22/96).
3. Although the said case related to fraudulent withdrawals during the financial year 1994-95 but the investigation by the CBI revealed that the fraudulent withdrawals were not restricted to the aforesaid period and the number of persons involved in the crime was much more than the number of the accused mentioned in the FIR.
4. After completion of the investigation charge-sheet was filed against 56 accused which include various suppliers to the Department, Officials of the Department as well as the politicians.
5. Dr. Jagannath Mishra, the petitioner herein, is the Ex-Chief Minister of the Bihar State and is presently a member of Rajya Sabha. He initially filed as application for anticipatory bail which was rejected by the special Judge, Vigilance. The High Court, however, allowed the anticipatory bail for a limited period and ordered that it shall remain operative till the trial Court considers and passes any further order regarding regular bail application and in case of rejection of regular bail petition by the trial Court it was to remain operative for one week thereafter. The petitioner appeared in the Court below and furnished bail bonds in the terms of the aforesaid order and also applied for his regular bail which was dismissed by the Special Judge vide order dated 21.8.1997. The petitioner thus filed the present petition for bail under Section 439, Cr.P.C., within the extended period of anticipatory bail.
6. Sri. K. Arumugam, the petitioner in Cr. Misc. No. 11995/97 and Beck Julious, the petitioner in Cr. Misc. No. 13123/97, are the two Officers of the Indian Administrative Service, who had been working as Secretary in the Department of Animal Husbandry. They are in judicial custody since 11.6.1997 and have thus filed the aforesaid petitions for their bail.
7. I have heard the learned Counsel for the petitioner, Standing Counsel for the CBI at length and have perused the materials on record with their assistance.
8. Mr. A.D. Giri, learned Senior Advocate, appearing on behalf of Dr. Jagannath Mishra. submitted that there is no direct allegation of any fraudulent withdrawal against the petitioner. The First Information Report was lodged on the basis of an enquiry report submitted by the Commercial Taxes Officer of Sales Tax Department but the petitioner was not named as accused in the FIR. The petitioner is sought to be implicated with the aid of Section 120A, IPC, alleging a criminal conspiracy on the basis of certain circumstances. The learned Counsel referring to the sanction order (Annexure 14) submitted that the prosecution case against the petitioner as per sanction order is that while he was the Chief Minister of Bihar, he received a letter dated 23.9.1988 from the co-conspirator, Sri Lalu Prasad in the capacity of opposition leader, Bihar, requesting the petitioner to promote Raja Ram to the post of Director, A.H.D. which request was promptly acceded to by the petitioner and Dr. Raja Ram was thus irregularly appointed, superseding a senior officer. Counsel maintained that thus according to the prosecution the conspiracy came into existence in the year 1988 but this circumstance is false for the simple reason that the petitioner was never the Chief Minister of Bihar in the year, 1988.
9. Learned Counsel further submitted that the other circumstances alleged against the petitioner are that he tried to scuttle the investigation of a vigilance case by writing letters dated 28.8.1990 and 15.11.1990 but perusal of these documents would go to show that the petitioner had simply suggested that action should be taken only against the members of Central Purchase Committee as broadening of the investigation will involve a lengthy process and the case against the main accused would be thrown into backyard. Counsel maintained that the petitioner never tried to scuttle the investigation, he rather by the said letters suggested for expediting the action against the persons named in the FIR and this circumstance stands falsified from the speech (Annexure 6) delivered by the petitioner in the Assembly on 22.11.1990. It is further submitted that although the prosecution tried to establish nexus between the petitioner and the other accused persons of the Scam, namely, Dr. Ram Raj and Shyam Bihari Sinha but there is hardly any material in support of the same. Dr. Ram Raj was appointed as in-charge Director with effect from 1.8.1989 not on the basis of the letter of the recommendation said to have been written by Sri Lalu Prasad, the then opposition Leader but he was so appointed as his seniority was illegally disturbed in December, 1987 and later on vide order dated 17.12.1989 a Selection Committee under the Chairmanship of the Chief Secretary was convened to examine the matter and in the meanwhile the Secretary of the Animal Husbandry Department was ordered to take charge as Director. As regards the letter of recommendation (Annexure-10) written by the petitioner for extension of services of Sri S.B. Sinha Counsel maintained that at the time when the recommendation letter was sent to the then Chief Minister Sri Lalu Prasad there was nothing against the said Officer to indicate that he had any shady record and that the Scam had not come to light by that time. Counsel went on to argue that granting of a telephone connection to the daughter-in-law of S.B. Sinha out of discretionary quota in January, 1995 cannot take the prosecution case any further in respect to the alleged conspiracy as the petitioner at that lime had no knowledge that S.B Sinha was in any manner involved in the conspiracy of fraudulent withdrawals.
10. It is further submitted that besides the aforesaid circumstance the only material alleged against the petitioner is the confessional statement of two co-accused, namely, R.K. Das and Deepak Chandak and as the statements are of hearsay nature these carry no evidenciary value. In these premises the learned Counsel prayed that the petitioner, who is presently a member of the Rajya Sabha and had earlier been the Chief Minister of Bihar, deserves to he released on bail.
11. Sri Ganesh Prasad Singh, learned Senior Counsel arguing on behalf of the other two petitioners, namely, K. Arumugam and Beck Julious, referring to the Bihar Financial Rules submitted that as per Rule 472 the responsibility for controlling of expenditure from the grant is to he of the Head of the Department who has to exercise the said control through the Controlling Officers under him. He also referred to Rule 477 which lays down that the Head of the Department and his Controlling Officers must take steps to maintain a careful watch over the expenditure incurred from time to time. He further referred to Appendix III of the Bihar Service Code according to which the Head of the Department in case of Department of Animal Husbandry is the Director of Animal Husbandry. Learned Counsel thus submitted that the entire responsibility in respect to the expenditure of the funds granted and to exercise control over the same was that of the Director, Animal Husbandry, who was the Head of the Department and that the role of the petitioners was a limited one only to deal with the office files and to put up the same with their notes before the concerned higher authorities. Thus, according to the learned Counsel it cannot be said that prima facie case of conspiracy as alleged is made out against any of these two petitioners.
12. The learned Counsel further submitted that the only act alleged against the petitioner Sri K Arumugam is that on the letter sent by the Deputy Accountant-General showing some irregularities during test verification in withdrawals to the tune of Rs. 26,580/ the petitioner had asked the Director, Animal Husbandry, to submit report in the matter and thereafter as the Director did not find any fault in the alleged payment, he agreeing with the report forwarded the file to the Minister Incharge Sri Ram Jeevan Singh. It is further submitted that this petitioner worked as the Secretary, Animal Husbandry Department, from February, 1989 to August, 1989 and again from May, 1990 to September, 1990 and he was in no way concerned with the Animal Husbandry Department during the financial year 1994-95 for which period for First Information Report was registered. Thus, according to the learned Counsel so far as the petitioner K. Arumugam is concerned, the case is at best only of an administrative lapse.
13. Arguing the case of the petitioner Beck Julious the Counsel further submitted that this petitioner worked as Secretary, Animal Husbandry Department, from 8.5.1994 to 11.6.1997, the date on which he was arrested Counsel maintained that the petitioner has been co-operating with the CBI during the investigation and it was he who had made them available the relevant files and as no anomaly was ever brought to his notice, he cannot be held liable for the fraudulent withdrawals for which the responsibility lay on the Director, AHD, being the Head of the Department. It is further submitted that from the fact that in reply to a starred question in Lok Sabha, he had approved the statement made in reply to the effect that there was no Mafia in the Animal Husbandry Department and that there has been no misappropriation of any amount, it cannot be inferred that the petitioner was a party to any criminal conspiracy.
14. Mr. Rakesh Kumar, learned Standing Counsel appearing for the CBI, while opposing the bail application of Sri Jagannath Mishra raised a preliminary question regarding maintainability of his bail application under Section 439, Cr.P.C., submitting that although the petitioner had appeared in the trial Court after obtaining anticipatory bail and he had submitted his bail bonds but he was never taken into custody. Counsel maintained that the only distinction between the anticipatory bail and the regular bail as held by the Constitution Bench of the Supreme Court in : 1980CriLJ1125 , Shri Gurbaksh Singh Sbbia v. The State of Punjab, is that the application for anticipatory bail under Section 438, Cr.P.C. can be filed in anticipation of arrest whereas the application for bail under Section 439, Cr.P.C., can be filed only when the accused is in custody. Counsel thus maintained that the Code of Criminal Procedure does not envisage any third category of the accused praying for bail. However, I find that in this case this question does not require to be gone into as the anticipatory bail allowed to the petitioner has been extended by the Supreme Court till today, i.e. 10.9.1997 by which date this Court was expected, as per the said order, to dispose of the matter.
15. Opposing the prayer for bail of Sri Jagannath Mishra on merits, learned Standing Counsel, submitted that this petitioner is one of the main conspirators as he has been trying to scuttle the investigation of Vigilance P.S. Case No. 34/90 against the members of the Purchase Committee, and the Officers of Animal Husbandry Department including Dr. K.N. Jha, the Regional Director, Ranchi and that the petitioner also tried to scuttle the enquiry based upon the test checking report. In this respect, it is submitted that the investigation revealed that the fraudulent withdrawals were going on even prior to the year 1988 and when this fact came to light Vigilance Case No. 34/90 was registered on 9.8.1990 to enquire into the fraudulent withdrawals for the period between 1985 to 1988. The FIR was lodged against the members of the Purchase Committee and also against the Officers of the Animal Husbandry Department. The petitioner then wrote letter dated 23.8.1990 (Annexure-9) to Sri Lalu Prasad, the then Chief Minister, and again a few days thereafter on 15.11.1990 he wrote another letter (Annexure-10) and that reading of these annexures would go to show that the petitioner wanted the investigation to remain confined only to the first set of the accused i.e. the members of the Purchase Committee so that the Officers of the Animal Husbandry Department, who were involved in the fraudulent withdrawals, remain out of net. Counsel maintained that the letter Annexure-10 was sent by Sri Lalu Prasad to the Investigating Officer of the case on 4.1002E1991 and as a result whereof no investigation proceeded against the Officers of the Animal Husbandry Department responsible for the fraudulent withdrawals. Counsel maintained that in the year 1985-86 the Deputy Accountant General carried out a best check and random checking revealed that a sum of Rs. 26,594/- was withdrawn showing transportation of various animals on vehicles like scooter, Tampoo and tankers which vehicles could not have been used in such transportation. The Deputy Accountant-General then wrote a letter to the Government and Sri K. Arumugam, the another petitioner, who was the Secretary of the Department, instead of getting the matter thoroughly investigated marked it for enquiry to the Director, Animal Husbandry Department, Ram Raj the other main accused of this case, who after holding a limited enquiry in respect to the aforesaid amount gave report that although the numerals of registered vehicles was correctly mentioned that the alphabets proceeding the numerals appeared to have been wrongly written in the vouchers. After receiving this report the petitioner K. Arumugam put-down his note to drop the matter, agreeing with the enquiry report, and put up the file before the then Minister of the Animal Husbandry Department Sri Ram Jeevan Singh, who disagreeing with the note ordered for the 'CBI enquiry'. Sri Lalu Prasad, the then Chief Minister, however, did not agree to the aforesaid suggestion of the Minister and instead of CBI enquiry ordered for vigilance enquiry and file was sent to the Chief Secretary on 14.11.1990. The learned Counsel highlighted that on the very next day, i.e. 15.11.1990 the petitioner Sri Jagannath Mishra wrote letter (Annexure-11) to the Chief Minister, following the events on close heels as a result whereof even the enquiry by the vigilance was stopped and instead the matter was referred to the Public Accounts Committee.
16. Learned Standing Counsel further submitted that there are materials to indicate that the petitioner Jagannath Mishra had nexus with the main accused S.B. Sinha, the kingpin and the brain behind with the Scam. In this context, learned Counsel submitted that Sri. S.B. Sinha was to retire on 21st December, 1993 and on 4th December he applied for extension of his service. Immediately thereafter on 5.1.1993 the petitioner wrote a letter to the Chief Minister requesting for extension of services of Sri S.B. Sinha whereupon the then Chief Minister Sri Lalu Prasad immediately requisitioned the file for extension of service. Counsel maintained that the aforesaid events go to show that the protective shadow of the petitioner was throughout moving along the files pertaining to the main accused of the case.
17. It is further submitted that there is confessional statement of two co-accused which go to show that the heavy amounts were paid twice to this petitioner. Standing Counsel further maintained that it cannot be said that the petitioner, who had been the Chief Minister of the State earlier, was not aware of the credentials of Sri S.B. Sinha as the matters with regard to fraudulent withdrawals had been ranging in the air in one way or the other since when the DAG submitted report in respect to random checking.
18. As regards the mention of the wrong fact in the order for sanctioning of prosecution that the petitioner while being the Chief Minister of Bihar in the year 1988 had received a letter from a co-conspirator Sri Lalu Prasad requesting for promotion of Raja Ram, learned Counsel maintained that there appears to be some error of record somewhere and even if this circumstance is ignored there is sufficient material against the petitioner to link him with the conspiracy, as indicated above.
19. Opposing the bail plea of the other two petitioners the learned Standing Counsel submitted that Rule 8 of the Rules of the Executive Business framed under Article 163 of the Constitution of India clearly lays down that each department or group of departments shall consist of a Principal Secretary/Secretary to the Government as may be necessary who shall be the official head of the department, and of such other officers and servants as the State Government may determine. Counsel thus submitted that it cannot be said that these petitioners were in no way responsible for the controlling expenditure of the Government funds or to keep a watch over the financial irregularities appearing in the department. Learned Counsel also referred to paragraphs 8.7.1 and 8.7.2 of Chapter 111 of the report of Comptroller and Auditor-General of India which indicate that the Secretary of the Animal Husbandry and Fisheries being the head of the Administrative Department was responsible for ensuring the accuracy of the budget proposals and for control over the expenditure. It is further submitted that these petitioners during the time of their posting as Secretary of the Department had been trying to protect the interest of the main scamsters and during investigation the evidence has also appeared that they had been receiving payments at the hands of scamsters and they had also been enjoying the pecuniary benefits of having travelled at their expense.
20. The learned Standing Counsel further submitted that the present case is one of the long chain of 47 cases relating to fraudulent withdrawals from the Government Treasury and causing of heavy loss to the exchequer to the tune of several crores of rupees and as the direct evidence of conspiracy is not available in such like cases it has to be proved from the inference drawn front the various acts of commission and omission on the part of the conspirators Counsel maintained that the circumstances appearing against the petitioners are sufficient to show prima facie, that they were the members to the said criminal conspiracy and as such, by virtue of Section 10 of the Evidence Act anything said and done by one of the members of the conspiracy can be used against the others.
21. For the purpose of disposal of the bail petitions, in my view, it is neither necessary nor proper to minutely appreciate, evaluate or scrutinise the evidence that has appeared during the Investigation as it is likely to prejudice the case of either party at the time of trial before the Special Judge. At this stage the evidence collected by the investigating agency has to be rather seen in broad spectrum.
22. After considering the rival submissions and the materials on record on broad pattern, in my opinion there are circumstances to infer, prima facie. that this is a case of systematic plunder of the public money from the Government Treasury in pursuance of a well-hatched conspiracy in which every conspirator, be the bureaucrat or politician in power, functioned as a part of a well-lubricated machine which accelerated and gathered momentum with time and the change of guards. The allegations against the petitioners are indeed grave. The trial is to open shortly and there are some fragile witness whose deposition is yet to be recorded.
23. Having regard to these facts and circumstances of the case, in my opinion, it is not a fit case where bail should be granted to any of the petitioners, and, as such, the prayer for bail of the petitioners is rejected. All the three bail petitions are, accordingly, dismissed.
24. A copy of this order be placed in both the connected petitions.