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Jharkhand High Court · body

2011 DIGILAW 827 (JHR)

Rajendar Pandey v. State of Jharkhand

2011-09-02

R.R.PRASAD

body2011
ORDER This application filed under Section 482 of the Code of Criminal Procedure is directed against the order dated 12.1.2011 passed by Special Judge-V, C.B.I (AHD Scam), Ranchi in R.C No.31A of 1996 rejecting the application filed under Section 173(8) of the Code of Criminal Procedure whereby prayer had been made to direct the Investigating Officer to undertake further investigation of the case for determining the role being played by the Accountant General, Bihar in the matter relating to illegal withdrawal of money from the Treasury. 2. The grievances which have been raised by learned counsel appearing for the petitioner are that upon audit being made of drawl of the amount related to Animal Husbandry Department for the year 1987-88 to 1994-95, by Accountant General, annual reports were prepared. It were recorded that there have been excess drawl of the amount but it is adjustable. Subsequently, under the order of the Patna High Court and also the Hon’ble Supreme Court, when the matter relating to excess drawl of the amount from the Treasury related to Animal Husbandry Department was referred to C.B.I, the Accountant General, Bihar in order to save his skin got the transaction re-audited and then it was reported that there had been fraudulent withdrawal of the amount from the Treasury for the year 1987-88 to 1994-95. 3. It was further contended that the Accountant General does not have any power under the rule to take up the matter for special audit, rather it could be done only with permission granted by the State Government. In such situation, connivance of the Accountant General with other accused persons could not be ruled out but the Investigating Officer did not investigate the case from the angle as to whether there was any connivance of the Accountant General even though circumstances stated above strongly go to suggest that the accused persons in connivance with the Accountant General withdrew the amount fraudulently and therefore, an application was filed under Section 173(8) of the Code of Criminal Procedure for directing the Investigating Officer to take up the matter for further investigation so far it relates to the role being played by the Accountant General in illegal/fraudulent withdrawal of the money from the Treasury. 4. 4. Learned counsel appearing for the petitioner submits that where it appears to the court that serious irregularities have been committed in the investigation, the court may direct further investigation under Section 173(8) of the Code of Criminal Procedure. 5. Learned counsel in this respect has referred to a decision rendered in a case of Babubhai vs. State of Gujarat and others [ (2010) 12 SCC 254 ] and submitted that this was the fit case for further investigation but the trial court did not consider it in right perspective and rejected the application and hence, the same is fit to be set aside. 6. It has been well settled proposition as has also been held by the Hon'ble Supreme Court in the case referred to above that where the court comes to conclusion that there was a serious irregularity in the investigation, the court may direct further investigation under Section 173(8) of the Code of Criminal Procedure which provides for further investigation and not for reinvestigation. When the court comes to conclusion that the investigation has been done in a manner with an object of helping a party, on account of which there would be failure of justice, the court must interfere. 7. But at the same time, it has also been held that unless an extraordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. 8. The court has gone further to observe that in case of mala fide exercise of power by police officer, the court may interfere. 9. From perusal of the order, the petitioner does not seem to have been made out a case either of mala fide exercise of power or gross abuse of power. It does appear that C.B.I during hearing of the matter placed before the court below that, in fact, Accountant General was not aware that on account of conspiracy hatched by the officials of the Animal Husbandry Department and the suppliers, there was huge fraudulent withdrawal of the money from the Treasury and that those withdrawals have been made on the basis of fake allotment letters. It had also been placed that in course of investigation of the case related to fodder scam, several witnesses related with the Accountant General, Bihar were interrogated but nothing could be found against the Accountant General. 10. However, at this stage, it be recorded that it was the submission of the petitioner that in course of cross-examination the Investigating Officer has admitted that he did not investigate the case to determine the role being played by the Accountant General. But from the submission advanced on behalf of the C.B.I, it does appear that several witnesses related with the Accountant General, Bihar have been interrogated of course in connection with other fodder scam case but no role of Accountant General was found in the commission of the offences for which the petitioner is facing trial. 11. Therefore, the petitioner does not seem to have been made out a case for further investigation and hence, the trial court has rightly rejected the application filed for further investigation. Thus, I do not find any merit in this application. Accordingly, it is dismissed. Application dismissed.