JUDGMENT : Heard learned counsel for the petitioner, C.B.I. and the Amicus Curie. 2. Petitioner has assailed the order dated 5th March 2018 arraigning him as an accused in exercise of powers under Section 319 Cr.P.C. passed by learned court of Special Judge-VII, CBI (AHD Scam), Ranchi in R.C. No.38(A)/1996 (Pat.). For better appreciation the relevant part of the impugned order dated 5th March 2018 so far as it relates to the present petitioner are being quoted hereunder :- ‘In brief the Fodder Scam story is that fraudulently allotment letter prepared in the Finance Department of the then Bihar Government. The prepared allotment letter directly received by Regional Director AHD Department, Santhal Pargana, Dumka. The Regional Director sub-allotted to District Animal Husbandry Officers, (DAHO). The Regional Director and other Officers post in AHD Department had registered firms in the name of their relatives, who only received supply order and prepared fake vouchers relating to supply in the AHD Offices. The Veterinary Doctor granted receiving relating to supply which is fake and forge in real sense no any supply in the department was made but on the basis of false vouchers and receiving the bill was prepared in the department. Such prepared bill send to District Treasury. The Treasury Officer by post D.C. delegate his power to another person as Treasury Officers, who pass the bill of AHD Department without perusal of budget allotted in respected department. The D.C., Deoghar written a letter to D.C., Dumka for sending an allotment letter which received in R.D., AHD Department, Santhal Pargana, Dumka. After disclosing six false and fabricated allotment letter in Deoghar, Treasury by which withdrawn Rs.50,00,000/- (fifty lacs) against valid allotment which was only Rs.6,000/- (six thousand). The Executive Magistrate, Sri S.S. Tiwary after inquiry submitted report by letter no.157 dated 11.3.1994 to the D.C., Deoghar and D.C., Deoghar written a letter to the D.C., Dumka. (A) The then D.C., Dumka Mr. Anjani Kumar Singh do not taken any action since a long time and fraudulently money withdrawn from Dumka Treasury. The Deputy Collector, Dumka Sri Brij Kishore Pathak conducted an inquiry in Treasury, Dumka and found that in financial year 1995-96 non-planning 2403 allotted Rs.1,50,000/- only by letter no.7559 dated 30.12.1995 to Animal Husbandry Department whereas in two months December 1995 and January 1996, the Regional Director withdrawn Rs. 3,76,38,853/- illegally. The D.C. Sri Anjani Kumar Singh who was the Addl. 3,76,38,853/- illegally. The D.C. Sri Anjani Kumar Singh who was the Addl. Secretary Finance, Government of Bihar during 1992-93, later on posted as Deputy Commissioner, Dumka and passed an order on 17.08.1993 that bills of above Rs.1,00,000/-(one lakh) be placed before him, when bills of AHD were sent to him by the District Treasury seeking the approval for payment. From perusal of record it appears that the Finance Secretary Sri V.S. Dubey taking charge in August 1995 and illegally withdrawn money in the month December 1995 and January 1996 above both public officers do not perform his duty so legal way and remain negligent regarding his powers duty as allotted by Indian Constitution. From perusal of oral and documentary evidence as on record, court found Anjani Kumar Singh and V.S. Dubey prima facie liable for criminal conspiracy in forged withdrawal of money from Dumka Treasury in the month December 1995 and January 1996.’ ‘(E) The then Finance Secretary Sri Vijay Shankar Dubey is superannuated from service so no need to seek sanction from proper authority. After perusal of oral and documentary evidences, on record prima facie case is made out U/s.120(B) r/w Section 420, 467, 468, 471 of I.P.C. and U/s 13(2) r/w Sec.13(i)(c) & (d) of P.C. Act. Accordingly, cognizance is taken against Vijay Shankar Dubey and O.C. is directed to issue summon for appearance in the court and face the trial.’ 3. Learned counsel for the petitioner has urged both factual and legal grounds in support of the challenge. Briefly stated it is the case of the petitioner that the learned trial court had no material evidence on record to arraign the petitioner neither was such a case set up by the CBI. Petitioner was the Finance Secretary of the Government of Bihar during the period 27th July 1995 to 17th June 1998. It was he who on noticing the fraudulent withdrawal from a period starting from 1988-89 under A.H.D., directed through FAX message dated 19th January 1996 to all the District Magistrates to furnish all details of drawls bill wise, minor head and unit wise from the Animal Husbandry Department from the months of November 1995 to December 1995. It is only because of his action that AHD scam got exposed. It is only because of his action that AHD scam got exposed. Learned CBI Court has proceeded to take cognizance under the offences of Indian Penal Code as well as Prevention of Corruption Act against him and erroneously held that no sanction for prosecution is required as he has already superannuated from service though such requirement is mandatory for proceeding under the offences of I.P.C. even if the officer has retired. No show-cause was issued to the petitioner before arraigning him as an accused in teeth of the judgment of the Apex Court in the case of Jogendra Yadav & Ors. Vs. State of Bihar, (2015) 9 SCC 244 . 4. The instant case related to fraudulent withdrawal from Dumka Treasury to the tune of Rs. 3,76,38,853/- on the basis of forged and fabricated allotment letters against a total allotment of Rs.1.5 lakh only. CBI took over investigation into Dumka Town P.S. Case No.16/1996 registered under various Sections of the I.P.C., under the orders of learned Patna High Court as also the Apex Court. After investigation chargesheet was submitted against 48 persons on 11th May 2000. It was accompanied with 271 documents. CBI did not find any incriminating material against the petitioner during investigation. In fact it praised the role of the petitioner in unearthing the fodder scam leading to institution of criminal case against the persons involved in it. CBI in its charge sheet has referred to the files dealt with by the petitioner in capacity of Finance Secretary on the basis of which the investigation was started. During the course of the trial none of the 245 prosecution witnesses nor any of the 603 exhibits i.e., documentary evidence revealed the complicity of the petitioner. There are no materials as such in the nature of oral or documentary evidence which formed the basis of opinion for taking cognizance against the petitioner, neither has the learned court referred to any such material in the cryptic order. 5. There are no materials as such in the nature of oral or documentary evidence which formed the basis of opinion for taking cognizance against the petitioner, neither has the learned court referred to any such material in the cryptic order. 5. He submits that the perusal of the impugned order shows that the CBI Court had apparently two reasons to form an opinion against this petitioner:- (i) That the genesis of the fodder scam were the fraudulent allotment letters prepared in the Finance Department of the then Bihar Government ; (ii) That the petitioner in the capacity of Finance Secretary did not perform his duty in a legal way and remained negligent regarding his powers as per the Indian Constitution. 6. Both these inferences are totally flawed. There were 24 forged allotment letters issued for a total amount of 12.47 crores for ensuring fraudulent withdrawal from the AHD, Dumka during the financial year 1995-96 against an allotment of Rs.1.5 lakh. Rs. 3,76,38,853/- were drawn through two forged allotment letters in December 1995 and January 1996 by Regional Director, A.H.D., Dumka. The remaining 22 allotment letters/bills could not be withdrawn as the scam was busted by the petitioner on 25th January 1996. F.I.R. No.16/1996 was instituted in Dumka P.S. on 2nd February 1996. CBI took over the investigation and instituted the instant F.I.R. on 11th April 1996. The chargesheets filed by the CBI refer to in particular at pages-110, 117 and 212 of the instant petition and deposition of the prosecution witness nos. 104, 105, 109 referred to at page-33 of the final judgment delivered in the instant R.C. Case on 19th March 2018 showed that these 24 forged allotment letters were prepared by Shri Braj Bhushan Prasad, Budget and Accounts Officer, Animal Husbandry Department. CBI had also filed the relevant extracts of Bihar Financial Rules, Bihar Budget Manual, Bihar Treasury Code, Rules of Executive Business along with the chargesheet (which are at page 79 of the chargesheet). All these documents show that it is the administrative department i.e. the Animal Husbandry Department alone which is responsible for issuance of allotment letter and for exercising control over expenditure. Finance Department cannot issue any allotment letter for any administrative department in any situation. Petitioner has also enclosed the Secretariat Instruction and Bihar Financial Rules as Annexure-7 series to the supplementary affidavit in support thereof. Finance Department cannot issue any allotment letter for any administrative department in any situation. Petitioner has also enclosed the Secretariat Instruction and Bihar Financial Rules as Annexure-7 series to the supplementary affidavit in support thereof. Both on facts, as per the evidence on record and the legal position, Finance Department or the Finance Secretary was not at all responsible for issuance of 24 forged allotment letters in the financial year 1995-96 to the AHD at Dumka. Any finding to the contrary is totally misplaced and seriously flawed. 7. Countering the other observation of the learned court that petitioner was negligent towards statutory duty as Finance Secretary and was in criminal conspiracy with other accused persons, learned counsel for the petitioner has on the one hand referred to the materials collected during investigation forming part of the charge sheet and at the same time adverted to the statement of certain prosecution witnesses as well. The chargesheet clearly mentioned that it was at the instance of the petitioner that the Chief Minister agreed to order for institution of criminal cases against scamsters. The file No. Finance/Con./FC-329/96 which was exhibited before the learned trial court as Exbt. No. 66/5, explicitly shows the role played by the petitioner in uncovering the scam. He had prevailed upon the then Chief Minister to recall the earlier order for inquiry only and instead initiation of the criminal investigation against these scamsters. They are enclosed as Annexure-3 and 4 to the Cr.M.P. and were adduced as Exbts-63/5 and 66/5 during trial. Deposition of witness no.55 Dr. M. Sayeed in this case on 24th July 2006 shows that an accused Doctor of Animal Husbandry Department Dr. O.P. Diwakar was extremely worried that the petitioner had been able to uncover the scam and call for a report from the Accountant General, Ranchi. He stated that if the inquiry continued there could be an inquiry about the fraudulent withdrawal from Dumka Treasury also which would expose all the accused persons. This statement of witness no.55 has taken note of by the learned Special Judge, CBI at page 94 in the final judgment dated 19th March 2018. The role played by the petitioner in uncovering the scam has been mentioned in 3rd paragraph at page 24 of the judgment. This statement of witness no.55 has taken note of by the learned Special Judge, CBI at page 94 in the final judgment dated 19th March 2018. The role played by the petitioner in uncovering the scam has been mentioned in 3rd paragraph at page 24 of the judgment. Learned counsel has also referred to the deposition of the Additional Finance Commissioner Shankar Prasad as P.W. 179 taken note of at page-49 of the judgment. His deposition showed the explicit role played by the petitioner in getting the criminal case registered against the scamsters. This petitioner was also adduced as a prosecution witness no.465 in R.C. No.47(A)/1996 which was taken on record in the instant case on 14th February 2018 as Exbt. No. ‘C/4’at the instance of the accused Lalu Prasad Yadav, the then Chief Minister of Bihar. It is also enclosed as Annexure-8/1 to the supplementary affidavit in the instant Cr.M.P. It has been referred to at page no.82 of the final judgment by the learned CBI Court. This Exbt. also shows the role played by the petitioner in uncovering the scam and initiative taken by him much against wishes of the then Chief Minister. 8. Learned counsel for the petitioner submits that the materials enclosed to the charge sheet show that the then PAC Chairman Mr. Dhrub Bhagat threatened contempt proceedings on the pretext that Public Accounts Committee was undertaking an inquiry into the matter. Letter dated 20th January 1996 was issued after petitioner started inquiry i.e. also part of the chargesheet. As per the Rules of Executive Business it was the duty of the Finance Secretary to bring the information of defalcation to the notice of the Chief Minister through the Departmental Minister i.e. the Finance Minister, both the offices were occupied by the same person Mr. Lalu Prasad Yadav. Learned counsel for the petitioner has made elaborate submissions on the basis of these documents to show that contrary to the findings recorded by the learned CBI Court it was he who was instrumental in exposing the scam. Learned counsel submits that petitioner has a record of being an upright and honest officer of the Indian Administrative Service. He has served in many important capacities both before the scam was unearthed in Bihar and thereafter as well till he superannuated on 31st July 2002 as Chief Secretary Jharkhand. Learned counsel submits that petitioner has a record of being an upright and honest officer of the Indian Administrative Service. He has served in many important capacities both before the scam was unearthed in Bihar and thereafter as well till he superannuated on 31st July 2002 as Chief Secretary Jharkhand. He submits that no opportunity to show cause was accorded to the petitioner in clear teeth of the ratio rendered by the Apex Court in the case of Jogendra Yadav (Supra). He further submits that learned court committed serious error in law by holding that no sanction for prosecution is required since the petitioner has superannuated. Reliance is placed upon the judgment of the Apex Court rendered in the case of State of Punjab Vrs. Labh Singh, (2014) 16 SCC 807 and Surinderjit Singh Mand & Anr. Vrs. State of Punjab & Ors. reported in (2016) 8 SCC 722 . 9. Based on these factual submissions learned counsel for the petitioner has urged this Court to test the legality and correctness of the order impugned in the light of the principles laid down by the Apex Court in the Constitution Bench judgment in the case of Hardeep Singh Vrs. State of Punjab reported in (2014) 3 SCC 92 . 10. As per the ratio rendered by the Apex Court in the case of Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92 , test for exercise of this extraordinary and discretionary power under Section 319 Cr.P.C. 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 evidence, if goes unrebutted, will lead to conviction of the petitioner. The order impugned completely falls short of recording such satisfaction. The trial had concluded on 5th March 2018 and case was posted for judgment when the power under Section 319 of the Cr.P.C. was exercised suo moto. The Court had therefore become functus officio. 11. Learned counsel for the petitioner has also placed reliance upon the judgment rendered by this Court in Cr.M.P. No.253/2018 with Cr.M.P. No.120/2018 in the case of Dhruva Prasad Ojha Vrs. State of Jharkhand through the CBI and Sukhdeo Singh Vrs. The Court had therefore become functus officio. 11. Learned counsel for the petitioner has also placed reliance upon the judgment rendered by this Court in Cr.M.P. No.253/2018 with Cr.M.P. No.120/2018 in the case of Dhruva Prasad Ojha Vrs. State of Jharkhand through the CBI and Sukhdeo Singh Vrs. State of Jharkhand through the CBI dated 2nd November 2018 whereunder the order taking cognizance in purported exercise of powers under Section 319 Cr.P.C. by the same learned Special Judge in a different R.C. Case No.64 (A)/1996-Pat was set aside after due scrutiny of all factual and legal grounds urged by the parties. It is urged that the ratio of the said case squarely applies to the facts of the instant case. He submits that if the order impugned is not set aside, grave miscarriage of justice would entail upon the petitioner. 12. Though no affidavit in traverse has been filed by the CBI in this petition but learned ASGI has on the basis of the material on record made a submission, both on merits as well as on legal grounds. Learned ASGI submits that during trial of the instant R.C. Case No. 38(A)/1996 (Pat), 245 prosecution witnesses were examined and about 603 documents were exhibited. The evidence brought on record through these prosecution witnesses and documentary evidence do not throw any light on the complicity of the petitioner in the instant crime. Learned ASGI has gone on to submit that this petitioner in the capacity of the Finance Secretary of the State of Bihar during the relevant period was responsible for unearthing the entire scam. In effect, CBI does not support the arraignment of this petitioner as an accused in exercise of powers under Section 319 of the Cr.P.C. Learned ASGI has in particular referred to the judgment in the case of Hardeep Singh (supra) rendered by the Constitution Bench of the Apex Court where the scope and width of the powers under Section 319 of the Cr.P.C has been defined. He has submitted that this being extraordinary and discretionary power, the test for its exercise is one which is more than a 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 person sought to be arraigned. He has submitted that this being extraordinary and discretionary power, the test for its exercise is one which is more than a 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 person sought to be arraigned. Learned CBI Court was therefore required to be satisfied on the basis of the evidence adduced during trial that the evidence if goes unrebutted would lead to conviction of the petitioner. The impugned order has to be tested on the settled principles laid down in the case of Hardeep Singh(supra) by the Apex Court. 13. Learned Amicus Curiae has made submission on the legal grounds also relying upon the case of Hardeep Singh(supra). It has been pointed out that in this particular case learned Trial Court has before pronouncement of the judgment exercised the power under Section 319 of the Cr.P.C. Learned Amicus Curiae has also taken this Court to the observations recorded by the learned CBI Court in the impugned order where under this petitioner has been arraigned as an accused. However, he has also not been able to improve upon the findings recorded therein since no such oral or documentary evidence has been discussed or dealt with by the learned Court. Learned Amicus Curiae has referred to a recent judgment rendered by the Apex Court in the case of Labhuji Amratji Thakor Vrs. State of Gujarat reported in 2018 SCC Online SC 2547. It follows the ratio rendered by the Apex Court in the case of Hardeep Singh(supra). On the legal ground urged on behalf of the petitioner relying upon the judgment rendered by the Apex Court in the case of Jogendra Yadav (supra) on the point of opportunity of hearing or on the question of sanction as held in the case of Labh Singh(supra) and Surinderjit Singh Mand (supra), it is submitted that there is no quarrel with the proposition laid down in those cases. In substance, it is submitted that the order impugned is to be tested on these well settled principles of law as rendered by the Apex Court in the cases referred to above. 14. In substance, it is submitted that the order impugned is to be tested on these well settled principles of law as rendered by the Apex Court in the cases referred to above. 14. I have considered the submissions of learned counsel for the petitioner, A.S.G.I. and Amicus Curiae at length, gone through the materials on record including the impugned order and also the judgments cited on behalf of the petitioner as well as the Amicus Curiae. On consideration thereof, the following question arise for determination in the instant matter :- (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 satisfies 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 petitioner? (iv) Whether the power has been exercised at a proper stage as is permissible in law? (v) Whether petitioner 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? 15. The scope of power under section 319 of the Cr.PC has been dealt with and 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 ]. The Apex Court had framed five questions to be answered as under: “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. 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 “evidence” 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?” In answer to Question No.6.3.(iii) i.e. 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 “evidence” is limited to the evidence recorded during trial, the Apex Court at paragraphs-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 ………………. 85. 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.” Further at paragraph-117, the conclusion has been summed up in answer to the question no.(i) and (iii) as under :- “117.1. The “evidence” is thus, limited to the evidence recorded during trial.” Further at paragraph-117, the conclusion has been summed up in answer to the question no.(i) and (iii) as under :- “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.” 16. The Apex Court has in answer to Question No.(ii) held at para-117.4 that the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. As per the observations made at para 106, the nature of the satisfaction which is required to invoke the power under Section 319 Cr.PC to arraign an accused by a trial, 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 absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.PC. This power 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 had been discharged. 17. In absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.PC. This power 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 had been discharged. 17. On being tested on these salient principles laid down by the Apex Court in the case of Hardeep Singh (Supra) it appears from perusal of the impugned order that the learned court had framed an opinion that the fraudulent allotment letters were prepared in the Finance Department of the then Bihar Government. It further held that petitioner as a Finance Secretary who had taken charge in August 1995 did not perform his duty in a legal way and remained negligent towards his powers though illegal withdrawal took place in the month of December 1995 and January 1996. These two observations have been made by the learned C.B.I. Court apparently on perusal of oral and documentary evidence on record to come to an opinion that the petitioner was liable for criminal conspiracy for forged withdrawals in the month of December 1995 and January 1996. 18. However, conspicuous is the absence of any such discussion on any such material evidence which were brought on record during trial for arriving at a satisfaction of such nature. Learned trial court had a duty to examine evidence brought on record during the trial and inquiry, if any, in order to summon the petitioner to face trial and only on being satisfied that such evidence, if goes unrebutted, would lead to conviction. The degree of satisfaction required is more than a prima-facie case as exercised at the time of framing of 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 might 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, as held at para-117.5 in the case of Hardeep Singh(supra). 19. 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, as held at para-117.5 in the case of Hardeep Singh(supra). 19. Petitioner in order to prove his innocence has adverted to the materials found during investigation by the CBI on the one hand. It is his contention that there was no incriminating material found against him for being charge-sheeted. C.B.I. in its charge-sheet had referred to the file dealt with by the petitioner in the capacity of Finance Secretary on the basis of which investigation was started. On the other hand petitioner has referred to evidence brought on record during trial as recorded through deposition of prosecution witness No.104, 105, 109 referred to in para-33 of the judgment and submitted that 24 forged allotment letters were prepared by Shri Braj Bhushan Prasad, Budget and Accounts Officer, Animal Husbandry Department. C.B.I. on its part has also filed the relevant extracts of Bihar financial Rules, Bihar Budget Manual, Bihar Treasury Code, Rules of Executive Business to show that it is the Administrative Department i.e. Animal Husbandry which is responsible for issuance of allotment letter and for exercising control over expenditure. Finance Department cannot issue any allotment letter for any administrative department. Petitioner has further adverted to the documents adduced by the prosecution during trial such as File No. Finance/Con./FC-329/1996 which showed that he played a role in uncovering the scam and prevailed upon the then Chief Minister to recall the earlier order for inquiry only and getting the criminal investigation started against these scamsters. These documents are also enclosed as Annexure-3 and 4 to the petition. Evidence of Prosecution Witness No.55 Dr. M. Sayeed has also been relied upon to show that one of the accused Dr. O.P. Diwakar was extremely worried that the petitioner had been able to uncover the scam and call for a report from the Accountant General, Ranchi. He was apprehensive that if the inquiry continues, there could be inquiry against the fraudulent withdrawal from the Dumka Treasury also which could expose all the accused persons. The statement of this witness has been taken note at page-94 of the judgment dated 19th March 2018 passed by the learned CBI Judge in the instant case. 20. He was apprehensive that if the inquiry continues, there could be inquiry against the fraudulent withdrawal from the Dumka Treasury also which could expose all the accused persons. The statement of this witness has been taken note at page-94 of the judgment dated 19th March 2018 passed by the learned CBI Judge in the instant case. 20. Learned counsel for the petitioner has referred to the deposition of P.W.179 Additional Finance Commissioner Shankar Prasad taken note at page-49 of the judgment dated 19th March 2018 which showed the explicit role played by the petitioner in getting criminal case registered against the accused persons. It has also been brought to the notice that this petitioner was adduced as P.W.465 in R.C. Case No.47(A)/1996 which has been taken on record in the instant case on 14th February 2018 as Exbt. No. ‘C/4’ at the instance of the accused Lalu Prasad Yadav, the then Chief Minister of Bihar. These evidences have been relied upon by the petitioner to show that the contrary to the findings recorded by the learned C.B.I. Court, it was the petitioner who was responsible for unearthing the scam. In the wake of voluminous materials adduced during trial, some of which has been relied by the petitioner and referred to above, the trial court had the onerous duty to deal with the evidence and record its satisfaction as per the test laid down by the Apex Court in the case of Hardeep Singh (supra). However, learned C.B.I. court completely failed to make reference to any such material evidence adduced during trial or inquiry which could be the basis for forming an opinion that such evidence, if went unrebutted, would lead to conviction to the petitioner. The test to be applied is one which is more than prima facie case as exercised at the time of framing of charge. The learned Trial Court has of course, exercised this power before pronouncement of the judgment in the light of the observation made at Para 47 of Hardeep Singh (Supra). It is pertinent to mention here that the Apex Court has in the case of Brijendra Singh Vs. State of Rajasthan reported in (2017) 7 SCC 706 further explained the principles laid down in the case of Hardeep Singh. It is pertinent to mention here that the Apex Court has in the case of Brijendra Singh Vs. State of Rajasthan reported in (2017) 7 SCC 706 further explained the principles laid down in the case of Hardeep Singh. It has given a note of caution that the discretionary power under Section 319 Cr.P.C. being also an extra-ordinary one has to be exercised sparingly and in case circumstances so warranted. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. The pronouncement of the Apex Court in essence reverberates the concept of fair Trial i.e. real culprit should not get away unpunished. It is based on the doctrine judex damnatur cum nocens absolvitur. 21. Considered in the aforesaid perspective and the facts and circumstances noted above, I am of the opinion that the learned C.B.I. Court completely failed to record the desired satisfaction before arraigning the petitioner as an accused. No such material evidence adduced during trial or inquiry has been discussed or relied upon to invoke such power. The question no. (i) to (iv) are answered in the aforesaid manner. 22. The proposition that a person has a right to be heard before an order of arraignment under Section 319 Cr.P.C. is passed is well settled now by the pronouncement of the Apex Court in the case of Jogendra Yadav Vrs. State of Punjab reported in (2015) 9 SCC 244 , para-9. Failure to accord opportunity to the petitioner to show cause and being heard has rendered the impugned order bad on that count as well. As such, question no.(v) posed earlier is answered in favour of the petitioner. 23. Learned Trial Court has also proceeded on an erroneous understanding of law that since the petitioner has superannuated, there was no requirement of sanction. Reliance is placed upon the opinion of the Apex Court in the case of Labh Singh (supra) para 9 & 10, which related to the case of a retired officer and also in the case of Surinderjit Singh Mand (supra) para 30 & 31. Protection from prosecution is also available to a retired Government employee under Section 197 of the Cr.PC. Protection from prosecution is also available to a retired Government employee under Section 197 of the Cr.PC. In case, the acts constituting offence could not be complete without proving the officials Acts, sanction is required for prosecuting even a retired Public Servant. The Apex Court in the aforesaid cases has held that sanction for prosecution is required both in respect of serving and retired government employee under Section 197 of the Cr.P.C. Sanction for prosecution is also required against a serving government employee in case the offence prosecuted are under the P.C Act. It is surprising that learned Court was unaware of the settled principle of law on this point. It completely failed to address the issue germane in exercise of power under Section 319 of the Cr.P.C in the light of the above principles. Question no. (vi) posed above is answered accordingly. 24. I have carefully dealt with each of the contentious issues involved in the instant case as discussed herein above, in detail. The impugned order cannot be sustained in law and on facts on several counts. In the aforesaid facts and circumstances and in view of the detailed discussion and the reasons recorded herein above, this Court is of the opinion that the exercise of power under Section 319 of the Cr.P.C was not proper in the eye of law and on facts. It deserves to be quashed in order to prevent the abuse of the process of Court, lest it may lead to miscarriage of justice. 25. Accordingly, the impugned order is quashed. The instant petition is allowed. This Court records its appreciation for 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.