Jharkhand High Court
Lalu Prasad @ Lalu Prasad Yadav vs Vrs on 22 April, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (SJ) No. 95 of 2022
Lalu Prasad @ Lalu Prasad Yadav ............Appellant
Vrs.
Central Bureau of Investigation .......... Respondent
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Appellant : M/s Kapil Sibal, Sr. Advocate, Debarsi Mondal,
Adit S Pujari, Shivani Kapoor, Advocates
For the CBI : M/s Prashant Pallav, ASGI, Navneet Sahay,
and Shivani Jaluka, A.C. to ASGI
05/22.04.2022 Heard learned Senior Counsel for the appellant Mr. Kapil Sibal
assisted by learned counsel Mr. Debarsi Mondal and learned A.S.G.I Mr. Prashant Pallav for the CBI on the prayer for suspension of sentence made through I.A. No. 1576 of 2022.
2. Appellant stands convicted in connection with R.C. Case No. 47(A)/1996 - PAT vide impugned judgment of conviction dated 15.02.2022 and order of sentence dated 21.02.2022 passed by the Learned Special Judge-V, CBI (AHD Scam Cases), Ranchi for the offences under sections 120-B read with sections 420,409,467,468,471 and 477A of the Indian Penal Code and section 13(2) r/w Section 13(1)(d) of the P.C. Act and sentenced to undergo R.I. for 5 years with a fine of Rs. 10 Lakh u/s 120 B I.P.C. and R.I. for 5 years with a fine of Rs. 50 Lakh u/s 13(2) of P.C. Act and default sentences. All the sentences were directed to run concurrently.
3. Learned Senior Counsel for the appellant submits that the instant case concerns fraudulent withdrawal to the tune of Rs. 139 crores approximately from the Doranda treasury concerning Animal Husbandry Department at Ranchi. Appellant was the Chief Minister of the State during the subject period 1990-1995. The role of the appellant (A-6) along with other politicians falling in his category have been discussed at para 53 onwards and findings against him have been recorded at para 82 to 83 of the impugned judgment. It is submitted that the learned C.B.I. Court has held that the appellant despite having knowledge of the larger conspiracy of the accused persons involved in syphoning of the public money from the Government exchequer, went on to extend Patronage by way of extension of service to the key conspirators Dr. S.B.Sinha, R.K.Das etc. which the prosecution has 2 been able to successfully establish on the weight of oral and documentary evidence. Learned CBI Court has erroneously held that the prosecution has established the nexus of the appellant with co- accused Dr. R.K. Rana, the kingpin of the scam late Dr. S.B. Sinha, major supplier Md. Sayeed and D.N. Kashyap. D.N. Kashyap was appointed as Vice Chairman of 20 point programme by this accused. Learned Trial Court has also discussed the modus operandi of Animal Husbandry scam and held that the key operators of the scam used to procure false allotment letters from the AHD Headquarter Patna by putting false memo number, without moving from any file but issued by same officers i.e., Budget and Accounts Officers, AHD Patna. Regional Director, AHD, Ranchi thereupon used to place supply orders and in conspiracy with AHD officials false bills of supply were prepared without proper examination and sanctioned by the Regional Directorate, AHD, Ranchi and Officers of the Treasury and payments have been made on the basis of such endorsement or through Bank drafts to the suppliers. The conspirator used to prepare bills less than Rs.50,000/- in bunch to avoid clearance from the Headquarter at Patna. It is alleged that the appellant had the knowledge of the CAG reports for the financial year 1988-89 to 1994-95 showing excess withdrawal by AHD, Bihar and act and omission of the scamsters but he did not take any initiative and tried to conceal the actual position from the Legislature. It is also alleged that extension of service was granted to the co-accused Dr. S.B.Sinha for 1 year despite objection by the Finance Department. Extension of services was also granted to another accused R.K. Das, Section Officer in the AHD, Bihar for 1 year. The prosecution had also alleged his closeness with co-accused Ram Raj Ram. It is also alleged that a note was submitted by the then AHD Minister Sri Ram Jivan Singh to the Chief Minister/ appellant recommending for CBI probe in respect of the fraudulent payment but the same was not heeded by the appellant rather there was a letter of the leader of opposition Sri Jagannath Mishra, also an accused, addressed to the Chief Minister not to have a vigilance inquiry against the AHD Officials. Learned Trial Court has also referred to certain alleged benefits received from persons and accused D.N. Kashyap. It has also observed that the approver P.W.12 Dipesh Chandak had deposed that kingpin of the scam Dr. S.B. Sinha was very close to the appellant.
34. Learned Senior Counsel for the appellant submits that all these evidences on record do not directly establish the charge against the appellant in his capacity as the Chief Minister cum Finance Minister at the relevant point of time. Learned counsel for the appellant submits that the appellant has served custody for more than half of the sentence of 5 years awarded under relevant provisions of I.P.C and P.C Act as per the detailed chart furnished under para 3 of the supplementary affidavit dated 28.03.2022 filed in support of the instant I.A. The custody undergone by him are as follows:
i. From 26.11.2001 till 19.12.2001 (23 days) ii. From 18.11.2013 on issuance of production warrant in this case to 16.12.2013 (28 days) iii. From 05.01.2018 on production warrant being issued against him upon his conviction in R.C. Case No. 64(A)/1996 on 23.12.2017 till he was released on provisional bail by order of this Court dated 11.05.2018(4 months and 6 days) iv. From 30.08.2018 upon his surrender in R.C. 64(A)/1996 and production warrant being issued against him on the same date till his release on 29.04.2021on being granted bail by this Court vide order dated 17.4.2021 in Cr. Appeal(SJ) No. 668 of 2020 in connection with his conviction under R.C. Case No. 38(A)/1996 (32 months 13 days).
v. From the date of his conviction in the instant case R.C. Case No.47(A)/1996 dated 15.02.2022 till date ( about 66 days) All the above period of custody would come to more than 40 months approximately i.e., much more than half of the custody of 30 months against the maximum sentence of 5 years awarded under each of his conviction under I.P.C and P.C. Act. Learned Senior Counsel for the appellant has also taken a plea that appellant has been suffering from several ailments and his condition is deteriorating. He is presently under treatment at AIIMS on being referred by the Doctors at RIMS, Ranchi.
5. Learned Senior Counsel for the appellant submits that this Court has adopted a uniform yardstick while considering the prayer for 4 suspension of sentence in respect of such convicts under different fodder scam cases including this appellant, such as in R.C. Case No. 64(A)/1996-PAT, R.C. Case No. 68(A)/1996-PAT and R.C. 38(A)/1996- PAT vide order dated 12.07.2019, 09.10.2020 and 17.4.2021 respectively passed in Criminal Appeal (SJ) No. 138 of 2018, Criminal Appeal(SJ) No. 207 of 2018 and Criminal Appeal(SJ) No 668 of 2018 in the case of the appellant. Learned Senior Counsel for the appellant has also submitted that the sentence awarded in this case is running concurrently. Therefore appellant may be enlarged on bail by granting the privilege of suspension of sentence. Appellant has also never misused the privilege of bail.
6. Learned A.S.G.I. representing the C.B.I. has strongly opposed the prayer for bail. A counter affidavit has been filed by the C.B.I. to the instant I.A. Learned A.S.G.I has referred to the initiation of the instant R.C. Case No. 47(A)/1996 pursuant to the F.I.R. No. 60 of 1996 registered at Doranda Police Station and the investigation being taken by the C.B.I. pursuant to the order dated 11.03.1996 passed by the Hon'ble Patna High Court and upheld by the Hon'ble Supreme Court. He submits that instant F.I.R. relates to the subject period 1990-91 to 1995-96 wherein the AHD officials in criminal conspiracy with unscrupulous suppliers and others had fraudulently withdrawn and misappropriated a sum of Rs. 182.82 Crores from Doranda Treasury, Ranchi under the pretext of making payments to the suppliers, who submitted bogus bills falsely showing supply of feed, fodder, veterinary medicine etc. During course of investigation, role of bureaucrats, politicians including the then Chief Minister of the State of Bihar / the present appellant and the Ex-Chief Minister, Chairman of Public Accounts Committee (PAC) etc., came to the fore. A total of 171 accused persons were charge-sheeted by the C.B.I. and charges were framed against total of 148 accused persons. During course of trial 575 prosecution witnesses were examined and 4200 documents were exhibited to prove the case of the prosecution. 25 defence witnesses were also examined. During trial 55 accused persons expired, 8 accused persons were taken as approvers , 2 accused persons pleaded guilty and 6 accused persons were declared absconders. Out of 99 accused persons who faced the trial at the time of judgment, 75 have been convicted and 24 accused persons have been acquitted. A detail chart has also been 5 furnished in the counter affidavit of the conviction and sentence awarded against each of the accused persons. Learned A.S.G.I submits that appellant, apart from the instant case, has also been convicted in 4 other AHD scam cases i.e., R.C. Case No. 20(A)/1996-PAT, R.C. Case No. 64(A)/1996-PAT, R.C. Case No. 68(A)/1996-PAT and R.C. Case No. 38(A)/1996-PAT in which sentences of varying period have been awarded. It is submitted that in such circumstances the provision of Section 427 of the Code of Criminal Procedure, 1973 shall apply regarding completion of the sentences to be served by the appellant. The appellant as such, has criminal antecedent and the nature of offence being economic offences, which jeopardize the State exchequer of huge amount of public money, he may not be granted bail considering the gravity of the offence.
7. Learned counsel for the C.B.I. has referred to the judgment of the Apex Court in the case of K.C. Sareen Vrs. CBI reported in (2001)6 SCC 584 and in the case of Y.S. Jagan Mohan Reddy Vrs. CBI reported in (2013) 7 SCC 439 wherein the Apex Court has commented upon the corruption by public servants of economic offences, which involved deep rooted conspiracies and involving huge loss of public funds. It is submitted that the suspension of sentence is to be granted in exceptional case only. The present case shows the magnitude of the offence and the modus operandi adopted by the convicts including the appellant in defalcation of public money and therefore disentitles the appellant from any privilege of suspension of sentence concerning the serious nature of offence, the gravity of the accusation, the manner in which the crime was committed, the appellant being a habitual offender. Apart from the 5 cases in which the appellant has been convicted, he is facing trial in R.C. Case No. 63(A)/1996-PAT which is pending before the learned Special Judge (CBI), Patna. Therefore, the appellant may not be granted the privilege of sentence.
8. Learned A.S.G.I submits that the CBI has approached the Hon'ble Supreme Court against the order of suspension of sentence dated 09.10.2020 passed in Criminal Appeal (SJ) No. 207 of 2018 in respect of his conviction in R.C. Case No. 68(A)/1996-PAT being S.L.P. (Cr.) No. 3213 of 2021 and also in S.L.P. (Cr.) No. 7558 of 2021 in respect of R.C. Case No. 38(A)/ 1996, order granting suspension of sentence dated 17.04.2021 in Criminal Appeal (SJ) No. 668 of 2018. It 6 is submitted that the C.B.I has categorically taken the plea that the sentence which have been imposed upon the appellant and in some of his convictions such as in R.C. Case No.38(A)/1996-PAT, ordered to run consecutively, should operate on principles enshrined under Section 427 Cr.P.C. The Apex Court has been pleased to issue notice on 04.04.2022. However, learned counsel for the CBI submits that no stay order has been passed on the order of suspension of sentence passed by this Court. Learned counsel for the CBI submits that prayer for suspension of sentence of the appellant may be rejected for the present till the S.L.P.s are decided by the Apex Court.
9. I have considered the submission of learned counsel for the parties and taken note of the materials relied from the record as also the discussions and findings of the learned CBI Court regarding the role of the appellant in the instant R.C. Case No. 47(A)/1996. It appears that the appellant in his capacity as the then Chief Minister of Bihar during the subject period of different fodder scam cases such as R.C. Case No. 20(A)/1996-PAT, R.C. Case No. 64(A)/1996-PAT, R.C. Case No. 68(A)/1996-PAT and R.C. Case No. 38(A)/1996-PAT covering fraudulent withdrawal in different districts of the unified State of Bihar has been convicted under the provisions of I.P.C. and P.C. Act and has been imposed sentences ranging from 3 ½ years up to 7 years. Sentences have been ordered to run consecutively in respect of his conviction in R.C. Case No. 38(A)/1996-PAT, whereas in rest of the cases including the present case, the sentence has been ordered to run concurrently. Appellant was earlier released on bail on 16.12.2013 by granting suspension of sentence by the Apex Court in connection with his conviction in R.C. Case No. 20(A)/1996-PAT. In R.C. Case No. 64(A)/1996-PAT in Cr. Appeal (SJ) No. 138 of 2018 concerning Deoghar Treasury; R.C. Case No. 68(A)/1996-PAT concerning Chaibasa Treasury in Criminal Appeal No. 207 of 2018 and R.C. Case No. 38(A)/1996-PAT concerning Dumka Treasury in Cr. Appeal (SJ) 668 of 2018, appellant has been released on bail on completion of half custody vide order dated 12.07.2019, 09.10.2020 and 17.04.2021 respectively. This Court in respect of his conviction and sentence in R.C. Case No. 38(A)/1996 wherein the sentences were directed to run consecutively, has granted the privilege of suspension of sentence keeping into account the principle of parity with other such convicts 7 such as Dr. Om Prakash Diwakar (convict in R.C. Case No. 45A/1996 PAT) in Criminal Appeal (SJ) No. 812 of 2018 order dated 21.06.2019; Dr. Shashi Kumar Sinha @ Shashi Kumar Sinha (convict in R.C. Case No. 45A/1996-PAT) in Criminal Appeal (SJ) No. 803 of 2018 order dated 27.07.2018 and Dr. Krishna Murari Sah @ Krishna Murari Shah (convict in R.C. Case No. 45A/1996- PAT) in Criminal Appeal (SJ) No. 838 of 2018 order dated 24.08.2018, whose sentences were also ordered to run consecutively and not concurrently by treating half of the custody against their conviction in respect of the offences under IPC or PC Act. The respondent CBI had also taken the plea of applicability of the provisions of Section 427 of the Cr.P.C. such as in Criminal Appeal(SJ) 207 of 2018 while this Court had granted suspension of sentence to this appellant vide order 09.10.2020 at para
7. It was argued that in view of Section 427 Cr.P.C the sentence imposed upon this appellant would start running only after the sentence imposed upon him in the previous conviction such as R.C. Case No. 64(A)/1996-PAT was over. This argument of the appellant was strongly contested by the learned Senior Counsel for the appellant and have also been refuted now on the ground that such a stand would be discriminatory and vindictive as against the present appellant and more over the question of running of the sentences imposed under different convictions, concurrently or consecutively would rise only upon dismissal of the appeal against such convictions pending before this Court. Such a plea had also been raised in connection with his conviction in R.C. Case No. 38(A)/1996-PAT in Criminal Appeal (SJ) No. 668 of 2018 while the Court was considering his prayer for suspension of sentence vide order dated 17.04.2020. However, this Court had categorically observed that following the principles of parity where under suspension of sentence has been allowed to different convicts/ appellant in connection with different R.C. Cases/ Criminal Appeals on completion of half of the custody, even though the sentences in many such cases were ordered to run consecutively, this Court should not depart from the principles of parity on the plea taken by the CBI in the case of the present appellant. This Court in the case of individual appellants undergoing sentences under the impugned conviction has been pleased to allow the suspension of sentence by following a uniform yardstick on completion of more than half of the 8 custody under such conviction. Further, from the submissions of learned counsel for the C.B.I., it appears that only notices have been issued by the Apex Court in S.L.P. (Cr.) No. 3213 of 2021 and S.L.P. (Cr.) No. 7558 of 2021 but no stay of the order granting suspension of sentence has been passed in favour of the CBI. The appellant is now undergoing custody only in respect of his conviction in the present R.C. Case No. 47(A)/1996-PAT as he has been released from custody on granting privilege of suspension of sentence earlier by this Court in respect of his conviction in other R.C cases.
10. This Court has also scrutinized claim of the appellant regarding the completion of more than half of the period of custody claimed on the basis of the documents such as order sheets of the learned CBI Court in the instant R.C. Case No. 47(A)/1996-PAT, which are enclosed to the supplementary affidavit dated 28.03.2022. The different period of custody which cumulatively come to 40 months and 16 days as on date are being indicated in the form of a table hereunder:
Sl. Surrender Bail Granted Period of
No. custody
undergone
1. Surrendered in this case on Bail bond 23 days
26.11.2001 furnished and
released on
19.12.2001
2. Production warrant issued in Released on 28 days
this case on 18.11.2013 16.12.2013
3. Convicted in R.C. Provisional bail 4 months 6 days
64(A)/1996 on 23.12.2017 granted on
and production warrant issued 11.05.2018 by
on 05.01.2018 in this case. this Court
4. Again surrendered on Released on 32 months 13
30.08.2018 and production 29.04.2021 days
warrant issued in this case on
the very same day
5 Convicted in present R.C. 2 month and 06
case no. 47(A)/1996 on days till
15.02.2022. The applicant 21.04.2022
was taken into jail custody on
the very same day and is in
jail custody till date
9
Total 40 months 16
day
approximately
11. Under the impugned conviction appellant has been sentenced to undergo 5 years of maximum sentence in respect of his conviction under the offences of I.P.C and P.C. Act and the sentences are ordered to run concurrently. As such, having completed more than half of the custody of 30 months under the impugned conviction i.e., 40 months and 16 days, he deserves to be enlarged on bail by suspending his sentence in view of the uniform yard stick applied by this Court in such matters concerning conviction in fodder scam cases in respect of other such convicts as also appellant as also taken note of herein above. Having regard to the totality of facts and circumstances and that the appellant has remained in custody for more than half of the sentence awarded in the instant case, I am inclined to grant the privilege of suspension of sentence to the appellant by enlarging him on bail.
Accordingly, let the appellant be released on bail, during the pendency of this appeal, on furnishing bail bonds of Rs. 1,00,000/- (Rupees One Lakh) with two sureties of the like amount each, to the satisfaction of Learned Special Judge-V, CBI (AHD Scam Cases), Ranchi in connection with R.C. Case No. 47(A)/1996 - PAT, subject to deposit of Rs.10 Lakh (Rupees Ten Lakh) of the fine amount in the Court below and if not wanted in connection with any other case. The appellant would not leave the country without permission of the Learned Trial Court. He would also submit his passport, if any, before the Learned Trial court and the appellant and his bailors shall not change their address or mobile nos. without permission of the learned Trial Court.
6. I.A. No. 1576 of 2022 stands disposed of accordingly.
(Aparesh Kumar Singh, J.) A.Mohanty