Sajal Chakraborty vs State Of Jharkhand Thr C.B.I on 11 November, 2011

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Jharkhand High Court

Sajal Chakraborty vs State Of Jharkhand Thr C.B.I on 11 November, 2011

The appellant/petitioner who at the relevant point of time was posted as the Deputy Commissioner, West Singhbhum at Chaibasa was put on trial along with other accused persons to face charges under Sections 409, 420, 467, 468, 471/465 and 477A read with Section 120B of the Indian Penal Code and also under Sections 409, 420, 467, 468, 471/465 and 477A simplicitor as well as under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act on the allegation that the appellant/petitioner having nexus with other accused facilitated them to draw the Government money fraudulently to the extent of Rs.38,94,29,433/- from the Treasury and in lieu of that he received a Laptop as reward.

The trial court did not find the charges to be proved under Sections 409,420, 467, 468, 471/465 and 477A simplicitor, but found the appellant guilty for the offence under Sections 120(B) read with Sections 409, 420, 467, 468, 471/465 and 477A and also under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act and thereby the appellant/petitioner was sentenced to undergo sentence for a period of four years and six months on each count.

On appeal being preferred before this court, the appellant/petitioner was admitted to bail. Subsequently an application was filed under Section 389(1) of the Code of Criminal Procedure for suspension of the order of conviction, passed by the then Special Judge, C.B.I., (A.H.D. Scam cases), Ranchi, in R.C. No.51(A) of 1996. That application was rejected vide order dated 4.2.2010, but while rejecting the application, liberty was granted keeping in view, the facts and circumstances of the case to renew the prayer for early fixation of hearing of appeal after nine months. Thereupon an Interlocutory Application bearing I.A. No.598 of 2011, was filed for fixation of early date of hearing of the appeal on the ground that the appellant/petitioner, who does have peculiar nature of obesity, needs to undergo bypass surgery but before subjecting to bypass surgery problem of obesity is to be tackled with which as per the advise of the Doctor, can be done only at Johns Hopkin Medical University at Baltimore, U.S.A., where the appellant/petitioner cannot go without Passport which cannot be granted to the appellant as the appellant/petitioner is under the order of conviction. Taking into consideration the grounds taken by the appellant/petitioner, the case was fixed for hearing on 17th June, 2011.

When the appeal of the appellant/petitioner was listed along with several other appeals it was pointed out by the learned counsel appearing for the appellant/petitioner that for the reason recorded under order dated 15.4.2011, it needs to be heard at the earliest so that if the appellant/petitioner is acquitted, he would go for treatment for his obesity and then will have by-pass surgery.

Upon it, when it was pointed out to the learned counsel appearing for the appellant/petitioner that since a number of appeals are there which according to the orders, passed by this Court need to be heard along with this appeal it may consume a considerable time, an application was filed vide I.A. No.1547 of 2011, on 8.8.2011, praying therein to segregate the appeal preferred by the appellant with other appeals so that it be heard and be disposed of at the earliest.

Mr. Abhay Kumar Singh, learned Senior Counsel appearing for the appellant/petitioner submits that the appellant/petitioner does have extreme morbid obesity since last two decades and that has led to unbridled diabetes and coronary artery diseases and on account of that the appellant/petitioner has already undergone a rigour of two angioplasty sessions whereby, five stents have been placed in the artery.

It was further pointed out that according to Dr. Reddy, Asian Institute of Gastroenterology at Hyderabad and also by the specialists of Max Super Specialty Hospital, Delhi, the appellant needs to undergo Bariatric surgery to control the obesity as if obesity gets continued there would be considerable deterioration in cardio-vascular conditions and if need arises for open heart surgery, the appellant/petitioner would be unable to endure such surgery. Considering the aforesaid peculiar type of problem, the State Medical Board having found that the petitioner needs to undergo bariatric surgery referred the case to Dr. Michael Shweitzer of Johns Hopkin Medical University at Baltimore, U.S.A..

Learned counsel would further submit that apart from the ground taken here-in-before, there is no legal hurdle or impediment in segregating the present appeal from other appeals preferred by the co- convicts as the result of this appeal is not going to prejudice either the case of co-convicts or the State for the following reasons :-

(i)The appellant was not named in the F.I.R., whereas the other appellants were named in the F.I.R.

(ii)The Appellant falls under the different category from the rest of the accused persons. It is evident from para No.1 of the judgment that the accused persons figure at Serial No.1 to 9 are the officials of AHD whereas the accused persons figure at S. No.10 to 11 are the employees of Chaibasa Treasury. The appellant being the then Deputy Commissioner, Chaibasa figures at S. No.12, whereas the accused persons figure at S. Nos.13 to 64 are the suppliers.

(iii)The allegations against all the accused persons except the appellant are that they created forged and fake allotment, supply/purchase orders, supply bills/invoices, contingent bills and cheated the Government treasury.

(iv)The offences under Sections 409,420, 467, 468, 471, 477A IPC are not proved against the appellant whereas, the said offences have been proved against the other accused persons which is evident from para No.282 and 283 of the judgment under Appeal.

(v)In para No.267 of the judgement, the alleged nexus of the appellant for criminal conspiracy is shown with Sushil Kumar Jha, Dr. Shyam Bihari Sinha (since dead) and Mahendra Kumar Kundan. Sushil Kumar Jha has pleaded his guilt and he has been convicted and sentenced accordingly, which is evident from para No.265 (at page

-218) of the judgment. Sushil Kumar Jha has not preferred any appeal against his conviction. The accused Dr. Shyam Bihari Sinha is dead and as such, he has not been convicted and sentenced by the Trial Court. Accused Mahendra Kumar Kundan is supplier which is evident from para 215 of the judgement. The charges against Mahendra Kumar Kundan are proved under Sections 409, 420, 467, 468, 471, 477A IPC. In this view of the matter, the case of Mahendra Kumar Kundan will not be prejudiced if the Appeal of the Appellant is segregated.

(vi)Even the Trial Court considering the nature of allegation has separately dealt with the complicity of the Appellant from rest of the accused persons which is evident from para-87 (at page -83) and para-133 (at page-119) of the judgment.

(vii)Right to speedy trial guaranteed under Article -21 of the Constitution of India encompasses all the stages of the case including the Appeal.

(viii)Article 21 of the Constitution of India guarantees protection of life of person. The Appellant does not wish to die with stigma. The protection of his life is also necessary to serve the sentence in case his conviction and sentence is affirmed by this Hon'ble Court.

(ix)The allegation of obtaining pecuniary gain in the form of Laptop and Printers attributed against the Appellant comes under the purview of the P.C. Act, 1988.

Thus, it was submitted that in the aforesaid circumstances, there would be no impediment in segregating the instant appeal from the other appeals.

Learned counsel further submits that even if there is any impediment that in the facts and circumstances of the case stated above would not come in the way under the doctrine of necessity which postulates that even if a statute is mandatory or prohibitory yet in many instances the Court will go beyond the provision of statute on the basis of equittable humane consideration for administering justice. The said principle has been laid down in a case of U.P. State Electricity Board vs. Shiv Mohan Singh and Anr. 2004 Volume 8 SCC 402. Thus, it was submitted that in the facts and circumstances as stated above the appeal warrants to be segregated under peculiar facts and circumstances and also on the doctrine of necessity.

A counter-affidavit has been filed on behalf of the State, wherein, it has been stated that since this appellant has been convicted along with other convicts under Sections 409, 420, 467, 471/465, 477A read with Section 120B of the Indian Penal Code, segregation or separation of the appeal of the appellant /petitioner would prejudice not only the case of the respondents, but also the case of other convicts and as such the appeal never warrants to be segregated from other appeals preferred by the co-convicts.

It has also been stated that the appellant is also facing trial in other fodder scam cases where his presence would be required at the time of recording statement under Section 313 of the Criminal Procedure Code and in that situation if the appellant is allowed to go to abroad there would be delay in disposal of the said case.

It would be significant to note that the contention made on behalf of the appellant/petitioner that according to the advice of the Doctor, he needs to have have immediate bariatric surgery for controlling the obesity by Dr. Michael Schweitzer at U.S.A., has not been denied.

Thus, there is no difficulty in accepting the contention made on behalf of the appellant/petitioner that the appellant needs to undergo bariatric surgery for controlling his obesity so that there may not be any further deterioration in cardio-vascular system and if need arises for undergoing bypass surgery so that the appellant may endure such surgery.

Nevertheless, it is to be considered as to whether the result of this appeal will in any manner prejudice the case of the State or other co-convicts. If one comes into conclusion in the facts and circumstances that the result of this appeal would prejudice substantially either the case of the State or of the co-convicts still it needs to be considered as to whether it would be desirable to segregate the appeal by invoking the principle enunciated under 'Doctrine of necessity'.

On perusal of the judgement, it does appear, prima facie that the appellant has been found guilty for the reason that the appellant never made inspection of the Treasury, Chaibasa at the interval of every six months and that co-convict, Sushil Kumar Jha had arranged a meeting of this appellant with other co-convicts as well as with one Shyam Bihari Sinha the kingpin of the scam who got Sajal Chakraborty posted at Chaibasa, as the Deputy Commissioner for smooth withdrawal of the Government money and that a Laptop was given to this appellant as reward for which payment was made by co-accused, Mahendra Kumar Kundan. However, it does appear that Sushil Kumar Jha has been convicted upon pleading his guilt and that Shyam Bihari Sinha died during trial. Under that situation, there is no likelihood of prejudice being caused either to the State or to co-convicts. So far Mahendra Kumar Kundan is concerned, he though has been convicted along with the appellant, but Mahendra Kumar Kundan has been convicted for the offence under Sections 406, 467, 468, 420, 471, 465, 477A simplicitor, but this appellant has never been found to be guilty for the aforesaid offences and that status of this appellant being Deputy Commissioner as an accused is quite distinct from others as other co-convicts from S. No.1 to 9 are officials of the A.H.D., whereas co-convicts placed at S.No.10 to 11 are the employees of the Chaibasa Treasury and rest placed at Serial Nos.13 to 64 are the suppliers.

Under the aforesaid circumstances, I am of the view that the result of this appeal would not prejudice either the case of the State or co-convicts.

Moreover the 'doctrine of necessity' as propounded in a case of U.P. State Electricity Board vs. Shiv Mohan Singh and Anr (supra) that even if a statute is mandatory or prohibitory. Yet in many instances the Court will go beyond the provisions of statute on the basis of equitable humane consideration for administering justice gets attracted in the case for the reason stated that the appellant/petitioner needs to undergo bariatric surgery which is to be done at U.S.A. before undergoing open heart surgery, but so long as he remains convicted he would not be getting Passport for going U.S.A. It would be significant to note that under the aforesaid doctrine the Court can go beyond the statute even if it is mandatory or directory, but here in the instant case we may note that none of the provisions of Cr.P.C. prohibits segregation /separation of appeal from each other. Thus, I do not see any reason as to why not the said 'doctrine of necessity' be applied in this case.

Under the circumstances, this appeal is ordered to be segregated from other appeals which have arisen out of the judgment of conviction and order of sentence passed in R.C. Case No.51 (A) of 1996, on the condition that if the appellant happens to go abroad for the treatment as aforesaid an undertaking be given before the Court where the other trial is going on that he will make himself available whenever his presence would be required provided he would be in condition to undertake journey.

Thus, I.A. No.1547 of 2011 stands allowed.

Sandeep/                                              (R.R.Prasad, J.)

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Jharkhand High Court