Patna High Court
Lalu Prasad Alias Lalu vs The State Of Bihar on 24 July, 1998
Equivalent citations: 1998(3)BLJR1626
JUDGMENT Naresh Kumar Sinha, J.
1. Heard Sri Kapil Sibbal, learned senior Counsel for the petitioner and Sri C.S. Vaidyanathan, learned Additional Solicitor General of India for the State-C.B.I., Bihar, opposite party.
2. The petitioner is an Ex-Chief Minister of this State and presently a Member of Parliament and the President 'of the Rashtriya Janta Dal. In his application under Section 482 of the Code of Criminal Procedure. 1973 (hereinafter the 'Code') he has questioned the legality and correctness of the order dated 2.7.98 passed by Sri S.K. Lal. Special Judge. C B.I (A.H.D.) in Special case No. 65/96 arising out of R.C. No. 64(A)/96. Patna. By the said order the learned Special Judge had directed the petitioner to surrender to the jurisdiction of the Court. He seeks quashing of the impugned order dated 2.7.98 copy of which is Annexure-1 in so far it relates to a direction to the petitioner to surrender by 27th July 1998 and to restrain the trial Court from taking the petitioner into custody. A prayer in the alternative has also been made for a direction to the Court below to grant bail to the petitioner on his surrender or pass such other order or orders as may be fit and proper The application is opposed by the State-C.B.I., opposite party, by filing a counter affidavit.
3. The sequence of events leading to the passing of the impugned order may first be recounted for proper appreciation of the submissions made on behalf of the parties. Some time back the allegations of misappropriation of public fund from certain treasuries of the State Government were made and consequently on the direction of the State Government a number of F.l.Rs were lodged in various police stations. Subsequently in course of hearing a Public Interest Litigation this Court directed the Central Bureau of Investigation (C.B.I.) to investigate the cases and after the Apex Court refused to interfere in the matter the investigation of the cases were taken over by the C.B.I. A number of cases were thus investigated by the C.B.I. and they came to be popularly known as fodder scam cases. The investigation of these cases by the C.B.I, were being monitored by a Bench of this Court till the stage of filing of the charge sheet was reached. One such cases registered by the C.B.I. happens to be the instant case namely R.C. 64(A)/96 Pat on 15.5.96 under Sections 120B/418/420/467/468/471/477/409/201/511 I.P.C and Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 presently pending in the Court of the Special Judge, C.B.I., South Bihar. The case related to fraudulent withdrawal of a total sum of Rs. 95,08,140.10 from Deoghar treasury withdrawn during the financial years 1990-91. 1991-92, 1992-93 and 1993-94 by the District Animal Husbandary Officer, Deoghar, on the basis of forged/fabricated letters issued by the Regional Director, Dumka. The petitioner who was the Chief Minister of the State at the relevant time was not among the 29 accused persons named in the F.I.R. The petitioner was subsequently charge sheeted in the case along with others.
4. To cut a long story short the C.B.I. had also registered R.C 20(A)/96 Pat on the basis of an F.l.R. in another fodder scam case and the petitioner was charge-sheeted. When the C.B.I. wanted to arrest the petitioner in the said case after obtaining the sanction of the Governor of Bihar, the petitioner after relinquishing the office of the Chief Minister on 25.7.97 surrendered before the Court of the Special Judge on 30.7.97. The petitioner claims that he had also surrendered in the instant case on that date. The petitioner was also remanded in the present case. A charge-sheet was submitted in the present case on 28.10.97 without obtaining the sanction of the Governor and without enclosing the necessary papers. It is alleged that this was done only with a view to deprive the petitioner of the benefit of being released on bail under Section 167(2) of the Code, Since cognizance could not be taken on the basis of the charge-sheet in the absence of a sanction order of the Governor under Section 197 of the Code, the petitioner questioned the jurisdiction of the Court to remand him in the case either under Section 167 or Section 309 of the Code. The learned Special Judge by his order dated 31.10.97 copy of which is Annexure-11 formulated the following two questions of law for consideration of this Court (1) Whether the proceeding in between filing of charge-sheet and commencement of trial in a warrant case is an enquiry ?
(2) Whether the under trial can be remanded to custody after submission of charge-sheet even before taking cognizance during such enquiry ?
While making reference the Court committed the petitioner to jail pending decision of the High Court under Section 395(3) of the Code, A Division Bench of this Court by its judgment dated 28.11.97 in S.K. Lal Special Judge, C.B.I. (A.H.D.) Patna v. Lalu Prasad and Ors. reported in 1998 (1) P.L.J.R. 782. considered all aspects of the matter and answered the reference. While answering the reference the Court, inter alia, held that after a police report is received by the Special Judge under Section 173 of the Code, no case can be said to be instituted before him on a police report unless he takes cognizance of the offence mentioned in such report. The Court then proceeded to observe that if the Special Judge is unable to take cognizance under Section 190 of the Code for any reason whatsoever or refuses to take cognizance he will have no authority to remand the accused if in custody in view of the clear language of Section 309(2) of the Code which makes the taking of cognizance condition precedent for the exercise of power of remand in a pending enquiry or trial.
5. The Special Judge received the order of the High Court on 28.11.97. Since no sanction for prosecution of the petitioner in the instant case had been accorded by the Governor the Special Judge could not have taken cognizance of the offences against the petitioner and for that reason could not have passed an order under Section 309(2) of the Code remanding the petitioner to custody. The Special Judge thereafter passed the order dated 29.11.97 copy of which is Annexure-13 releasing the petitioner from jail on execution of a bond of Rs. 50,000/- with two sureties of the like amount subject to certain other conditions. The necessary bond was executed but the petitioner was released from custody only after a Bench of this court granted him bail on 11.12.97 in case No. R.C.20(A)/96. The Governor of Bihar was subsequently pleased to accord sanction for the prosecution of the petitioner in the instant case also and the C.B.I. filed the sanction order before the learned Special Judge on 12.6.98. By the impugned order dated 2.7.98 (Annexure-1) the learned Special Judge took cognizance for offences under Sections 120B, 418, 420, 467, 468, 471, 477-A, 409, 201 and 511 I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The petitioner happened to be one of the 34 persons named as accused in the charge-sheet.
6. Sri Sibbal argued that the petitioner had been released on bail in this case by the learned Special Judge by his order dated 29.11.97 (Annexure-13) and had executed bail bond. It was an order granting bail under Section 437 of the Code and unless the bail thus granted was cancelled by the Court under Sub-section (5) of Section 437, the bail bond shall hold good and hence the learned Special Judge had exceeded his jurisdiction in making the observation in the impugned order that some accused persons (which includes the petitioner) have not been granted bail, in any manner and it appears just and proper and in the ends of justice that they may be taken into custody. The relevant portion of the impugned order dated 29.11.97 which appears relevant for the purpose is extracted below:
In view of the answer to the reference made by this Court that without cognizance, this Court has no authority to remand the accused, if in custody, in this case, Sri Lalu Prasad, Vidya Sagar Nishad, Bhola Ram Toofani, Chandradeo Prasad Verma, Mahendra Prasad, Sushil Kumar and Pramod Kumar Jaiswal, who have been confined to jail under Section 395(3) Cr.PC. cannot be remanded to custody and thus, they are entitled to be released for the present. However, in order to ensure their appearance to face trial if so required, after passing order on the point of cognizance, it appears just and proper to me to put certain conditions. Accordingly undertrial accused persons are directed to execute bond of Rs. 50,000/- with two sureties of like amount each before their release, subject to further condition that they will not leave the country without permission of the Court and will deposit their passport, if any, to the S.P, C.B.I., A.H.D., Patna, within 10 days of their release.
7. In course of argument learned Counsel for the petitioner mentioned that the words "for the present" in the impugned order appear to have been subsequently typed in the original order sheet. He also drew the attention of the Court to the order sheet dated 29.11.97, 1.12.97 and 2.12.97 in which the original expression used was bail bond but the word "bail" occurring in the order sheet of three different dates mentioned above were subsequently penned through. Perhaps this was done to suggest that the order sheet had first referred to bail bond and the word "bail" had been penned through only subsequently. Sri Sibbal was extremely fair in immediately mentioning that he was not casting any aspersion on the trial Judge in this regard. The order sheets of the Court below have to be read as they appear on the records of the present case. It was argued that if the impugned order is read as a whole there was no room for doubt that the petitioner had been released on bail. The Court had directed the petitioner to execute a bond which he in fact executed together with two sureties of the like amount each, copy of the bail bond has been filed as Annexure-14. The word "bail" has, however, been penned through which according to the learned Counsel for the petitioner made no difference whatsoever as what was in fact executed to the knowledge of the Court was a bond for the appearance of the petitioner in the case in question. In this connection he referred to the provisions of Section 441 of the Code which provides among other things that before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties on the condition that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
8. The learned Addl. Solicitor General argued that this Court in the exercise of its exceptional jurisdiction under Section 482 of the Code should go by the substance of the order that was passed and not take notice of technicalities of the matter. He argued that the Court had no Jurisdiction to release the petitioner on bail and that the Court in fact had not granted bail to the petitioner pending trial. It could not have done so for the simple reason that on 29.11.97 the Court had not taken cognizance and could not have taken even later if the Governor had not accorded sanction for prosecution under Section 197 of the Code. Since the petitioner was in custody and he could not be remanded in the case in view of the provision of Section 309(2) of the Code as held by Division Bench of this Court while answering a reference made by the learned Special Judge, the Court while releasing the petitioner from custody had taken the additional precaution of getting a bond executed by him to ensure his presence before the Court if on a later date the Court was in a position to take cognizance and had in fact done so. It was pointed out that all this was all too evident by the use of the expression "they are entitled to be released for the present" in the order dated 29.11.97. On behalf of the State C.B.I., reliance was placed on a Full Bench judgment of this Court in Rabindra Rai v. State of Bihar, 1984 P.L.J.R. 701. In course of judgment (para 10) some observation has been made. The said decision if of no help to the State as the Full Bench was dealing with the case of a petitioner who was in jail custoqy on the basis of a valid order of remand passed from time to time in terms of Section 309(2) of the Code,
9. It was also argued on behalf of the State that since in the instant case the Court had no jurisdiction to remand the petitioner to custody under Section 309(2) of the Code it had also no jurisdiction to grant him bail within the meaning of Section 437 of the Code. Sri Sibbal at this stage rose to make a mention that if the stand of the State is that the order dated 29.11.97 by which the petitioner was made to execute a bond was without jurisdiction, the impugned order dated 2.7.98 directing the petitioner to surrender in the case by 27th July 1998 was not legally sustainable. Sri Sibbal had earlier argued that since the petitioner was released on executing a bond he continued to be in the custody of the Court and hence there was no question of his being remanded to custody as directed by the impugned order. To a query made by the Court Sri Sibbal had fairly conceded that when the petitioner could not be remanded in custody there was no necessity for the Court to insist for his executing a bond for his appearance and the Court having done so cannot deprive the petitioner of the advantage accruing therefrom.
10. Sri Vaidyanathan had also expressed almost a similar view in the matter and had referred to the provisions of Section 238 of the Code. Section 238 provides that when, in any warrant-case instituted on a police, report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207. Section 238 occurs in Chapter XIX of the Code under the title "Trial of Warrant Cases by Magistrates". Sri Vaidyanathan fairly conceded that if the petitioner appears before the learned Special Judge by 27th July 1998 and moves for grant of regular bail the Court will be entitled to hear the bail application on merit and dispose it of He had further conceded that in doing so the Court will be within its right in ignoring the observations made by it in the impugned order that since the aforesaid accused persons have not been granted bail in any manner it appears to me just and proper and in the ends of justice that they be taken into custody, It was also suggested that if such a bail application is filed before the Court it has to be heard and disposed of on merit without in any way being influenced by the fact that the learned Special Judge at an earlier stage of investigation had rejected the application for bail and in the High Court an application for anticipatory bail and regular bail in the present case filed by the petitioner had been withdrawn. It may be mentioned that the anticipatory bail application was withdrawn as the petitioner had already surrendered in connection with another case and the application for regular bail was withdrawn after the petitioner had already been released in the present case on 29.11.97. Thus while hearing such a bail application the learned Special Judge would be writing on a clean slate and this was not disputed on behalf of the C.B.I. as the petitioner's application for bail was now required to be disposed of pending trial of the case.
11. Sri Sibbal then argued that considering the totality of the circumstances there appeared no earthly reason why the petitioner should be sent to custody in the instant case and this Court ought not to hesitate to invoke its inherent powers to direct the release of the petitioner on bail. An order dated 11.12.97 passed in Criminal Misc. No. 20532 of 1997 passed by a Bench of this Court releasing the petitioner on regular bail in a case No. 20(A)/96 Pat copy of which is Annexure-6 has been referred to. It was one of the many fodder scam cases involving fraudulent withdrawal on the basis of fake allotment letters to the tune of Rs. 35,66,42,083/-. In course of the said order this Court had observed that "most of the evidence appears to be what is contained in different files and other documents which have already been submitted along with the charge-sheet to the trial Court" and "therefore there cannot be any question of tampering with evidence when the records are already in custody of the Court". It was argued that the instant case involves fraudulent withdrawal of less than Rs. one crore and since charge-sheet has already been submitted and the petitioner has also remained in custody for about four months in the instant case, the petitioner also deserves to be released on bail. Sri Sibbal argued that the inherent powers of this court under Section 482 of the Code are wide enough to pass an order of bail and that the Apex Court has in fact granted bail while exercising its powers under Article 136 of the Constitution. Learned Counsel, however, could not produce any authority for the proposition that this Court should assume the jurisdiction to grant bail under Section 482 of the Code when there are specific provisions under the Code for grant of bail. Moreover in the present case an application for regular bail was allowed to be dismissed as withdrawn.
12. Assuming for the sake of argument that the learned Special Judge had not required the petitioner to execute a bond and no such bond had been executed by the petitioner, the Court would have been within its jurisdiction in issuing a non-bailable warrant for the arrest of the petitioner soon after taking the cognizance on the basis of the charge-sheet after the Governor had been pleased to accord sanction. The learned Special Judge in his impugned order had observed that in view of the fact that the accused persons had executed bond for ensuring their appearance in the Court, it will not be proper to issue any coercive process and hence he had proceeded to issue notice to the accused persons including the petitioner to surrender to the jurisdiction of the Court by 27th July 1998. There was some argument at the Bar as to whether the use of the expression "surrender" was proper. In my opinion it is not necessary to examine the propriety of the expression for the simple reason that an overall reading of the impugned order leaves no room for doubt that the notice had been issued for the appearance of the petitioner by the date mentioned therein namely the 27th July 1998. This Court in the exercise of its inherent powers would stop short of expressing any opinion on the legality of the order dated 29.11.97 in so far it had clearly mentioned an intention that the petitioner was being released for the present. Even if the order was a bail order as argued on behalf of the petitioner the Court passing the order could be within its right in limiting the period of the bail. In the back ground in which the order dated 29.11.97 was passed there can be no view other than this that the bond in its application was limited only till such date that the petitioner was required to appear in the case for trial in the event of the court taking cognizance after according of sanction for the prosecution of the petitioner by the Governor. This Court in the exercise of its powers under Section 482 of the Code is extremely reluctant to take notice of certain illegalities and irregularities in the orders of the subordinate Courts which flow essentially from the technicalities of the law and the quashing of which is not necessary to secure the ends of justice.
13. In the instant case the Court had refrained from issuing a non-bailable warrant for the arrest of the petitioner and had given him time to appear before it by 27th July 1998. The Court was certainly not well advised to say that he should surrender by that date for being remanded to custody for the petitioner had a right to move for regular bail. May be that the Court had proceeded to pass the impugned order taking the view that it had not granted regular bail to the petitioner. Learned Addl. Solicitor General as already mentioned above has fairly conceded that If the petitioner appears before the Court and makes a prayer for regular bail the Court will be required to dispose it of on merit. Sri Sibbal while closing his argument by way of reply to the submissions made on behalf of the State mentioned that if the Court was not inclined to allow the application it should grant time to the petitioner to challenge the order. This Court had thereafter proceeded to observe that since there was no order granting stay of the operation of the impugned order the mere suspension of the order of this Court if it went against the petitioner would be of no use to him.
14. Thus for the foregoing reasons no case has been made out for quashing the impugned order or for restraining the trial Court from taking the petitioner into custody or for grant of bail to the petitioner on his surrender. However, the fact remains that after the impugned order was passed on 2.7.98 the petitioner had filed the present application on 9.7.98 and despite the prayer made on his behalf for early hearing of the application it could be taken up only on 23.7.98 and the argument concluded only at 4.15 p.m. If the application had been disposed of earlier the petitioner could have appeared before the Court concerned on a date prior to 27.7.98 and could have made a prayer for release on bail and which could have been disposed of on merit on or before 27th July 1998. The petitioner cannot be blamed for the situation as it exists today (24.7.98) the date his application is being disposed of. Should the petitioner appear before the Special Judge on Saturday 25.7.98 or 27.7.98 and file an application for regular bail the learned Special Judge should proceed to dispose it of in accordance with law after hearing the parties ignoring his observations in the impugned order that the petitioner shall be remanded to custody. For the purpose of disposing of the bail application on merit he shall extend the dead line of 27.7.98 fixed by him for the appearance/surrender of the petitioner by one week at the most. In other words the bond executed by the petitioner for his appearance before the Court shall be deemed to have been extended for a period of one week from 27.7.98 onwards.
15. Subject to the directions mentioned above this application is found to have no merit and is dismissed l.A.No. 496 of 1998 is disposed of as not pressed.
16. Let a copy of this order be sent today to the Court below.