Jharkhand High Court
Lalu Prasad @ Lalu Prasad Yadav And Ors. vs State Of Jharkhand Through Sp, Cbi on 14 January, 2008
Equivalent citations: 2008 (2) AIR JHAR R 382
Author: R.R. Prasad
Bench: R.R. Prasad
JUDGMENT R.R. Prasad, J.
1. All the aforesaid cases were heard together and are being disposed of by this common order as all the aforesaid cases arise out of the same impugned order and the question involved in all the cases is the same as to whether the trail court is justified in summoning the petitioner under Section 319 of the Code of Criminal Procedure to face the trial along with other accused persons already facing trial.
2. Before coming to the matter which has given rise all the aforesaid cases some back grounds of the case more so fodder scam cases needs to be stated as it may have some bearing upon the question involved in all these cases.
3. When large number of defalcation of public funds, fraudulent transaction and falsification of accounts, to the tune of around Rs. 500 crore in the Animal Husbandry Department in the State of Bihar came to light several Public Interest Litigations were filed in the High Court of Judicature at Patna and at its Ranchi Bench in the year 1996 by which time some of the cases had been lodged at some districts. Taking the gravity of the matter, Patna High Court directed the CBI to investigate those cases where there has been excess drawal in the department of Animal Husbandry and also to register the cases for fraudulent withdrawal of the public fund and the Court directed the first information reports already registered for the said offences to be kept in abeyance. However, the said order passed by the Patna High Court was modified by Hon'ble the Supreme Court to the extent that all those cases instituted by the district police were directed to be taken over by the CBI for its investigation under the control and supervision of the Patna High Court. Accordingly, CBI took over the matter of investigation and also lodged number of cases and the CBI seems to have divided the cases in two categories, one being of larger conspiracy involving politicians and top bureaucrats; and the other being cases of conspiracy involving district officials, the suppliers, Treasury officers etc. Treasury wise. However, in the meantime, Bihar reorganization Act came into being and than the controversy arose as to whether cases would be enquired/tried in the State of Jharkhand or State of Bihar. However, that was resolved by the Hon'ble Supreme Court whereby 36 cases were directed to be enquired into or tried within the territory of Jharkhand State including the present one which relates to Dumka Treasury. When the trail of those cases said to be of larger conspiracy bearing Nos. R.C.20A of 1996(PAT), R.C.64A of 1996 (PAT), R.C.38A of 1996 (PAT), R.C.68A of 1996 (PAT), R.C. 47A of 1996 (PAT) and R.C.63A of 1996 (PAT), all related to fraudulent withdrawal but of different Treasuries were being tried separately, an application was filed before the Hon'ble Supreme Court by the petitioner Lalu Prasad Yadav and Dr. Jagannath Mishra for amalgamation of those trials but the prayer was refused resultantly the trials of the cases are going on separately. On amongst them one case i.e, R.C.38A of 1996 which is a case of larger conspiracy is related to Dumka Treasury and the instant case which has given rise these applications is also concerned with the Dumka Treasury. It be pointed out that the present case was initially instituted on 22.2.1996 under Sections 109, 120B, 409, 478, 471, 477A of the Indian Penal Code and also Section 13(1)(c)(d) read with Section 13(2) of the Prevention of Corruption Act as Dumka (Town) P.S. case No. 21 of 1996 alleging therein that the then district Animal Husbandry Officer Dr. Shiv Narayan in conspiracy with other accused persons (suppliers) has withdrawn a sum of Rs. 94,84,211/- illegally through false and forged bills. However, subsequently CBI took over the investigation of that case and got it registered as R.C. No. 39A of 1996 on 11.4.1996. The CBI having investigated the case submitted charge sheet on 30.9.2000 against 45 accused persons named therein. In course of time, trial commenced in May, 2004 and by 15th September, 2007 the prosecution after examining 100 witnesses closed the case and then the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. However, before that one Mahendra Prasad, who was facing trial as an accused filed an application on 3.2.2007 stating therein that he intends to confess his guilt and on that application his case was separated from the main case. After the statement under Section 281 of the Code of Criminal Procedure was recorded his statement under Section 313 was also recorded and them he was convicted and sentenced on 3rd/4th April, 2007. Thereafter on his application, praying therein to allow him to examine as defense witness in favour of his father and wife who are also facing the trial, was allowed to be examined as defense witness No. 1 (D.W.1). Thereafter other 9 defense witnesses wore examined and at that stage the court passed the impugned order dated 15.9.2007 whereby the court suo moto on the basis of evidences appearing on the record summoned the petitioners as well as other accused persons under Section 319 of the Code of Criminal Procedure to face trial along with other accused persons.
4. Being aggrieved with that order, all the applications as aforesaid have been filed.
5. Mr. Mahesh Jethmalani, learned senior counsel appearing for the petitioner Lalu Prasad submits that no doubt the court has been conferred with the discretionary power to summon the person under Section 319 of the Code of Criminal Procedure to face trial but such discretion should be used sparingly and that too it should be exercised keeping in view the conspectus of the case including the state which the trial has proceeded and the quantum of evidence collected till then and also the amount of time which the court had spent for collecting those evidences and that too the evidence collected should have been as such that if those evidences remain unrebutted may go to prove that the accused has committed the offence.
6. Learned Counsel in this respect further submits that when the prosecution had closed his case after examining not less than 100 witnesses consuming not less than four years, there was no reason for the court to summon the accused persons keeping in view the ratio laid clown in Michael Machadeo's case and also in other cases such as Krishnappa v. State of Karnataka (2004) 7 SCC 292, Kabuluri Vivekanand Raddi and Anr. v. State of Andhra Pradesh and Anr. (2005) 12 SCC 432 and Gudia v. State of Bihar 2007 (4) PLJR (SC) 195, particularly when the circumstances appearing against the petitioner are so vague that it may never lead the court to held the petitioners guilty.
7. Learned Counsel further submits that court has used the evidences of three witnesses, viz, P.W.91, P.W.99 and D.W.1 for summoning the petitioner Lalu Prasad Yadav but so far evidence of P.W.99 is concerned, that is inadmissible as P.W.9 being the Investigating Officer of not this case, rather of other case has spoken about the statement made before him by a witness under Section 161 of the Code of Criminal Procedure which cannot be said to be an evidence in terms of Section 319 of the Code of Criminal Procedure. On the other hand, P.W.9 though speaks that transfer of one B.N. Sharma was stayed in the year 1993 at the instance of Lalu Prasad Yadav but this fact never goes to show culpability of the petitioner in the alleged offence in any manner and moreover, Lalu Prasad Yadav has been facing prosecution in other six cases of larger conspiracy and one of them does relate to Doranda Treasury also and lastly other evidence used for summoning the petitioner is of D.W.1, whose evidence regarding evidence collected should have been as such that if those evidences remain unrebutted may go to prove that the accused has committed the offence.
8. Learned Counsel in this respect further submits that when the prosecution had closed his case after examining not less than 100 witnesses consuming not less than four years, there was no reason for the court to summon the accused persons keeping in view the ratio laid down in Michael Machadeo's case and also in other cases such as Krishnappa v. State of Karnataka (2004) 7 SCC 292, Kabuluri Vivekanand Raddi and Anr v. State of Andhra Pradesh and Anr. (2005) 12 SCC 432 and Gudia v. State of Bihar 2007 (4) PLJR (SC) 195, particularly when the circumstances appearing against the petitioner are so vague that it may never lead the court to held the petitioners guilty.
9. Learned Counsel further submits that court has used the evidences of three witnesses, viz, P.W.91, P.W.99 and D.W.1 for summoning the petitioner Lalu Prasad Yadav but so far evidence of P.W.99 is concerned, that is inadmissible as P.W.9 being the Investigating Officer of not this case, rather of other case has spoken about the statement made before him by a witness under Section 161 of the Coda of Criminal Procedure which cannot be said to be an evidence in terms of Section 319 of the Code of Criminal Procedure. On the other hand, P.W.91 though speaks that transfer of one B.N. Sharma was stayed in the year 1993 at the instance of Lalu Prasad Yadav but this fact never goes to show culpability of the petitioner in the alleged offence in any manner and moreover, Lalu Prasad Yadav has been facing prosecution in other six cases of larger conspiracy and one or them does relate to Doranda Treasury also and lastly other evidence used for summoning the petitioner is of D.W.1, whose evidence regarding that has been stated by one Ravi Sinha to P.W.99 under Section 161 of the Code of Criminal Procedure and that so far D.W.1 is concerned, his evidence regarding payment being made to this petitioner by Dr. S.B. Sinha is concerned, that is so vague that it is difficult to ascertain as to payment was made during the period which is subject matter of this case and that too whether the amount was withdrawn from Dumka Treasury and moreover, this petitioner has also been facing trial relating to Dumka Treasury in a case of larger conspiracy bearing R.C. No. 38A of 1996.
10. Learned Counsel appearing for Jagdish Sharma submits that this petitioner, who at one point of time was Chairman of Public Accounts Committee, has been summoned as D.W.1 in his evidence disclosed before the court that out of 66 crores which was withdrawn by the accused persons one crore was given to this petitioner but D.W.1 himself says that said withdrawal was never made from Dumka Treasury rather it was withdrawn from other than Dumka Treasury whereas charges upon which other accused persons are facing trial relates to illegal withdrawal of Dumka Treasury and moreover, D.W.1 speaks the name of this petitioner on the basis of Ext.C a statement of accounts prepared by co-accused showing distribution of money among the officers and the politician but Ext.C goes to show that at one place one number has been shown against 'public' and that number has been explained by D.W.1 as 'crore' and the word public has been attributed to the petitioner but that document never goes to show in any manner that it was related to this petitioner who was the Chairman, Public Accounts Committee from 1992 to 1994 whereas charges of illegal withdrawal relates to period 1991-92 to 1995-96 during which there were other Chairmans of the Public Accounts Committee also and that petitioner is also facing trial in other fodder scam cases including in a case bearing R.C. No. 38A of 1996 related to Dumka Treasury involving larger conspiracy and therefore, if the petitioner is allowed to face trial in this case, it would be hit by the principle of double jeopardy.
11. While adopting submission advanced on behalf of to their petitioners Shri Jai Prakash Jha, learned Counsel appearing on behalf of the petitioner Dhrub Bhagat who at one point of time was also the Chairman of the Public Accounts Committee submits that against the petitioner it has been said by D.W.1 that he received Rs. 1 crore which transpires from Ext.C but the evidence put forth is quite vague and moreover, such evidence coming from the mouth of co-accused is not only unworthy of its reliance but at the same time is not sufficient to hold a person guilty in absence of any corroborative evidence which is absolutely not there.
12. On the same line respective learned Counsels appearing for Surendra Kumar Saraugi, Girish Kumar Sinha and Vidya Sagar Nishad submit that only on the basis of evidence of D.W.1, whose evidence in absence of other corroborative piece of evidence is insufficient to hold a person guilty, the petitioners have been summoned which is quite illegal.
13. Learned Counsel appearing for Dr. Ravindra Kumar Rana submits that he has been summoned on the basis of evidence of P.W.94, the Investigating Officer as also on the basis of D.W.1, who have said that the petitioner had received money from O.P. Diwakar and Dr. S.B. Sinha but so far statement of P.W. 94 is concerned, that is admissible whereas evidence of D.W.1 is quite vague and that alone cannot be sufficient for holding the petitioner guilty.
14. More or less similar submissions were advanced on behalf of Dr. K.M. Prasad and K.K. Srivastava wherein it has been submitted that the petitioners have been summoned on the basis of evidence either it is quite inadmissible or insufficient to hold the persons guilty for the charges for which other accused are being tried.
15. However, learned Counsel appearing for the CBI submits that though it was tried by learned Counsel appearing for the petitioners to demonstrate that the day on which Ext.C was taken into evidence, the case was not fixed for that day but record would show that day had been fixed for recording evidence of D.W. 1 in the supplementary record.
16. Before going into the sufficiency and insufficiency of the evidences, upon which petitioners have been summoned under Section 319 of the Code of Criminal Procedure to face trial along with other accused persons already facing trial, I am to say that it is the settled principle that if there appears to be cogent evidence which satisfies the court that the other accused who had not been arrayed as an accused has also committed the crime can be summoned for trying him along with other accused by virtue of provision as contained in Section 319 of the Code of Criminal Procedure which reads as follows:
319 Power to proceed against other persons appearing to be guilty of offence - (1) where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Curt for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Sub-section (1) then -
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
17. Thus, it appears that the trial court does have power to summon any person whose complicity does appear in course of trial, yet Hon'ble Supreme Court in so many decisions after construing the clauses appearing in Section 319 has held that court does have discretionary power but that should be used sparingly. In this respect I may refer to a decision recorded in a case of Michael Machado v. CBI where Hon'ble the Supreme Court after construing the word "the court may proceed against such person" in Section 319 of the Code of Criminal Procedure held that power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that persons also with the offence. The Court further held that a judicial exercise is called for keeping of conspectus of the case, including the stage on which the trial has already proceeded and the quantum of evidence collected till then and also the amount of time which the Court had spent for collecting such evidence.
18. It has been further held that while dealing with an application under Section 319 of the Code of Criminal Procedure the Court has also to bear in mind that there is no compelling duty on the Court to proceed against other person.
19. In a nutshell, it means that for exercise of discretion under Section 319 of the Code of Criminal Procedure all relevant factors including the factor noted above have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.
20. Further the Hon'ble Supreme Court recently in a case of Md. Safi v. Md. Rafique and Anr. as reported in 2007 (3) JLJR 55 (SC) has been pleased to hold that before the Court exercises his discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted.
21. Applying the test as aforesaid, it is to be considered as to whether the evidences which have come against the petitioners upon which petitioners have been summoned can be said to be sufficient to hold a person guilty and for that purpose evidences surfaced during trial against each of the petitioner needs to be noticed of which are as follows:
Lalu Prasad Yadav -(i) From the evidence P.W.94 who is an Investigating Officer, it appears that he recorded the statement of one Dr. Md. Syed that money was paid to the petitioner by Dr. O.P. Diwakar, the then Regional Director, Animal Husbandry Department
(ii) As per the evidence of P.W.90 Shailesh Prasad Singh an approver/transfer of B.N. Sharma was stayed in the year 1993 at the instance of the petitioner.
(iii) AS per the evidence of P.W.99, Dr. Shyarn Bihari Linha was very closely related to Lalu Prasad Yadav and the petitioner being the Chief Minister accorded approval of the extension of service of Dr. Shyam Bihari Sinha for a year.
(iv) As per the D.W.1, Rs. 4 crore was given to him which fact reflects from the statement of the accounts, photocopy of which has been proved by D.W.1 as Ext.C. Dr. Jagannath Mishra -(i) As per P.W.99, (an Investigating Officer of not this case but other fodder scam case), the petitioner had made recommendation for extension of service of Dr. S.B. Sinha.
(ii) As per D.W.1 money was paid to the petitioner by S.B. Sinha.
Jagdish Sharma and Dhrub Bhagat- as per D.W.1 Rs. 1 crore was paid to the petitioner being Chairman, Public Accounts Committee.
Vidya Sagar Nishad- as per the evidence of D.W.1, S.B. Sinha some times used to go with Shashi Kumar Sinha to Vidya Sagar Nishad, the then Minister, Animal Husbandry for giving money.
Surendra Kumar Sinha- As per D.W.1, this petitioner had concealed a sum of Rs. 10 owe of Md. Sayeed, a supplier in his house.
Girish Kumar Sinha- As per D.W.1, the petitioner who was posted as Statistical Supervisor used to put issue number and date on the forged allotment letter on the direction of S.B. Sinha.
Dr. Ravindra Kumar Rana- As per P.W.94, an Investigating Officer, the petitioner received Rs. 10 crore from O.P. Diwakar, the then Regional Director, Animal Husbandry Department, Dumka and also Rs. 1 crore. Further as per statement of D.W.1, Dr. Sinha used to give money to the Officers of Animal Husbandry Department, employees of Vigilance Department of the State Government and this petitioner used to receive packets.
K.K. Srivastava- As per D.W.1, he gave Rs. 15 lacs on the instruction of Dr. S.B. Sinha. As per P.W.14. the petitioner used to meet Dr. S.B. Sinha along with other officials of Animal Husbandry Department.
Dr. Krishna Mohan Prasad -(i) As per P.W. 90 (an approver) the petitioner was instrumental in managing the fund for making fraudulent withdrawal from various treasuries. Further he made transaction of several lacs at the instance of Dr. Shyam Bihari Sinha
(ii) According to P.W.99, the petitioner and S.B. Sinha were instrumental in fraudulent withdrawal.
(iii) Again as per D.W.1 statement of accounts (Ext.C) was made by Dr. S.B. Sinha with the help of the petitioner and the petitioner kept Rs. 6 crore out of Rs. 66 crore and that the petitioner gave money to Lalu Prasad Yadav, Jagannath Mishra and other politicians.
22. Having noted the evidences brought in course of trial, it transpires that most of the petitioners were summoned on the basis of evidence adduced by D.W.1, though in some cases evidence of P.W.94, an Investigating Officer of the case and P.W.99 another Investigating Officer were used but their statements used for the purpose of summoning the petitioners are inadmissible as they refer to the statement made by the witnesses under Section 161 of the Code of Criminal Procedure.
23. Now coming to the evidence of D.W.1, he being the accused faced the trial and when the prosecution closed his case, he pleaded guilty, upon which he was convicted and sentenced. Thereafter in the defence of his father and wife, who are accused in the case, he examined himself as D.W.1 wherein he has disclosed that in his presence one statement of accounts (Ext.C) was prepared and as per entry shown in it, payments were made to different politicians.
24. Much has been argued about the procedure adopted by the Court in allowing D.W.1 to be examined in camera proceeding and not in a open court and at the same time learned Counsel were also critical on the point of marking of a photocopy of the statement as Ext.C but I would refrain myself from going into the matter as any opinion expressed at this stage would be prejudicial to the case of the parties.
25. Now coming back to the evidence of D.W.1, D.W.1 has stated that out of Rs. 66 crore, certain amounts were paid to the politicians, namely, Lalu Prasad Yadav, Dhrub Bhagat, Jagdish Sharma and Dr. Rabindra Kumar Rana but he is quite specific on the point that withdrawal of Rs. 66 crore have been made from other treasury than from Dumka Treasury whereas charges in the case of illegal withdrawal relate to Dumka Treasury. So far his evidence regarding payment being made to other petitioners are concerned, the statement appears to be quite vague as the date, time and place of the payment has not been mentioned and as such it could not be co-related with the period of charges. This aspect of the matter may not be very pertinent at this stage in order to arrive at about sufficiency or insufficiency of the evidence but it assumes importance because of the fact that so many petitioners such as Lalu Prasad Yadav, Dr. Jagannath Mishra, Dr. Ravindra Kumar Rana, Vidya Sagar Nishad are also facing trial in other cases of larger conspiracy and one of such cases relates to illegal withdrawal from Doranda Treasury.
26. Thus it can be said that whatever evidences have come through D.W.1 that are so vague or insufficient to hold a person guilty in absence of any other legal evidence though it is well settled that even evidence of an accused can be used against the co-accused provided it lends support to other evidence but here in this case other evidences on which court has placed his reliance for summoning the petitioners are either inadmissible or so vague that the same may not be sufficient to hold the petitioner guilty. That apart, it is significant to note here that before issuing summon under Section 319 of the Code of Criminal Procedure to the petitioners, the prosecution had examined as many as 100 witnesses which took not less than four years and therefore, in this back drop the trial court in view of the quantity of the evidence brought on record and also the time consumed for about four years and also the quality of the evidence indicated above should not have summoned the petitioners under Section 319 of the Code of Criminal Procedure to face trial in view of the principle laid down by the Hon'ble Supreme Court in Michael Machadeo's case and also the other cases. Therefore the trial court seems to have illegally exercised the discretion and hence, the impugned order is hereby set aside.
In the result, all these applications are allowed.