Jharkhand High Court
Lalu Prasad @ Lalu Prasad Yadav vs The State Of Jharkhand Through Cbi (Ahd) on 10 January, 2019
Equivalent citations: AIRONLINE 2019 JHA 454, 2020 (1) AJR 308, 2019 (2) AJR 119, 2019 (2) AJR 289
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 207 of 2018
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Lalu Prasad @ Lalu Prasad Yadav --- --- --- Appellant
Versus
The State of Jharkhand through CBI (AHD) --- --- --- Respondent
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
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For the Appellant: M/s Kapil Sibbal, Chittaranjan Sinha, Sr. Advocates Prabhat Kumar, Adit S. Pujari, Debarsis Mandal, Advocates For the Respondent: M/s Rajiv Sinha, ASGI, Rajiv Nandan Prasad, Niraj Kumar.
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Reserved on: 04/01/2019 Pronounced on: 10/01/2019
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Aparesh Kumar Singh, J: Heard learned Senior Counsel for the appellant and learned A.S.G.I representing the C.B.I on the prayer for suspension of sentence made through I.A. No. 1010/2018.
2. Appellant stands convicted in connection with R. C Case No. 68(A)/1996 vide impugned judgment of conviction and order of sentence dated 24.01.2018 passed by learned Court of Additional Judicial Commissioner-VII- cum Special Judge, (AHD) CBI-I, Ranchi, whereby he has been convicted and sentenced to undergo R.I. for five years for the offences under Sections 120-B r/w Sections 409, 420, 467, 468, 471 & 477-A of Indian Penal Code and a fine of Rs. 5,00,000/- and in default of payment of fine, S.I. for one year. He has been further sentenced to undergo R.I. for five years for the offences under Section 13(2) r/w (1)(c) (d) of Prevention of Corruption Act and a fine of Rs. 5,00,000/- and in default of payment of fine, S.I. for one year. All the sentences shall run concurrently and the period undergone shall be set of.
3. Learned Senior Counsel for the appellant submits that the appellant stands convicted on the charge of criminal conspiracy read with allied sections of IPC and not under any substantive offence under Indian Penal Code. So far as conviction for the offences under Prevention of Corruption Act is concerned, acquittal of the appellant in disproportionate assets case has taken away the basis for the allegation under the P.C. Act. So far as charge of criminal conspiracy is concerned, there is no evidence of any meeting of minds of the appellant with other co-accused, either direct or circumstantial. Even in a case involving circumstantial evidence, such circumstantial evidence must lead to no other conclusion other than that the accused was a part of conspiracy and performed his role by acts of commission or omission in the conspiracy alleged. No material evidence has been placed on record that can unequivocally indicate the participation of the appellant in the alleged conspiracy. Learned 2 Senior Counsel has further submitted that the case of conspiracy alleged in respect of all these cases under Fodder Scam were the same as has also been observed by the Apex Court in the case of the appellant i.e Laloo Prasad @ Laloo Prasad Yadav Versus State of Jharkhand and analogous case [(2002) 9 SCC 372]. He submits that this appellant on his conviction in R.C. Case No. 20(A)/1996 was granted the privilege of suspension of sentence by the Hon'ble Supreme Court, though he had undergone only 12 and ½ months of custody out of sentence of five years vide order dated 13.12.2013 passed in S.L.P. (Crl) No. 9803/2013 enclosed to the I.A.. Evidences such as documents and deposition of witnesses in R.C. Case No. 20(A)/1996 were adopted verbatim and exhibited in the instant case also. Conviction of this appellant in the present case is entirely based on the evidence recorded in R.C. Case No. 20(A)/1996 and no other evidences were adduced by the CBI. As such, the appellant who has remained in custody for more than 11 months against the sentence of five years, deserves to be enlarged on bail, since the appeal is unlikely to be heard in near future. This court may consider the prayer for suspension of sentence favourably keeping into light the opinion rendered by the Apex Court in the case of Kashmira Singh Versus The State of Punjab [(1977) 4 SCC 291] followed in the case of Angana and another Versus State of Rajasthan [(2009) 3 SCC 767]. It has been further submitted on behalf of the appellant that the findings of guilt recorded by the learned Trial Court are based upon inter-alia, (a) statement of approvers which is self exculpatory in nature; (b) alleged proximity of the appellant with the 'kingpins'; and (c) the alleged failure on the part of the appellant to initiate investigation into the scam to shield the scam accused. Learned Senior Counsel for the appellant has relied upon the opinion of the Apex Court in the case of Haricharan Kurmi and Jogia Hajam Versus State of Bihar [AIR 1964 SC 1184] in support of his submission that the statement of the approvers like Dipesh Chandak and R.K. Das could not be made the basis for conviction of the appellant alone without testing the contents thereof with evidence aliunde. The findings of the learned Trial Court on proximity of the appellant with the alleged kingpins of the Fodder Scam Dr. Ramraj Ram and Dr. S.B. Sinha are also misplaced. In support of the aforesaid contention, learned counsel has placed reliance on the statement of the prosecution witnesses R.K. Das and Ravi Shankar Kumar Sinha and submits that Dr. Ramraj Ram was appointed as Director, AHD on 31.07.1989 before the present appellant became the Chief Minister and continued on that post on account of order of status quo passed by the Apex Court on 08.03.1991 in S.L.P. (C) Nos.
32271/1991 and 2306/1991. The said SLP was dismissed in 1996. He submits that contrary to the impression that the appellant was solely responsible for extension of service to Dr. S.B. Sinha who was to superannuate on 31.12.1993, statement of these witnesses itself shows that recommendation have been made for his extension by two years by the Director, AHD, the State Minister as also Dr. Jagannath Mishra, the then leader of opposition. Appellant had accorded extension for one year only as per the prevalent practice in terms of the relevant rules of the Service Code and moreover, there were no adverse report against him at that point of time. It is further pointed out that by the orders of the appellant, 41 FIRs were registered D.D.O wise in relation to fraudulent withdrawals under AHD department in different districts which the CBI later on took over for investigation. Statement of other prosecution witnesses such as Phuleshwar Paswan, V.S. Dubey, etc. also goes to show that the Finance Department had no information about the fraudulent withdrawals prior to 1995. Learned Senior Counsel for the appellant has also referred to the medical report of RIMS dated 28.12.2018 enclosed to the reply to the I.A. filed by the CBI in Cr. Appeal (SJ) No. 138/2018 which is also on board today and submitted that his condition is extremely critical. He deserves better treatment outside the State as well. Plea for suspension of sentence has further been urged on an additional ground that the appellant is a Founder and President of Rashtiya Janta Dal, a political party, his presence is absolutely essential in the ensuing General Elections to Lok Sabha likely to be held in the coming months. Therefore, the appellant deserves suspension of sentence.
4. Learned ASGI has strongly opposed the prayer for suspension of sentence on merits. He submits that the prayer for suspension of this appellant on merits was earlier rejected by this court in R.C. Case No. 64(A)/1996 Pat by order dated 23.02.2018 in Cr. Appeal (SJ) No. 138/2018 upon consideration of the contentions urged on behalf of the appellant. He has referred to the discussions made by the learned CBI Court on the role of this appellant at page- 276 of the impugned judgment. Learned Trial Court has discussed the evidence of PW-1 Dipesh Chandak who had stated that Dr. S.B. Sinha, co-accused, used to meet the appellant after becoming Chief Minister of Bihar and used to oblige him through illegal gratification monetarily through Dr. R.K. Rana. He had stated about payment of Rs. 1.00 crore to the appellant through R.K. Rana. PW- 49 R.K. Das had also stated that S.B. Sinha gave money to the present appellant and others. He had stated that he saw the appellant and R.K. Rana coming out of the bed room of S.B. Sinha. Both of them were having polythene bags. Dr. 4 S.B. Sinha told him that he gave Rs. 5.00 lakhs to Lalu Prasad Yadav. There were other material prosecution evidences adduced by the CBI such as PW-103 Miss Jayanti Jha who had stated that Air Tickets were purchased in the name of Lalu Prasad, Dr. R.K. Rana and others. Documentary evidences were also adduced by PW-108 Miss N. Jacob. It appeared that Dr. S.B. Sinha was shown as a local guardian of Miss Ragini, Miss Rohani and Miss Chanda who were daughters of Lalu Prasad. Learned ASGI has referred to other prosecution witnesses, referred to by the learned CBI Court who clearly established the involvement of this appellant as the Chief Minister and Finance Minister of the State in the larger conspiracy in facilitating the fraudulent withdrawals from AHD Department at Chaibasa during the financial years 1992-93. Appellant as the Chief Minister and the Finance Minister of the State made no efforts to stop the fraudulent withdrawals, though the CAG reports of the financial years 1988-89 to 1994-95 clearly showed huge excess withdrawals over the budgetary provisions and the appellant being the Finance Minister was aware of it. The prosecution witnesses produced by the CBI together with the documentary evidences clearly established the larger conspiracy behind the systematic loot from the State Exchequer and illegal gratification in favour of the appellant as a beneficiary thereof.
5. Learned ASGI has countered the submissions of learned Senior Counsel for the appellant on the testimony of the approver witnesses and submitted that these prosecution witnesses Dipesh Chandak, R.K. Das and others had categorically deposed regarding proximity of the alleged 'kingpin' Dr. S.B. Sinha with the appellant and illegal payments made through him. He submits that this court in the case of Dr. Rabindra Kumar Rana @ Ravindra Kumar Rana in Cr. Appeal (SJ) No. 208/2018 while considering the prayer for suspension of sentence in connection with the conviction of that appellant in R.C. Case No. 68(A)/1996 has, by order dated 02.11.2018, observed that the evidence and documents adduced in one case were adopted by the accused persons in other R.C. cases in light of the observations made by the Hon'ble Supreme Court in the case of C.B.I., A.H.D., Patna Versus Braj Bhushan Prasad & others [(2001) 9 SCC 432]. The observations made therein have also been taken note of by the Apex Court in the case of State of Jharkhand through S.P., Central Bureau of Investigation Versus Lalu Prasad Yadav alias Lalu Prasad [(2017) 8 SCC 1]. This court has clearly observed in the case of Dr. Rabindra Kumar Rana that individual fraudulent withdrawal at different places under different Treasuries by different accused persons were 5 the reasons for institution of separate R.C. cases, as per the place or period of the crime, but the evidence of general conspiracy may have been common to all. Consideration of the prayer for suspension of sentence is to be undertaken on the basis of findings recorded in a particular case by the learned CBI Court and weighed accordingly. As such, appellant cannot escape liability from the charge of larger conspiracy in facilitating the systematic loot under AHD department in different districts including Chaibasa Treasury with which the present R.C. case is concerned.
6. Learned ASGI submits that this court while considering the prayer for extension of provisional bail of this appellant on medical grounds in Cr. Appeal (SJ) No. 138/2018 vide order dated 24.08.2018, found that the prognosis of the doctors of Asian Heart Institute, as evident from the reports, did not create an impression that the appellant was either facing life threatening situation or required immediate intervention. Continued medical management and monitoring had been advised to him. This court had also observed that if any specialized treatment is required in future, it would depend upon the evaluation and opinion of the doctors at RIMS. The latest medical report of the doctors at RIMS dated 28.12.2018 contained at Annexure-A to the reply to the I.A. do not project any such emergent picture requiring his release, even on medical grounds for the present. Learned ASGI has opposed the plea urged by the appellant for release as a President of a political party Rashtriya Janata Dal, as being without any substance. He submits that appellant cannot seek suspension of sentence as he has been convicted of serious charges of conspiracy and for the offences under the Prevention of Corruption Act as well. Prayer for suspension of the appellant therefore deserves to be rejected.
7. Learned Senior Counsel for the appellant Mr. Kapil Sibbal, in reply, adverted to the statements of the prosecution witnesses during cross examination namely, Dipesh Chandak who had denied having met the appellant at any point of time or having seen payment of illegal gratification being made in his presence. He also denied having seen Dr. S.B. Sinha meeting the appellant in his presence. Similarly, prosecution witness R.K. Das has also denied having ever met the appellant. He submits that on this unreliable testimony, findings of the learned Trial Court are wholly unsustainable. The incarceration of this appellant in custody any further could be wholly unjustifiable on the weight of such untrustworthy evidence of this approver / prosecution witness.
68. I have considered the submissions of learned counsel for the parties in the light of the aforesaid facts and circumstances case and the relevant material evidence relied upon by them for the purposes of consideration of the prayer for suspension of sentence. As per the judgment rendered by the Apex Court in the case of C.B.I., A.H.D., Patna Versus Braj Bhushan Prasad & others [(2001) 9 SCC 432] and taken note of by the Apex Court in the case of State of Jharkhand through S.P., Central Bureau of Investigation Versus Lalu Prasad Yadav alias Lalu Prasad [(2017) 8 SCC 1], evidences and documents adduced in one case can be adopted in evidence in other cases. It is in this light that evidence in one of the R.C. cases adduced by the CBI i.e. R.C. Case No. 20(A)/1996 was adopted without objection by the accused persons in other R.C. cases like the present one. Individual fraudulent withdrawal at different places under different Treasuries by different accused persons were the reasons for institution of separate R.C. cases, as per the place or period of the crime but the evidence of general conspiracy may have been common to all. Consideration of the prayer for suspension of sentence is therefore to be undertaken on the basis of findings recorded in a particular case by the learned CBI Court and weighed accordingly. The instant case relates to fraudulent withdrawals from Chaibasa Treasury to the tune of Rs. 37,62,79,883/- as against the allotment of Rs. 7.10 lakhs only during the financial year 1992-93 to the Animal Husbandry Department at Chaibasa towards purchase of feed, fodder, medicines and instruments through short supply or fake supplies. It has been submitted on behalf of the appellant that there are no direct or circumstantial evidence to prove the charge of criminal conspiracy against him. Mere knowledge of excess withdrawal from AHD department and other departments during the period 1988-89 and 1994-95 is not enough to establish the ingredients of criminal conspiracy. Learned Trial Court, however, on the basis of statement of prosecution witnesses such as PW-1 Dipesh Chandak, PW-49 R.K. Das and other prosecution witnesses discussed at page-276 of the impugned judgment together with several documentary evidences come to a finding on the charges of criminal conspiracy and offences under the P.C. Act against the appellant who was serving as a Chief Minister and the Finance Minister of the State of Bihar at the relevant point of time. Discussions made and the findings recorded by the learned Trial Court on the role of the accused / appellant together with statement of witnesses and other documentary evidences referred to therein, go to show the involvement of the appellant in the larger conspiracy of fraudulent withdrawals from Chaibasa Treasury under the 7 Animal Husbandry Department during the period 1992-93. However, this court is not inclined to make any further comments on the merits of the evidences on record and the findings arrived at by the learned Trial Court on the grounds urged by the appellant, lest it may prejudice the case of the parties at the time of final hearing. Appellant has remained in custody for about eleven months only much less than half of the sentence of five years awarded.
9. So far as the plea for suspension of sentence based on the medical condition of the appellant is concerned, this Court while considering the prayer for extension of provisional bail, had vide order dated 24.08.2018 passed in Cr. Appeal (SJ) No. 138/2018, observed that the prognosis of the doctors of Asian Heart Institute, as evident from the reports dated 13.08.2018 and 16.08.2018, do not create an impression that the appellant is either facing life threatening situation or requires immediate intervention. Continued medical management and monitoring has been advised to him. Doctors at RIMS would undertake the assessment of the medical condition of the appellant for the purposes of monitoring and medical management of his conditions. Whether any specialized treatment is required in future would depend on the evaluation and opinion of the doctors at RIMS, Ranchi. If his condition is found to be satisfactory and improving, it would be open for the doctors at RIMS to refer him back to Birsa Munda Central Jail, Hotwar, Ranchi on such evaluation of his treatment.
As per the Medical Report dated 28.12.2018, Doctors at RIMS have not advised any specialized treatment outside Ranchi for the present. It has also been pleaded on behalf of the appellant that as Founder of a political party, Rashtriya Janata Dal and its President, his prayer for suspension of sentence deserves consideration keeping in view the ensuing General Elections to the Lok Sabha in 2019. However, this Court does not find substance in this plea, more so for the reason that the appellant has been convicted for serious charges of criminal conspiracy and offences under the P.C. Act.
10. Considering all these facts and circumstances, I am not inclined to grant the privilege of suspension of sentence to the appellant and enlarge him on bail. Accordingly, prayer made in I.A. No. 1010/2018 is rejected.
(Aparesh Kumar Singh, J) Ranjeet/