Jharkhand High Court
Lalu Prasad @ Lalu Prasad Yadav vs The State Of Jharkhand Through Cbi (Ahd) on 9 October, 2020
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
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
vs.-
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 : Mr. Kapil Sibbal, Senior Advocate
Debarshi Mondal, Adit S Pujari, Advocates
For the CBI : Mr. Rajiv Sinha, ASGI
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17/09.10.2020 Heard learned Senior Counsel for the appellant, Mr. Kapil Sibbal,
assisted by Mr. Debarshi Mondal and learned ASGI Mr. Rajiv Sinha representing the CBI on I.A. No. 3946 of 2020 seeking suspension of sentence.
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 the Court of learned Additional Judicial Comissioner- 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 with a fine of Rs. 5,00,000/- and in default of payment of fine, S.I. for 1 year. He has been further sentenced to undergo R.I. for five years for the offences under Section 13(2) r/w Section (1) (c)(d) of Prevention of Corruption Act with a fine of Rs. 5,00,000/- and in default of payment of fine, S.I. for one year. All the sentences have been ordered to run concurrently and the period undergone shall be set off.
3. Learned senior counsel for the appellant submits that earlier, the prayer for suspension of sentence of this appellant in connection with the instant R.C. Case No. 68(A)/1996 was rejected by order dated 10th January, 2019 on merits as well as considering the fact that the appellant had not completed half of the custody as against the sentence of 5 years awarded under the provisions of I.P.C and P.C Act, ordered to run concurrently. It is submitted that the challenge thereto was rejected by the Hon'ble Supreme Court vide order dated 10th April, 2019 passed in Special Leave to Appeal (Crl) No. 2451/2019 by refusing to interfere in the matter. As on date, the appellant has undergone more than half of the custody of 30 months against the sentence of five years awarded under the provisions of I.P.C and P.C. Act. Learned senior counsel for the appellant submits that as a matter of fact, following the principle of uniformity, this Court has granted the privilege of suspension of sentence to other such appellants convicted in the fodder scam cases on completion of half of the custody, for eg. Dr. Rabindra Kumar Rana @ Ravindra Kumar Rana in Cr. Appeal (SJ) No. 208/2018 arising out of R.C. Case No. 68(A)/1996, order dated 13th September, 2019. Learned counsel has also referred to the case of other appellants, who have been granted the privilege of suspension of sentence on completion of half of the custody in connection with the instant R.C. Case No. 68(A)/1996 or other R.C cases under the fodder scam, such as PhulChand Singh convicted in R.C. Case No. 38(A)/1996, vide Cr. Appeal (SJ) No. 757 of 2018 order dated 3rd May, 2019, Mahesh Prasad convicted in R.C. Case No. 68(A)/1996 and also 64(A)/1996, vide order dated 19th July, 2019 passed in Cr. Appeal (SJ) No. 328 of 2018 and order dated 26th April, 2019 passed in Cr. Appeal (SJ) No. 211 of 2018 respectively. Dayanand Prasad Kashyap convicted in R.C. Case No. 68(A)/1996 has also been granted the privilege of suspension of sentence vide order dated 31st August, 2018 passed in Cr. Appeal (SJ) No. 331 of 2018 on completion of half of the custody against the sentence awarded. Learned senior counsel for the appellant relying upon the certificate of Superintendent, Birsa Munda Central Jail, Hotwar bearing Letter no. 6764 dated 22nd August, 2020 (Annexure-R/1 to the rejoinder to the counter affidavit of CBI filed in the instant I.A), has submitted that the appellant remained in custody during trial for the period 21st December, 2001 till 23rd January, 2002 when he was enlarged on bail in connection with the instant R.C. Case No. 68(A)/1996 i.e., total of one month and four days. In the instant case, appellant has been convicted on 24th January, 2018 and since then, he has been in custody till date, except for the period of provisional bail i.e, between 11 th May, 2018 till 30th August, 2018 when he surrendered consequent upon rejection of the prayer for extension of provisional bail by this Court vide order dated 24 th August, 2018. Thus, in total, appellant has remained in custody for more than 30 months by now. Considering the uniform yardstick adopted by this Court, on grounds of parity, appellant deserves to be enlarged on bail by granting him privilege of suspension of sentence.
4. Learned senior counsel for the appellant in reply to the grounds taken in the counter affidavit of CBI in respect of applicability of Section 427 of Cr.P.C, submits that the question whether the sentences imposed in one or the other R.C. Cases upon the appellant would run consecutively or concurrently, would come to be decided at the stage if the appeals are dismissed. At this stage, CBI should not be allowed to take a vindictive and discriminatory approach vis-à-vis this appellant as such a point has never been taken earlier in connection with the cases of any other convicts/ appellants under the fodder scam cases. Learned senior counsel for the appellant has placed reliance upon the decisions of the Apex Court in the case of Kashmira Singh Versus The State of Punjab [(1977) 4 SCC 291] and Surinder Singh alias Shingara Singh Versus State of Punjab [(2005) 7 SCC 387] para 5 to 8, 11 and 12 on the proposition that bail being a discretionary matter, no inflexible rule can be laid down. Each case would depend upon its own facts and circumstances. Moreover, appeal is unlikely to be taken up for hearing in very near future. Therefore, the appellant who is 73 years old, suffering from various ailments should be enlarged on bail by granting the privilege of suspension of sentence in the instant case on completion of half of the custody. He has not misused the privilege of provisional bail granted earlier Learned counsel for the appellant has further placed reliance on the decision of Mohd. Akhtar Hussain alias Ibrahim Versus Assistant Collector of Customs (Prevention), Ahmedabad and another [(1988) 4 SCC 183, para 16, 17 and 18 in reply to the arguments urged on behalf of the CBI relying upon Section 427 of Cr.P.C
5. Learned ASGI representing the CBI has opposed the prayer, inter alia, on the following grounds:
He submits that in the first place, the contention of the appellant that he has completed half of the custody against the sentence of 5 years in the instant R.C. Case is not correct since the sentence awarded under the impugned conviction would run only after the sentence awarded in connection with his previous conviction under R. C. Case No. 64(A)/1996 is over. Though appellant was granted privilege of suspension of sentence in connection with his conviction under R.C. Case No. 64(A)/1996 by order dated 12th July, 2019 passed in Cr. Appeal (S. J.) No. 138/2018 on completion of half of the custody, however, that order has been appealed against by CBI before the Apex Court. As per the instruction furnished to him, appellant has not furnished the bail bond for release pursuant to the order dated 12th July, 2019 passed in Cr. Appeal (SJ) No. 138/2018. Appellant was made accused in six cases under the fodder scam in which he has been convicted in four cases i.e. R.C. Case No. 20(A)/1996, R.C. Case No. 38(A)/1996 R.C. Case No. 64(A)/1996 and R.C. Case No. 68(A)/1996. Trial in connection with R.C. Case No. 47(A)/1996 and 63(A)/1996 are underway.
6. Learned ASGI submits that the appellant has been getting proper medical treatment and facility at RIMS for his health condition in view of the observations made by this Court in the order dated 24 th August, 2018. Appellant would, in any case, not be released on bail because he is undergoing custody in connection with his conviction in R.C. Case No. 38(A)/1996 where a sentence of 7 years has been imposed upon him under the provisions of IPC and P.C Act and ordered to run consecutively. Learned ASGI has therefore, strongly opposed the prayer for bail. However, on being specifically asked as to the period of custody of one month and four days during trial claimed by the appellant by virtue of certificate dated 22 nd August, 2020 issued by the Superintendent, Birsa Munda Central Jail, Hotwar, learned ASGI does not dispute the same. Learned ASGI is also not in a position to dispute that upon his conviction in the instant R.C. Case No. 68(A)/1996 on 24th January, 2018, appellant was sent to custody under custody warrant. At that time he was already in custody since 23rd December, 2017 upon his conviction in R.C. Case No. 64(A)/1996 .
7. I have considered the submissions of learned senior counsel for the appellant and learned ASGI representing the CBI and taken into account the facts and circumstances and the grounds urged on behalf of rival parties in support or opposition to the prayer for suspension of sentence. Appellant had moved for suspension of sentence in connection with the instant R.C Case 68(A)/1996 through I.A. No. 1010 of 2018. By order dated 10th January, 2019 prayer for suspension of sentence was rejected by this Court on merits and also taking into account that the appellant had not undergone custody for more than half of the sentence of 5 years awarded to him under the impugned conviction in R.C Case No. 68(A)/1996. In the order dated 10th January, 2019, it was taken note of that the appellant had remained in custody for about 11 months only, much less than half of the sentence of 5 years awarded. On being taken in appeal, the Hon'ble Supreme Court had been pleased to reject the Special Leave to Appeal (Crl.) No. 2451/2019 preferred by the appellant, by order dated 10th April, 2019. The prayer for suspension of sentence of this appellant in connection with other R.C. Case No. 64(A)/1996 was also rejected by the order dated 10th January, 2019 passed in Cr. Appeal (SJ) No. 138 of 2018. The challenge thereto in Special Leave to Appeal (Cr.) No. 2219 of 2019 was also rejected by the Hon'ble Supreme Court by the common order dated 10th April 2019 refusing to interfere in the matter. However, on completion of half of the custody against the sentence of three and a half years awarded under the offences under IPC and P.C Act, ordered to run concurrently, in connection with his conviction under R.C. Case No. 64(A)/1996, this Court by order dated 12th July, 2019 allowed the privilege of suspension of sentence to the appellant taking into account that this Court has been following a uniform yardstick in matters of suspension of sentence to the convicts/appellants in the fodder scam cases. Some of the orders passed in the case of other such convicts/appellants in R.C. Cases No. 64(A)/1996 Pat; 38(A)/1996 Pat and 68(A)/1996 were also taken note of. It appears that the order dated 12th July, 2019 has been assailed by the CBI before the Apex Court. The matter is said to be pending. It is also not disputed that the CBI has chosen not to prefer any such appeal against the order granting privilege of suspension of sentence to any other convicts/appellants on completion of half of the custody in connection with their conviction in fodder scam cases, relying upon the provisions of Section 427 of Cr.P.C., including such other appellants referred to in the instant order or the order dated 12th July, 2019 passed in Cr. Appeal (SJ) No. 138 of 2018.
8. This plea based on the provisions of Section 427 of Cr.P.C that the sentence imposed upon this appellant in this case, R.C 68(A)/96 would start running only after the sentence imposed upon him in the previous conviction under R.C Case No. 64(A)/1996 is over has been raised for the first time. This argument has been strongly contested by learned senior counsel for the appellant on the ground that not only is such a stand discriminatory and vindictive as against the present appellant, but the question of running of the sentences imposed under different convictions, concurrently or consecutively would only arise upon dismissal of the appeal against such convictions pending before this Court. As of now, this Court following the principles of parity has been allowing suspension of sentence to different convicts/appellants in connection with different R.C. Cases/Criminal Appeals preferred by them. Therefore, this Court should not depart from the principles of parity on the basis of plea taken by CBI in the case of the present appellant in this case for the first time.
It is not in dispute that not only this appellant but many other other appellants have faced conviction in more than one R.C. Cases in the fodder scam group of cases and different sentences have been imposed upon them. This Court has however, in the case of individual appellants undergoing sentences under the impugned convictions, been pleased to allow suspension of sentence by following a uniform yardstick on completion of more than half of the custody under such conviction, though many of such appellants have not been released consequent thereto because of them undergoing sentence in connection with conviction under different R.C. Cases. Similar has been the case of this appellant also who was granted the privilege of suspension of sentence by order dated 12th July, 2019 in Cr. Appeal (S.J) No. 138 of 2018 in connection with his conviction under R.C. Case No. 64(A)/1996. It is pertinent to state here that Section 389 under Chapter XXIX 'APPEALS' of the Code of Criminal Procedure 1973 empowers the Appellate Court to suspend the execution of the sentence or order appealed against and if the convict is in confinement, that he be released on bail. Such judicial discretion has to be exercised by the Appellate Court depending on the facts and circumstances of the case by recording reasons after due consideration of the relevant aspects. This appellant on being convicted in connection with instant R.C. Case No. 68(A)/1996 on 24th January, 2018 by learned CBI Court, had been sent to custody under custody warrant and as such remains in custody in the instant matter also till date apart from serving sentence in connection with his conviction under other R.C. Case No. 38A/1996. Computing the period of custody in such manner in connection with the instant R.C Case No. 68(A)/1996, appellant has undergone custody for one month and four days during trial as per the certificate of Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi dated 22-08-2020 and after his conviction on 24th January, 2018 till date excluding the period of provisional bail when he was released on 11th May, 2018 and surrendered on 30th August, 2018. The total period counted in such manner, comes to more than 30 months which is half of the custody against the conviction of five years awarded under either provisions of IPC and P.C. Act and ordered to run concurrently by the learned CBI Court.
9. In those circumstances, this Court is inclined to enlarge the appellant on bail by granting him the privilege of suspension of sentence. Accordingly, let the appellant, Lalu Prasad @ Lalu Prasad Yadav be released on bail, during the pendency of this appeal, on furnishing bail bonds of Rs. 50,000/- (Rupees Fifty Thousand) with two sureties of the like amount each, to the satisfaction of Learned Additional Judicial Commissioner-VII cum Special Judge (AHD), CBI-I, Ranchi in connection with R.C. Case No. 68(A)/1996, subject to deposit of fine of Rs. 2,00,000/- (Two Lakh) 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.
Accordingly, I.A. No. 3946 of 2020 stands disposed of.
10. By order dated 24th August, 2018, this Court considering the health issues projected by the appellant, observed that the Doctors at RIMS should undertake the assessment of the medical condition of the appellant for the purposes of monitoring and medical management of his condition. Whether any specialized treatment is required in future, would depend on the evaluation and opinion of the Doctors at RIMS, Ranchi. It was further observed that 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. Let a report on his medical condition be submitted by the authorities of RIMS within a period of 3 weeks. Further, the Inspector General of Prisons, Government of Jharkhand and the Superintendent, Birsa Munda Central Jail, Hotwar, both shall also submit a report whether the provisions of Jail Manual and all other conditions for securing the custody of the convict is being followed or not since the appellant continues to remain under medical treatment at RIMS. The report should also indicate the number of visitors who have been allowed permission to meet the appellant in the last three months and if so, with proper permission or not.
11. Let the matter appear on 6th November, 2020, by which date, the aforesaid report should be on record. Office to communicate the instant order to the concerned authorities without any delay through FAX/e-mail apart from the usual mode.
(Aparesh Kumar Singh, J) jk