Jharkhand High Court
Lalu Prasad Alias Lalu Prasad Yadav vs State Through C.B.I. (A.H.D.) on 10 September, 2002
Equivalent citations: 2003CRILJ610
Author: Deoki Nandan Prasad
Bench: Deoki Nandan Prasad
ORDER Deoki Nandan Prasad, J.
1. All the applications mentioned above have been heard together as the question relating to amalgamation of all the respective cases into one arisen and are being disposed of by this common order.
2. It is claimed that RC 20(A)/96, RC 68(A)/96, RC 64(A)/96, RC 38(A)/96 and RC 47(A)/96 should be amalgamated and trial be proceeded as one case. It is alleged that RC 20(A)/96 corresponding to Chaibasa P. Section Case No. 12 of 1996 for the period 1-4-1994 to 31-3-1996. There is an allegation that forged payment of Rs. 97,70,39,743/-was made to different suppliers for the financial year 1994-96 and the said payment was made on the basis of forged allotment letters. Charge-sheet was submitted by the Central Bureau of Investigation (C.B.I.) against 56 accused persons including the petitioner Lalu Prasad alias Lalu Prasad Yadav.
3. Likewise in another case RC 64(A)/ 96, it is alleged that the accused persons indulged in criminal conspiracy, withdrew a sum of Rs. 95, 08,140, 10 paise illegally on the basis of fake allotment and the said amount was for purchase of food, fodder, medicines and instruments etc., which have never been supplied nor received to the Ani-mal, Husbandry Department (A.H.D.) and fraudulently, the said amount was withdrawn and misappropriated. It was alleged that the amount had been withdrawn from Deoghar Treasury on the basis of false sub-allotment letters issued by Dr. Section M. Ram, Regional Director, A.H.D., Dumka, who made the bogus sub-allotment to the District Animal Husbandry Officer (D.A.H.O.), Deoghar and other districts on the basis of fake allotment letters received by him from Dr. Shyam Bihari Sinha, who was the king pin of the A.H.D. Mafia and master mind behind the execution of fraud and got the fake allotment letters manufactured and distributed the same among, the different functionaries at A.H.D. mafia. It is also alleged that the accused persons entered into a criminal conspiracy agreed to do or caused to be done illegal act or acts which were not legal by illegal means at Deoghar, Dumka, Patna, Ranchi and other places of Bihar and outside Bihar in other States.
4. The short facts of RC 38(A)/96 as alleged is that it was registered in respect of fraudulent withdrawal of money from the Treasuries of Bihar on the strength of forged and fabricated allotment letters for making payment of suppliers who are non-existent and they never supplied feed, fodder, medicines and other equipments. In pursuance of the said criminal conspiracy during the period December, 1995 and January, 1996, an amount of Rs. 3,42,37,601/- was illegally withdrawn by the Regional Director, Santhal Pargana Region, Dumka, under the major head "2403" from Dumka Treasury.
5. The allegation as made in RC 47(A)/96 is that fraudulent withdrawal of money was made on the strength of forged and fabricated allotment letters. In pursuance of the criminal conspiracy on the strength of fake allotment letters, payments to the tune of Rs. 139.35 crores were fraudulently made to the accused supplier who never supplied the materials to the A.H.D. It has been conclusively established during investigation that fraudulent withdrawal of huge amounts of Government money from the different treasuries have been made on the basis of the fake and fraudulent allotment shown to. have been issued by the Animal Husbandry Directorate at Patna. The investigation has also disclosed that the accused-suppliers out of the amount received fraudulently and dishonestly amongst the co-conspirators in a ratio of 20 per cent of the billed amount for the suppliers and the balance 80 per cent for the A.H.D. Officials. Government Officers, Ministers, Chief Minister and other politicians for their respective roles in the conspiracy. The accused officials in connivance with each other issued fictitious supply orders to accused suppliers obtained their bills and procured false acknowledgement for the receipt of supplies of consignment/materials and thus falsified records to show the purported procurement and receipt of supplies. It has been further revealed during investigation that a sum of Rs. 33,13,67,534/- was siphoned off from the Government exchequer in a very systematic and concerted fashion by A.H. D. Officials in connivance with the suppliers. Government Officials, Politicians of different political parties. Animal Husbandry Minister and the Chief Minister of the State of Bihar. Accordingly, charge-sheet was also submitted in some of the cases.
6. It is claimed that RC 20(A)/96 is the parent case and the evidence collected in other cases viz., RC 38(A)/96, RC 47(A)/96, RC 64(A)/96 and 68(A)/96 as regards to conspiracy is common as well as the act of the commission on the part of the petitioner is common in all the five cases and, therefore all the five cases pending in the Court of the Special Judge, Ranchi may be amalgamated and trial be concluded as being one case.
7. As regards W.P. (Cr.) No. 220 of 2002. the petitioner (Dr. Bijayeshwari Prasad Sinha) claimed that he is the proprietor of M/s. Ekta Veterinary Works and has been made accused in Special Case Nos. 35/96 (RC 34(A)/96-Pat), 50/96 (RC 47(A)/96-Pat), 51/96 (RC 48(A)/96-Pat), 49/96 (RC 46(A)/ 96-Pat), 53/96- (RC 50(A)/96-Pat), 55/96 (RC 52(A)/96-Pat), 57/96, (RC 54(A)/96) Pat), 59/96, (RC 57(A)/96 Pat), 32/96 (RC 31A/96, Pat), 61/96 (RC 58(A)/96, 52/96 (RC 49(A)/96-Pat), 26/96 (RC 24(A)/96), 68/ 96) RC 68(A)/96), 58/(96 (RC 55(A)/96) and 36/96 (RC 35(A)/96). It is further stated that charge-sheets bearing RC 2(A)/2001 and RC 3(A)/96 respectively incorporating the petitioner as an accused was filed and it is admitted that most of the cases are on trial stage. It is further stated that object of conspiracy is common and the charges/allegations are same and similar as well as the modus operandi is same and, therefore, all the, cases are required to be amalgamated according to Section 223(d) of the Code of Criminal Procedure (the Code).
8. In W.P. (Cr.) No. 177 of 2002, the petitioners claimed by this application that they are being suppliers and the charge-sheets bearing RC 2(A)/2001(R) and RC 4(A)/ 2001(R) respectively have already been submitted. It is alleged that petitioner No. 1 (Tripurari Mohan Prasad) being the proprietor of the Bihar Surgico Medico Agency and Partner of Manas Sales Corporation, Patna procured supply orders from the A.H.D. by exercising his influence through Dr. Section B. Sinha and Dr. K. M. Prasad, the alleged king pin of the Scam and caused huge loss to the Government as he did not supply items for which he claimed and received payments from the A.H.D. All the petitioners have been accused in as many as 35 cases but the cases have arisen in course of same transaction and also on the basis of continued action and under the same conspiracy. Therefore, all the cases be amalgamated and tried together.
9. Cr.M.P. No. 650 of 2002 :-- In this application, the petitioner alleged that the petitioner has been made accused in three cases being RC 38(A)/96, RC 39(A)/96 and RC 45(A)/96 in which charge-sheet has already been submitted and in all the cases, the allegation is same and similar and, therefore, all the cases be amalgamated for trial together.
10. The C.B.I. submitted counter-affidavit claiming therein that the above petitions filed for amalgamation in one case is devoid of merit and it is not maintainable as all the different A.H.D. Scam cases are distinct from each other involving separate transactions. All the five A.H.D. Scam cases as against the petitioner (Lalu Prasad) are at different stages of trial. In RC 20(A)/96, cognizance has been taken, charges have been framed as well as 84 prosecution wit nesses have already been examined, cross- examined and discharged.
11. In RC 64(A)/96, cognizance has been taken for the offences by the Special Judge and the case is fixed for framing of charge. Similarly In RC 68(A)/96, RC 38(A)/96 and RC 48(A)/96, charge-sheets have been submitted and the cognizances have been taken by the trial Court. All the cases relating to the petitioners are distinct/separate transaction of different place of occurrence and the fraudulent withdrawal was made from the different treasuries at different periods as well as different amounts of withdrawal was done and so, the question of amalgamation of trial and the joinder of charges of these cases under Section 223 of the Code does not arise. It is further stated that fake allotment letters were not issued from the office of the Directorate, A.H.D. rather the fake allotment letters and fake sub-allotment letters were created in different cases at different time and place and also in favour of the different districts of the Animal Husbandry Offices i.e. District Animal Husbandry Officers, Regional Directors Offices of the Animal Husbandry Department. It is also submitted that the petitioner Sri Lalu Prasad himself passed the orders and directed to institute the cases D.D.Os. wise in February, 1996. All the cases, as mentioned above, are separate from each other involving different transactions and one group of accused like the D.D.Os. of other levels of the A.H.D. Officials of a particular department has no privity of other group of accused persons so no case of amalgamation is made out in such a situation. Moreover the Patna High Court also did not allow amalgamation of two cases RC 20(A)/96 and RC 64(A)/96 in its order dated 28-4-2000 passed in Cr. Misc. No. 25150 of 1999 and dispose of the petition with direction that the question is to be decided only to reach the stage of framing the charge if proper application is filed by the accused persons before the trial Court. The trial Court was also directed to consider the stand/view of the accused which have not prayed for joint trial but no such application has been filed by the petitioner or any other accused persons before the trial Court for the joinder of charge after the order dated 24-4-2000, but this application has been filed directly to the High Court of Jharkhand at Ranchi after a gap of two years only with a purpose to delay and hampering the trial of the case. Thus, the applications filed by the petitioners are without merit and are fit to be dismissed.
12. Mr. P. N. Pandey, learned Senior Advocate appearing on behalf of the petitioner in W.P. (Cr.) No. 142 of 2002 submitted that RC20(A)/96 is the parent case and the evidence collected in other cases as regards to conspiracy which is common as there was a single conspiracy and the modus operandi of the accused persons including the petitioner was the same about withdrawal of huge amount of the Government by submitting fake allotment letters and, therefore, the cases relating to larger conspiracy, in which the petitioners have been made accused, ought to have been tried together. It is also submitted that the statement of the witnesses recorded in other cases and the documents seized in the cases have been supplied in all these case by simply putting a fresh case number and the single object of the conspiracy was being executed in several districts and places and for which Section 223 of the Code provides for trying the cases jointly for the offences committed in the course of same transaction and the instant cases registered as against the petitioners are obviously of the same and similar transaction by a single conspiracy. It is further submitted that the same set of witnesses and the documents would be brought on the record separately which will cause unnecessary harassment to the accused persons/petitioners as well as according to Section 71 of the Indian Penal Code where anything which is an offence made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided. Thus In view of the fact that there are common witnesses and identical documents which would be brought on the record, separately by the prosecution and that would create further complication and harassment to the accused persons/petitioners. The learned counsel while arguing the case also relied on the order dated 21st April, 2000 passed in Cr. Misc. No. 25150 of 1999. But apparently it has been observed in the said order, by the learned Single Judge that the question is to be decided only when other cases are also ready and reach the stage of framing of the charges. At that stage, if a proper application is filed by the accused persons or by some of the accused persons, the trial Court will consider the said question. It has further been observed while considering the question, if some of the accused persons have not prayed for joint trial, then the trial Court will also consider their stand in the light of the legal position indicated above. The trial Court will also consider whether it will be possible or practicable to dispose of all the cases or some of the cases jointly or they should be tried separately. But admittedly no such application has been filed before the trial Court.
13. It is further submitted by the learned Senior Counsel that after corning into force of the Bihar Reorganization Act, 2000, the Supreme Court of India transferred thirty six cases including those cases to the State of Jharkhand as well as charge-sheet against the petitioner (Lalu Prasad) has also been submitted in RC 47(A)/96 and RC 68(A)/96 at Ranchi and all the five cases relating to the petitioner Lalu Prasad are pending before the different Courts at Jharkhand and due to the transfer of cases in the different Courts of the State of Jharkhand, it is not possible to file petition before the different Courts as the petitioners are held to be charged for conspiracy being a single conspiracy attracting in all the cases. But this submission cannot be sustained at this belated stage, inasmuch as no such petition has been filed in any trial Court.
14. Mr. Kumar Sahay, learned counsel appearing on behalf of the petitioners (In W.P. (Cr.) Nos. 177 and 220 of 2002) submitted that the allegations made against the petitioners/suppliers are same and similar as well as the letter of allotment used to be signed and distributed at one place at Patliputra Hotel, Patna, therefore, their cases should also be tried together. It is further submitted that the object of conspiracy is Common, modus operandi was also same and, therefore, the cases committed in course of the same transaction are required to be charged and tried together by amalgamation as provided under Section 223(d) of the Code. It is further submitted that the statement recorded under Section 164 of the Code would be used in all the cases which is common and there was no privity in between the accused persons and, therefore, it is desirable to amalgamate all the cases of the petitioners and are tried together.
15. The learned Advocate appearing on behalf of the petitioner in respect of Cr. M. P. No. 650 of 2002 have virtually adopted the submission/argument of the Senior Advocate Mr. P. N. Pandey. They have relied on the decisions of the Supreme Court in the cases of Purshottamdas Dalmia v. State of West Bengal, AIR 1961 SC 1589 : (1961 (2) Cri LJ 728). The State of Andhra Pradesh v. Chemalapati Ganeswara Rao, 1963 (2) Cri LJ 671 : (AIR 1963 SC 1850); Section Swamirathnam v. State of Madras, AIR 1957 SC 340 : (1957 Cri LJ 422); State of Maharashtra v. Anjanabai alias Anjana Mohan Gavit, 1997 Cri LJ 2309) and Maneka Gandhi v. Union of India, AIR 1978 SC 597.
16. On the other hand. Mr. Rajesh Kumar learned Standing Counsel for the Central Bureau of Investigation (C.B.I.) contended before me that the petition is not maintainable which is misconceived as well as the petitioners had raised the same and similar point before the Patna High Court in Cr. Misc. No. 25150 of 1999 and the learned Judge clearly held in his order dated 21st April, 2000 that the said question is to be decided only when other cases are also ready and reach the stage of framing of charges. At that stage if a proper application is filed by the accused persons or by some of the accused persons, the trial Court will consider the said question, but the petitioners never approached to the trial Court to raise the point as well as 97 witnesses have already been examined in RC 20(A)/ 96 and the trial is going on smoothly, but after a gap of two years, the present petition has been filed by the petitioners only with a view to delay and hampering the trial of the case. It is further submitted that the main object of conspiracy in A.H.D. Scam was the fraudulent excess withdrawal of Government money from the different Treasuries and loot of the Government exchequer. The object or purpose may be similar but by no stretch of imagination, it may be stated that all the Scam cases relating to fraudulent withdrawal constitute one offence and one conspiracy or different offences committed in the case of a single transaction rather transactions were different. Treasuries are also different from where fraudulent excess withdrawal was made as well as offences were different committing in different transactions and also by different set of accused persons having no privity with each other. It is further submitted that the Hon'ble Supreme Court in its order dated 19-3-1996 directed and held that there is no gain saying that all persons involved in these offences need to be identified. According to him, RC 20(A)/96 was relating to Chaibasa Treasury and withdrawal was made in the year 1991-92 amounting to Rs. 37.7 crores whereas RC 38(A)/96 was in respect of Dumka Treasury where withdrawal during the period from December, 1996 to January, 1996 was made amounting to Rs. 3.79 crores and odd; likewise RC 47(A)/96 was in respect of Doranda Sub-Treasury during the period 1990-91 to 1995-96 where total withdrawal was made to Rs. 185.62 crores, RC 64(A)/96 was relating to Deoghar Treasury for the period 1990-94 and the withdrawal was made to Rs. 0.56 crores and RC 68(A)/96 is relating to Chaibasa Treasury for the period 1992-93 for withdrawal of Rs. 37.62 crores. So the offence was committed at the different places in different manner and at different points of time and, therefore, it is not desirable to amalgamate all the cases at this stage for trying together. Therefore the petition filed by the applicants is fit to be dismissed. The learned counsel also placed his reliance in the case of Balbir Chand v. State of Haryana, (2000) 1 SCC 285 : (AIR 2000 SC 11).
17. At this stage it would be relevant to quote the provision as laid down under Section 223 of the Code which reads as under :--
What persons may be charged jointly :--The following persons may be charged and tried together, namely :--
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, any persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last-named offence:
(f) persons accused of offences, under Sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said chapter relating to the same coin, or of abatement of or attempting to commit any such offence, and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges :
Provided that there, a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."
18. Though general rule is that there should be separate trial but there are many cases where joinder of charges and joinder of accused for cases become necessary for the ends of justice. The provision for joinder of charges and joinder of accused was made with the object to avoid the necessity of the same witnesses being examined and giving same evidence for two or three times in different trials and to join the same trial over which it may overlap. This was also added with a view to avoid multiplicity of trial and prevent westage of time of the Court as well as harassment to the parties. At the same time there is also a proviso that where a number of persons are charged with separate offence and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together. Therefore, it all depends upon the satisfaction of the Magistrate concerned to come to a conclusion about the joinder of charge and the joinder of trial if such persons would not be prejudicially affected.
19. It may be noted here that the! provision of joint trial is an enabling one as the said section itself provides that the Court may charge and try the accused jointly. Therefore, it is not incumbent or obligatory for the Court to try the cases jointly even if the offences committed by one or the other accused persons are part of the same transaction. Thus whether there should be a joint or separate trial depends upon the discretion of the Presiding Officer who is competent enough to be satisfied about the entire circumstances depending upon the legal provisions. Here the only provision of Section 223, Clause (d) is attracted which provides that the persons accused of different offences committed in the course of the same transaction may be charged and tried together.
20. The word 'same transaction' has not been defined in the Code. In the case of State of Andhra Pradesh v. Chemalapati Ganeswara Rao (Supra) in which the Apex Court considered and held as follows :--
"........ What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon particular facts of each case as it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court: which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of series of acts, it may be possible to infer that they form part of the same transaction. It however, should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of the acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words "so Connected together as to form in Clauses (a), (c) (sic) and (d) of Section 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression "same transaction" alone had been used in Section 235(1) it would have meant a transaction considering either of a single act or of a series of connected acts. The expression "same transaction" occurring in Cls. (a), (c), (sic) and (d) if Section 239 as well as that occurring in Section 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to enquire further whether the provision of Section 239 is subject to those Section 235(1). The provisions of Sub-sections. (2) and (3) of Section 235 are enabling provisions quite plainly can have no overriding effect. But it would be open to the Court to resort to those provisions even in the case of a joint trial of several persons permissible under Section 239."
21. In the instant case, it is apparent that huge withdrawal was made from different Treasuries such as Chaibasa, Dumka, Doranda, Deoghar etc. The period of withdrawal is also different such as some withdrawals were made for the period 1991-92; December, 1995 to January, 1996, 1990-91 to 1995-96; 1990-94 and 1992-93 as well as the amount said to have been withdrawn under fake allotment letters for the materials which have never been supplied by the suppliers are also different as from Chaibasa Treasury, a sum of Rs. 37.7 crores was withdrawn in 1991-92, from Dumka Treasury a sum of Rs. 3.79 crores was withdrawn from December, 1995 to January, 1996; from Doranda Treasury during the period 1990-91 to 1995-96 Rs. 185.62 crores. It may be possible that modus operandi of the people/accused might have been the same for withdrawing money from the Government Treasuries under fake allotment letters but the withdrawal was made apparently at different places and also at different points of time and all these factors are matter for consideration. It may also be clarified that only because the petitioners/accused are alleged to have committed offence for the same motive, that by itself will not prove that they had done in pursuance of a single conspiracy rather the withdrawal of such a huge amount from Government Treasury appears to be outcome of larger conspiracy. Apart from this, more than ninety witnesses have already been examined and cross-examined in RC 20(A)/96 and the trial is in full swing. It may further be mentioned that the order in Cr. Misc. No. 25150 of 1999 was passed as back as on 21st April. 2000 and in the said order, there was a specific observation made in paragraph 32 which reads as under :--
"Taking into consideration the peculiar facts and circumstances of the case arising out of the Animal Husbandry Scam, I am of the view that the said question is to be decided only when other cases are also ready and reach the stage of framing of the charges. At that stage, if a proper application is filed by the accused persons or by some of the accused persons, the trial Court will consider the said question. While considering the question if some of the accused persons have not prayed for joint trial, then the trial Court will also consider their stand in the light of the legal positions indicated above. The trial Court will also consider whether it will be possible or practicable to dispose of all the cases or some of the cases jointly or they should be tried separately. It is to be clarified that the paramount consideration should be the cause of justice".
22. Surprisingly enough the petitioners did not choose to file any such petition before any trial Court and after lapse of more than two years, this question has again been raised in the same way in this High Court, though all the special Courts are functioning smoothly at one place i.e. at Ranchi. Evidence has already been adduced and the trial is also going on in RC 20(A)/96 as well as the excess withdrawal took place in different ways at different places with connivance of the accused persons being a set of conspirators including the accused-suppliers/accused-public servant. There is no continuity of action in the cases at hand as there is no proximity of time, place, money etc., even the modus operandi attached in those cases can be said to be one/same. The order passed in Cr. Misc. No. 25150 of 1999 is intact as well as it is specific and lucid to the point which has not been complied with by the petitioners. Thus these applications filed at this belated stage having no merit and are liable to be dismissed.
23. Having regard to the above facts and circumstances coupled with the discussions made above, I do not find any merit in these applications which are dismissed.