Case: State of Jharkhand Through Sp, CBI Vs. Lalu Prasad @ Lalu Prasad Yadav &amp; Others

2. In the wake of large scale defalcation of public funds, fraudulent transactions and fabrication of accounts in Animal Husbandry Department of State of Bihar popularly known as fodder scam, Central Bureau of Investigation (for short, `the CBI) investigation had been ordered by this Court in State of Bihar & Anr. v. Ranchi Zila Samta Party & Anr. (1996) 3 SCC 682  to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, misappropriation of public funds by an independent agency. This Court directed CBI to do investigation and inform the Chief Justice of Patna High Court. On theof the State of Bihar by virtue of BiharAct, 2000, States of Bihar and Jharkhand were formed. Question arose with respect to the place of trial of cases i.e. whether in State of Bihar or State of Jharkhand. A Full Bench of High Court of Patna took the view that none of the 36 cases which were of Jharkhand to be transferred to Jharkhand. CBI preferred appeals before this Court as well as Dr. R.K. Rana. Total 64 cases had been registered relating to Bihar Fodder Scam. 52 cases involved withdrawal of huge sums of money from Government treasuries falling within Jharkhand State and in 36 out of 52 caseshad been filed by CBI before the appointed day. This Court opined that the only court which has the jurisdiction to try offences under Prevention of Corruption Act is the Court of Special Judge appointed for areas within which such offences were committed. This Court in CBI, AHD, Patna v. Braj Bhushan Prasad & Ors., 2001(4) R.C.R.(Criminal) 482 : (2001) 9 SCC 432  has laid down thusFor that purpose it is useful to look at Section 3(1) of the PC Act. It empowers the Government to appoint a Special Judge to try two categories of offences. The first is, "any offence punishable under this Act" and the second is, "any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified" in the first category. So when a court has jurisdiction to try the offence punishable under the PC Act on the basis of the place where such offence was committed, the allied offences such as conspiracy, attempt or abetment to commit that offence are only to be linked with the main offence. When the main offence is committed and is required to be tried, it is rather inconceivable that jurisdiction of the court will be determined on the basis of where the conspiracy or attempt or abetment of such main offence was committed. It is only when the main offence was not committed, but only the conspiracy to commit that offence or the attempt or the abetment of it alone was committed, then the question would arise whether the Court of the Special Judge within whose area such conspiracy etc. was committed could try the case. For our purpose it is unnecessary to consider that aspect because the charges proceed on the assumption that the main offence was committed."(EmphasisThis Court in Braj Bhushan Prasad (supra) has laid down that so far as offences under section 13(1)(c) and 13(1)(d) are concerned, the place where the offences were committed could easily be identified as the place where the treasury concerned was situate and laid down thusThus, when it is certain where exactly the offence under Section 13 of the PC Act was committed it is an unnecessary exercise to ponder over the other areas wherein certain allied activities, such as conspiracy or preparation, or even the prefatory or incidental acts were done, including the consequences that ensued." (Emphasis Supplied)"42. Thus, if the PC Act has stipulated any place for trial of the offence under that Act the provisions of the Code would stand displaced to that extent in regard to the place of trial. We have, therefore, no doubt that when the offence is under Section 13(1) ( c ) or Section 13(1)( d ) of the PC Act the sole determinative factor regarding the court having jurisdiction is the place where the offence was committed." (EmphasisWith respect to adoption of evidence in various cases as evidence with respect to conspiracy was to be common, this Court has observed in Braj Bhushan Prasad (supra) thusTo avoid the confusion and repetition of the exercise, we make it clear that the evidence already recorded in any of the 36 cases will be treated as evidence recorded by the proper court having jurisdiction. In other words, the Special Judge need not call the witnesses already examined over again for repetition of what has already come onCourt has clearly observed that the place of trial has to be on the basis of commission of offence where the defalcation has been made and not on the basis of place of conspiracy. Submission to the contrary had been negatived.5. Subsequently, prayer was made for amalgamation of six cases which were pending before Special Courts in the State of Jharkhand. Matter was considered by this Court with respect to joint trial of cases including RC Nos.20A/96 and 64A/96 which were pending before the Special Judge at Patna. This Court considered the matter in Lalu Prasad alias Lalu Prasad Yadav v. State through CBI (A.H.D.), Ranchi, Jharkhand, 2003(4) R.C.R.(Criminal) 160 : (2003) 11 SCC 786. It was urged on behalf of Lalu Prasad Yadav, Dr. Jagannath Mishra and others that it was a case of only a single conspiracy and therefore there should be amalgamation of trials as per the provisions contained in section 223 Cr.PC. This Court opined that charges were not framed at that stage. It is for trial court to decide the prayer for joint trial. There were large number of accused persons. It was also observed that main offence was under the PC Act and conspiracy was an allied offence. This Court laid down thus....Thus it has already been held, by aBench of this Court, that the main offences were under the Prevention of Corruption Act. It has been held that the offence of conspiracy is an allied offence to the main offence under the Prevention of Corruption Act. The cases are before the Special Judges because the main offences are under the Prevention of Corruption Act. The main offence under the Prevention of Corruption Act in each case is in respect of the alleged transaction in that case. As conspiracy is only an allied offence, it cannot be said that the alleged overt acts are in the course of the same transaction. We are bound by this decision. In any case we see no reason to take a different view. As it has already been held that the charge of conspiracy is only an allied charge and that the main charges (under the Prevention of Corruption Act) are in respect of separate and distinct acts i.e. monies siphoned out of different treasuries at different times, we fail to see as to how these cases could be amalgamated.""14. Before we part it must be mentioned that it had been complained that the appellants would be forced to hear the same evidence 5/6 times. If the appellants or any of them feel aggrieved by this and if they so desire, they may apply to the Special Judges that evidence recorded in one case and documents marked as an exhibit in one case be used as evidence in other cases also. This would obviate their having to hear the same evidence in 5/6 different cases. We are sure that if such an application is made, the same will be considered by the Special Judge on its merit, after hearing all the other accused". (EmphasisCourt had noted the grievance that accused persons would be forced to hear the same evidencetimes, but ordered that they may apply to the Special Judges that evidence recorded in one case and the document marked as an exhibit in one case be used as evidence in other cases also.6. Lalu Prasad Yadav was prosecuted and convicted in RC No.20(A)/96 with respect to aforesaid period 1.4.1994 to 31.1.1995 relating to Chaibasa treasury. The charges had been framed for commission of offence of criminal conspiracy punishable under section 120B read with sections 409, 420, 467, 468, 471, 477, 477A of the Indian Penal Code, 1860 (for short, `the IPC) and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short `the PC Act) where defalcation/general conspiracy was alleged between 1988 and 1996 included various treasuries of erstwhile State of Bihar. However, in RC No.20(A)/96 with respect to Chaibasa treasury, the specific charge was with respect to the period 1.4.1994 to 31.1.1995 for facilitating dishonest and fraudulent withdrawal of Government funds to the tune of Rs.The case RC No.64(A)/96 which is quashed relates to Deoghar whereas the amount misappropriated is Rs. 85 lakhs as against actual allotment of funds for district of Rs. 4,73,400/with the help of 250 vouchers and 17 fake allotment letters. Misappropriation is alleged for the period 1991 to 1994. There are 38 accused persons and one of them is Lalu Prasad Yadav.7. In the case against Dr. Jagannath Mishra he has been convicted in RC No.20(A)/96 with respect to Chaibasa treasury in respect of misappropriation of Rs. 37.70 crores for the periodwhereas the prosecution has been quashed with respect to RC No.38(A)/96 relating to misappropriation of Rs. 3.76 crores from Dumka treasury as against actual allotment of Rs. 1.5 lakhs with the help of 96 fake vouchers in the financial yearSajal Chakraborty had been convicted by Trial Court in RC No.51(A)/96 relating to Chaibasa treasury regarding Rs. 39.92 crores misappropriation against actual allotment of Rs. 4,09,750/with the help of 580 vouchers, 4789 fake supply orders for the financial yearon 14.7.2008 but acquitted by the High Court in appeal. The prosecution has been quashed vis a vis Sajal Chakraborty in RC No.20(A)/96 relating to Chaibasa Treasury and RC No.68(A)/96 relating to Chaibasa Treasury for misappropriation of Rs. 37.62 crores during the financial year

Reasoning: 23. It is apparent from section 212 read with section 219 that there have to be separate trials for different years covering the period of more than one year. Same kind of offence is a different thing than the "same offence" for the purpose of sections 219, 220 or 300. The scheme of law is clear that separate charges for distinct offences must be framed separately and they cannot be clubbed together for more than onethe instant case it cannot be said that defalcation is same transaction as the transactions are in different treasuries for different years, different amounts, different allotment letters, supply orders and suppliers. Thus the provision of section 221 is not attracted in the instant case. There are different sets of accused persons in different cases with respect to defalcation.In the instant case, offences are not the same offence. There can be different trials for the same offence if tried under two different enactments altogether and comprised of two different offences under different Acts/statutes without violation of the provisions of Article 20(2) or Section 300 Cr.PC.We are unable to accept the submissions raised by learned senior counsel. Though there was one general charge of conspiracy, which was allied in nature, the charge was qualified with the substantive charge of defalcation of a particular sum from a particular treasury in particular time period. The charge has to be taken in substance for the purpose of defalcation from a particular treasury in a particular financial year exceeding the allocation made for the purpose of animal husbandry on the basis of fake vouchers, fake supply orders etc. The sanctions made in Budget were separate for each and every year. This Court has already dealt with this matter when the prayers for amalgamation and joint trial had been made and in view of the position of law and various provisions discussed above, we are of the opinion that separate trials which are being made are in accordance with provisions of law otherwise it would have prejudiced the accused persons considering the different defalcations from different treasuries at different times with different documents. Whatever could be combined has already been done. Each defalcation would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of the Constitution or Section 300 Cr.P.C. Separate trials in such cases is the very intendment of law. There is no room to raise such a grievance. Though evidence of general conspiracy has been adduced in cases which have been concluded, it may be common to all the cases but at the same time offences are different at different places, by different accused persons. As and when a separate offence is committed, it becomes punishable and the substantive charge which has to be taken is that of the offence under the P.C. Act etc. There was conspiracy hatched which was continuing one and has resulted into various offences. It was joined from time to time by different accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in section 212(2), obviously, there have to be separate trials. Thus it cannot be said to be a case of double jeopardy at all. It cannot be said that for the same offence the accused persons are being triedis apparent from the aforesaid decision that this Court did not consider various provisions and question of double jeopardy did not arise for consideration. It was held in the facts that there was no prejudice to the accused persons. There was no misjoinder of the charges. On facts the case has no application and cannot be said to be an authority on Article 20 of the Constitution and section 300is apparent that the case is quite distinguishable. In the instant case different accused persons exist with the help of whom amount has been withdrawn in different years. It is not a case that only a few persons had benefited each and every year, when the facts are juxtaposed. Thus, it would be a case of different offences. The decision has no application and this Court was not concerned with the provisions of Article 20 or section 300 Cr.PC and other provisions relating to separate trial contained in the Cr.P.C.The modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be separate trials. There may be a situation where in furtherance of general conspiracy, offences take place in various parts of India and several persons are killed at different times. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scotfree and commit number of offences which is not the intendment of law. The concept is of `same offence under Article 20(2) and section 300 Cr.PC. In case distinct offences are being committed there has to be independent trial for each of such offence based on such conspiracy and in the case of misappropriation as statutorily mandated, there should not be joinder of charges in one trial for more than one year except as provided in section 219. One general conspiracy from 1988 to 1996 has led to various offences as such there have to be different trials for each of such offence based upon conspiracy in which different persons have participated at different times at different places for completion of the offence. Whatever could be combined has already been done. Thus we find no merit in the submissions made by learned senior counsel appearing on behalf of accusedof issue of estoppel is based on presupposition that there is no likelihood of facts or conditions changing in different years. What would be the facts and conditions cannot be said before trial. Duty was to be performed at different times. Thus, the decision is of no utility. The decision does not support the cause espoused.Thus, it is apparent that it is premature to raise the plea of issue of estoppel before evidence is recorded for different sets of accusations of different offences for different periods. Then it is difficult to say that prosecution would be bound by the finding in a previous trial on a similar issue of fact and there may not be any contradiction if the periods are different and with respect to culpability for different periods and without fear of contradiction, separate findings can be recorded. In what manner the duty has been carried on for different periods would be the question of fact in each case and there is no question of double jeopardy in such a case.50. We are constrained to observe that the same learned Judge had taken a different view in Dr. R.K. Ranas case on the basis of same facts, and same question of law in the same cases. Judicial discipline requires that such a blatant contradiction in such an important matter should have been avoided. The order passed in the case of Dr. R.K. Rana was on sound basis and though the court had noted that there was some overlapping of facts but the offences were different, it, however, has taken a different view in the impugned order for the reasons which are not understandable. The court ought to have been careful while dealing with such matters and consistency is the hallmark of the court due to which people have faith in the system and it is not open to the court to take a different view in the same matter with reference to different accused persons in the same facts and same case. Such inconsistentought to have been avoided at all costs so as to ensure credibility of the system. The impugned orders are palpably illegal, faulty and contrary to the basic principles of law and Judge has ignored large number of binding decisions of this Court while giving impermissible benefit to the accused persons and delayed the case for several years. Interference had been made at the advanced stage of the case which was wholly unwarranted and uncalled for. Let now amends be made by expediting the trial without any further hindrance from any quarter.51.Coming to the question of delay, we find that there is a delay of 113, 157 and 222 days in filing the respective appeals by the CBI. Applications have been filed for condonation of delay on account of the departmental, administrative procedures involved in for filing the special leave petition.In view of the averments made in the applications we are satisfied that delay has been sufficiently explained and considering the facts and circumstances of the case, gravamen of matter and also the divergent views taken by the same Judge of the High Court in the same case vis a vis different accused persons on same question, we consider it our duty not to throw away petition on the ground of delay. The explanation offered by the CBI of movement of file so as to condone the delay so as to subserve the ends of justice, deserves to be accepted. No doubt about it that the CBI ought to have acted with more circumspection and ought to have followed the CBI Manual. It is regrettable that we are receiving majority of the special leave petitions filed in this Court barred by limitation not only on behalf of the Government but also by the other private litigants. Not only that the special leave petitions are preferred with the delay but in refiling also enormous time is consumed and this Court in order to advance substantial justice is not throwing away cases only on limitation.56. Sufficiency of cause has to be judged in a pragmatic manner so as to advance cause of justice. No doubt about it that litigants are supposed to act with circumspection within limitation and that there should not be delay and laches and State machinery should not be differentiated vis a vis with the private individual in the matter of filing the appeals, petitions etc., however, in the facts and circumstances of the case and considering the averments in the applications, we deem it appropriate to condone the delay in filing the appeals in this court.57. In this case, we are surprised at the conduct of the CBI in such important matters how such delay could take place. The CBI ought to have been careful in filing the Special Leave Petitions within limitation considering the factual matrix of the case. The criticism made by the senior counsel for respondent is not wholly unjustified. CBI ought to be guided by its Manual. It is expected of it to be more vigilant. It has failed to live up to its reputation. In the instant case, lethargy on its part is intolerable. If CBI fails to act timely, peoples faith will be shaken in its effectiveness. Let the Director of CBI look into the matter and saddle the responsibility on a concerned person. In important cases Director, CBI should devise methodology which should not be cumbersome as reflected in these cases, otherwise in future, Director, CBI cannot escape the responsibility for delay in such cases to be termed as deliberate one, which is intolerable. Being the head of the institution it was the responsibility of the Director, CBI to ensure that appeals were filed within limitation. There should not have been delay in filing special leave petitions at all.