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2018 DIGILAW 482 (JHR)

Lalu Prasad v. State Of Jharkhand

2018-02-23

APARESH KUMAR SINGH

body2018
JUDGMENT 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 by the Appellant through I.A. No. 528 of 2018. 2. The Appellant has been convicted in R.C. Case No. 64(A)/1996 Pat by the learned Court of Additional Judicial Commissioner-I cum Special Judge- VII, CBI(AHD Scam) for the offences under Section 120B read with Section 420,467,468,471,477(A) of the I.P.C and sentenced to undergo imprisonment of 3 1 /2 year and a fine of Rs. 5 Lakhs and in default thereof to undergo imprisonment for / (half) year separately. He has further been convicted for the offence under Section 13(2) read with Section 13(i)(c)(d) of the Prevention of Corruption Act and sentenced to undergo imprisonment of 3/ year and a fine of Rs. 5 Lakhs and in default thereof to undergo imprisonment for / (half) year separately. 3. Learned Senior Counsel for the Appellant has made the following submission in support of the prayer:- There are no evidence on record to substantiate the charge of conspiracy under which the Appellant has been convicted for these offences. He has referred to the case set up by the prosecution as is taken note of in para 20, 21, 22,23 and 24 of the impugned judgment. The discussion made therein in are in respect of the material collected during investigation while filing charge sheet but no material evidence has come on record to substantiate the involvement of the Appellant in the conspiracy of committing these crimes as Chief Minister of the State during that period. As a matter of fact on a memorandum submitted on 14.01.1993 by the Union of Nongazetted employees of the Animal Husbandry Department and on a complaint bearing letter no. 52 of 1992 dated 02.06.1994 relating to alleged fraudulent withdrawal of Rs. 50 Lakhs, it was the petitioner in the capacity of Chief Minister, who had directed two Officers Sri Bachchu Prasad and Sri S.B.Choudhary to conduct inquiry at Deoghar. Both the Officers rushed to Deoghar on 19.06.1994 and conducted inquiry on 20.06.1994. However the report of the inquiry was not submitted to the office of the Chief Minister. The Statement of P.W.160, Dr. Shiv Balak Choubey has supported the aforesaid contention. Further the allegation made by the prosecution that the Appellant stopped the vigilance inquiry is also incorrect. Both the Officers rushed to Deoghar on 19.06.1994 and conducted inquiry on 20.06.1994. However the report of the inquiry was not submitted to the office of the Chief Minister. The Statement of P.W.160, Dr. Shiv Balak Choubey has supported the aforesaid contention. Further the allegation made by the prosecution that the Appellant stopped the vigilance inquiry is also incorrect. Statement of P.W.146, then then Director General, Vigilannce Mr. D.N.Sahay has been relied upon in support of the aforesaid statement. 4. Learned counsel for the Appellant has further stated that from perusal of the chart furnished at para 26 of the impugned judgment on the report of the Comptroller and Auditor General of India, it would be clear that for the relevant years of withdrawal i.e. 1991-92 to 1993-94, the files were seen by the Chief Minister i.e. the Appellant only in the year 1995 and 1996 i.e. 04.06.1995, 10.06.1995 and 26.11.1996. It therefore could not be alleged that the Appellant was in complete knowledge of the alleged scam going on in the Department under the Deoghar Treasury. Further reliance has been placed on para 136 of the impugned judgment in support of the same contention that Accountant General, Bihar never gave any report about the fraudulent withdrawal under 2403 head till the financial year 1995-96. The Appellant cannot be attributed of any knowledge or role in the conspiracy for which he has been convicted. 5. Learned counsel for the Appellant has also referred to the statement of Finance Commissioner, B.S. Dubey while deposing in another AHD case being R.C. No. 47A/1996 and R.C. No. 20A/1996 in support of the submission that file relating to these AHD scam was seen by the Appellant only in the year 1996. It is further submitted that, in fact there is no evidence on record on the basis of which the conviction recorded against the Appellant by the learned C.B.I Court can be sustained. The Appellant is 70 years old and is suffering from several health issues. He has undergone Aortic Valve Replacement (A.V.R.) with 21 mm Magna Ease Aortic Tissue Valve and ascending aortoplasty with closure of patent foremen ovale at Asian Heart Institute and Research Centre Pvt. Ltd. in Mumbai. He has been diagnosed with diabetes and has been advised for regular blood test, balanced diet, regular exercise, followed by intake of different types of medicines. He has been diagnosed with diabetes and has been advised for regular blood test, balanced diet, regular exercise, followed by intake of different types of medicines. If he does not receive due care for his ailment, it may be hazardous to him. 6. The Appellant had earlier been convicted in R.C. Case No. 20A/1996 and awarded sentence of 5 years imprisonment under the provisions of Prevention of Corruption Act and also 5 years R.I under Section 120B read with Section 420,409,467,468,471,477A of I.P.C along with fine of Rs. 15 Lakhs and in default thereof further S.I for six months. However, despite the rejection of application of suspension of sentence and bail by this Court earlier, the Hon''ble Supreme Court was pleased to grant him bail by order dated 13.12.2013 (Annexure-IA-1) taking into account that he had served imprisonment for 10 months during trial and after conviction nearly two and half months. Considering the period of sentence awarded by the learned Court and no material evidence on record to substantiate the conviction, Appellant be granted privilege of suspension of sentence as he has remained in custody for 1 year during trial and he is in jail since 23.12.2017 on being convicted. 7. Learned A.S.G.I representing C.B.I has opposed the prayer for suspension of sentence. He submits that the Appellant being the Chief Minister and Finance Minister of the Government of Bihar during the year 1990-1997 was in full knowledge of the Animal Husbandry Department (AHD) scam going on since 1989. There are cogent material evidence on record to show that the accused persons in connivance with the higher ups of the Government including the Appellant had fraudulently caused withdrawal of huge amount through fake allotment letters from Deoghar Treasury during the period in question. The learned Trial Court after appraisal of the evidences on record have at para 158 of the judgment categorically dealt with the larger angle of conspiracy where the systematic loot of government treasury was undertaken by a modus operandi perpetuated by the lower level functionaries at the District level with the supervisory level officers of Regional Directorate engaged in creating conditions so that fictitious allotment orders for fictitious supplies may be made. They also connived with top management of AHD, government and other statutory bodies like PAC and Politicians for protection and patronage so that the nefarious activities could flourish unhindered. They also connived with top management of AHD, government and other statutory bodies like PAC and Politicians for protection and patronage so that the nefarious activities could flourish unhindered. The Appellant presented the Annual Financial Statement and budget for the financial year 1990-91 to 1996-97 before the Assembly but neither in the capacity of Chief Minister nor that of Finance Minister took any action to find out the cause of such alarming excess withdrawal by AHD in connivance with each other though he was fully aware of the actual expenditure of the AHD as the annual financial statement were put to him by the finance department for perusal and taking approval of the council of Ministers. The CAG report for the year 1988-89 to 1994-95 contained details of grant, expenditure and unauthorized excess expenditure in AHD, which was seen by the accused Lalu Prasad in his capacity as Finance Minister and also laid in the house but no steps were taken by him to stop it. 8. The materials on record adduced during the trial clearly point out to a larger conspiracy and the involvement of the present Appellant being the Chief Minister and Finance Minister of the state, which he cannot escape. The medical condition of the Appellant is not so alarming so as to grant him privilege of suspension of sentence. The medical facilities are also available at Ranchi, if the Appellant requires specialized treatment. The Appellant had remained for only 1 year during trial in the instant case and 2 months from the date of his conviction i.e. 23.12.2017. Learned ASGI further submits that on similar set of charges appellant has also been convicted for the same offence in another AHD case being R.C.Case No. 68A/1996 by the learned Court of Additional Judicial Commissioner-VII cum Special Judge-I, CBI (AHD), Ranchi and sentenced to undergo 5 years imprisonment under offences of I.P.C as well as P.C. Act. Therefore the Appellant does not deserve the privilege of suspension of sentence. 9. I have considered the submission of learned Senior Counsel for the Appellant and Learned ASGI representing CBI and also taken note of the relevant material evidence on record placed by them. Appellant has been convicted for a serious charge of conspiracy in respect of fraudulent withdrawal committed during the period he was the Chief Minister and Finance Minister of the State. Appellant has been convicted for a serious charge of conspiracy in respect of fraudulent withdrawal committed during the period he was the Chief Minister and Finance Minister of the State. On the one hand, it has been placed on behalf of the learned counsel for the Appellant that on a complaint made by the Union of Non-gazetted employees of the A.H.D, it was the Appellant in the capacity of Chief Minister who directed inquiry through two officials into fraudulent withdrawal in Deoghar in June 1994 itself, but it is also stated that he had no knowledge of the fraudulent withdrawals as no report was submitted to him. On the other hand it is also borne out from the record i.e. para 26 of the judgment that there was no inquiry relating to fraudulent payment of AHD entrusted to the PAC of the house during 1990-95. However the vigilance inquiry into 6 fake sub allotment letters under File No. BS 23/94 were purportedly stopped on the plea that PAC inquiry was underway and all the relevant documents were in the custody of PAC. The vigilance inquiry did not proceed ahead thereafter. 10. Appellant in his statement made under Section 313 Cr.P.C , 1973denied of any knowledge of AHD scam going on since 1989 and further stated that he made signature on the CAG report of the year 1988-99 to 1994-95 and was sent to PAC for inquiry. In between for all these years from 1990-91 till 1995- 96, the Appellant also holding the post of Finance Minister continued to present the budgets of the State Government including that of the AHD but no fraudulent withdrawal was brought to the notice of the Assembly. The charges against the Appellant that as a Chief Minister of the State, he along with others had conspired to effect these fraudulent withdrawal from the Deoghar Treasury under the A.H.D are very serious in nature and learned Trial Court has recorded the findings of conviction on the basis of available material evidence on record. The charges against the Appellant that as a Chief Minister of the State, he along with others had conspired to effect these fraudulent withdrawal from the Deoghar Treasury under the A.H.D are very serious in nature and learned Trial Court has recorded the findings of conviction on the basis of available material evidence on record. The discussion made and the findings recorded by the learned Trial Court on the role of the accused / Appellant herein at para 157 to 168 of the impugned judgment goes to show the involvement of the appellant as the Chief Minister and Finance Minister of the State in the larger conspiracy of fraudulent withdrawals from the Deoghar Treasury under the Animal Husbandry Department during the period. The Appellant has remained in custody for a period of 1 year during the trial and 2 months since conviction i.e. less than half of the sentence awarded. 11. Considering all these facts, I am not inclined to grant privilege of suspension of sentence to the Appellant and enlarge him on bail. Accordingly, prayer made in I.A. No. 528 of 2018 is rejected.