Justice delayed is Justice Denied

Ref :- Lalu Prasad conspiracy case in Supreme Court

Lalu Prasad is prime accuse in fodder scam in which trial has been completed in 45 out of 52 cases in . out of remaining 7 cases Lalu Prasad is accuse in 5 cases. Till now above 950 persons including 2 former ministers, one ex MLA and ex mp have been convicted with 5 to 10 years and fine of Rs.10 lakhs.

Lalu Prasad is deliberately delaying the completion of trial in the cases against him by various means including approaching superior courts with truffling complains, not making appearance of his witnesses, making his advocates absent time and again. Now when arguments has been completed on behalf of other 44 accused persons and also of himself mr Lalu Prasad is trying that the CBI special judge be removed and prohibited from delivering the judgement for which he has already announced the date in case no. RC 20 A.

When the special CBI court judge announced that he would pronounce judgement on 15 July 2013 Lalu Prasad approached Jharkhand High court to transfer this case from the court of the judge on the plea that the judge is a close relative of Mr. P K Shahi, a cabinet minister in Nitish Kumar Govt., who was defeated by the candidate of his party in the parliament bye election a few months back. Hence the judge will be influenced by Mr. Shahi to defeat him in the court and hence pass judgement against him in this case.

Hon'ble Jharkhand High Court refused to buy this argument and dismissed Lalu's petition. Soon Lalu Prasad moved to Supreme Court in the 2nd week of July 2013. The case was mentioned in the court of Hon'ble sathshivam on July 9 who was by that time not elevated as CJ. The court at very mention stage stayed the pronouncement of the CBI special court judge at that the judgement will be delivered on July 15. Hon'ble court directed to put up the matter on July 23 next.

On July 23, 2013 the court directed that the matter be put up on Aug 6 and in between CBI Would suggest alternative name of the judge who would hear the case no. RC 20 A/1996 in which Lalu Prasad is one of the accused. It means that Supreme Court has already indicated its mind that the concerned case would be transferred to another Court from the court of the present judge who is hearing the case at CBI special court at Ranchi for last two years and cross examination of the witnesses as well as arguments of both sides were completed and a date to deliver the judgement was already announced.

LIKELY IMPACT OF THE SUPREME COURT ORDER

1. The same CBI special judge is hearing one more case no. RC 68/96 Related to fodder scam in which also Lalu Prasad is accused. That case too would get transferred to some other judge putting additional burden on him resulting into delay in judgement of other cases with him.

2. The case no. RC 20 A /96 is the mother of remaining 4 cases against Lalu Prasad in fodder scam. It may be noted that Lalu Prasad earlier moved to Supreme Court to get all the cases against him in the fodder scam as one case because the charges and witnesses in all the cases are of same nature and unnecessarily mostly common witnesses will have to be appear 5 times before the court during each process of the hearing such as at the time of giving witness, at the time of cross examination etc. Thus unnecessarily time of the court as well as expenditure from state exchequer would be spoiled. The apex court did not subscribe his arguments but passed order that details and facts given by someone orally or in writing as well as the documents certified in any one caseduring trial process may/ will be used in all cases. Hence the transfer of one case from a court of a judge will have impact on the remaining 4 cases as far as Lalu Prasad as an accused is concerned.

3. There are other 44 accused in RC-20/96 . None of them has any grudge with the judge. Now if the case is transferred from him argument will again begin and those accused will have to bear additional expenditure for the argument for which they have already spend in the form of fee and other expenses.

4. In case the case is transferred to another court The fresh argument process will take more than a year time and the process in between may be deliberately prolonged on one pretext or other leading the trial to unending delay. It is worth mentioning that in this case Lalu Prasad has already moved four times to the Jharkhand high court raising unwarranted flimsy points. His advocates too tried their best to delay the case at various stages on one pretext or other.

5.The case transfer from the judge will defeat the core objects of recent high court and Supreme Court judgments which are aimed at cleansing the legislatures and the parliament from tainted persons and criminals. The charge sheet filed by CBI in this case provides enough evidences which clearly indicate that scam would not have taken place had Lalu Prasad not conspired and actively collaborated with the scamsters.

Charges against Lalu in this case will be sent separately?

6. This is the case based on the very first charge sheet filed by CBI in 1997. Trial in Several other cases have been completed and almost all accused barring a few have been convicted with more than 5 yrs imprisonment and a fine upto Rs.10 lakhs. The convicts includes a number of MLAs, MPs and Ministers in Lalu's cabinet with very very less charges compared to the gravity, seriousness and number of charges against Lalu in this case.

7. Lalu Ji knows it well that no judge will spare him from punishment and he will not get less that 5 year imprisonment. This will keep him of the electoral politics for a long time. Hence is using variously types of diatribes so that trial of any of his cases does not complete in near future.

8. Cases against Lalu Prasad in fodder shame are - 1. RC - 20 /96 regarding excess withdrawal from chaibasa treasury. 2. RC - 38 / 96 regarding excess withdrawal from Dumka treasury . 3. RC - 47 / 96 regarding excess withdraw from Doranda treasury, Ranchi 4. RC - 63 / 96 regarding excess withdrawal from Deoghar treasury. 5. RC - 68 / 96 regarding excess withdrawal from Chaibasa treasury.

9. If the Supreme Court decides to transferred the case to some other case it will be used as precedence and open a pandora box for such requests in future in High Courts and subordinate courts all over the country and will also open a floodgate for interference in trial by superior courts in future.

10. The high court opined at the concluding part of its judgment directing the CBI enquiry in fodder scam on 11.3.1996 that " they (directions) are intended merely to serve the public interest and keep the people's faith in the system intact . For, if that faith is shaken, the whole edifice will fall. The values of public life are fast declining. I do not expect that this judgement and CBI investigation will improve the system. But if we are only able to maintain it, by our effort, we will feel gratified." These remarks are still relevant.

11.The Supreme Court dismissed the appeal against the order filed by the govt. on 19.03.1996 and lastly conclude that " we are also of the opinion that, to alleviate the apprehension of the state ( read lalu prasad as the then shall, apart from the CM ) about the control of investigation by the CBI, it should be under over all control and supervision of the Chief Justice of Patna High Court . The CBI officers entrusted with the investigation shall, apart from the criminal courts concerned, inform the Chief Justice of the Patna High Court from time to time of the progress made in the investigation and may, if they need any direction in the matter of conducting the investigation, obtain them from him.

The apex court in its judgement further directed that " That the learned chief justice of Patna high court may either post the matter for direction s before a bench presided over by him or constitutebany other appropriate bench. After investigation is over and reports are finalised, as indicated by the division bench of the High court in the impugned judgement , expeditious follow up action shall be taken. The high court and the state govt. shall co-operate in assigning adequate number of special judges to deal with the cases expeditiously so that no evidence may be lost.

12. Will not any interference from any level in this case such as to prohibit the CBI special court from delivering the judgement after prolonged hearing of the case will go against the spirit and objectives of the judgements 17 years ago ? The investigation of this case was under constant monitoring of a division bench of Patna high court and charge sheets were finalised under its guidance and the judges of the special courts were too appointed by the high court after due feed backs from competent central and state agencies. Then what is the need of casting aspersions over the intention and integrity of the special court judge after the stage of delivering of the judgement after a prolonged hearing of the case.

13. In Jharkhand, now a Govt based on the support of Lalu's party has Ben installed. He is certain to misuse the power in his favour to pressurise the subordinate judicial machinery to delay the completion of power as he once did in case of judges Yogendra Prasad and Muni Lal Paswan to save him from conviction for maximum period. The apex court must keep it in mind with a view to provide remedial measures at this point of time.

Some points worth consideration in this regard -

1. Supreme Court is the apex court and there is no court above it where appeal may be made if the court makes error in judgements. Where as the judgement of the CBI special court is always be a subject of scrutiny by high court and Supreme Court if an accused person is not satisfied with it or feels that the judgement has any bias or the judge has erred or the judgement is bad in law.

2. Present CBI director was DIG, CBI posted at Patna in those days. In course of investigation from investigating officer to the director, CBI were of the opinion that evidences collected in this case are enough to support a charge sheet and it was a fit case to lodge charge sheet against Lalu Prasad . The only dissenting opinion was that of the then DIG on the file who is the CBI director now. Will it be fair to ask from him the name of a suitable judge to whom the case may be assigned .

3. Position of the CBI in this case has always been doubtful . In the DA case in the fodder scam against Lalu Prasad was being heard in CBI special court at Patna by one Mr. Yogendra Prasad, a judge of impeccable integrity. He was moving fast. Lalu Prasad felt that the judge is immune to extraneous influences and will deliver fair judgement. In a haste departmental promotion committee was held and the judge was promoted. It could become possible as Mrs. Rabri Devi was CM of Bihar those days.

In the place of Mr. Yogendra Prasad one Mr. Munni Lal paswan, whose integrity was very low and whose previous acts has invited serious adverse stricture from the High Court, was posted as CBI special judge. Mr. Paswan went out of way and passed an order in favour of Lalu Prasad demolishing the stand of CBI charge sitting him. Ironically the CBI decided not to appeal against the judgement and till now no appeal is made. Bihar Govt. came forward to appeal against this judgement . Mr Lalu Prasad challenged the locus of the state Govt. to make appeal before the high court . The high court dismissed his petition. Lalu went to Supreme Court against it and the then Chief Justice mr. K G Balakrishnan decided the case in favour of Lalu Prasad and passed order one day before his retirement.

Now the history seems to be repeating in this case as well. The supreme court seems to look more than enthusiastic and favourably inclined to entertain the case after which was logicallydismissed by the jharkhand high court.

4. The CBI and Lalu Prasad are two opposite parties in the Supreme Court . CBI as a prosecutor and Lalu Prasad as an accused. What will happen to the justice if both are speaking in same voice in this case before the court. It may not be merely a coincident that CBI as a prosecutor did not file counter affidavit before Supreme Court in this case opposing the points raised by Lalu Prasad to defend the order of the high court and/or integrity of the special judge of the CBI court at Ranchi. who will do it before the Supreme Court ?

5. After all carrier of the special court judge is at stake. Question is that why he did not disclose earlier that he is closely related to JDU leader Mr. P K Shahi and refused to take up the cas? Doubt is cast on the intention of the judge by an accused against whom CBI has filed a charge sheet to prove as king pin of the scam but now the investigating agency is hobnobbing with the person instead of trying hard to prove him guilty.

6. In what way the judge is related to Mr. P K Shahi? The sister of the judge is married by some one in the third generation of the step grand father of Mr. P K Shahi who is no more . A family photograph taken during some social function in which the judge and Mr. P K Shahi along with others is present is shown as witness to prove the point. In this way any person of consequence may be treated as a close relation with some one in his caste . There is also a long history of feud in the family regarding sharing of ancestral properties and relation in respective branches of the family is not cordial but tense.

Why not CBI is placing this fact before the Supreme Court to convince that so called relation between the judge and P K Shahi is not at all very close to influence the judgement instead of taking innocuous orders obediently.

7. The appeal of Lalu Prasad in supreme court was entertained at the stage of mention only and Jharkhand high court order was stayed by the apex court forthwith without providing opportunity to prosecution to be heard. In the very next hearing the Court indicated its mind to transfer the case from the special judge court at Ranchi and asked CBI to suggest the name of another judge to hear the case.

Question arises as to in what way the CBI will suggest the name of any other judge in the capacity of the prosecutor otherwise the court would itself decide the name. Will it not harm the interest of the accused and why the accused is not opposing this move? Does CBI has a dossier of the judges or the apex court has any way to find out the suitability of a judge from Jharkhand to do justice in this case. The best course would have been to involve the Jharkhand high court which acquires administrative as well as supervisory control over the subordinate judiciary in the state and so there is no need to interfere with the judgement of the high court in this case at apex level.

8. One point is raised against the judge that why he was in hurry to announce the date of judgement when argument on behalf of Lalu Prasad was not fully concluded. It is worth mentioning here that soon before the monitoring bench of the Jharkhand high court which includes the Chief Justice as well shown anxiety as to why the trial is consuming too much time causing enormous delay and asked the courts to speed up the process of trial. The concerned judge directed all the accused to place their written argument before the court by Aug 2 so that he could deliver judgement on July 15 because verbal arguments from accused as well as prosecution side is complete by now. Did the judge deserve punishment for carrying out the observations of the monitoring bench of the Jharkhand high court which was in consonance with the judgements of the Patna high court and the apex court on 11th and 19th march, 1996 respectively.

The motive is being imputed on the special court judge for the his act which otherwise deserve kudos. The fodder scam case is in fact a litigation between CBI and Lalu Prasad . It is in fact a struggle between the suffering people's interest and the monstrous vested interests taking the entire system to a ride. In what way the idea of the justice may get the proper justification in this case is a big question. Will the judicial system remain blind to the harsh realities. It must be kept in mind by one and all that justice delayed is justice denied. In this case an enormous delay of not less than 17 years has already occurred.

Sd/- Saryu Roy