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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 668 of 2018 ---- Lalu Prasad @ Lalu Prasad Yadav ------Appellant Versus The State of Jharkhand through CBI (AHD) ------Respondent --- CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH --- For the Appellant: M/s Kapil Sibbal, Chittaranjan Sinha, Sr. Advocates Prabhat Kumar, Adit S. Pujari, Debarsis Mandal, Advocates For the Respondent: M/s. Rajiv Sinha, A.S.G.I, Rajiv Nandan Prasad, Niraj Kumar, Advocates --- Reserved on: 04.01.2019 Pronounced on: 10/01/2019 --- 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 through I.A. No. 11049/2018 2. Appellant stands convicted in connection with R.C. Case No. 38(A)/1996-Pat vide impugned judgment dated 19.03.2018 and order of sentence dated 24.03.2018 passed by learned Additional Judicial Commissioner-I-cum Special Judge-VII, CBI (AHD Scam), Ranchi whereby he has been convicted and sentenced to undergo R.I. for seven years for the offences under Sections 120B r/w sections 420, 467, 468, 471 and 477A of the Indian Penal Code and a fine of Rs. 30,00,000/- and in default in payment thereof, S.I. for one year separately. He has been further convicted and sentenced to undergo R.I. for seven years for the offences under Sections 13(2) r/w Section 13(i) (c) (d) of Prevention of Corruption Act and a fine of Rs. 30,00,000/- and in default in payment thereof, S.I. for one year separately. Both the sentences have been ordered to run consecutively and not concurrently. 3. Learned Senior counsel for the appellant submits that conviction has been recorded against the appellant on the charge of criminal conspiracy under section 120-B of Indian Penal Code and for the offences under the Prevention of Corruption Act. He has not been convicted independently for the substantive offence under other provisions of Indian Penal Code. The Hon’ble Supreme Court has observed in the case of the same appellant i.e. Laloo Prasad @ Laloo Prasad Yadav Versus State of Jharkhand and analogous case [(2002) 9 SCC 372] earlier that the conspiracy alleged in respect of all these cases are the same. The evidence in the nature of deposition of witnesses and documents exhibited in R.C. Case No. 20(A)/996 have been adopted verbatim and exhibited in the instant case also. However, on his conviction in R.C. Case 2

No. 20(A)/996, the Apex Court had been pleased to grant him the privilege of suspension of sentence on having served about 12 and ½ months of custody out of the sentence of five years imposed upon him. For the conviction recorded in the instant case on the same set of evidence, the appellant should be enlarged on bail as he has remained in custody approximately 19 months and odd days by now. The fact that this court has been pleased to admit this appeal, in itself, is indicative of a prima facie case made out by the appellant in his favour. Charges of criminal conspiracy have not been established either by any direct evidence or circumstantial evidence, since on the same charge of criminal conspiracy, other public servants including Jagannath Mishra, the then Leader of Opposition, Jagdish Sharma, the then Chairman, Public Accounts Committee, Dhruv Bhagat, Chairman, PAC, Mahesh Prasad, Secretary, Animal Husbandry Department, Vidya Sagar Nishad, Minister, AHD and R.K. Rana have been acquitted by the learned court. Peculiarly, the appellant who was the Chief Minister, stands convicted for the conspiracy, though other public servants who formed part of the link of conspiracy in the CBI charge sheet, have been acquitted. There is no evidence placed on record to indicate that such public servants who stand convicted being the Secretary or officials of the Department, ever reported to the appellant. 4. Relying upon the opinion rendered by the Apex Court in the case of State (NCT of Delhi) Versus Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600, para-97 thereof], it has been submitted that the conspiracy is seldom an open affair and mostly are proved by circumstantial evidence. The rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Court should not allow suspicion to take the place of legal proof. Learned Trial Court has convicted the appellant relying upon inter-alia, (a) statement of approvers which is self exculpatory in nature; (b) alleged proximity of the appellant with the ‘kingpins’; and (c) the alleged failure on the part of the appellant to initiate investigation into the scam in order to shield the scam accused. However, cross-examination of the prosecution witnesses during trial has shown how allegations were false, misconceived and unsubstantiated from the record. It has been submitted that the statement of approvers which are self exculpatory, could not be relied upon as substantive evidence. The court 3 cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of such evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. He has placed reliance upon the opinion of the Apex Court contained in para-11 & 12 of the report in the case of Haricharan Kurmi and Jogia Hajam Versus State of Bihar [AIR 1964 SC 1184]. In this light, findings of conviction recorded on the statement of approvers like Dipesh Chandak and R.K. Das by the learned Trial Court, are flawed. CBI failed to adduce evidence of independent witnesses which the learned Trial Court ought to have tested aliunde before recording conviction on the statement of approvers. 5. Learned Senior Counsel has referred to the statement of the prosecution witnesses R.K. Das and Ravi Shankar Kumar Sinha to dispel the perception gathered by the learned Trial Court about the alleged proximity of the appellant with Dr. Ramraj Ram and Dr. S.B. Sinha, ‘Kingpins’ of the scam. He submits that Dr. Ramraj Ram was appointed as Director, Animal Husbandry Department by the then Chief Minister Satyendra Narayan Singh on 31.07.1989. He continued on the post by virtue of the order of status quo passed on 08.03.1991 by the Hon’ble Supreme Court in S.L.P.(C) Nos. 2271/91 and 2306/91. The said SLP was dismissed in 1996. Evidently, appellant could not be attributed any role in respect of the post hold by Dr. Ramraj Ram. He submits that the statement of these witnesses themselves shows that Dr. S.B. Sinha, the alleged ‘Kingpin’ in the Animal Husbandry Department who was going to superannuate on 31.12.1993, was recommended for extension of service for two years by the Director, AHD, the State Minister and also the co- accused Jagannath Mishra, but the appellant had granted extension of service for only one year. It was also approved by Council of Ministers on 19.03.1995 and Cabinet on 13.06.1995.The Finance Department appears to have objected to the extension on 13.01.1994 which was overruled on 21.12.1994 by the appellant. It had come in the evidence that several persons were granted extension of their services, as per the prevalent practice in Bihar under the relevant provisions i.e. Rule 73 and 75 of the Service Code. The Vigilance Department (AHD) had given clean chit to Dr. S.B. Sinha and there was no adverse report pending against him at the time extension was granted. The learned Trial Court however proceeded on a misplaced assumption in treating the appellant as close to these persons. 4

Learned Senior Counsel has refuted the findings of the learned Trial Court that the appellant failed to initiate investigation into the scam in order to shield the scam accused. He submits that it was under the orders of the appellants that 41 FIRs were registered D.D.O wise. The CBI took over the investigation into the alleged scam and filed charge sheet. Appellant had ordered registration of FIRs on 31.01.1996 upon being apprised of the fraudulent withdrawals at Dumka Treasury in the months of November and December 1995. There was no information available with the Finance Department about the fraudulent withdrawals prior to 1995, even as per the statement of the prosecution witnesses such as Phuleshwar Paswan and V.S. Dubey. 6. It is submitted that the appellant has not been charged under any substantive offence under IPC but has been charged and convicted with criminal conspiracy read with allied sections of IPC. However, in respect of the offences under the P.C. Act, the appellant was acquitted in the disproportionate assets case which evidently took away the basis of the allegation under the P.C. Act. There is no evidence of meeting of minds of the appellant with the other co-accused – either direct or circumstantial. As such, conviction of the appellant in the instant case is erroneous, more so when other public servants who formed part of the link of this conspiracy in the CBI charge sheet, stood acquitted on the basis of the same evidence. 7. It is further submitted that the medical condition of the appellant is extremely poor as per the medical reports prepared by the doctors at RIMS, enclosed to the reply to the I.A. filed by the CBI in Cr. Appeal (SJ) No. 138/2018 which is also on board today. A mere perusal of the report at Annexure-A to the reply dated 28.12.2018, would show that the appellant has been suffering from several illness such as Diabetes Mellitus requiring heavy dose of insulin; Hypertension with postural hypotension; Supraventricular arrhythmia with persistent atrial ectopics (8 / min); Valvular Heart Disease, post aortic valve replacement; renal calculi, primary depression, B-Thalassemia minor trait; Large Prostatomegaly (weighing – 89g); Hyperuricemia; Somaotosensory Neuropathy; Autonomic Neuropathy. He has been on severe medication. He is being administered 17 drugs, as per the report. Besides that, appellant being the Founder of Rashtriya Janata Dal, a leading political party in the State of Bihar and Jharkhand, his presence is essential for the party in view of impending dissolution of the present Lok Sabha scheduled for June 2019. His presence is required for discharge of 5 various responsibilities attached to the office of the President of such a large political party in the General Elections likely to be held in few months. Relying upon the observations made by the Apex Court in the case of Kashmira Singh Versus The State of Punjab [(1977) 4 SCC 291] followed in the case of Angana and another Versus State of Rajasthan [(2009) 3 SCC 767], he submits that application for suspension of sentence may be considered favourably since there is no possibility of the appeal being heard. Appellant has demonstrably a good prima facie case and there is all likelihood of success in the appeal. Since there is no possibility of hearing the appeal in near future, appellant deserves to be granted privilege of suspension of sentence. He submits that there is no inflexible rule as to the period of custody undergone, so far as the exercise of discretion of the court is concerned for grant of suspension of sentence. Such discretion ought to be exercised on case to case basis having regard to all relevant facts and circumstances of the case. Reference is made to the observations in the case of Surinder Singh alias Shingara Singh Versus State of Punjab [(2005) 7 SCC 387]. Learned Senior Counsel for the appellant has questioned the order of sentence for seven years under both the offences of Indian Penal Code and Prevention of Corruption Act which have been ordered to run consecutively. He has placed reliance on the opinion of the Apex Court in the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Versus Assistant Collector of Customs (Prevention), Ahmedabad & another [(1988) 4 SCC 183] and also in the case of Nagaraja Rao Versus Central Bureau of Investigation [(2015) 4 SCC 302]. He submits that the basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. The learned Trial Court had no basis to order the sentence to run consecutively. In the present case also like all other cases in which the appellant has faced trial, offences are part of the same transaction. Therefore, on consideration of all these grounds and facts and the circumstances, appellant deserves to be enlarged on bail upon grant of privilege of suspension of sentence. 8. Learned ASGI has strongly opposed the prayer for suspension of sentence on merits. He submits that the prayer for suspension of sentence of this appellant on merits in R.C. Case No. 64(A)/1996 Pat was rejected by this Court by order dated 23.02.2018 in Cr. Appeal (SJ) No. 138/2018 upon consideration of all these contentions urged on behalf of the appellant. He has 6 referred to the discussions made by the learned CBI Court on the role of this appellant in the impugned judgment at para-110 to 114. Learned Trial Court has referred to the statement of the appellant under section 313 of the Cr. PC where he had stated that he was the Chief Minister and Finance Minister of the State of Bihar from March 1990 to July 1997. The CAG report for the financial year 1988-89 to 1994-95 disclosed excess expenditure, but the appellant in furtherance of criminal conspiracy with other co-accused in the capacity of the Finance Minister as well, approved the report being sent to the 10th Finance Commission in May 1994. He had received information from the office of Accountant General that payments for transportation of animals on cars, scooters, motorcycles have been made to the office of Regional Director, Ranchi, but no action was taken to investigate the information. The CAG reports of the financial years 1989-90 to 1994-95 clearly showed huge excess withdrawals over the budgetary provisions and the appellant as the Finance Minister was aware of the actual grant, actual expenditure and excess expenditure over the budgetary provisions for AHD. He did not take any steps to inquire or stop the excess expenditure prevalent in AHD Department. The prosecution witnesses adduced by the CBI together with the documentary evidences clearly established the larger conspiracy behind the systematic loot from the State Exchequer and the role of the appellant in the capacity of the then Chief Minister and Finance Minister of the State. Learned CBI Court has also taken into note the statement of the accused Phulchand Singh, Finance Commissioner, Bihar between 1992 to 1994 at Para 140 of the judgment who disclosed that CAG reports for financial years 1988-89 to 1994-95 mentioned details of sanction, grant, expenditure and excess payment made by Animal Husbandry Department of Bihar. He as the Finance Commissioner had prepared the annual budget and put it before the Finance Minister and it was passed by the Cabinet for the financial year, but no action was taken against co- conspirators with an intention to facilitate the fraudulent withdrawals from Dumka Treasury with which the instant R.C. case is concerned. Learned ASGI has countered the submissions of learned Senior Counsel for the appellant on the testimony of the approver witnesses and submitted that these prosecution witnesses Dipesh Chandak, R.K. Das and others had categorically deposed regarding proximity of the alleged ‘kingpin’ Dr. S.B. Sinha with the appellant and illegal payments made through him. He submits that this court in the case of Dr. Rabindra Kumar Rana @ Ravindra Kumar Rana in Cr. Appeal (SJ) No. 208/2018 while considering the prayer for suspension of sentence in 7 connection with the conviction of that appellant in R.C. Case No. 68(A)/1996 has, by order dated 02.11.2018, observed that the evidence and documents adduced in one case were adopted without objected by the accused persons in other R.C. cases in light of the observations made by the Hon’ble Supreme Court in the case of C.B.I., A.H.D., Patna Versus Braj Bhushan Prasad & others [(2001) 9 SCC 432]. The observations made therein have also been taken note of in the case of State of Jharkhand through S.P., Central Bureau of Investigation Versus Lalu Prasad Yadav alias Lalu Prasad [(2017) 8 SCC 1]. This court has clearly observed in the case of Dr. Rabindra Kumar Rana that individual fraudulent withdrawal at different places under different Treasuries by different accused persons were the reasons for institution of separate R.C. cases, as per the place or period of the crime, but the evidence of general conspiracy may have been common to all. Consideration of the prayer for suspension of sentence is to be undertaken on the basis of findings recorded in a particular case by the learned CBI Court and weighed accordingly. As such, appellant cannot escape liability from the charge of larger conspiracy in facilitating the systematic loot under AHD department in different districts including Dumka Treasury with which the present R.C. case is concerned. 9. Learned ASGI submits that this court while considering the prayer for extension of provisional bail of this appellant on medical grounds in Cr. Appeal (SJ) No. 138/2018 vide order dated 24.08.2018, found that the prognosis of the doctors of Asian Heart Institute, as evident from the reports, did not create an impression that the appellant was either facing life threatening situation or required immediate intervention. Continued medical management and monitoring had been advised to him. This court had also observed that if any specialized treatment is required in future, it would depend upon the evaluation and opinion of the doctors at RIMS. The latest medical report of the doctors at RIMS dated 28.12.2018 contained at Annexure-A to the reply to the I.A. filed by the CBI in Cr. Appeal (SJ) No. 138/2018, which is also on board today, do not project any such emergent picture requiring his release, even on medical grounds for the present. Learned ASGI has opposed the plea urged by the appellant for release as a President of a political party i.e. Rashtriya Janata Dal, as without any substance. He submits that appellant cannot seek suspension of sentence as he has been convicted of serious charges of criminal conspiracy and for the offences under the Prevention of Corruption Act as well. Prayer for suspension of the appellant therefore deserves to be rejected. 8

10. Learned Senior Counsel for the appellant Mr. Kapil Sibbal, in reply, adverted to the statements of the prosecution witnesses during cross examination namely, Dipesh Chandak who had denied having met the appellant at any point of time or having seen payment of illegal gratification being made in his presence. He also denied having seen Dr. S.B. Sinha meeting the appellant in his presence. Similarly, prosecution witness R.K. Das has also denied having ever met the appellant. He submits that on this unreliable testimony, findings of the learned Trial Court are wholly unsustainable. The incarceration of this appellant in custody any further could be wholly unjustifiable on the weight of such untrustworthy evidence of this approver / prosecution witness. He also pointed out that some of the grounds urged for suspension of sentence of sentence have become available only after the judgment of conviction pronounced in the R.C. Case No. 38(A)/1996 on 19.03.2018 wherein several public servants, as named above, have been acquitted. 11. I have considered the submissions of learned counsel for the parties in the light of the aforesaid facts and circumstances and the relevant material evidence relied upon by them for the purposes of consideration of the prayer for suspension of sentence. As per the judgment rendered by the Apex Court in the case of C.B.I., A.H.D., Patna Versus Braj Bhushan Prasad & others [(2001) 9 SCC 432] and taken note of in the case of State of Jharkhand through S.P., Central Bureau of Investigation Versus Lalu Prasad Yadav alias Lalu Prasad [(2017) 8 SCC 1], evidences and documents adduced in one case can be adopted in evidence in other cases. It is in this light that evidence in one of the R.C. cases adduced by the CBI i.e. R.C. Case No. 20(A)/1996 was adopted without objection by the accused persons in other R.C. cases like the present one. Individual fraudulent withdrawal at different places under different Treasuries by different accused persons were the reasons for institution of separate R.C. cases, as per the place or period of the crime but the evidence of general conspiracy may have been common to all. Consideration of the prayer for suspension of sentence is therefore to be undertaken on the basis of findings recorded in a particular case by the learned CBI Court and weighed accordingly. The instant trial relates to the fraudulent withdrawal from Dumka Treasury under the Animal Husbandry Department to the tune of Rs. 3,76,38,853/-. Appellant has been convicted for the serious charge of conspiracy in respect of fraudulent withdrawal committed during the period he was the Chief Minister and Finance Minister of the State. It has been urged on 9 behalf of the appellant that mere knowledge of excess withdrawal from AHD department and other departments during the period 1988-89 and 1994-95 is not enough to hold him guilty of criminal conspiracy as there are no direct or circumstantial evidence to prove the same. Learned Trial Court however, on the basis of statement of prosecution witnesses and other documentary evidences, referred to at para-110 to 114 of the impugned judgment, come to a finding that the CAG report of financial years 1988-89 to 1994-95 disclosed excess expenditure when the appellant was the Chief Minister as well as Finance Minister i.e. between March 1990 to July 1997. Statement of the accused Phulchand Singh has been discussed at para-140 of the judgment who also disclosed that CAG report for financial years 1988-89 to 1994-95 mentioned the details of sanction, grant, expenditure and excess payments made by Animal Husbandry Department of Bihar. He was in direct touch with the appellant, the then Chief Minister cum Finance Minister, but no action was taken to prevent and stop the fraudulent withdrawals from Dumka Treasury. Annual budgets were prepared by the Finance Department and put up before the Finance Minister which were later on passed for the relevant financial year by the Cabinet. Learned Trial Court at para-112 of the judgment, has in particular, referred to excess withdrawals in every financial year right from 1988-89 to 1994-95, as reported by the CAG. Learned Trial Court has also taken into account the statement of prosecution witness no. 45 Raghvendra Kishore Das, Administrative Officer, Directorate of AHD, Patna, PW-55 Dr. Md. Sayeed, Staff Verification Officer, Office of Regional Director, AHD, Dumka, PW-162 Jayanti Jha, employee of M/s Raj Shree Tour and Travels Agency, Patna, PW-179 Shankar Prasad, Additional Finance Commissioner in the Finance Department, PW-200 Bidhu Bhushan Dewedi, Inspector of Police, State Vigilance Bureau, Patna, PW-212 Jayant Kumar Jaiswal, Proprietor of M/s Raj Shree Tour and Travels, Patna, PW-213 Phuleshwar Paswan, Budget Officer, Finance Department, PW-214 Krishna Mohan Prasad, Joint Secretary, C.M. Secretariat, PW-217 Dipesh Chandak, proprietor of Badri Narayan & Company, Kolkata together with several documentary evidence to come to a finding against this accused / appellant on the charges of criminal conspiracy with other accused persons in causing fraudulent withdrawals from the Treasury under the AHD Department. The discussions made and the findings recorded by the learned Trial Court on the role of the accused / appellant in paragraph-110 to 114 of the impugned judgment read with the statement of witnesses and other documentary evidences referred to therein, go to show the 10 involvement of the appellant as the Chief Minister and Finance Minister of the State in the larger conspiracy of fraudulent withdrawals from Dumka Treasury under the Animal Husbandry Department during the period. This court, however at this stage, refrains from entering into any further dissection or analysis of the findings of the learned CBI Court on the grounds urged by the appellant, lest it may prejudice the case of the parties at the time of final hearing. So far as the plea for suspension of sentence is concerned based on the medical condition of the appellant, this Court while considering the prayer for extension of provisional bail of this appellant, had vide order dated 24.08.2018 passed in Cr. Appeal (SJ) No. 138/2018, observed that the prognosis of the doctors of Asian Heart Institute, as evident from the reports dated 13.08.2018 and 16.08.2018, do not create an impression that the appellant is either facing life threatening situation or requires immediate intervention. Continued medical management and monitoring has been advised to him. Doctors at RIMS would undertake the assessment of the medical condition of the appellant for the purposes of monitoring and medical management of his conditions. Whether any specialized treatment is required in future would depend on the evaluation and opinion of the doctors at RIMS, Ranchi. 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. As per the Medical Report dated 28.12.2018, Doctors at RIMS have not advised any specialized treatment outside Ranchi for the present. It has also been pleaded on behalf of the appellant that as Founder of a political party, Rashtriya Janata Dal and its President, his prayer for suspension of sentence deserves consideration keeping in view the ensuing General Elections to the Lok Sabha in 2019. However, this Court does not find substance in this plea, more so for the reason that the appellant stands convicted for serious charges of criminal conspiracy and offences under the P.C. Act. The appellant has also not undergone custody for more than half of the sentence awarded by now, even if the sentences are treated to run concurrently and not consecutively. 12. Considering all these facts and circumstances, I am not inclined to grant the privilege of suspension of sentence to the appellant and enlarge him on bail. Accordingly, prayer made in I.A. No. 11049/2018 is rejected.

(Aparesh Kumar Singh, J) Ranjeet/