Bar & Bench (www.barandbench.com) IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Crl.) NO. 2219 OF 2019 IN THE MATTER OF: - LALU PRASAD @ LALU PRASAD YADAV …Petitioner VERSUS STATE OF JHARKHAND THROUGH CBI(AHD) …Respondent COUNTER AFFIDAVIT ON BEHALF OF RESPONDENT CBI ADVOCATE FOR THE RESPONDENT : A K SHARMA Bar & Bench (www.barandbench.com) IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Crl.) NO. 2219 OF 2019 IN THE MATTER OF: - LALU PRASAD @ LALU PRASAD YADAV …Petitioner VERSUS STATE OF JHARKHAND THROUGH CBI(AHD) …Respondent COUNTER AFFIDAVIT ON BEHALF OF RESPONDENT CBI I, _______________-, aged about ____ years presently posted as ____________________-, ____________________________ do hereby solemnly affirm and declare as under - 1. That I am arrayed as the Respondent in the aforesaid Special Leave Petition and being well conversant with the facts and circumstances of the present matter and is competent to swear this Counter Affidavit. 2. That I have read the list of dates and the Special Leave Petition and the contents therein is denied and nothing is admitted unless specifically admitted herein. Preliminary submission Bar & Bench (www.barandbench.com) I. SUBMISSIONS AS TO WHY THE PETITIONER BE NOT RELEASED ON BAIL 1. It is respectfully submitted that before placing before this Hon'ble Court, the detailed facts showing the gravity of the offences committed by the petitioner for which he is found to be guilty, the respondent, as an investigating agency, thinks it appropriate to place the facts for kind consideration of this Hon'ble Court to show as to why the grant of any relief in favour of the petitioner would not only be against the “ZERO TOLERANCE POLICY ON CORRUPTION” of this Hon'ble Court but would also be setting a very wrong precedence in all corruption cases. These submissions are classified in four categories as under: A- The petitioner seems to have created an impression that he is convicted for only 3.5 years and has already undergone substantial portion. This submission is not only misleading but factually incorrect. B- Out of the period of 12 months in SLP (Crl) 2447 of 2019, 22 months in SLP (Crl) 2219 of 2019 and 20 months in SLP (Crl) 2451 of 2019 of the petitioner being in custody [both pre conviction and post-conviction], it is submitted that he has served sentence post-conviction only for 4 months app. in SLP Crl. 2219/2019; 2 ½ months app in SLP Crl. 2447/2019 and has remained in hospital for a period of 8 ½ months Bar & Bench (www.barandbench.com) app. on the ground that his condition is so bad that he cannot be housed in a jail. In fact in SLP Crl. 2451/2019 where the Petitioner has been convicted for 7+7 years he has not served jail sentence even for a single day and has remained in hospital ever since his conviction and sentence was pronounced; C- During the period in which the petitioner remained in hospital, he is not only granted a special paying ward with all facilities but he is virtually conducting his political activities from there which would be clear from the visitors register facts of which are explained hereunder. D- The petitioner who claimed to be so unwell that he cannot even remain in jail but has to remain hospitalized suddenly claimed to be fully fit physically and sought bail, inter alia, on the ground which is recorded and rejected by the Hon'ble High Court as under: “Appellant has also urged an additional ground that being a Founder and President of Rashtriya Janata Dal, a political party, his release is required to guide the party and carry out all essential responsibilities as a president of the party in the ensuing General Election to the Lok Sabha in the next few months” The very same petitioner who wanted to get bail to lead his party in coming Lok Sabha election in elections comes before the highest court of the country in the present matter and again Bar & Bench (www.barandbench.com) seeking bail on medical grounds as mentioned in para 6[a] of SLP [Crl.] No.2219 of 2019. It is submitted that simultaneous raising of pleas for bail on medical grounds and bail to guide the party and to carry out all essential responsibilities as a party president in ensuing Lok Sabha election are mutually contradictory and manifests that in the garb of Bail on Medical Ground the Petitioner in essence want to pursue his political activities which is impermissible in law. Thus on this ground only the present petition is liable to be dismissed. 2. All the above referred facts coming with respect to the convicted person / accused who occupied the constitutional office of the Chief Minister of one of the largest States in the country and who has been held to be guilty of misappropriation of Rs. 75.48 crores in four (4) Fodder Scam Cases and who is still undergoing trial in two cases for another misappropriation of Rs.139.45 crores requires to be viewed in light of the settled law declared by this Hon'ble Court in K.C. Sareen case [(2001) 6 SCC 584] wherein it was held as under:- 12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social Bar & Bench (www.barandbench.com) order if such men are allowed to continue to manage and operate public institutions.” A- The period for which the petitioner is actually convicted A-1) The petitioner’s assertion that he has been convicted only for 3.5 years [in the SLP (crl.) No. 2219 of 2019, which incidentally is listed first] would be a misleading presentation. A-2) Considering the gravity of the offence of corruption in public as well as the constitutional office which the petitioner abused and misappropriated huge amount of public money, and considering that the petitioner is to undergo 27.5 years of sentence [cumulatively calculated for all four convictions], the discretionary remedy of grant of bail is rightly refused by both the courts below and this may not be a case where this Hon'ble Court ought to interfere in its jurisdiction under Article 136 of the Constitution. For ready reference of this Hon'ble Court the details of cases, where the Petitioner has been convicted is as under:- Sl. Total No. of Cases Number Amount Sentence to the No. related to Lalu Yadav of Involved Petitioner Accused Convicts 1 RC20(A)/96-Pat 46 37.70 R.I for 05 years and Date of Judgement:- Crores fine of Rs. 25 lakhs 30.09.2013. in default to further Name of Treasury:- undergo R.I. for six Chiabasa months. Period of offence:- 1994- Released on bail on 95 13.12.2013 2 RC38(A)/96-Pat. 19 Rs.3.76 R.I for 14 [7+7] SLP Crl 2951/2019 Crores years and fine of Rs. 60 lakhs in default Date of Judgement:- to further undergo R.I. for 2 19.03.2018. years. Name of Treasury:- Dumka Period of offence:- 1995 to 1996 Bar & Bench (www.barandbench.com) 3 RC64(A)/96-Pat. 18 Rs. 89 R.I for 3.5 years SLP Crl 2219/2019 Lakhs and fine of Rs. 5 lakhs in default to Date of Judgement:- further undergo R.I. 23.12.2017. for 6 months. Name of Treasury:- Deoghar Note:- A Criminal Period of offence:- 1991- Appeal for 94 enhancement of sentence of the Petitioner and 05 others in this Case is pending before the Hon’ble Jharkhand High Court at Ranchi. 4 RC68(A)/96-Pat. 50 Rs.33.13 R.I for 5 years and Crores fine of Rs. 5 lakhs in SLP Crl 2447/2019 default to further Date of Judgement:- undergo R.I. for 01 24.01.2018. year Name of Treasury:- Chaibasa Period of offence:- 1992- 93 5 RC47(A)/96-Pat NA Rs.139 Under Trial Case, Crores stage Prosecution Evidence. 6 RC63(A)/96-Pat NA Rs. 45 -do- Lakhs B- Time period when the Petitioner remained in hospital after conviction B-1) I respectfully state and submit that the following chart shows that after recording of conviction in respective cases, how many days the petitioner has remained in jail and during the said period how many days he has been in hospital:- Sl. Total No. of Period in Period in jail Period in hospital after No. Cases related jail before after conviction as on date of filing to Lalu Yadav conviction conviction of Counter Affidavit 1. RC38(A)/96- 12 ½ NIL. [8 1/2 months app.] 19.03.2018 Pat. months to till date except parole period SLP Crl app from 11.05.2018 to 13.05.2018 2951/2019 and provisional bail period from 16.05.2018 to 29.08.2018. Bar & Bench (www.barandbench.com) R.I for 14 [7+7] years 2. RC64(A)/96- 11 ½ 3 months app [8 1/2 months app.] Pat. months 17.03.2018 to till date except SLP Crl app parole period from 11.05.2018 to 2219/2019 13.05.2018 and provisional bail R.I for 3.5 period from 16.05.2018 to years 29.08.2018 3.