Jharkhand High Court
Lalu Prasad @ Lalu Prasad Yadav vs The State Of Jharkhand Through Cbi ... on 17 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 668 of 2018
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Lalu Prasad @ Lalu Prasad Yadav --- --- Appellant
Versus
The State of Jharkhand through CBI (AHD) --- --- Respondent
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Coram: Hon'ble Mr. Justice Aparesh Kumar Singh
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For the Appellant: M/s Kapil Sibal, Debarsi Mondal, Adit S. Pujari,
Anant Kumar Viz, Raghav Tankha,
Shrish Mazumdar, Advocates
For the Respondent: Mr. Rajiv Sinha, A.S.G.I
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24/ 17.04.2021 Heard learned Senior Counsel for the appellant and learned
A.S.G.I representing the C.B.I on the renewed prayer for suspension of
sentence made through I.A. No. 2013/2021.
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. Earlier, the prayer for suspension of sentence made by the
appellant through I.A. No. 11049/2018 was rejected vide order dated
10.01.2019, both on merits and considering the fact that appellant had
not undergone custody for more than half of sentence awarded by then,
even if sentences are treated to concurrently and not consecutively.
Challenge to the order dated 10.01.2019 in S.L.P. (Criminal) No.
2219/2019 along with two other Special Leave Petitions arising out of
the orders passed on the same date in the case of the appellant in
connection with his conviction in R.C. Case No. 64(A)/1996 and R.C.
Case No. 68(A)/1996 were declined by the Apex Court by order dated
10.04.2019. Prayer for suspension of sentence was renewed by the
appellant through I.A. No. 9862/2019. This Court, after consideration of
the plea, declined to allow the prayer vide order dated 06.12.2019 for the
reason that the appellant had not completed half of the custody by then.
Prayer for suspension of sentence was once again renewed through I.A.
5606/2020 taking a plea that counting the period of custody of different
periods of time, as enumerated in the table furnished in the said I.A.,
appellant had completed half of the custody i.e. 42 months against the
sentence of seven years each imposed for the offences both under the
provisions of I.P.C and P.C. Act. This Court, vide a detailed order dated
19.02.2021 considering the prayer of the appellant, dealt with each of the
submissions relating to different periods of custody enumerated by him
and held that the appellant was still short of approximately 01 month and
17 days as on that date i.e. 19.02.2021 in completing half of the period of
custody of 42 months against the sentence of seven years awarded under
both the provisions of I.P.C. and P.C. Act, though ordered to run
consecutively. Therefore, prayer for suspension of sentence made on
behalf of the appellant was rejected at that stage.
4. Learned Senior counsel for the appellant submits that by the very
computation of the total period of custody undergone by this appellant in
connection with the instant R.C. Case No. 38(A)/1996-Pat, the appellant
has completed the remaining period of 01 month and 17 days of custody
by 6th April 2021. Therefore, appellant should be granted bail by
suspending the sentence. Learned Senior counsel for the appellant has
submitted that this Court has granted the privilege of suspension of
sentence upon completion of half of the custody of 42 months against the
sentence of seven years awarded by the learned Trial Court, even though
sentences were ordered to run consecutively such as in the case of Dr.
Om Prakash Diwakar (R.C. Case No. 45(A)/1996 Pat) in Cr. Appeal (SJ)
No. 812/2018 vide order dated 21.06.2019. It is submitted by the learned
senior counsel for the appellant that sound exercise of judicial discretion
conferred upon this Court under section 389(1) of the Cr. P.C has not
been faulted by the CBI in any of those cases. Therefore, on the plea of
parity, appellant deserves to be granted bail by suspending his sentence
having served more than 42 months i.e. half of the custody against the
sentence of seven years awarded under the provisions of I.P.C and P.C.
Act, though ordered to run consecutively. It is submitted that this Court
for the purposes of suspension of sentence in cases of other such
convicts / appellants, treated half of the custody of seven years for
granting bail. Learned senior counsel has also submitted that the
appellant is 73 years old and is suffering from several ailments.
5. Learned ASGI has strongly opposed the prayer. A reply to the
instant I.A. has also been filed by them on 13.04.2021. Learned ASGI
has submitted that order dated 19.02.2021 has not been challenged by
the CBI. Learned ASGI has however relied upon the provisions of
section 30(1) and section 427 of the Cr. P.C. Further, in order to buttress
his submission based upon the provisions of section 427 of the Cr. P.C,
he has relied upon the cases of Sharad Hiru Kolambe versus State of
Maharashtra and others reported in [(2018) 18 SCC 718, para-11]
and Vicky Alias Vikas versus State (NCT of Delhi) reported in [(2020)
11 SCC 540, para-4, 9, 11, 12 and 16]. Learned counsel for the CBI
submits that prayer for suspension of sentence of this appellant has been
rejected earlier, both on merits and on the ground that the appellant had
not undergone custody for more than half of the sentence awarded to
him, vide order dated 10.01.2019 which has been upheld by the Apex
Court. The Apex Court refused to interfere in the order vide order dated
10.04.2019 passed in S.L.P. (Criminal) No. 2219/2019. However, on the
plea of completion of half of the custody claimed by the appellant, it is
submitted that since sentences have been ordered to run consecutively,
appellant has not completed half of the custody i.e. seven years by now.
On being specifically asked, learned counsel for the CBI has fairly stated
that both decisions rendered in the case of Sharad Hiru Kolambe
(Supra) and Vicky Alias Vikas (Supra) arise from the judgments
passed by the High Court affirming conviction of the concerned
appellant. Those decisions have not been rendered in the context of
exercise of power under section 389(1) of the Cr. P.C which is the power
of the Court to suspend the sentence during pendency of the appeal.
However, he reiterates that the principles laid down under section 30(1)
Clause (3) to the proviso and section 427 of the Cr. P.C do mandate that
sentences imposed upon the appellant are to run consecutively and not
concurrently. Therefore, appellant should not be treated to have
completed half of the custody on completion of 42 months only.
Therefore, his prayer for bail may be rejected.
6. Learned Senior counsel for the appellant has submitted in reply
that none of the judgments relied upon by the learned ASGI relate to the
exercise of the power conferred to the Appellate Court under section
389(1) of the Cr. P.C. It is submitted that this Court has wisely exercised
its judicial discretion on principles of parity uniformly to all such
convicts / appellants not only in R.C. Case No. 38(A)/1996-Pat, but also
other convicts in R.C. Case Nos. 68(A)/1996, 64(A)/1996 and
45(A)/1996 Pat. Moreover, the instant conviction arise out of the case of
single transaction and imposition of consecutive sentence by the learned
CBI Court has no basis. He submits that in any case whether sentences
are to run consecutively or not, depends upon the final outcome of the
appeal. Therefore, the objection taken by the CBI has no legs to stand.
Therefore, prayer for suspension of sentence may be allowed.
7. I have considered the submissions of learned senior counsel for
the appellant and learned ASGI representing the CBI. Chronology of
events taken note of in the foregoing paragraphs of the order indicate
that the prayer for suspension of sentence of this appellant was rejected
first on 10.01.2019, both on merits and on the period of custody
undergone and then again on 06.12.2019 since the appellant had not
completed half of the custody by then in the instant R.C. Case No.
38(A)/1996 Pat. Prayer for suspension of sentence made through I.A.
No. 5606/2020 was once again rejected vide order dated 19.02.2021 for
the reason that the appellant was still short of approximately 01 month
and 17 days, as on that date, in completing half of the period of custody
of 42 months against the sentence of seven years awarded both under the
provisions of I.P.C and P.C. Act, though ordered to run consecutively.
By that computation, appellant has completed half of the custody i.e. 42
months under the impugned conviction treating the sentences to run
concurrently by 6th April 2021. This Court has followed a uniform
principle while granting suspension of sentence to other convicts /
appellants in different R.C. cases including the instant R.C. case on
completion of half of the custody.
8. The order dated 19.02.2021 wherein this Court has held that
appellant is still short of approximately 01 month and 17 days in
completing half of the custody of 42 months is not under challenge by
the CBI. However, learned counsel for the CBI has relied upon the
provisions of sections 30(1) and 427 of the Cr. P.C in order to submit
that the sentence of seven years imposed upon the appellant under
different provisions of I.P.C and P.C Act have been ordered to run
consecutively. Therefore, appellant should not be treated as having
completed half of the custody i.e. 42 months. Learned counsel has also
placed reliance upon the decision of the Apex Court in the case of
Sharad Hiru Kolambe (Supra) and Vicky Alias Vikas (Supra). It
however appears from perusal of both the decisions that they arose from
the judgments of the High Court affirming the conviction of the
concerned appellant, wherein a plea was raised that sentences should not
run consecutively. In the case of Sharad Hiru Kolambe (Supra), the
plea that default sentence should not be treated to run consecutively, was
rejected by the Apex Court. However, none of these decisions relate to
the exercise of the power under section 389(1) of the Cr. P.C by the
Appellate Court to suspend sentence. Power of suspension of sentence
conferred upon the Court under section 389(1) of the Cr. P.C is to be
exercised on sound judicial discretion. It is not hedged with any such
conditions upon which learned counsel for the CBI has sought to place
reliance. This Court, on the other hand, has been following a uniform
principle in matters of suspension of sentence of such convicts under the
Fodder Scam cases such as, in R.C. Case Nos. 64(A)/1996, 45(A)/1996
and 68(A)/1996 including instant R.C. Case No. 38(A)/1996 Pat. This
Court has granted suspension of sentence on completion of half of the
custody by other convicts including those upon whom sentences of seven
years each under the provisions of I.P.C and P.C. Act have been imposed
and were ordered to run consecutively, such as in the case of Dr. Om
Prakash Diwakar (convict in R.C. Case No. 45A/1996 Pat) in Criminal
Appeal (SJ) No. 812 of 2018 order dated 21.06.2019 reckoning the
period of 42 months as half of the custody. Therefore, there is no reason
to depart from the principles of parity in the case of the present appellant
when he has completed more than half of the custody of 42 months
against the sentence of 07 years awarded both under the provisions of
I.P.C and P.C. Act, though ordered to run consecutively. As such, I am
inclined to enlarge the appellant on bail by granting him the privilege of
suspension of sentence. Accordingly, let the appellant Lalu Prasad @
Lalu Prasad Yadav be released on bail, during the pendency of this
appeal, on furnishing bail bonds of Rs. 1,00,000/- (Rupees One Lakh)
with two sureties of the like amount each, to the satisfaction of learned
Additional Judicial Commissioner-I-cum Special Judge-VII, CBI (AHD
Scam), Ranchi in connection with R.C. Case No. 38(A)/1996-Pat,
subject to deposit of fine amount of Rs. 5,00,000/- (Rupees five lakh) +
Rs. 5,00,000/- (Rupees five lakh) in the Court below and if not wanted in
connection with any other case. The appellant would not leave the
country without permission of the Learned Trial Court. He would also
submit his passport, if any, before the Learned Trial court. Appellant or
his bailors shall not change their address or mobile number without prior
permission of the learned Trial Court. I.A. No. 2013/2021 stands
disposed of accordingly.
(Aparesh Kumar Singh, J)
Ranjeet/
