Lalu Prasad @ Lalu Prasad Yadav vs Vrs
2021 Latest Caselaw 795 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Cr. Appeal (SJ) No. 668 of 2018
     Lalu Prasad @ Lalu Prasad Yadav                      ............Appellant
                               Vrs.
     The State of Jharkhand through CBI (AHD)             ............. Respondent
                                      .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioner : M/s Mr. Kapil Sibal, Sr. Advocate & Debarsi Mondal, Adit S. Pujari, Anant Kumar Viz, and Shirsh Mazumdar, Advocate For the CBI : Mr. Rajiv Sinha, ASGI

22 /19.02.2021 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. 5606 of 2020.

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 with a fine of Rs. 30,00,000/- and on 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 with a fine of Rs. 30,00,000/- and on 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 of 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 the sentence awarded by then, even if the sentences are treated to run concurrently and not consecutively. Challenge to the order dated 10.01.2019 in S.L.P.(Criminal) No. 2219 of 2019 along with two other special leave petition arising out of the orders passed on the same date in case of appellant in connection with his conviction in R.C. Case no. 64A/1996 and 68A/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 of 2019. This Court after consideration of the plea urged, declined to allow the prayer vide order dated 06.12.2019. Be it be noted herein that while declining the prayer, this Court had also taken note of the submission made on behalf of the appellant relying upon the instance of one other convict/ appellant Jagdish Sharma convicted in R.C. Case No. 64 A/1996, who had been imposed a sentence of 7 years R.I. compared to other accused persons in the category of politicians like the present appellant, Mr. Jagannath Mishra, the then leader of the opposition, the successor Chairman of PAS Mr. Dhruv Bhagat and Dr. Ravindra Kumar Rana, who were imposed sentence of 3 ½ years each for the offences under I.P.C and P.C Act. This Court had observed that appellant Jagdish Sharma had undergone custody for 31 months against the sentence of 7 years imposed upon him compared to other convicted politicians therein who had been sentenced to 3 ½ years only under the offences of I.P.C and P.C. Act . Therefore, this Court thought it proper to grant bail to him by suspending his sentence. Appellant had not been able to show that any other convict in the instant R.C. Case No. 38A/1996 in the class of politicians like him had been awarded lesser sentence. Appellant had also not completed half of the custody by then. As such, the prayer made in I.A. No. 9862 of 2019 was rejected.

4. While pressing the prayer for suspension of sentence of the appellant made through I.A. No. 5606 of 2020 once again, learned Senior Counsel Mr. Kapil Sibal has made following submissions:

As per the table of period of custody at para 3 furnished in supplementary affidavit dated 28.01.2021, appellant has completed more than half of the custody of 42 months against the sentence of 7 years each imposed for the offences under the provisions of I.P.C and P.C. Act, though they were directed to run consecutively. However, learned senior counsel for the appellant during course of the submission has relied upon following period of custody said to be undergone by the appellant to show that he has undergone half of the period of custody in connection with the instant R.C. Case No. 38A/1996:

i. 30.07.1997 till 29.11.1997;

ii. 26.11.2001 till 23.01.2002 when appellant had surrendered in R.C. Case No. 47A/1996 and was finally released on bail on 23.01.2002 after grant of bail on 14.12.2001 by the Hon'ble Supreme Court.

iii. 30.09.2013 till 16.12.2013 when he was granted bail by the Hon'ble Supreme Court in relation to his conviction in R.C. Case No. 20A/1996. As per the appellant, he was in custody in connection with the instant R.C. case also during these period iv. For the period 02.01.2018 to 11.05.2018 v. And further from 30.08.2018 till date

5. Learned Senior Counsel for the appellant has referred to the order dated 02.01.2018 passed by the learned CBI Court in the instant case R.C. 38A/1996 when on the appellant's request, production warrant was issued while he was undergoing custody upon his conviction in R.C. case no. 64A/1996. According to learned senior counsel for the appellant, C.B.I does not dispute this period of his custody in the instant R.C. case from 04.01.2018 till he was granted provisional bail on 11.05.2018 and again from 30.08.2018, when he surrendered after rejection of the request for extension of provisional bail, till date The order dated 02.01.2018 passed in the instant R.C. case has been placed reliance upon by the learned counsel for the appellant to show that on appellant's request, production warrant was issued in connection with the instant R.C. case since appellant was undergoing sentence in connection with R.C. Case No. 64(A)/1996 upon his conviction on 23.12.2017. It is submitted that by the same reasoning the period of custody from 01.10.2013 till his release on 13.12.2013 is to be counted for the purposes of calculating the total period of custody undergone in the instant R.C. case since on the appellant's request production warrant was issued while he was undergoing custody upon his conviction in R.C. Case No. 20A/1996.

6. Learned Senior Counsel for the appellant has relied upon the order of suspension of sentence dated 14.12.2018 passed by this Court

in the case of Jagdish Sharma in connection with his conviction in R.C. Case No. 64A/1996 in Criminal Appeal No. 193 of 2018. It is submitted that Jagdish Sharma was the Chairman of P.A.C. Though he was sentenced to 7 years of imprisonment under both provisions of I.P.C. and P.C. Act, ordered to run concurrently, but he was released on bail on completion of 31 months of sentence only i.e. less than half of the sentence. Learned Senior Counsel has further referred to the case of appellant Dayanand Kashyap who was ordered to be released on 12.10.2018 in connection with R.C. Case No. 45A/1996 upon completion of only 33 months of custody against a sentence of 7 years each under both offences of I.P.C. and P.C. Act passed in Criminal Appeal No. 871 of 2018. Reliance is also placed on the case of appellant Sunil Gandhi who was ordered to be released in connection with his conviction in R.C case no. 64A/1996 for a sentence of 7 years each under the offences of I.P.C. and P.C. Act after undergoing only 37 months of imprisonment i.e., less than half custody in Criminal Appeal No. 98 of 2018 vide order dated 21.12.2018.

7. Learned senior counsel for the appellant then submitted that in the instant R.C. Case No. 38A/1996 appellant was charged of conspiracy with other accused persons. However, except this appellant other co-accused persons like Jagannath Mishra, the then leader of opposition; Jagdish Sharma, Chairman of P.A.C; Mahesh Prasad, Secretary Animal Husbandry Department and Dr. Ravindra Kumar Rana, an accused in the class of politicians, all were acquitted of the charges under I.P.C and P.C. Act. As such, appellant's conviction under section 120B of the I.P.C on charges of conspiracy with other co-accused persons cannot stand in isolation. It is submitted that in those circumstances the appellant who has undergone more than 42 months of custody i.e., more than half of the sentence of 7 years be enlarged on bail by granting him the privilege of sentence considering his old age and number of ailments that he has been suffering from. In this regard learned senior counsel for the appellant has referred to the earlier orders granting provisional bail to the appellant on health grounds for treatment in higher centre. It is submitted that at present the appellant is undergoing treatment at AIIMS, Delhi. Based on these

submissions, he has prayed for suspension of his sentence.

8. Learned ASGI has strongly opposed the prayer. It is submitted that earlier, the prayer for suspension of sentence of this appellant was rejected, after consideration, both on merits and the period of custody undergone vide order dated 10.01.2019 and 06.12.2019. The third plea taken by the appellant based on the charge of conspiracy was considered by this Court in the order dated 10.01.2019 while declining the prayer for suspension. The Hon'ble Supreme Court refused to interfere in the order of rejection dated 10.01.2019 in Special Leave to Appeal (Cr.) No. 2219 of 2019 vide dated 10.04.2019. Learned ASGI has made the following submissions in respect of the plea relating to completion of half of the custody by the appellant:

In respect of the first period of custody from 30.07.1997 till 29.10.1997, it is submitted that the appellant was granted default bail vide order dated 29.10.1997 in the instant R.C. Case No. 38(A)/1996 and a release order was also issued on 29.10.1997. Any further incarceration in connection with R.C. Case No. 64(A)/1996 when he was taken into custody on 31.10.1997 and released on 29.11.1997, cannot be counted towards the present case. In relation to the period of custody from 26.11.2001 till 23.01.2002, learned ASGI has submitted that there was no order of remand in connection with the instant R.C Case No. 38A/96 during that period when he was undergoing custody in R.C. Case No. 47(A)/1996. Therefore, reliance of the appellant on the order dated 01.12.2001 for production of the accused / appellant herein on the request of the CBI, for counting the period of custody in connection with the instant R.C. Case is misconceived. He submits that the appellant claims to have been released on bail on 14.12.2001, but as per the certificate of the authorities of the Central Jail, Beur, Patna, he was released on 23.01.2002 as it appears that he was in custody in connection with other R.C. Cases, but not R.C. Case No. 38(A)/1996. As such, this period of custody cannot be counted. Learned counsel for the CBI has then countered the claim of the appellant for the period of custody from 30.09.2013 till 13.12.2013 on the submission that the appellant was not taken in remand in the instant R.C. Case No. 38(A)/1996, as would appear from the order

dated 01.10.2013 itself. As such, this period of custody of 02 months and 16 days cannot be counted for computing the total period of custody in connection with the instant R.C. case. Learned ASGI however does not dispute his period of custody from 04.01.2018 till 11.05.2018 in connection with the instant R.C. case when he was released on provisional bail and from 30.08.2018, when he surrendered till date.

9. Learned ASGI has also replied to the submissions made on behalf of the appellant relying upon the instances of other appellants such as, Jagdish Sharma in Cr. Appeal (SJ) No. 193/2018, Dayanand Kashyap in Cr. Appeal (SJ) No. 871/2018 and Sunil Gandhi in Cr. Appeal (SJ) No. 98/2018, taken note of hereinabove. He submits that this Court had, in the case of Jagdish Sharma, taken note of the fact that while other accused persons in the category of politicians had been imposed a sentence of 3 and ½ years only, the accused / appellant Jagdish Sharma was convicted for 7 years. On the principles of parity in sentencing, this Court was pleased to release him on bail on completion of 31 months of custody i.e. more than half of the sentence reckoning the period of sentence as 3 and ½ years. In the case of Dayanand Kashyap, this Court again took into account that the said appellant was convicted for receiving fraudulent payments to the tune of Rs. 1.25 crores and odd and sentenced to 7 years of imprisonment under the offences of I.P.C and P.C. Act, whereas other co-convicts / supplier who had been convicted of the same charge of receiving fraudulent payments more than him i.e. Rs. 1.3 crore in the case of Gopinath Das, Rs. 4.66 crores in the case of co-convict Mohinder Singh Bedi had been awarded a sentence of 3 ½ years only. This Court, therefore, was pleased to grant bail to the appellant Dayanand Kashyap on completion of 33 months and odd of custody against the sentence of 7 years awarded to him on the principles of parity in the matter of sentencing with other co-convicts / suppliers. Similar is the case of Sunil Gandhi, appellant in Cr. Appeal (SJ) No. 98/2018. While the appellant Sunil Gandhi was imposed with a punishment of 7 years on the charges of having fraudulently obtained Rs. 3,98,000/-, whereas other co-convict like Sunil Kumar Sinha and Sushil Kumar who had

obtained fraudulent payment more than him i.e., Rs. 5.64 lakhs and Rs. 3.94 lakhs were imposed with the sentence of 3 and ½ years only. Other such suppliers had been imposed lesser sentence of 3 ½ years as compared to the appellant Sunil Gandhi. This fact were also taken note of in the order dated 21.12.2018 while granting him the privilege of suspension of sentence on completion of 37 months and odd of custody. Learned counsel for the CBI submits that appellant has not been able to cite any instances of accused persons in the class of politicians who have been imposed with lesser sentence than that of the appellant in the instant R.C. Case No. 38A/1996 to claim parity in sentencing for the purposes of bail.

10. I have considered the submissions of learned counsel for the parties and taken note of the rival contentions urged on their behalf on the plea of suspension of sentence made by the appellant. This Court proceeds to deal each of the submission one after the other hereinafter. For convenience sake, the plea of having undergone half of the period of custody claimed by the appellant is being dealt hereunder:

i. (30.07.1997 to 29.11.1997): Appellant had been taken into custody on 30.07.1997 in connection with this R.C. Case No. 38A/1996 (Spl. Case No.39/1996) and was granted default bail on non-submission of charge sheet within the specified period of 90 days vide order dated 29.10.1997. It appears that despite the order of release passed on the same day, the appellant was not released from custody and taken into custody in R.C.

Case No. 64(A)/1996 as it appears from the order dated 31.10.1997 passed in R.C. Case No. 64(A)/1996. The appellant got released ultimately on 29.11.1997 i.e. after about 29 days. The period from 30.07.1997 till his release on 29.11.1997 therefore should be counted since despite default bail and submission of bail bond including the order of release, he could be released on 29.11.1997. On the part of the appellant, reliance has been placed on the order of this Court dated 13.09.2019 passed in Cr. Appeal (SJ) No. 208/2018 granting

suspension of sentence to one appellant Dr. Ravindra Kumar Rana @ R.K. Rana. As per the appellant, the chart at para-7 of I.A. No. 7851/2018, preferred by the said appellant containing break up of custody reflects period of custody till his release in other case, even though appellant had been granted bail in the said R.C. Case No. 68(A)/1996. Be that as it may, since the present appellant was in custody in connection with the instant R.C. Case No. 38(A)/1996 from 31.07.1997 and could be finally released on 29.11.1997 i.e. after about 29 days of the grant of default bail, this period of custody should also be reckoned for the purposes of counting his total period of custody.

ii. (26.11.2001-23.01.2002): During this period, appellant was in custody in connection with the R.C. Case No. 47(A)/1996. On behalf of the appellant, order dated 01.12.2001 passed in the instant Special Case No. 39/1996 corresponding to R.C. Case No. 38(A)/1996 has been relied upon. It shows that the appellant was produced on production warrant on the request of the CBI in connection with the instant R.C. case while undergoing custody in R.C. Case No. 47(A)/1996. The appellant had already been granted default bail in the instant R.C. Case vide order 29.10.1997 and there was no remand in the instant R.C. case. This period of custody in connection with the R.C. Case No. 47(A)/1996 therefore, cannot be counted for computing the period of custody in connection with the instant R.C. case. It further appears that the appellant had himself made a request for exemption from physical presence through petition under section 317 of the Cr. P.C., as recorded in the order dated 20.12.2001 by the learned CBI Court in the instant R.C. Case No. 38(A)/1996. Therefore, this period of 41 days as claimed by the appellant for reckoning his custody in connection with

the instant R.C. Case No.38A/1996 cannot be counted. This Court has not accepted such a plea of other such co- convicts / appellants in connection with their conviction in the Fodder Scam group of cases such as R.C. Case No. 38(A)/1996 or other R.C. Cases.

iii. (30.09.2013 till 16.12.2013): - During this period, the appellant was undergoing sentence in connection with his conviction in R.C. Case No. 20(A)/1996. He had made a request for his production from custody in connection with the instant R.C. Case No. 38(A)/1996, as has been taken note of in the order dated 01.10.2013 passed in the instant R.C. case. Appellant was granted bail by the Hon'ble Supreme Court on 13.12.2013 and finally got released on 16.12.2013.

iv.(23.12.2017-11.05.2018):-In similar circumstances as at serial no.iii, this period of custody has been counted by the appellant. Appellant was undergoing sentence upon his conviction in R.C. Case No. 64(A)/1996 on 23.12.2017. Appellant had made a request on 02.01.2018 before the learned CBI Court that he has been convicted in R.C. Case No. 64(A)/1996 Pat on 23.12.2017. He had prayed for issuance of production warrant in that connection. Prayer of the appellant and other accused person Rabindra Kumar Rana was allowed. In this regard, the CBI has not disputed the period of his custody in connection with the instant R.C. case from 04.01.2018 till 11.05.2018 when he was granted provisional bail. In the meantime, he had been convicted in the instant R.C. case on 19.03.2018 and the order of sentence was passed on 24.03.2018. In this regard, learned ASGI has referred to the order dated 04.01.2018 passed in the instant R.C. case. As per the said order, accused / appellant herein, Ravindra Kumar Rana and three others were produced from jail custody on the basis of production warrant. Hence, the accused person

was taken into judicial custody in this case and remanded in this case. It is worthwhile to mention here that appellant had made a similar prayer, as taken note of in the order dated 01.10.2013 passed in the instant R.C. case, upon his conviction in R.C. case No. 20(A)/1996. He had remained in custody till he was released on 16.12.2013 upon grant of bail by the Hon'ble Supreme Court on 13.12.2013. Therefore, if the period from 4.01.2018 has been counted by the C.B.I. towards his custody in this R.C. Case No. 38A/1996, there is no reason why the period from 01.10.2013 till his release on 16.12.2013 should not be counted on the same ground. v. (30.08.2018 till date):- Appellant's prayer for extension of provisional bail granted on 11.05.2016 was rejected by this Court vide order dated 24.08.2018.He surrendered on 30.08.2018. Since then, appellant is in custody.

However, computing the period of his custody from 30.07.1997 till 29.11.1997; 01.10.2013 till 16.12.2013; 04.01.2018 till 11.05.2018 and from 30.08.2018 till date taken together would not complete 42 months of custody i.e. half of the period of custody.

11. An argument has been raised by learned counsel for the CBI that the sentence upon conviction in the instant R.C. Case has been ordered to run consecutively and not concurrently. However, this Court while considering the prayer for suspension of sentence of other convicts / appellants in such R.C. cases, has treated half of the custody as 42 months, even though the sentences were ordered to run consecutively and not concurrently such as 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; Dr. Shashi Kumar Sinha @ Shashi Kumar Sinha (convict in R.C. Case No. 45A/1996 Pat) in Criminal Appeal (SJ) No. 803 of 2018 order dated 27.07.2018 and Dr. Krishna Murari Sah @ Krishna Murari Shah (convict in R.C. Case No. 45A/1996 Pat) in Criminal Appeal (SJ) No. 838 of 2018 order dated

24.08.2018. As such, that argument of the learned counsel for the CBI does not stand to reason while considering the prayer for suspension of sentence of this appellant in the instant R.C. case by applying the uniform yardstick followed in other cases referred to above.

12. Appellant has also placed reliance upon the instance of other convicts like Jagdish Sharma who was granted suspension of sentence on completion of 31 months against the sentence of 7 years in R.C. Case no. 64A/1996 i.e., in Criminal Appeal No. 193 of 2018 vide order dated 14.12.2018. However, as has been pointed out by learned counsel for the CBI, this Court had taken into account that the appellant Jagdish Sharma though in the same class of accused persons like other politicians had been imposed a sentence of 7 years, while the other accused persons like the present appellant, Dr. Ravindra Kumar Rana was imposed sentence of 3 ½ years only for the offences under the provisions of I.P.C and P.C. Act. In those circumstances, this Court took into account that the appellant Jagdish Sharma had been imposed sentence of 7 years i.e., twice the quantum of sentence awarded to other similarly placed co-convict in the said category. Accordingly, the appellant Jagdish Sharma was enlarged on bail vide order dated 14.12.2018. The instances of appellant Dayanand Kashyap in Criminal Appeal No. 871 of 2018 and Sunil Gandhi in Criminal Appeal No. 98 of 2018 have also been considered on similar reasoning. Perusal of the orders of suspension of sentence passed in the case of those appellants in connection with R.C. Case No. 45A/1996 and 64A/1996 shows that while the quantum of fraudulent withdrawal of those appellant were less compared to the other convicted suppliers, whereas the said appellants were imposed a sentence of 7 years compared to other similarly situated convicts who were imposed sentence of 3 ½ years. As such this Court after taking period of custody of 33 months and 37 months undergone by those appellants respectively, was pleased to allow them bail by granting the privilege of suspension of sentence. Lastly a plea has been raised on behalf of the appellant that the other accused persons with whom the appellant had been alleged to be in conspiracy in defrauding of the

State exchequer have been acquitted such as Jagannath Mishra, Jagdish Sharma, Mahesh Prasad and few others. However, this plea of this appellant has already been considered in the order dated 10.01.2019 passed by this Court on his prayer for suspension of sentence made through I.A. No. 11049 of 2018 and rejected with proper reasons. The Apex Court refused to interfere in the said order in Special leave to Appeal (Civil) No. 2219 of 2019 vide order dated 10.04.2019.

13. This Court in cases of other such appellants imposed with similar sentences ordered to run consecutively, has treated half of the period of sentence as 42 months against the sentence of 7 years, while granting suspension of sentence. However, this Court finds that the appellant is still short of approximately 1 month 17 days as on date in completing half of the period of custody of 42 months against the sentence of 7 years awarded under both I.P.C. and P.C. Act, though ordered to run consecutively. As such, I am not inclined to enlarge the appellant on bail by granting him the privilege of suspension of sentence at this stage.

14. Accordingly, prayer made through instant I.A. is declined.

(Aparesh Kumar Singh, J.) A.Mohanty