M.Y. Eqbal, J.
1. These petitioners namely, Dr. Jagannath Mishra, Lalu Prasad @ Lalu Prasad Yadav, Ravindra Kumar Rana and Vidya Sagar Nishad have moved this Court for grant of bail in connection with Case No. R.C. 64A/96 (Special Case No. 65 of 1996) registered under Sections 120B, 418, 420, 467, 468, 471, 477, 201 and 511 of the Indian Penal Code and Section 13(2) read with Sections 13(1) (d) & (c) of the Prevention of Corruption Act, 1988.
2. I have heard Mr. R.K. Jain, learned Senior Counsel appearing on behalf of the petitioner in Cr. Misc. No. 23233 of 1998, Mr. Rajendra Singh, learned Senior Counsel appearing on behalf of the petitioner in Cr. Misc No. 23363 of 1998, learned Senior Counsel, Mr. Shakeel Ahmad Khan, appearing on behalf of the petitioner in Cr. Misc. No. 23252 of 1998, Mr. Janardan Rai, learned Counsel for the petitioner in Cr. Misc. No. 23595 of 1998 and Mr. Rakesh Kumar, learned P.P. for the C.B.I.
3. Since all these petitioners have been made accused in connection with the aforesaid case registered on the basis of one F.I.R., these petitions are being disposed of by this common order after considering their respective cases on merit.
4. This case relates to Fodder Scam in the Animal Husbandry Department, Government of Bihar. The brief history of the initiation of criminal cases, as has been narrated by the Special Judge, C.B.I., Patna, in his order dated 30.10.1998, is that sometime in the year 1996 the officials of the State of Bihar on the orders of one of the petitioners, namely, Lalu Prasad, holding the office of the Chief Minister lodged about 41 cases against drawing and disbursing officer wise relating to the fraudulent activities in the Animal Husbandry Department (A.H.D.) in various districts in the State of Bihar. It appears that subsequently the matter came up before this Court in C.W.J.C. No. 1656 of 1996(R) and its analogous case and this Court directed the C.B.I, to investigate and scrutinize all cases of excess withdrawal and expenditure in the A.H.D. in the State of Bihar during the period 1977-78 till 1995-96. A further direction was given to lodge cases where withdrawal was found to be fraudulent and take up investigation in those cases and during that period the investigation by the State police was suspended. Against the said order passed by this Court, the State of Bihar moved the Hon'ble Supreme Court and the Hon'ble Supreme Court modified the order passed by this Court to the extent that the entire investigation now stands entrusted to the C.B.I, and C.B.I. was directed to face over the investigation already made by the State police inclusive of the F.I.R., arrests and attachments and deal appropriately therewith. Accordingly, all the cases pending investigation by the State police were taken over by the C.B.I. The C.B.I. also instituted some more cases for excess withdrawal of money from the treasuries of different districts. The present case had, accordingly, been registered by the C.B.I. being Case No. R.C. 64A-96 on 15.8.1996 with the allegations that the accused persons named in the F.I.R. and others during the period of 1990-94 committed criminal misconduct and entered into criminal conspiracy in between themselves in pursuance whereof they cheated the Government of Bihar to the tune of more than Rs. 95 lakhs inspite of having allotment of meagre amount.
5. It appears that some of the petitioners along with others moved this Court for grant of anticipatory bail after their prayer was rejected by the Special Court. In the meantime, on account of issuance of warrant of arrests in some other cases, those petitioners surrendered before the Special Court who ultimately released them on execution of bonds for ensuring their attendance in future. Subsequently it appears that charge-sheet was submitted and the Special Court finding prima facie case took cognizance on 2.7.1998 and issued fresh processes for their appearance. Some of the petitioners again moved this Court for grant of anticipatory bail and simultaneously they also moved the Hon'ble Supreme Court against the issuance of processes including warrant of arrest. The Hon'ble Supreme Court dismissed their Special Leave Petition by passing the following orders:
Having heard the learned Counsel for the parties and considering the materials placed before us we dismiss all the petitions.
After the above order is passed, the learned Counsel for the respective petitioners submit that as the Special Court will remain closed from September 29, 1998 to October 27, 1998, it will not be possible for the petitioners to surrender before that Court till then; and they, accordingly, pray for extension of the stay of their arrest earlier granted by this Court till October 28, 1998 and give an undertaking that each of the petitioners will personally surrender before the Special Court on October 28, 1998. In view of the closure of the Special Court for the above period and the undertaking given, we extend the stay of their arrest till October 28, 1998. If on their surrender, the petitioners file applications for bail the Special Court will consider the same on their respective merits and in accordance with law.
6. The present petitioners, accordingly, surrendered before the Special Court on 28.10.1998 and filed petitions for grant of bail. The Special Court after hearing the parties refused the prayer of bail and dismissed the bail petitions in terms of the order dated 30.10.1998. The petitioners then moved this Court by filing these petitions.
7. The general allegations against the petitioners and other accused persons are that they entered into a criminal conspiracy in pursuance whereof they agreed upon to do or caused to be done illegal act/acts in pursuance whereof they brought into existence fake allotment letters worth more than Rs. 5 Crores in a dishonest and fraudulent manner. basing upon which they fabricated 17 fake sub-allotment letters worth Rs. 97 lakhs in favour of District Animal Husbandry Officer (D.A.H.O.), Deoghar inspite of genuine allotment of lessor sum of Rs. 4,73,000/- only and the amount covered under the fake allotment letters were utilised for making payment to co-conspirator accused suppliers against fake supply bills raised by them for the purported supply. The further allegation is that these criminal activities of the officials and suppliers of A.H.D. had got patronage and protection of bureaucrats and politicians, including the Chief Minister, Lalu Prasad, as he then was, Ministers and the leader of the Opposition of the State Assembly, Dr. Jagannath Mishra, who were providing their protection and patronage in different ways including by hushing up enquiries in relation to fraudulent activities as well as by obstructing and preventing any effective enquiry in the matter of fraudulent withdrawal resulting in suppression of outburst of Scam. The prosecution's further case is that these bureaucrats and politicians were getting a share in illegal money withdrawn from the Treasuries in lieu of the role played by them in the conspiracy as well as part of money so illegally withdrawn from the Treasury and further these money were spent for arranging hospitality to the bureaucrats and politicians and their family members in various ways including illegal gratification. The bureaucrats and politicians have close nexus with other accused persons and they had come to rescue them whenever such occasion had arisen.
8. Mr. R.K. Jain, learned Senior Counsel appearing for one of the petitioners, namely, Dr. Jagannath Mishra, firstly submitted that all the accused persons have been granted bail by the Hon'ble Supreme Court or by this Court in Special Case No. 22 of 1996 which has been registered by the C.B.I. for the alleged fraudulent withdrawal-in the District of Singhbhum at Chaibasa. Learned Counsel for the petitioner submitted that on the basis of same and similar allegations the present case has been registered by the C.B.I. in relation to fraudulent withdrawal in the district of Deoghar. According to the learned Counsel, the petitioner cannot be detained twice for the same and similar allegations and the Special Judge ought to have followed the order passed by the Hon'ble Supreme Court in order to maintain judicial consistency. Mr. Jain then submitted that so far as his client Dr. Jagannath Mishra is concerned, no case of conspiracy is made out because he was not holding the post of Chief Minister or any of the post during the period the fraudulent withdrawal was made from Deoghar Treasury. Mr. Jain further submitted that it was his client who started fighting with the Government since 1990 against the financial mismanagement in the State of Bihar. In June, 1993, this petitioner Dr. Jagannath Mishra disclosed the withdrawal of Rs. 1200 Crores from different Treasuries and demanded constitution of enquiry. Learned Counsel lastly submitted that there is no evidence so far as the involvement of Dr. Mishra in the withdrawal of the money from Deoghar Treasury and there is no iota of evidence about the larger conspiracy because of bitter relationship between him and the petitioner Lalu Prasad. According to the learned Counsel at no stretch of imagination a prima facie case is made out against his client Dr. Jagannath Mishra and he submitted that the Special Court while rejecting the bail petition has not recorded any reason when the Court was bound to record reason as to why the accused should be detained in custody pending trial. Learned Counsel further submitted that two main accused, namely, Shesh Muni Ram and Jagdish Sharma have been granted hail under Section 167(2) of the Code of Criminal Procedure and, therefore, there is no reason why this accused petitioner Dr. Jagannath Mishra should not be enlarged on bail when bail granted under Section 167(2) Cr.P.C. shall be deemed to be a bail on merit.
9. Mr. Rajendra Singh, learned Senior Counsel appearing on behalf of the petitioner Lalu Prasad while adopting the arguments of Mr. R.K. Jain, further submitted that from the F.I.R. and the charge-sheet, no case is made out against the petitioner Lalu Prasad under Sections 409 and 467 of the Indian Penal Code. According to the learned Counsel, there is nothing to show that there has been criminal breach of trust or fabrication and creation of false document at the instance of the petitioner. According to the learned Counsel, there is complete lack of any material to show his connivance in conspiracy rather the conduct of the petitioner shows that he was all along alert in taking appropriate action against the culprits. Not only that when the matter was entrusted to C.B.I., the petitioner co-operated in the investigation and handed over all the documents to C.B.I. Mr. Rajendra Singh, learned Counsel reiterated all his submissions made before the Special Court and contended that the petitioner made himself available to the C.B.I. for interrogation as and when required. Learned Counsel lastly reiterated the submission made by Mr. Jain that in order to maintain judicial consistency the Special Court had no option but to grant bail to the petitioner in this case in view of the bail granted to them by the Hon'ble Supreme Court in another case i.e. R.C. 20(A)/96. According to the learned Counsel, refusal of bail by the Special Court in this case will amount to cancelling the bail granted by the Hon'ble Supreme Court in R.C.20(A)/96.
10. Mr. Shakeel Ahmad Khan, learned Senior Counsel pressed the bail petitions of the accused R.K. Rana and Vidya Sagar Nishad. Arguing the case of R.K. Rana, learned Counsel submitted that the petitioner was initially arrested in connection with RC 24 of 1996 on 12.9.1996 and since thereafter he was got remanded in a large number of cases one after another and ultimately he was released in January, 1998. Learned Counsel submitted that the petitioner has been observing all the conditions put by the Hon'ble Supreme Court white granting bail to him in Special Case No. 22/96. Mr. Khan then submitted that in any view of the matter there is no direct allegation against the petitioner and he has been made accused merely on the allegation of accepting hospitality from other co-accused persons. Learned Counsel lastly submitted that even assuming that two cases, namely, R.C. 20A/96 and R.C. 64A/96 may be different as shown by C.B.I, but the materials connected with these two cases against the petitioner is the same and on the basis of those materials the Hon'ble Supreme Court granted bail in R.C.20-A of 1996.
11. Mr. Shakeel Ahmad Khan, learned Counsel for the petitioner Vidya Sagar Nishad, while pressing bail application, firstly submitted that the petitioner has not been named in the F.I.R. and there is nothing against him. His contention is that the petitioner was Minister of Animal Husbandry Department from 12.12.1990 to 19.3.1993 and during this period there is nothing to indicate that the petitioner passed any order showing his involvement in this case. The petitioner has absolutely no concerned whatsoever with regard to withdrawal of any money from the Treasury in the District of Deoghar. According to the learned Counsel, the only allegation against the petitioner as would appear from the charge-sheet is that he was also instrumental in the appointment of Dr. Ram Raj Ram and in the matter of extension of services of Dr. Indra Bhanu Prasad. Further allegation is that the petitioner approved draft reply regarding the Scam of Rs. 30 Crores by the Regional Director, A.H.D., Ranchi. Learned Counsel lastly submitted that in that view of the matter his client has no concern with the withdrawal of the fund from the Deoghar Treasury.
12. Mr. Rakesh Kumar, learned P.P. appearing on behalf of C.B.I. opposed the bail petitions. Learned Counsel firstly submitted that it has been decided by this Court in several cases relating to Fodder Scam that all the cases registered by the C.B.I, in different places for fraudulent withdrawal of Government exchequer from the Treasuries of the Districts in the State of Bihar are separate and independent to each other and the transaction, took place at a large number of places, cannot be said to be concerned with offences committed at some other places only on the ground of existence of larger conspiracy. He submitted that all the cases have been instituted and investigated separately in relation to different offences at different places and all are different from each other. According to the learned Counsel, therefore, merely because the petitioners have been released in one case by the Hon'ble Supreme Court they are not entitled to be enlarged in all the cases which constituted independent offences committed in other places. Learned Counsel further submitted that there was no direction for all the cases to be dealt with jointly or amalgamated for investigation by the C.B.I. The petitioners moved the High Court and the Hon'ble Supreme Court for this purpose but did not succeed. Learned Counsel further submitted that even in the Hon'ble Supreme Court during the hearing of the Special Leave Petitions, question relating to similarity of this case and other cases of a larger conspiracy was raised, but on examining the entire matter, the Hon'ble Supreme Court dismissed the Special Leave Petitions and directed the Special Court to decide the bail petitions on their respective merits.
13. Mr. Rakesh Kumar, learned Counsel further submitted that during investigation it has come on the record that the allotment letters had been forged at the instance of Dr. S.B. Sinha who had personally handed over the same to Shesh Muni Ram and Shesh Muni Ram knowing fully that these allotment letters are forged, issued forged sub-allotment including sub-allotment letters in favour of D.A.H.O. Deoghar which become the basis for withdrawal of the amount covered in the present case. Learned Counsel contended that about these fraudulent withdrawals at Deoghar, there had been meeting between the delegation of the employees Union and Chandradeo Pd. Verma, the then Minister of A.H.D. besides officials. In that meeting, the representatives of the Union had handed over copies of the fake allotment letters to him bringing to his notice fraudulent withdrawal and illegal appointments in A.H.D. Deoghar. In that meeting it was decided to get the matter enquired, but nothing was done for a long time. However, when the concerned officers proceeded with the enquiry they were called in the Chamber of Lalu Prasad, the then Chief Minister of State and were told not to proceed with the enquiry as he is entrusting enquiry to Vigilance Department. It has also come during investigation that-thereafter I.G. Vigilance was called on the same date by the petitioner Lalu Prasad and was handed over the copies of the fake sub-allotment letters and had been asked Tor investigation into the matter. Immediately thereafter the Chief Minister was approached for closure of the investigation by the Vigilance on the ground that the P.A.C. was conducting the enquiry. It is contended that CM. made telephonic direction to the I.G. Vigilance about desire of the P.A.C. without any order in the file. Learned Counsel submitted that the concerned file was kept pending in the office of the Chief Minister from 5.7.1994 to 29.3.1996. According to the learned Counsel, this conduct of the petitioner, Lalu Prasad fully established that he had suppressed the enquiry in the matter relating to fraudulent withdrawal of money at Deoghar which is the subject matter of this case. Learned Counsel further submitted that the aforesaid facts and the other material prima-fade establishes that he was protecting the conspirator of the present case and purposely got all the enquiries suppressed. Learned Counsel further submitted that Dr. S.B. Sinha who was mastermind behind all the conspiracy was to retire on 31.12.1993 but at the instance of the petitioner Dr. Jagannath Mishra and Lalu Prasad his service was extended for two years and in this case fraudulent withdrawal continued even after 1993. Learned Counsel submitted that after extension of service of Dr. S.B. Sinha fraudulent withdrawal reached to a high magnitude. Mr. Rakesh Kumar then submitted that sufficient material have also been collected which established the involvement of R.K. Rana and Vidya Sagar Nishad and other persons.
Learned Counsel then contended that in course of investigation it has come that the accused persons are trying to tamper with the evidence and has been threatening to the witnesses not to co-operative with the C.B.I. Learned Counsel then submitted that in course of investigation one of the co-accused Dipesh Chandak stated that after the outburst of Scam when he was staying with Dr. S.B. Sinha at his New Delhi residence at about 11 p.m. in the night a telephonic call from Lalu Prasad through Ramai Ram had come to S.B. Sinha and there had been conversation between the two in relation to outburst of Scam and on the next date of his conversation S.B. Sinha rushed to Patna where a deal had been settled between them on payment of Rs. 10 Crores. Learned Counsel in support of his contention referred to print out of telephone of CM. House and a copy of Train reservation chart. He further contended that even after outburst of Scam there was attempt to suppress it in an effective manner which is evident from the file wherein Lalu Prasad was reluctant to take legal action in the matter. During the course of argument learned Counsel filed a copy of the charge-sheet and also produced before me photo copy of the official record for my perusal.
14. As stated above. Charge-sheet has been submitted in this case. Now I will deal with the charges levelled against the petitioners separately.
Charges against petitioner Dr. Jagannath Mishra.
The petitioner Dr. Jagannath Mishra was a member of Legislative Assembly and the Leader of Opposition, during the relevant time when he alleged to have entered into criminal conspiracy with other co-accused persons. In pursuance of criminal conspiracy during the period 1990-94 a sum of Rs. 85,53,764 was dishonestly and fraudulently withdrawn by the District Animal Husbandry Officer (D.A.H.O.), Deoghar, from Deoghar treasury for purchasing medicines, feed and fodder etc. while in fact such items were not placed by the Field Doctors of the District. It further transpires during investigation that in pursuance of criminal conspiracy as against the genuine allotment of fund in the year 1991-94 for DAHO, Deoghar amounting to Rs. 4,73,400/-for the purchase of medicine etc., 10 fake allotment letters worth Rs. 5 Crores 42 lakhs were fraudulently and dishonestly got issued by the Budget-cum-Account Officer, Sri B.B. Prasad on different dates within 4.11.91 to 28.5.93 with active collusion with Dr. S.B. Sinha, Regional Director, Dumka and the same was handed over by the accused Dr. S.B. Sinha to accused Dr. Shesh Muni Ram, Regional Director, Dumka. On the basis of 10 fake allotment letters accused Dr. Shesh Muni Ram dishonestly and fraudulently issued 17 fake sub-allotment letters worth Rs. 97 lakhs on different dates during November 1991 to August 1993 in favour of DAHO, Deoghar. The specific charge against the petitioner Dr. Jagannath Mishra is that he is in connivance with the petitioner Lalu Prasad, the then Chief Minister, got the services of accused R.K. Das and Dr. S.B. Sinha extended inspite of serious objection raised by the Finance Department. The petitioner Dr. Mishra wrote a personal letter to Lalu Prasad, Chief Minister recommending extension of services of Dr. S.B. Sinha who was to superannuate with effect from 31.12.1993. It is further alleged that Vigilance cases were registered in the year 1990 and on the basis of preliminary enquiry conducted by the Vigilance Department, alleging fraudulent withdrawal of Crores of rupees from the treasuries in the State of Bihar and indulged in corrupt practices by AHD officials. However, when inquiry was initiated and F.I.R. was lodged against AHD officials, the petitioner Dr. Mishra, the then leader of Opposition in the Assembly, wrote two letters dated 23.8.90 and 15.11.90 addressed to the then Chief Minister demanding that investigation should remain confined to the members of the Central Purchase Committee only. He also demanded that the other officials of AHD should not be unnecessarily harassed. The letters were marked with the vigilance Department for inquiry and necessary action. Further charge against the petitioner Dr. Mishra is that he was on pay-roll of A.H. Scamster and had received Rs. 50 lakhs from accused supplier M/s. M.S. Bedi and a further sum of Rs. 25 lakhs from another person Ganesh Dubey as per statement of co-accused Deepesh Chandak recorded under Section 164 of the Code of Criminal Procedure.
15. Charges against Lalu Prasad.
The allegations against the petitioner Lalu Prasad in this case is that he had no plausible defence and sufficient materials have come on the record to show a strong case of criminal conspiracy and gross misuse of office as he provided political umbrella and extended facilities to the Scamster. The following are the charges levelled against the petitioner Lalu Prasad which have been mentioned in paragraph 35 of the bail petition:
(i) Knowledge of excess withdrawal in AHD from 1988-89 to 1994-95 as the petitioner has been CAG report (Civil) but no positive steps were taken.
(ii) Knowledge of excess expenditure as he approved 10th Finance Commission on 26.5.1994.
(iii) A question raised by Sri S.K. Modi regarding withdrawal of the money inspite of ban in the floor of the House and inspite of assurance, no positive effort was taken to get the matter investigated.
(iv) In 1989 the petitioner Lalu Prasad as the leader of Opposition d Bihar Legislative Assembly recommended the case of promotion of Dr. Ram Raj Ram to the then Chief Minister.
(v) That a note by Ram Jivan Singh dated 18.8.90 for referring a report against the officers of AHD Ranchi concerning serious financial irregularities being investigated by Central Bureau of Investigation.
(vi) The Vigilance Case No. 34 of 1990 dated 9.8.90 against AHD officials was registered but on the letter of Dr. Jagannath Mishra that the investigation to the said case should be confined to the members of Central Purchase Committee only, no investigation was carried out against A.H.D. officials.
(vii) Vigilance case No. 23 of 1994 against Dr. Shesh Muni Ram was stalled by the petitioner and enquiry by Bechu Prasad and Sheo Balak Choudhury.
(viii) Extension of services of Dr. S.B. Sinha and Sri S.K. Das and Indra Bhanu Prasad and others were given.
(ix) Statement of co-accused under Section 164 Cr.P.C. regarding payment d: illegal gratification.
(x) File No. 329 of 1996 shows that on pursuation of Sri V.S. Dubey on 31.11.1996 the petitioner changed his earlier recommendation and on the same day amended his order to register the case.
(xi) The School Admission Form of the Children of the petitioner shows Dr. S.B. Sinha and Dr. R.K. Rana as local guardian as such it shows close nexus and intimacy.
(xii) The Bank draft of Rs. 40,000/- was purchased by R.K. Rana in favour of Mayo College of Girls School, Ajmer to pay the admission fees of the daughter of the petitioner.
And several other charges.
16. Besides the above, it is the case of the prosecution that criminal activities of the officials and suppliers of AHD going on in different districts had patronage and protection by the bureaucrats and politicians including the Chief Minister and the Leader of Opposition of the State Assembly who were providing their patronage and protection in relation to the fraudulent activities as well by obstructing and preventing in the effective inquiry in the matter of fraudulent withdrawal also and suppression of outburst of Scam. The further allegation in the charge-sheet is that these bureaucrats and politicians were getting a share in the illegal money withdrawn from the treasuries in lieu of the role played by them in the conspiracy. The prosecution case is that the petitioner has close nexus with other co-accused persons and he had come to rescue them whenever such occasion had arisen.
17. Charges against petitioners R.K. Rana and Vidya Sagar Nishad.
The allegation against accused R.K. Rana and the material collected against him inter alia is that he has close nexus with Lalu Prasad and Dr. S.B. Sinha and was involved in the conspiracy for the withdrawal and distribution of the money to different persons. Besides receiving hospitality and facilities from the bureaucrats of the A.H.D. as he was enjoying the journey of air tickets purchased by Dr. S.B. Sinha and Shyam Bihari Sinha and stayed in a hotel at Calcutta and Delhi. It is alleged that the petitioner used to accept bribe for himself and for Mr. Lalu Prasad which is evident from the telephonic talk between him and the politicians and bureaucrats. He also wrote letter to allow Dr. Ram Raj on the post of Director and not give the said post to any I.A.S. officers. Various other charges have been mentioned in the charge-sheet against him. Similarly charges against co-accused Vidya Sagar Nishad are that he was Minister of A.H.D. from 1992 to 1993 during which period huge amount of money was siphoned from different treasures in the State of Bihar. He also played an important role in the appointment of Dr. Ram Raj Ram as Director of A.H.D. It is alleged that this petitioner in connivance with Bhola Ram Toofani, State Minister of AHD gave support to the Animal Husbandry Officer for fraudulent withdrawal of money from the treasuries. It is further alleged that in pursuance of the conspiracy, accused Dr. S.B. Sinha paid illegal gratification to this petitioner and he always used to accept hospitality from Dr. Section B. Sinha try way of air journey etc. Various other allegations have been made in the charge-sheet.
18. Perused the record together with other documents and materials brought on record and considered the submissions made by the learned Counsels appearing for the petitioners and the C.B.I.
Although I have discussed the charges levelled against the petitioners separately but if the allegations made against them are read together it will lead to a larger conspiracy and the involvement of all the petitioners in the fraudulent withdrawal of several crores of rupees from the treasuries of different districts in the State of Bihar including the district of Deoghar cannot be ruled out. It is evident from the F.I.R. and the charge-sheet that the officials of the AHD in connivance of the suppliers and under the patronage and protection of bureaucrats and politicians including the Ministers have succeeded in fraudulent withdrawal of Government exchequer for so many years. It has come on record during investigation that the allotment letters had been forged at the instance of Dr. S.B. Sinha and on that basis after allotment letters were issued in favour of DAHO, Deoghar it became basis of withdrawal at Deoghar. It has not been disputed by the learned Counsels for the accused petitioners that services of Dr. S.B. Sinha who was Kingpin of the Scam and/or R.K. Das were extended on the basis of strong recommendation and at the instance of Dr. Jagannath Mishra and Lalu Prasad. It has come on record that on the basis of complaint made by Sri Rameshwar Prasad alleging purchase of materials by A.H.D. officials on exorbitant rate, a preliminary enquiry was conducted by the Vigilance and when enquiry was initiated and a criminal case was registered then Dr. Jagannath Mishra as a leader of Opposition wrote two letters demanding that investigation remain confined to the members of Central Purchase Committee. Mr. R.K. Jain, learned Senior Counsel appearing on behalf of Dr. Jagannath Mishra put heavy reliance on Annexure-6 (Chronological details of petitioner's fight against anarchy in Bihar) and submitted that right from 1990 Dr. Jagannath Mishra started raising objections against financial mismanagement in the State of Bihar in general and A.H.D. in particular. Learned Counsel submitted that in June, 1993, his client made startling disclosure that a sum of Rs. 1200 Crores had been withdrawn from different treasuries and had demanded constitution of enquiry. If the submission of Mr. Jain is accepted as correct, I fail to understand as to why Dr. Mishra, knowing full well the corrupt practice going on in A.H.D., made strong recommendation for the extension of service of Dr. S.B. Sinha certifying that Dr. S.B. Sinha is a competent and dedicated officer and his extension would be for the best interest of the public at large. The statement of one of the co-accused Deepesh Chandak recorded under Section 164 of the Code of Criminal Procedure shows payment of a sum of Rs. 50 lakhs and Rs. 25 lakhs to Dr. Mishra leads to a strong suspicion about involvement of Dr. Mishra in the fraudulent withdrawal of several Crores of rupees from different treasuries including Deoghar treasury.
19. Similar is the charge against the petitioner Lalu Prasad. It is alleged that this petitioner while holding the post of Chief Minister provided patronage and protection to all the officials of A.H.D. in the State of Bihar. I have already discussed above the materials brought on record against this petitioner. Mr. Rajendra Singh learned Counsel strongly argued that the charges under Sections 409, 567 and 468 of the Indian Penal Code have not been prima facie established against the petitioner Lalu Prasad and in such circumstances the petitioner is entitled to be released on bail as other sections are bailable. I am unable to accept the submission of the learned Counsel. For the purpose of hearing bail petition of a person prosecuted under Sections 467 and 468 of the Indian Penal Code it is not necessary to find out whether the charges have been established rather on consideration of materials on record when there is ground of presuming that the accused has committed the offence, the Court can justifiably say that a prima facie case against that petitioner exist.
20. Learned Counsel for the parties put much stress on the point of judicial consistency and submitted that once the petitioners have been released on bail in case No. R.C. 22/96 by the Hon'ble Supreme Court, this Court has no option but to grant bail to the petitioners in this case also in order to maintain consistency, uniformity and non-discrimination. In this regard learned Counsel relied upon a decision of Allahabad High Court, in the case of Nanha v. State of U.P. 1993 Cr LJ 938. In that decision the learned Single Judge observed as follows:
In the light of the discussion made in the preceding paragraphs, the view expressed by K. K. Choubey, J. does not hold ground. Judicial consistency is sound principle and it cannot be thrown to the wind by the individual view of the Judges. After all it is settled law that the judicial discretion cannot be arbitrarily exercised. Moreover, high aspiration of the public from the Courts will sink to depths or despair if contrary decisions are given on identical facts. All judicial and quasi judicial authorities have not only to serve the public but also to create confidence in the mind of the public. Hence for the sake of uniformity and non-discrimination it is essential that uniform orders should be passed even in bail matters in case persons who stand on the same footing. If the contrary course is adopted the public will loose confidence in the administration of justice.
21. There is no dispute with regard to the proposition of law laid down in the aforesaid decision but the proposition laid down in that case does not apply in the facts and circumstances of the present case. In the case before the Allahabad High Court the question for consideration was 'Whether on accused is entitled to be released on bail on the ground of parity by moving a second or third bail application in a circumstance that at a later date a co-accused of the same criminal case with a similar role was granted bail by the another Hon'ble Judge before whom without disclosing the fact that the bail application of another co-accused with similar role had already been rejected, by another Bench, bail was granted.
22. As noticed above, when the petitioners were made accused in several criminal cases registered by C.B.I. for the fraudulent withdrawal of money from the Government treasuries in the different districts of the State of Bihar, the petitioners challenged the order of remand in different cases on the ground, inter alia, that since withdrawal of amount from the treasuries arose out of one single larger conspiracy, the subsequent remand is illegal. This Court heard one matter and dismissed the case holding that modus operandi adopted by the officers for the withdrawal of money are same but the occurrence are different and officers and suppliers are different. The transaction took place in different places and under different heads of allotment (Judgment reported in (1994) 1 PLJR 543), A Division Bench of this Court in the case of Chotanagpur Cattle Feed Supply and Co. v. C.B.I. (1997) 1 PLJR 957 : 1997(1) BLJ 934, took the similar view and dismissed the case. One of the accused challenged the said order in the Hon'ble Supreme Court by filing Special Leave Petition but the same was dismissed. Learned Counsel appearing for the C.B.I, further brought to my notice, a copy of the order dated 10.8.1998 passed by the Hon'ble Supreme Court in SLP (Cr.) 2296/98 filed by Lalu Prasad and other analogous cases. By the said order, the Hon'ble Supreme Court in order to find out whether charge-sheet in R.C. 20A/96 and R.C. 64A/96 are substantially identical called upon the parties to place before the Court the chart showing their similarities. Learned Counsel for the C.B.I. submitted that pursuant to that order, charge-sheet and other documents were filed and after perusing the documents, the Hon'ble Supreme Court dismissed the petition and directed the petitioners to surrender before the Special Court on 28.10.1998. Having regard to the aforesaid facts I am of the opinion that merely because the petitioners were granted bail in R.C. 20A of 1996 by the Hon'ble Supreme Court, they are not entitled to be released on bail in RC. 64A/96 without considering the facts of the case. The principle of judicial consistency, therefore, does not apply. On the contrary it appears that in this case being R.C. 64A/96, two of the co-accused, namely, Dr. Ram Raj Ram, Director, A.H.D. Bihar and Braj Bhushan Prasad, Budget-cum-Accounts Officer moved this Court for the grant of bail in Cr. Misc. No. 22298 of 1998 and 21387/98 respectively which were placed before me. After considering the facts of the case and gravity of the offence alleged to have been committed by the petitioners 1 refused to grant bail and rejected their bail petitions.
23. It is not necessary to refer to decisions which deals with the right to ordinary bail because the grant of bail depends on the facts and circumstances of each case. However, it is worth to notice here the principle laid down by the Supreme Court in the case of State v. Captain Jagjit Singh : [1962]3SCR622 . Their Lordships while considering the question of grant of bail held that in case of non-bailable offence, the Court has to decide the question of grant of bail in the light of further consideration, such as, nature and seriousness of the offence, character of the evidence, circumstances which are peculiar to the accused, on reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State and similar other circumstances.
24. Having regard to the face and circumstances of the present case and the discussions made above, I am of the view that prima facie case of conspiracy has been made out against the petitioners which resulted in the fraudulent withdrawal of money from Deoghar treasury and having regard to the seriousness and gravity of the offence, the petitioners do not deserve to be admitted to bail. Moreover, having regard to the fact that I have already refused bail to two of the co-accused of this case mentioned above on similar allegations, the petitioners cannot be admitted to bail otherwise it will amount to failure in maintaining judicial consistency and uniformity.
25. For the reasons aforesaid, all these petitions are rejected.
26. Before parting with the order let it be recorded that any finding or observation made in this order shall not in any way prejudice the case of the petitioners and the trial Court shall not in any way be bound by any of the observations and shall decide the case on its own merit.
27. I have also heard the parties on the affidavit filed by the C.B.I. and the reply filed by the petitioners. In the said affidavit prayer has been made for calling for a report from the Special Judge C.B.I. as to whether the petitioners Lalu Prasad and Dr. Jagannath Mishra have been shifted from the Adarsh Central Jail, Beur to the District Special Jail, B.M.P.-5 with the prior permission of the Special Court or not. It is alleged that these two petitioners have been given undue privilege and facility by the State administration by shifting them to I.P.S. Mess on the campus of BMP-5 and they have been provided with all luxurious facilities. In the rejoinder filed by the petitioner Lalu Prasad it is stated, inter alia, that the place where the petitioners are kept has been declared as Special District Camp Jail, B.M.P.V Patna, and the State Government is empowered to direct in which place any person liable to be imprisoned or committed to custody under the Code of Criminal Procedure shall be confined. It is further stated that the question raised by C.B.I. is sub-judice before this Court in CWJC No. 7675 of 1997. It is stated in the reply filed by Dr. Jagannath Mishra that such objection was also raised before the Special Judge, C.B.I. which is pending for consideration.
28. Having regard to the facts stated above when the matter is sub-judice in Court, I am not inclined to pass any order on the affidavit filed by the C.B.I.