Lalu Prasad is the prime accused in the fodder scam, in which the trial has been completed in 45 out of 52 cases in Jharkhand. Out of remaining seven cases, Lalu Prasad is accused in five. Till now more than 950 persons, including two former ministers, one ex-MLA and an ex-MP, have been convicted and sentenced with five to 10 years in prison and slapped with fines up to Rs 10 lakh.

But Lalu Prasad is deliberately causing delay by various means, including approaching superior courts with trifling complaints, his witnesses missing appearances and his advocates being absent time and again. Now when arguments have been completed on behalf of other 44 accused persons and also of himself, the RJD chief is trying that the CBI special court judge be removed and prohibited from delivering the judgment, for which he has already announced the date (in case no. RC 20A).

When the special CBI court judge announced that he would pronounce the judgment on July 15, 2013, Lalu Prasad approached the Jharkhand high court to transfer the judge on the plea that the judge is a close relative of PK Shahi, a minister in the Nitish Kumar government, who was defeated by the candidate of his party in the parliamentary by-election a few months ago. Hence, the judge can be influenced by Shahi to pass the judgment against him, he alleged.

The Jharkhand high court refused to buy this argument and dismissed Lalu Prasad’s petition. Then, the former Bihar CM moved the supreme court in the second week of July 2013. On July 9, the case was mentioned in the court of P. Sathasivam, who was by that time not elevated as the chief justice of India. The court stayed the pronouncement of the judgment on July 15 by the CBI special court judge at Ranchi. The apex court put up the matter for the next hearing on July 23.

On July 23, the court directed that the matter be put up on August 6 and in between the CBI would suggest the name of another judge who would hear the case (no. RC 20 A/1996), in which Lalu Prasad is one of the accused. It means that the supreme court has already decided that the case would be transferred from the court of the judge who had been hearing the case at the CBI special court in Ranchi for the past two years. Cross-examinations of the witnesses as well as arguments of both sides were completed and a date for delivering the judgment was already announced.

Likely impact of the SC order

1. The same CBI special judge is hearing one more case (no. RC 68/96) related to fodder scam, in which also Lalu Prasad is an accused. That case too would get transferred to some other judge, putting additional burden on him, resulting into delay in the judgment of other cases with him.

Case number RC 20A/96 is the mother of remaining four cases against Lalu Prasad in the fodder scam. The former Bihar CM had earlier moved the supreme court to get all five cases against him in the fodder scam bunched together as one case. He contended that charges and witnesses in all these cases are of the same nature and most common witnesses will have to be appear five times before the court during the hearing of each case, at the time of cross examination, etc. Thus, he argued, while unnecessarily wasting the court’s time, it will also add to the expenditure from the state exchequer.

The apex court did not find the arguments valid but passed an order that details and facts given by someone orally or in writing, as well as documents certified in any one case during the trial process, may/will be admissible in all cases. So the transfer of one case from a court of a judge will have an impact on the remaining four cases as far as Lalu Prasad as an accused is concerned.
 

2. There are other 44 accused in RC-20/96. None of them has any grudge against the judge. Now if the case is transferred from him, the argument will begin afresh and those accused will have to bear the additional expenditure for the arguments, for which they have already spent a lot.

3. The argument will take more than a year’s time and the process may be deliberately prolonged on one pretext or other, leading the trial to an unending delay. It is worth mentioning here that in this case, Lalu Prasad moved the high court four times, raising unwarranted flimsy points. His advocates too tried to delay the case at all stages on one pretext or other.

4. The transfer of case from the judge will defeat the core objects of the recent high court and supreme court judgments, which are aimed at cleansing the legislatures and parliament from tainted persons and criminals. The chargesheet filed by CBI in this case provided enough evidence, which indicated that the scam would not have taken place had Lalu Prasad not conspired and actively collaborated with the scamsters.

5. This is the case based on the very first chargesheet filed by the CBI in 1997. Trials in several other cases have been completed and almost all accused barring a few have been convicted with more than five years in prison and a fine up to Rs 10 lakh. The convicts include a number of MLAs, MPs and ministers in Lalu Prasad’s cabinet with very, very less charges as compared to the gravity, seriousness and number of charges against Lalu Prasad himself in this case.

6. Lalu Prasad knows it well that no judge will spare him the punishment and he will not get less than five years in jail. This will keep him off the electoral politics for a long time. Hence, he is using various ways to ensure the trial in any of the cases against him does not complete in the near future.

7. Cases against Lalu Prasad in the fodder scam are:

a. RC - 20 /96 regarding excess withdrawal from Chaibasa treasury.

b. RC - 38 / 96 regarding excess withdrawal from Dumka treasury.

c. RC - 47 / 96 regarding excess withdraw from Doranda treasury, Ranchi.

d. RC - 63 / 96 regarding excess withdrawal from Deoghar treasury.

e. RC - 68 / 96 regarding excess withdrawal from Chaibasa treasury.

7. If the supreme court decides to transfer the case to some other judge, it will be used as precedent and will open a Pandora’s box for such requests in future in the high courts and subordinate courts all over the country and will also open the floodgates for interference by superior courts in trials across the country.

8. The high court opined at the concluding part of its judgment directing a CBI inquiry into the fodder scam on March 11, 1996, that “they (directions) are intended merely to serve the public interest and keep the people's faith in the system intact. For, if that faith is shaken, the whole edifice will fall. The values of public life are fast declining. I do not expect that this judgment and CBI investigation will improve the system. But if we are only able to maintain it, by our effort, we will feel gratified”. These remarks are still relevant.

9. The supreme court dismissed the appeal against the Patna high court order filed by the Bihar government on March 19, 1996, and lastly concluded that “we are also of the opinion that, to alleviate the apprehension of the state about the control of investigation by the CBI, it should be under over-all control and supervision of the chief justice of Patna high court. The CBI officers entrusted with the investigation shall, apart from the criminal courts concerned, inform the chief justice of the Patna high court from time to time of the progress made in the investigation and may, if they need any direction in the matter of conducting the investigation, obtain them from him”.

The apex court in its judgment further directed “that the learned chief justice of Patna high court may either post the matter for directions before a bench presided over by him or constitute any other appropriate bench. After investigation is over and reports are finalised, as indicated by the division bench of the high court in the impugned judgment, expeditious follow-up action shall be taken. The high court and the state government shall co-operate in assigning adequate number of special judges to deal with the cases expeditiously so that no evidence may be lost”.

Will not any interference from any level in this case such as to prohibit the CBI special court from delivering the judgment after prolonged hearing of the case go against the spirit and objectives of the judgments 17 years ago? The investigation of this case was under constant monitoring of a division bench of Patna high court and chargesheets were finalised under its guidance and the judges of the special courts were too appointed by the high court after due feedbacks from competent central and state agencies. Then what is the need of casting aspersions over the intention and integrity of the special court judge at the stage of delivering of the judgment?

Some points worth consideration

1. The supreme court is the apex court and there is no court above it where appeals may be made if the court makes error in judgments. Whereas the judgment of the CBI special court is always a subject of scrutiny by high courts and the supreme court, if an accused person is not satisfied with it or feels that the judgment has any bias or the judge has erred or the judgment is bad in law.

2. The present CBI director was the DIG, CBI, posted at Patna in those days. In course of investigation, right from the investigating officer to director, CBI, were of the opinion that evidence collected in this case is enough to support a chargesheet and it was a fit case to file a chargesheet against Lalu Prasad. The only dissenting opinion on the file was that of the then DIG, who is now the CBI director. Will it be fair to ask from him the name of a suitable judge to whom the case may be assigned?

3. The position of CBI in this case has always been doubtful. The DA case against Lalu Prasad in the fodder scam was being heard in a CBI special court at Patna by one Yogendra Prasad, a judge of impeccable integrity. He was moving fast. Lalu Prasad felt that the judge is immune to extraneous influences and will deliver fair judgment. In a haste, departmental promotion committee was held and the judge was promoted. It could become possible as Rabri Devi was the CM of Bihar those days.

In the place of Yogendra Prasad one Munni Lal Paswan, whose integrity was very low and whose previous acts had invited serious adverse stricture from the high court, was posted as the CBI special judge. Paswan went out of the way and passed an order in favour of Lalu Prasad demolishing the stand of the CBI in its chargesheet. Ironically, the CBI decided not to appeal against the judgment and till now no appeal is made.

The Bihar government came forward to appeal against this judgment. Lalu Prasad challenged the locus of the state government to make an appeal before the high court. The high court dismissed his petition. Lalu went to the supreme court against it and the then chief justice K G Balakrishnan decided the case in favour of Lalu Prasad and passed the order a day before his retirement.

Now the history seems to be repeated in this case as well. The supreme court is more than enthusiastic and favourably inclined to entertain the case, which was logically dismissed by the Jharkhand high court.

4. The CBI and Lalu Prasad are two opposite parties in the supreme court: CBI as the prosecutor and Lalu Prasad as an accused. What will happen to the justice if both are speaking in same voice in this case before the court? It may not be merely a coincidence that the CBI as the prosecutor did not file a counter-affidavit before the supreme court in this case opposing the points raised by Lalu Prasad to defend the order of the high court and/or integrity of the special judge of the CBI court at Ranchi.

5. After all, the career of the special court judge is at stake. The question is, why he did not disclose earlier that he is closely related to JD(U) leader PK Shahi and did not refuse to take up the case? The doubt is cast on the intention of the judge by an accused against whom CBI has filed a chargesheet making him the kingpin of the scam, but now the investigating agency is hobnobbing with the person instead of trying hard to prove him guilty.

In what way the judge is related to PK Shahi? The sister of the judge is married to someone in the third generation of the step grandfather of Shahi, who is no more. A family photograph taken during some social function in which the judge and PK Shahi along with others are present is shown as the witness to prove the point. In this way, any person of consequence may be treated as a close relation with someone in his caste. There is also a long history of feud in the family regarding sharing of ancestral properties and relations between the respective branches of the family are far from cordial.

Why is the CBI not placing this fact before the supreme court to convince them that the so-called relation between the judge and PK Shahi is not at all too close to influence the judgment and instead taking innocuous orders obediently?

6. The appeal of Lalu Prasad in supreme court was entertained at the stage of mention only and the Jharkhand high court order was stayed by the apex court forthwith without providing the prosecution an opportunity to be heard. In the very next hearing, the court indicated its mind to transfer the case from the special judge court at Ranchi and asked the CBI to suggest the name of another judge to hear the case.

Will it not harm the interest of the accused and why is the accused not opposing this move? Does the CBI have a dossier of the judges or the apex court has any way to find out the suitability of a judge from Jharkhand to do justice in this case? The best course would have been to involve the Jharkhand high court which acquires administrative as well as supervisory control over the subordinate judiciary in the state and so there is no need to interfere with the judgment of the high court in this case at apex level.

7. One point raised against the judge is why he was in a hurry to announce the date of judgment when arguments on behalf of Lalu Prasad were not fully concluded. It is worth mentioning that just before the monitoring bench of the Jharkhand high court, which included the chief justice as well, asked why the trial was taking so much time, and thereby causing enormous delay, and asked the courts to hasten the trial process, the judge concerned directed all the accused to place their written arguments before the court by August 2 so that he could deliver the judgment on July 15 because verbal arguments from both the defence as well as the prosecution sides were complete. So, did the judge deserve punishment for carrying out the observations of the monitoring bench of the Jharkhand HC, which was in consonance with the judgments of the Patna HC and the apex court, respectively on March 11 and 19, 1996?

The motive is being imputed on the special court judge for his act, which otherwise deserve kudos. The fodder scam case is in fact a litigation between the CBI and Lalu Prasad. It is in fact a struggle between the people's interest that suffered and the monstrous vested interests that took the entire system for a ride. In what way the idea of justice may get proper justification in this case is a big question. Will the judicial system remain blind to the harsh realities?

It must be kept in mind that justice delayed is justice denied. In this case, that delay is 17 years and counting.

Roy is a former BJP MLA in Jharkhand assembly.