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CASE NO.: Appeal (crl.)  1068 of 2003 Appeal (crl.)  1066 of 2003 Appeal (crl.)  1067 of 2003

PETITIONER: Lalu Prasad @ Lalu Prasad Yadav                          Dr. Jagannath Mishra     Tripurari Mohan Prasad & Ors.            

RESPONDENT: State through C.B.I. (A.H.D.) Ranchi,  Jharkhand                 C.B.I. through S.P., C.B.I., Office of the C.B.I. (A.H.D.), Ranchi, Jharkhand    The Union of India, Through Superintendent of Police,Central Bureau of Investigation,Ranchi  

DATE OF JUDGMENT: 26/08/2003

BENCH: S. N. VARIAVA, P. VENKATARAMA REDDI & ASHOK BHAN.

JUDGMENT: JUDGMENT

WITH

(Arising out of SLP (Crl.) No. 5512 of 2002) (Arising out of SLP (Crl.) No. 4810 of 2002) (Arising out of SLP (Crl.) No. 5646 of 2002

S. N. Variava, J.

Leave granted.

Heard parties.

All these Appeals can be disposed of by this common Order even  though the prayer made in Dr Jagannath Mishra’s case is only for  transfer whilst in the other Appeals the prayer is for amalgamation of  trials. Briefly stated the facts are as follows: Dr Jagannath Mishra and Laloo Prasad Yadav are Ex Chief Ministers of  the State of Bihar. They and the other Appellants have been accused  of charges under the Prevention of Corruption Act and of the offence of  conspiracy to defraud the Government exchequer of large sums of  money. A large number of complaints have been filed and the cases  are being prosecuted by CBI before various Special Courts both in the  State of Jharkhand as well as the State of Bihar. We are concerned  with 6 such cases which are pending before Special Courts in the State  of Jharkhand.  It must be mentioned that earlier the cases were before the  Special Judge at Patna. However pursuant to a Judgment of this Court  in the case of CBI v. Braj Bhushan Prasad reported in 2001 (9) SCC 432  these cases have been transferred to the Courts of Special Judges,  Jharkhand.   When two of these cases namely RC. 20 (A)/96 and RC.  64 (A)/96 were pending before the Special Judge at Patna, an  application was made for joint trial of these cases. This was rejected  by the Special Judge. The High Court rejected the Criminal Appeal  which was filed against the order of rejection. This Judgment is  reported in 2000 (3) Patna Law Journal Reports 357. Thereafter Writ Petitions (Criminal) and a Criminal Misc. Petition  were filed before the High Court of Jharkhand at Ranchi for  amalgamation of 5 cases. Dr Jagannath Mishra, by his Transfer  Petition applied for transfer of 5 cases to one Court. Dr Jagannath

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Mishra’s Petition was dismissed by the impugned Order dated 6th  August, 2002. The other Writ Petitions and Crl. Misc. Petitions were  dismissed by the impugned Order dated 10th September, 2002. Hence  these Appeals. Before us all are applying for amalgamation of 6 cases. It was submitted, on behalf of the Appellants, that even though  the Appeals were dismissed by Patna High Court it has been held that  there was a single conspiracy. It was submitted that the application for   amalgamation was filed pursuant to the liberty granted by the Patna  High Court while dismissing the Appeals. It was submitted that,  according to the prosecution, there was a large conspiracy involving  the then Chief Ministers and  other officers of the Animal Husbandry  Department. It was submitted that according to the prosecution the  object of the conspiracy was to withdraw/siphon out government  monies from various Treasuries which were earlier in the State of Bihar  and now fall in the State of Jharkhand. It was submitted that the overt  acts are alleged to have been committed in pursuance of this large  conspiracy. It was submitted that in the overt acts there would be local  people who are not part of the larger conspiracy. It was submitted that  offences committed in pursuance of one conspiracy are offences  committed in the course of the same transaction. It was submitted  that the main accused namely the Appellants have been charged only  on the basis of the large conspiracy. It was submitted that in all the  cases, as against the Appellants, there would be same witnesses and  same documents. It was submitted that there are 58 witnesses who  would be common in all the 6 cases. It was submitted that there are  approximately 100 documents which are also common in all the 6  cases. It was submitted that the prosecution had admitted, in  paragraphs 10 to 12 of the affidavit in reply filed before the Special  Judge, that there was a single conspiracy and that the above- mentioned witnesses and documents were common.  It was submitted  that if these witnesses have to depose separately in all the 6 cases,  there was a strong possibility of their evidence being different and of  their being conflict of decisions. It was submitted that the Appellants  would have to hear the evidence of the same witnesses in 6 trials.         In support of the submission that offences committed in  pursuance of one conspiracy are offences committed in the course of  the same transaction reliance was placed on the case of K.  Kunhahammad v. The State of Madras reported in AIR (1960)  Supreme Court 661. Reference was also made to the cases of  Babulal  Chaukhani v. King-Emperor reported in AIR 1938 PC 130, S.  Swamirathnam v. State of Madras etc. reported in AIR 1957 SC 340,  Mohan Baitha  v. State of Bihar reported in 2001 (4) SCC 350, Balbir  v. State of Haryana reported in 2000 (1) SCC 285 and State of Bihar  v. Ranchi Zila Samta Party reported in 1996 (3) SCC 682. There can  be no dispute with the proposition of law. It is however to be seen  whether the proposition has any application to this case.         At this stage it is necessary to set out details and particulars of  the 6 cases sought to be amalgamated. These are as follows: Sl.  No. Case No.    RCs P.S.Case  No. Amount  involved No. of  accused  persons Treasury Stage 1. 20(A)96- Pat 12/96

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Chaibasa  P.S. 37.7 Crores 56 Chaibasa Evidence  (A total of  174 PWs  examined) 2. 38(A)/96- Pat 16/96 Dumka P.S. 3,76,38,853/- 48 + 1  = 49 Dumka  Appearance 3. 47(A)/96- Pat 50/96 Doranda  P.S. 183 Crores 171 +  69 =  240 Doranda Appearance

4. 63(A)/96- Pat Complaint  received  from State 45,96,048/- 44 Bhagalpur  & Banka Appearance 5. 64(A)/96- Pat Source  Information 97 Lakhs 34 + 4  = 38

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Deoghar Charge  framing 6. 68(A)/96- Pat Source  Information  37.62 Crores 75 + 1  = 76 Chaibasa Charge  framing

                The application for amalgamation of cases is under Section 223  of the Criminal Procedure Code which reads as under: "223. What persons may be charged jointly.- The  following persons may be charged and tried together,  namely:-

(a)     persons accused of the same offence committed in  the course of the same transaction;

(b)     persons accused of an offence and persons accused  of abetment of, or attempt to commit, such offence;

(c)     persons accused of more than one offence of the  same kind, within the meaning of section 219  committed by them jointly within the period of  twelve months;

(d)     persons accused of different offences committed in  the course of the same transaction;

(e)     persons accused of an offence which includes theft,  extortion, cheating, or criminal misappropriation, and  persons accused of receiving or retaining, or  assisting in the disposal or concealment of, property  possession of which is alleged to have been  transferred by any such offence committed by the  first-named persons, or of abetment of or attempting  to commit any such last-named offence;

(f)     persons accused of offences under sections 411 and  414 of the Indian Penal Code (45 of 1860) or either  of those sections in respect of stolen property the  possession of which has been transferred by one  offence;

(g)     persons accused of any offence under Chapter XII of  the Indian Penal Code (45 of 1860) relating to  counterfeit coin and persons accused of any other  offence under the said Chapter relating to the same  coin, or of abetment of or attempting to commit any  such offence; and the provisions contained in the  former part of this Chapter shall, so far as may be,  apply in all such charges:

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Provided that where a number of persons are  charged with separate offences and such persons do not  fall within any of the categories specified in this section,  the Magistrate may, if such persons by an application in  writing, so desire, and if he is satisfied that such persons  would not be prejudicially affected thereby, and it is  expedient so to do, try all such persons together."

It is thus to be seen that irrespective of the applicability of clauses (a)  to (g), Section 223 gives to the Magistrate a discretion to amalgamate  cases. The Magistrate has to be satisfied that persons would not be  prejudicially affected and that it is expedient to amalgamate cases. As  has been set out hereinabove, on a prior occasion the application for  amalgamation has been rejected by the Special Judge. The High Court  has also rejected the Appeal. Under the circumstances, a fresh  application for the same relief would not normally lie. Faced with this  situation it had been submitted that the present application for  amalgamation had been made as the High Court had already held that  there was a single conspiracy and had given liberty to apply for  amalgamation at a later stage. It is thus necessary to see what the  High Court held in the case of Lalu Prasad v. State of Bihar reported in  2000 (3) Patna Law Journal Reports 357.   Paragraphs 28 to 32 read  as follows: "28. The fact that separate cases have been  registered and are being investigated separately and also  the fact that this Court during investigation while  considering the question as to whether remand in one case  will mean the remand in all other cases, has held that  some of the cases form different transactions, are not  decisive to the question involved in the case.  This court  made observations during the course of investigation while  deciding the question of remand only.  The separate  investigation by itself is not decisive to the fact that all the  cases are separate.  It is only after investigation that the  question has to be decided as to whether they are part of  the same transaction or not.  Similarly, the fact that the  accused persons in both the cases are not common is also  not an important fact as even in the cases of single  transaction, different offences are committed by different  set of the accused persons.   The relevant question that  was to be considered by the trial court was whether the  series of the acts committed by the accused persons  forming different offences at different times and at  different places were with a view to fulfill one common  purpose and there was a community of criminal intent so  as to form a single transaction or different offences were  committed independently with a view to fulfill different  purpose or object though there was similarity between the  purpose and object in the cases.  Even if the trial court  would have found that the offences alleged to have been  committed did not form one transaction, it should have  also considered the cases of the petitioners in terms of  proviso to section 223 of the Code whether it was  expedient in the ends of justice to hold a joint trial on such  prayer being made in writing by the accused persons and  the same was not causing any prejudice to any of the  accused persons.  The trial court has also not made any  effort to find out as to what is the view of the other  accused persons facing the trial.  For all these reasons, the  order passed by the trial court suffers from legal infirmity.

30.  The next question is as to what order should be  passed in this case after having came to the conclusion  that the order passed by the Special Judge suffers from

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legal infirmity.  Whether the matter is to be remanded for  fresh consideration at this stage or some other direction is  to be given taking into consideration the facts and  circumstances of the case.

31.     During the course of argument and in the  written argument filed on behalf of one set of the accused,  it was submitted on behalf of the petitioner that the  offences committed in these two cases and other cases are  the part of the same transaction, but they have not given  the details of other cases.  In other cases either charge- sheets have been submitted or the same are still to be  submitted.  In that circumstance, this question cannot be  decided by taking into consideration the allegation made in  these two cases only.  If this question is decided only after  taking into consideration the allegations in these two cases  then that matter will not come to an end as this question  will be re-agitated time and again by the petitioners and  other accused persons as and when the other cases will be  ripe for framing of the charges and the result would be  that the trial will not proceed in any case.

32.      Taking into consideration the peculiar facts  and circumstances of the case arising out of the Animal  Husbandry Scam, I am of the view that the said question  is to be decided only when other cases are also ready and  reach the stage of framing of the charges.  At that stage, if  a proper application is filed by the accused persons or by  some of the accused persons, the trial court will consider  the said question.  While considering the question if some  of the accused persons have not prayed for joint trial, then  the trial court will also consider their stand in the light of  the legal positions indicated above.   The trial court will  also consider whether it will be possible or practicable to  dispose of all the cases or some of the cases jointly or they  should be tried separately.  It is to be clarified that the  paramount consideration should be the cause of justice."

It is thus to be seen that the High Court has not concluded that there  was a single conspiracy. The High Court has correctly held that this  question can be decided only when the other cases are also ready and  reach the stage of framing of the charges. As has been indicated  above all the cases have not reached the stage of framing of the  charges. Three of the cases are still at the appearance stage. Two of  the cases are at the stage of framing of charge.  Thus in any case the  application was premature. Moreover, the present attempt is likely to  result in delay in trial of Case No. 20(A)96-Patna which has progressed  considerably.  The High Court has also correctly held that it is the trial  court which would have to consider the stand of other accused persons  who have not prayed for joint trial. It is to be seen that apart from the  Appellants there are a large number of other accused persons. Most of  the other accused persons have not applied for joint trial. This Court  does not know what their stand is. When this was pointed out to  Counsel for the Appellants it was stated that affidavit of consent, for  joint trial, by all the accused in all the cases would be filed before this  Court. In our view this is not the stage where such affidavits could be  filed. The consent had to be obtained before the application for  amalgamation was made. It was for the Special Judge to consider  whether it was expedient and in interest of justice that all accused  persons, in all the cases, be tried jointly. It is neither expedient nor  proper that the Appellants be permitted to bypass the trial court in this  manner.         There is another more important reason why these Appeals  cannot be allowed. This Court, in the case of CBI v. Braj Bhushan  Prasad reported in 2001 (9) SCC 432 considered the question whether

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these cases stood transferred to the State of Jharkhand by virtue of  the Bihar Reorganisation Act. Opposing a transfer it was submitted  that the cases related to an alleged single conspiracy which had taken  place in Patna.  It was submitted that the trials thus had to continue in  Patna. This Court  considered what were the main offences in those  cases. Admittedly these 6 cases are part of the cases considered by  this Court.   Paragraphs 34 to 37 read as follows: "34. What is the main offence in the charges  involved in all these 36 cases?  It is undisputed that the  main offence is under Section 13(1)(C) and also Section  13(1)(d) of the PC Act.  The first among them is described  thus:         "13. (1) A public servant is said to commit the  offence of criminal misconduct,-

               *               *               *

       (c) if he dishonestly or fraudulently  misappropriates or otherwise converts for his  own use any property entrusted to him or  under his control as a public servant or allows  any other persons so to do;"

The next offence is described like this:

       "13. (1) A public servant is said to commit the  offence of criminal misconduct,-

       *               *               *

(d) if he,-

       (i) by corrupt or illegal means, obtains  for himself or for any other person any  valuable thing or pecuniary advantage; or

       (ii) by abusing his position as a public  servant, obtains for himself or for any other  person any valuable thing or pecuniary  advantage; or

       (iii) while holding office as a public  servant, obtains for any person any valuable  thing or pecuniary advantage without any  public interest;"

35.     We have no doubt in our mind that the hub of the  act envisaged in the first of those two offences is  "dishonestly or fraudulently misappropriates".  Similarly  the hinge of the act envisaged in the second section is  "obtains" for himself or for any other person, any valuable  thing or pecuniary advantage by corrupt or illegal means.

36.     The above acts were completed in the present cases  when the money has gone out of the public treasuries and  reached the hands of any one of the persons involved.   Hence, so far as the offences under Section 13(1)(c) and  Section 13(1)(d) are concerned the place where the  offences were committed could easily be identified as the  place where the treasury concerned was situated.  It is an  undisputed fact that in all these cases the treasuries were  situated within the territories of Jharkhand State.

37.     Thus, when it is certain where exactly the offence  under Section 13 of the PC Act was committed it is an

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unnecessary exercise to ponder over the other areas  wherein certain allied activities, such as conspiracy or  preparation, or even the prefatory or incidental acts  were  done, including the consequences that ensued."

Thus it has already been held, by a three Judge bench of this Court,  that the main offences were under the Prevention of Corruption Act.  It  has been held that the offence of conspiracy is an allied offence to the  main offence under the Prevention of Corruption Act. The cases are  before the Special Judges because the main offences are under the  Prevention of Corruption Act. The main offences under the Prevention  of Corruption Act in each case is in respect of the alleged transaction  in that case. As conspiracy is only an allied offence it cannot be said  that the alleged overt acts are in the course of the same transaction.  We are bound by this decision. In any case we see no reason to take a  different view. As it has already been held that the charge of  conspiracy is only an allied charge and that the main charges (under  the Prevention of Corruption Act) are in respect of separate and  distinct acts i.e. monies siphoned out of different Treasuries at  different times, we fail to see as to how these cases could be  amalgamated. At this stage it must be mentioned that Dr Jagannath Mishra had  merely applied for transfer of all the cases to one Court. His  application was thus under Section 407 of the Criminal Procedure  Code. We are informed that all the Special Courts in Jharkhand are  housed in one building. We see no infirmity in the reasoning given, in  the impugned Judgment dated 6th August 2002, that the cases cannot  be transferred to one Court as at present all the Courts are functioning  smoothly and fairly and the cases are being disposed of very  expeditiously. We are also in agreement with the observation that  transfer to one Court may prejudicially affect other accused persons.  Thus even if we had been inclined to allow the other Appeals, which we  are not, the Appeal filed by Dr. Jagannath Mishra would have had to  be dismissed. For all the above reasons we see no reason to interfere. All the  Appeals stand dismissed.  Before we part it must be mentioned that it had been  complained that the Appellants would be forced to hear the same  evidence 5/6 times. If the Appellants or any of them feel aggrieved by  this and if they so desire they may apply to the Special Judges that  evidence recorded in one case and documents marked as an exhibit in  one case be used as evidence in other cases also. This would obviate  their having to hear the same evidence in 5/6 different cases. We are  sure that if such an application is made the same will be considered by  the Special Judge on its merit, after hearing all the other accused.