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Tuesday, August 13, 2013

transfer of case at fag end not maintainable = In order to substantiate the contention relating to bias, namely, the Presiding Judge would be influenced by his brother-in-law or even by his sister or Mr. P.K. Shahi to go against the interest of the appellant, Mr. Ram Jethmalani, learned senior counsel, placed some photographs taken on 13.01.2013 during the visit of Hon’ble the Chief Minister of Bihar Shri Nitish Kumar to the ancestral house of Shri P.K. Shahi along with the entire Shahi family at House No. 147 Village Angota Block, Nautan P.S., District Sivan. By showing these photographs, it is argued that there is a reasonable apprehension of real likelihood of bias on the part of the Presiding Judge. Apart from the relationship, as mentioned by the appellant, we were also shown the genealogical table. In our opinion, merely because some of the distantly related members were in the midst of the present Chief Minister, it cannot be presumed that the Presiding Judge would conclude against the appellant. Admittedly, the above criminal proceedings were heard by the very same Judge from November, 2011. After examination of witnesses and after hearing the arguments on both the sides, it is not clear how the appellant has such an apprehension at this stage. If the appellant really had any apprehension in his mind, this could have been raised at the earliest point of time and not after the conclusion of evidence and arguments, particularly, on the eve of pronouncement of judgment. As observed earlier, inconvenience, if any, can be set at right by granting further time for arguments. Accordingly, the claim of the appellant for transfer of the entire case from the file of the Special Judge to any other competent court cannot be entertained. We have already highlighted that the prosecution was initiated as early as in 1997 and after prolonged trial, the matter has reached final stage, namely, pronouncement of the decision. In our view, in a matter of this nature, it is not at all desirable to shift the case to some other court at the last hour.

                         published in       http://judis.nic.in/supremecourt/imgst.aspx?filename=40636 
   REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO.1166  OF 2013

               (Arising out of S.L.P. (Crl.) No. 5513 of 2013)


Lalu Prasad @ Lalu Prasad Yadav                 .... Appellant(s)

            Versus

State of Jharkhand                                 .... Respondent(s)


2


                                      3





                               J U D G M E N T


P.Sathasivam, CJI.

1)    Leave granted.
2)    This appeal is directed against the final  judgment  and  order  dated
01.07.2013 passed by the High Court  of  Jharkhand  at  Ranchi  in  Criminal
Misc. Petition No. 1619  of  2013  whereby  the  High  Court  dismissed  the
petition filed by the appellant herein for transferring the case being  R.C.
No. 20(A)/1996 from the Court of Special Judge-IV,  CBI,  (AHD),  Ranchi  to
any other Court of competent jurisdiction.
3)    Brief facts:
(a)    This  appeal  relates   to   illegal   withdrawal   of   a   sum   of
Rs.35,66,42,086/- from the Treasury of Chaibasa by the officials  of  Animal
Husbandry  Department,  Government  of  Bihar   in   connivance   with   the
politicians and suppliers in the year  1994-95  which  culminated  into  the
registration of a First Information Report (FIR) being R.C.  No.  20(A)/1996
dated 27.03.1996 under Sections 409, 420, 467, 468,  471,  477,  477A,  201,
511 read with Section 120B of the Indian Penal Code, 1860 (  in  short  ‘the
IPC’)  and  Section  13(2)  read  with  Section  13(1)(c)  and  (d)  of  the
Prevention of Corruption Act, 1988 (in short ‘the PC Act’) against a  number
of accused persons including the appellant herein.
(b)   After investigation, a charge sheet was submitted in the Court of  the
Special Judge IV, CBI (AHD), Ranchi in the year 1997 and  the  charges  were
framed in the year 2000 in respect of various offences punishable under  the
IPC and the PC Act.  The prosecution started its arguments and concluded  on
10.12.2012 and the arguments advanced on behalf of  43  out  of  45  accused
persons got concluded  on  25.02.2013.   The  prosecution  argued  its  case
against the appellant from 22.04.2013 to  15.05.2013  and,  thereafter,  the
case was posted on 16.05.2013 for  arguments  on  behalf  of  the  appellant
which continued till 31.05.2013.  Considering the fact that the  matter  has
been lingering on  since  1997,  the  Court  below  passed  an  order  dated
10.06.2013 that on the next date, if the arguments would not be advanced  on
behalf of the appellant, it shall be closed.  Thereupon, the arguments  were
advanced till 18.06.2013.  On 20.06.2013, a notice was issued by  the  trial
Judge informing all the parties that written arguments may be  filed  on  or
before 01.07.2013 and judgment is to be delivered on or  before  15.07.2013.
At this stage, Criminal Misc. Petition No. 1619 of  2013  was  filed  before
the High Court by the appellant for the transfer of the case from the  Court
of Special Judge IV, CBI (AHD) to any other court of competent  jurisdiction
on the apprehension that a fair and impartial trial cannot be  done  by  the
aforesaid court.
(c)   The High Court, after considering the  rival  submissions  and  taking
note of the  fact  that  the  case  has  reached  the  stage  of  delivering
judgment, by order dated 01.07.2013, provided a further time of 10 days  for
conclusion of the arguments and dismissed the  petition  which  resulted  in
the present appeal by way of special leave.
(d)   On the day when the matter was posted for hearing,  one  Rajiv  Ranjan
Singh @ Lallan Singh, Member of the  Lok  Sabha  from  Munger  Parliamentary
Constituency in the State of Bihar, filed Criminal Misc. Petition No.  14939
of 2013 seeking intervention in the abovesaid appeal.  It  was  also  stated
that he was one of the writ petitioners before the High Court of Patna in  a
writ petition filed in public interest which led to the  unearthing  of  the
fodder scam  in  the  State  of  Bihar  during  the  period  1977  to  1996.
According to him, he has been  fighting  all  along  for  a  free  and  fair
investigation of the case and expeditious conclusion of the  trial  so  that
the guilty are brought to book and public confidence in the judicial  system
is not shaken.  It is also highlighted that due to  various  orders  of  the
monitoring Bench of the High Court of Jharkhand, the matter has reached  its
concluding stage, hence, there  is  no  bona  fide  and  the  claim  of  the
appellant is devoid of any  merit  and  deserves  to  be  dismissed  in  the
interest of justice.
(e)   Serious objection was raised by  the  appellant  and  the  respondent-
State  through  its  Investigation  Officer-CBI  about  the  role   of   the
intervenor in a criminal trial.
4)    Heard Mr. Ram Jethmalani, learned senior counsel  for  the  appellant,
Mr. Mohan Parasaran, learned Solicitor General for  the  respondent-CBI  and
Mr. Shanti Bhushan, learned senior counsel for the intervenor.
Submissions:
5)    Mr. Ram Jethmalani, learned senior counsel for the appellant,  at  the
foremost, submitted as under:-
(i)    The conduct of the trial Judge gives  a  reasonable  apprehension  of
not getting fair justice.  In  other  words,  according  to  him,  from  the
conduct of the trial Judge, it is obvious  that  fair  opportunity  was  not
being  given  to  the  appellant  to  defend  himself  and  there  is  every
likelihood that he would not get justice,  hence,  it  is  a  fit  case  for
transfer; and
(ii)  The younger sister of the Presiding Judge of the CBI, viz., Mrs.  Minu
Devi, is married to Mr. Jainendra Shahi, the cousin of Mr. P.K. Shahi,  who,
besides having appeared for the CBI, is a political rival of  the  appellant
in  the  Public  Interest  Litigations  and  presently  a  Minister  in  the
Government of Bihar.  In such circumstance,  according  to  Mr.  Jethmalani,
because of the relationship and closeness, the appellant may  not  get  fair
justice at the hands of the Presiding Judge.
6)    On the other hand, Mr.  Mohan  Parasaran,  learned  Solicitor  General
appearing for the CBI, after adverting to the  factual  scenario,  left  the
issue to the decision of this Court, however, he strongly pointed out  about
the maintainability of the application for intervention.
7)    Mr. Shanti Bhushan, learned senior  counsel  for  the  intervenor,  by
placing the factual details starting from the taking of  cognizance,  filing
of the charge sheet, various dates on which the evidence was led in by  both
the sides and the arguments advanced submitted that it is  not  a  fit  case
for transfer at this juncture,  particularly,  when  the  Special  Judge  is
going to pronounce  the  judgment  shortly.   He  also  submitted  that  the
applicant has filed several petitions before the High Court as  well  as  in
this Court highlighting various issues relating to ‘fodder scam’.

Discussion:
8)    With regard to the first submission relating to  the  apprehension  in
the mind of the appellant that he may not get fair and impartial  trial,  it
is relevant to point out that  cognizance  of  various  offences  punishable
under the IPC and the PC Act was taken against the accused  persons  in  the
year 1997 and charges were framed against them in  the  year  2000.   It  is
further seen that the prosecution took 13 years in examining the  witnesses.
 The  prosecution  argued  its  case  against  the  present  appellant  from
22.04.2013 to 15.05.2013 and thereafter the case was  posted  on  16.05.2013
for arguments to be advanced on behalf of the appellant on day-to-day  basis
which continued till 31.05.2013.  It is the grievance of the appellant  that
on 10.06.2013, an order was passed by the Special Judge stating that on  the
next date, if  the  arguments  would  not  be  advanced  on  behalf  of  the
appellant, the case will be closed.  Thereupon, the arguments were  advanced
for 5 more days till 18.06.2013.  On 20.06.2013, a notice was issued by  the
trial Judge informing all the parties that written arguments  may  be  filed
on or before 01.07.2013 and  judgment  is  to  be  delivered  on  or  before
15.07.2013.  On going through all the details including the Order  Sheet  of
the Fodder Scam case, we are of the view that the procedure adopted  by  the
Special Judge cannot be faulted  with  except  one  aspect  which  was  also
noticed by the High Court  intimating  the  parties  in  the  midst  of  the
arguments and compelling  them  to  file  written  arguments  on  or  before
01.07.2013 and judgment to be pronounced on  15.07.2013.   Except  the  said
recourse,  which  is  not  in  consonance  with  the  scheme  of  the  Code,
particularly, in a criminal trial, considering the  magnitude  of  the  case
pending since 1997, the conduct of the Judge cannot  be  faulted  with.   In
view of the same, this Court is inclined to provide  further  time  for  the
accused as well as prosecution to  complete  their  arguments,  if  they  so
desire.
9)    Coming to the second apprehension about the  closeness  of  the  trial
Judge with the person in power, it is pointed out that Mr. P.K.  Shahi,  Ex-
Advocate General of  the  State  of  Bihar,  presently  a  Minister  in  the
Government of  Bihar  is  a  close  relative  of  the  trial  Judge.   While
elaborating further, Mr. Ram Jethmalani submitted that  the  sister  of  the
Presiding Judge, Mrs. Minu Devi, is married to Mr.  Jainendra  Shahi,  grand
son of Late Fulena Shahi, whose one of the brothers was  Late  Hari  Shankar
Shahi and Mr. P.K. Shahi happens to be the grand son of  Late  Hari  Shankar
Shahi and as such Jainendra Shahi, husband of  the  sister  of  trial  Judge
happens to be the cousin of Mr. P.K. Shahi, who on account of his defeat  in
a Parliamentary election at the hands of  the  candidate  belonging  to  the
appellant’s party is quite  anxious  to  settle  the  score  by  making  his
influence to get the appellant convicted so that there would be a  political
death of the appellant.  With regard to the  above  aspect,  Mr.  Jethmalani
heavily relied on a decision of this Court in Manak Lal, Advocate,  vs.  Dr.
Prem Chand Singhvi & Ors., AIR 1957 SC 425 and submitted  that  with  regard
to bias, proof of  actual  prejudice  is  not  necessary.   This  Court,  in
paragraph 4 of the judgment, enunciated the following principles:

      “4……….It is well settled that every  member  of  a  Tribunal  that  is
      called upon to try issues in judicial  or  quasi-judicial  proceedings
      must be able to act judicially; and it is of the essence  of  judicial
      decisions and judicial administration that Judges should  be  able  to
      act impartially, objectively and without any bias. In such  cases  the
      test is not whether in fact a bias has affected the judgment; the test
      always is and must be whether a litigant  could  reasonably  apprehend
      that a bias attributable to  a  member  of  the  Tribunal  might  have
      operated against him in the final decision of the Tribunal. It  is  in
      this sense that it is often said that justice must not  only  be  done
      but must also appear to be done……..”


10)   In order to substantiate the contention relating to bias, namely,  the
Presiding Judge would be influenced by his brother-in-law  or  even  by  his
sister or Mr. P.K. Shahi to go against the interest of  the  appellant,  Mr.
Ram Jethmalani, learned senior counsel, placed  some  photographs  taken  on
13.01.2013 during the visit of Hon’ble the  Chief  Minister  of  Bihar  Shri
Nitish Kumar to the ancestral house  of  Shri  P.K.  Shahi  along  with  the
entire Shahi family at House No. 147  Village  Angota  Block,  Nautan  P.S.,
District Sivan.
By showing these photographs, it is argued that there is  a
reasonable apprehension of real likelihood  of  bias  on  the  part  of  the
Presiding  Judge.   Apart  from  the  relationship,  as  mentioned  by   the
appellant, we were also shown  the  genealogical  table.
In  our  opinion,
merely because some of the distantly related members were in  the  midst  of the present Chief Minister, it cannot be presumed that the  Presiding  Judge would conclude  against  the  appellant.   
Admittedly,  the  above  criminal
proceedings were heard by the very same Judge from  November, 2011.   After examination of witnesses and after hearing the arguments on both the  sides, it is not clear how the appellant has such an apprehension  at  this  stage.
If the appellant really had any apprehension in his mind,  this could  have been raised at the earliest point of time and not after  the  conclusion  of evidence and  arguments,  particularly,  on  the  eve  of  pronouncement  of judgment.   
In  administering  justice,  Judges  should  be  able   to   act
impartially, objectively and  without  any  bias.
The  only  thing  which,
according to us, is that the Special  Judge  has  committed  an  error  that
after granting time for arguments, abruptly issued a  notice  informing  the
parties that the  written  arguments  are  to  be  submitted  on  or  before
01.07.2013 and the judgment would be delivered on or before 15.07.2013.
As observed earlier, inconvenience, if any, can be set  at  right  by  granting further time for arguments.  Accordingly, the claim  of  the  appellant  for transfer of the entire case from the file of the Special Judge to any  other
competent court cannot be entertained.  We  have  already  highlighted  that the prosecution was initiated as  early  as  in  1997  and  after  prolonged trial, the matter has reached final  stage,  namely,  pronouncement  of  the decision.  In our view, in a matter  of  this  nature,  it  is  not  at  all desirable to shift the case to some other court at the last hour.
11)   It is also brought to our notice that the case was being monitored  by
the High Court of Jharkhand at Ranchi  by  way  of  getting  status/progress
reports.  We also noticed that the High Court  at  Ranchi,  by  order  dated
17.06.2013, directed  the  trial  Court  to  expeditiously  proceed  in  the
matter.  In fact, the Court directed the trial Judge to  submit  a  progress
report by 06.08.2013.
12)   In the  light  of  the  entire  factual  scenario,  particularly,  the
objection relating to bias which came to be raised at the  fag  end  of  the
trial that is on the eve of passing orders, as observed earlier, we are  not
inclined to entertain such objection.  The Presiding  Judge,  in  our  view,
will take note of the grievance expressed and eliminate the apprehension  of
the appellant.  It goes without saying that every litigant  is  entitled  to
fair justice.
13)   Independence of judiciary is the basic feature  of  the  Constitution.
It demands that a Judge who presides over the trial, the  Public  Prosecutor
who presents the case on behalf  of  the  State  and  the  lawyer  vis-a-vis
amicus curiae who represents the accused must work together  in  harmony  in
the public interest of  justice  uninfluenced  by  the  personality  of  the
accused or those managing the affairs of the State.  They must  ensure  that
their working does not lead to creation  of  conflict  between  justice  and
jurisprudence.  A person whether he  is  a  judicial  officer  or  a  Public
Prosecutor or a lawyer  defending  the  accused  should  always  uphold  the
dignity of their high office with a full sense  of  responsibility  and  see
that its value in  no  circumstance  gets  devalued.   The  public  interest
demands that the trial  should  be  conducted  in  a  fair  manner  and  the
administration of justice would be fair and independent.
14)   In the light of what is stated above, we do not  find  any  valid  and
acceptable reason for interference with  the  impugned  order  of  the  High
Court.  However, keeping in view the submissions  made  that  arguments  are
still to be advanced, we grant a further time of 5 days for the  prosecution
and 15 days for all the  accused  including  the  appellant  herein.   After
completion of the arguments as prescribed, we direct the  Special  Judge  to
pronounce the decision as early as possible,  uninfluenced  by  any  of  the
observations made by the High Court and this Court.
15)   The appeal is dismissed with the above  direction.   In  view  of  the
above conclusion, without expressing any  opinion  on  the  maintainability,
the application for intervention is dismissed.

                                  ..…….…………………………CJI.


                                       (P. SATHASIVAM)








































                                    ………….…………………………J.


                                      (RANJANA PRAKASH DESAI)








                                    ………….…………………………J.


                                      (RANJAN GOGOI)


NEW DELHI;
AUGUST 13, 2013.



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