- (1.) ALL the aforesaid cases were heard together and are being disposed of by this common order as all the aforesaid cases arise out of the same impugned order and the question involved in all the cases is the same as to whether the trial court is justified in summoning the Petitioner under section 319 of the Code of Criminal Procedure to face the trial along with other accused persons already facing trial.
(2.) BEFORE corning to the matter which has given rise all the aforesaid cases some back grounds of the case more so (fodder scam cases needs to be stated as it may have some bearing upon the question involved in all these cases. When large number of defalcation of public funds, fraudulent transaction and falsification of accounts to the tune of around rs. 500 crore in the Animal Husbandry Department in the state of Bihar came to light several Public Interest Litigations were filed in the High Court of Judicature at Patna and at its Ranchi Bench in the year 1996 by which time some of the cases had been lodged at some districts. Taking the gravity of the matter, patna High Court directed the CBI to investigate those cases where there has been excess drawal in the department of Animal husbandry and also to register the cases for fraudulent withdrawal of the public fund and the Court directed the first information reports already registered for the said offences to be kept in abeyance. However, the said order passed by the Patna high Court was modified by Hon'ble the supreme Court to the extent that all those cases instituted by the district police were directed to be taken over by the CBI for its investigation under the control and supervision of the Patna High Court. Accordingly, cbi took over the matter of investigation and also lodged number of cases and the CBI seems to have divided the cases in two categories, one being of larger conspiracy involving politicians and top bureaucrats and the other being cases of conspiracy involving district officials, the suppliers, Treasury officers etc. Treasury wise. However, in the meantime, Bihar reorganization Act came into being and then the controversy arose as to whether cases would be enquired/tried in the State of Jharkhand or State of Bihar. However, that was resolved by the Hon'ble supreme Court whereby 36 cases were directed to be enquired into or tried within the territory of Jharkhand State including the present one which relates to Dumka treasury. When the trial of those cases said to be of larger conspiracy bearing Nos. R. C. 20a of 1996 (PAT), R. C. 64a of 1996 (PAT), R. C. 38a of 1996 (PAT), R. C. 68a of 1996 (PAT), R. C. 47a of 1996 (PAT) and r. C. 63a of 1996 (PAT), all related to fraudulent withdrawal but of different Treasuries were being tried separately, an application was filed before the Hon'ble Supreme Court by the petitioner Lalu Prasad Yadav and Dr. Jagannath Mishra for amalgamation of those trials but the prayer was refused resultantly the trials of the cases are going on separately. On amongst them one case i. e. R. C. 38a of 1996 which is a case of larger conspiracy is related to Dumka Treasury and the instant case which has given rise these applications is also concerned with the dumka Treasury. It be pointed out that the present case was initially instituted on 22. 2. 1996 under Sections 109, 120 (B), 409, 478 , 471, 477a of the Indian Penal Code and also Section 13 (l) (c) (d) read with Section 13 (2) of the Prevention of Corruption Act as Dumka (Town) P. S. case No. 21 of 1996 alleging therein that the then District Animal Husbandry officer Dr. Shiv Narayan in conspiracy with other accused persons (suppliers) has withdrawn a sum of rs. 94,84,211 illegally through false and forged bills. However, subsequently CBI took over the investigation of that case and got it registered as R. C. No. 39a of 1996 on 11. 4. 1996. The CBI having investigated the case submitted charge sheet on 30. 9. 2000 against 45 accused persons named therein. In course of time, trial commenced in May, 2004 and by 15th September, 2007 the prosecution after examining 100 witnesses closed the case and then the statements of the accused persons were recorded under section 313 of the Code of Criminal Procedure. However, before that one Mahendra prasad, who was facing trial as an accused filed an application on 3. 2. 2007 stating therein that he intends to confess his guilt and on that application his case was separated from the main case. After the statement under Section 281 of the Code of criminal Procedure was recorded his statement under section 313 was also recorded and then he was convicted and sentenced on 3rd/4th April, 2007. Thereafter on his application, praying therein to allow him to examine as defence witness in favour of his father and wife who are also facing the trial was allowed to be examined as defence witness no. l (DW1 ). Thereafter other 9 defence witnesses were examined and at that stage the court passed the impugned order dated 15. 9. 2007 whereby the court suo moto on the basis of evidences appearing on the record summoned the petitioners as well as other accused persons under Section 319 of the code of Criminal Procedure to face trial along with other accused persons.
(3.) BEING aggrieved with that order, all the applications as aforesaid have been filed. Mr. Mahesh Jethmalani, learned senior counsel appearing for the petitioner Lalu prasad submits that no doubt the court has been conferred with the discretionary power to summon the person under Section 319 of the Code of Criminal Procedure to face trial but such discretion should be used sparingly and that too it should be exercised keeping in view the conspectus of the case including the state which the trial has proceeded and the quantum of evidences collected till then and also the amount of time which the court had spent for collecting those evidences and that too the evidence collected should have been as such that if those evidences remain unrebutted may go to prove that the accused has committed the offence. Learned counsel in this respect further submits that when the prosecution had closed his case after examining not less than 100 witnesses consuming not less than four years, there was no reason for the court to summon the accused persons keeping in view the ratio laid down in Michael machadeo's and also in other cases such as krishnappa v. State of Karnataka; kabuluri Vivekanand Raddi and Anr v. State of Andhra Pradesh and Anr. and gudia v. State of Bihar particularly when the circumstances appearing against the petitioner are so vague that it may never lead the court to hold the petitioners guilty. Learned counsel further submits that court has used the evidences of three witnesses, viz. PW91, PW99 and DW1 for summoning the petitioner Lalu Prasad Yadav but so far evidence of PW99 is concerned, that is inadmissible as PW9 being the Investigating Officer of not this case, rather of other case has spoken about the statement made before him by a witness under section 161 of the Code of Criminal Procedure which cannot be said to be an evidence in terms of Section 319 of the Code of Criminal Procedure. On the other hand, PW 91 though speaks that transfer of one B. N. Sharma was stayed in the year 1993 at the instance of Lalu Prasad Yadav but this fact never goes to show culpability of the petitioner in the alleged offence in any manner and moreover, Lalu Prasad Yadav has been facing prosecution in other six cases of larger conspiracy and one of them does relate to Doranda Treasury also and -lastly other evidence used for summoning the petitioner is of DW1, whose evidence regarding payment being given to Lalu Prasad yadav by other accused is not only vague but the credibility of DW1, who has not only been convicted in this case on guilty being pleaded but in other cases also, will always remains doubtful. Learned counsel by referring the evidence of DW1 submits that though he has proved a document said to be statement of accounts Ext. C showing 5 numbers against one Loha Singh but that document was never marked in proper manner by the court. However, DW1 in course of evidence clarifies that 5 crores was given to Loha singh who in the circle of Animal Husbandry department is known as Lalu Prasad but that amount of Rs. 66 crore according to dw1 is not related to Dumka Treasury, rather it related to withdrawal of other treasuries than Dumka Treasury and moreover, Lalu Prasad Yadav is facing trial in a case of larger conspiracy relating to Dumka treasury in a case bearing R. C. No. 38a of 1996 and; therefore, that fact can never be linked with illegal withdrawal and then its payment from Dumka Treasury which is subject matter of charge of the instant case. Learned counsel is somewhat more critical to the manner in which photocopy of the statement of account Ext. C has been marked that too not in a open proceeding, rather in the chamber. Thus, it was submitted that the impugned order is fit to be set aside.;