http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

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:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

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.