# STATE OF JHARKHAND THROUGH SP, CBI v. LALU PRASAD @ LALU PRASAD Y ADAY

- **Citation:** [2017] 3 S.C.R. 630
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal No. 394of2017
- **Bench:** Arun Mishra, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-jharkhand-through-sp-cbi-v-lalu-prasad-lalu-prasad-y-aday-31907
- **Pages:** 51

## Headnote

Fodder Scam:
Constitution of India:
Art. 20(2) -- Code of Criminal Procedure, I973 - s. 300- On
facts, large scale defalcation of public funds, fraudulei1t transactions
and fabrication of accounts in Animal Husbandry Department of
State of Bihm· popularly known as fodder scam - Investigation by
CBI regarding corruption in public administration, misconduct by
bureaucracy, fabrication of official records, misappropriation of
public funds by independent agency - Conviction of three in one of
the criminal cases arising out of fodder scam - Quashing of, by the
High Court, applying Art. 20(2) and s.300 CrPC on the ground
that they have been convicted in one of the cases for offences
involving same ingredients with respect to Chaibasa treaswy - Held:
Though there is one general conspiracy, offences are distinct for
different periods - Defalcations are from different treasziries for
different financial years by exceeding the amount of each year which
was allocated for Animal Husband1y Department - Amount involved
is different, fake vouchers, fake allotment letters, fake supply orders
had been prepared with the help of different sets of accused persons
- Separate charges for distinct offences must be framed separately
and they cannot be clubbed together for more than one year - Thus,
the di-der passed by the High Court is set aside_.
Art. 20(2) - Scope of - Held: No person to be prosecuted
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and punished for the same offence more than once - This is called
docti·ine of double jeopardy - Constitution bars double punishment
for the same offence - Conviction for such offence does not bar
for subsequent trial and conviction for another offence and it does
not matter even if some ingredients of these two offences are common.
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630
STATE OF JHARKHAND THROUGH SP, CBI v. LALU
631
PRASAD @ LALU PRASAD Y ADAY
Delay/laches - Delay in filing the appeals by CBI -
Applications for condonation of delay on account of departmental,
administrative procedures involved in filing SLP s - Held: Delay
A
has been sufficiently explained - Considering the facts and
circumstances of the case, gravamen of matter and Jhe -divergent
views taken by the same Judge of the High Court in the same case · 8
vis-a-vis different accused persons _mt same question, delay to be
condoned so as to subserve the ends of justice.
Doctrines - Doctrine of double jeopardy - Two f{lcet of
doctrine of jeopardy is Autrefois convict and Autrefois acquit -
Autrefois convict means that the person. has been previously
convicted in respect of the same offence - Autrefois acquit means
that the person has been acquitted on a same charge on which he is
being prosecuted.
Judicial deprecation - Delay in filing SLP by CBI in Fodder
scam matter - Conduct of CBI in important matters is surprising -
CBI ought to have acted with more circumspection and ought to
have followed the CBI Manual - Lethargy on its part is intolerable
- Director of CBI to look into the matter and saddle the responsibility
on a concerned person - In important cases Directo1; CBI to devise
convenient methodology or else Director, CBI cannot escape the
responsibility for delay - Delay would be termed as inlolerable.
Allowing the appeals, the Court
HELD: 1.1 Article 20(2) of the Constitution, says that no
person shall b~ prosecuted and punished for the same offence
more than once. This is called the doctrine of double jeopardy.
Tbe objective of the Article is to avoid harassment, wbicb may
be caused by successive criminal proceedings, where the person
has committed only one crime. There is a law maxim related to
this, nemo debet bis vexari. This means that no man shall be put
twice' iri peril for the same offence. There are two aspects of
doctrine of jeopardy viz. Autre/ois convict and Autre/ois "cquit.
Autre/ois convict means that the person has been .previously
convicted in respect of tbe same offence. Autre/ois acquit means
that the person has been acquitted on a same charge on which he
is being prosecuted. Constitution bars d

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[2017] 3 S.C.R. 630
STATE OF JHARKHAND THROUGH SP, CBI
v.
LALU PRASAD @ LALU PRASAD Y ADAY
(Criminal Appeal No. 394of2017)
MAYOS,2017
[ARUN MISHRA AND AMITAVA ROY, JJ.]
Fodder Scam:
Constitution of India:
Art. 20(2) -- Code of Criminal Procedure, I973 - s. 300- On
facts, large scale defalcation of public funds, fraudulei1t transactions
and fabrication of accounts in Animal Husbandry Department of
State of Bihm· popularly known as fodder scam - Investigation by
CBI regarding corruption in public administration, misconduct by
bureaucracy, fabrication of official records, misappropriation of
public funds by independent agency - Conviction of three in one of
the criminal cases arising out of fodder scam - Quashing of, by the
High Court, applying Art. 20(2) and s.300 CrPC on the ground
that they have been convicted in one of the cases for offences
involving same ingredients with respect to Chaibasa treaswy - Held:
Though there is one general conspiracy, offences are distinct for
different periods - Defalcations are from different treasziries for
different financial years by exceeding the amount of each year which
was allocated for Animal Husband1y Department - Amount involved
is different, fake vouchers, fake allotment letters, fake supply orders
had been prepared with the help of different sets of accused persons
- Separate charges for distinct offences must be framed separately
and they cannot be clubbed together for more than one year - Thus,
the di-der passed by the High Court is set aside_.
Art. 20(2) - Scope of - Held: No person to be prosecuted
G
and punished for the same offence more than once - This is called
docti·ine of double jeopardy - Constitution bars double punishment
for the same offence - Conviction for such offence does not bar
for subsequent trial and conviction for another offence and it does
not matter even if some ingredients of these two offences are common.
H
630
STATE OF JHARKHAND THROUGH SP, CBI v. LALU
631
PRASAD @ LALU PRASAD Y ADAY
Delay/laches - Delay in filing the appeals by CBI -
Applications for condonation of delay on account of departmental,
administrative procedures involved in filing SLP s - Held: Delay
A
has been sufficiently explained - Considering the facts and
circumstances of the case, gravamen of matter and Jhe -divergent
views taken by the same Judge of the High Court in the same case · 8
vis-a-vis different accused persons _mt same question, delay to be
condoned so as to subserve the ends of justice.
Doctrines - Doctrine of double jeopardy - Two f{lcet of
doctrine of jeopardy is Autrefois convict and Autrefois acquit -
Autrefois convict means that the person. has been previously
convicted in respect of the same offence - Autrefois acquit means
that the person has been acquitted on a same charge on which he is
being prosecuted.
Judicial deprecation - Delay in filing SLP by CBI in Fodder
scam matter - Conduct of CBI in important matters is surprising -
CBI ought to have acted with more circumspection and ought to
have followed the CBI Manual - Lethargy on its part is intolerable
- Director of CBI to look into the matter and saddle the responsibility
on a concerned person - In important cases Directo1; CBI to devise
convenient methodology or else Director, CBI cannot escape the
responsibility for delay - Delay would be termed as inlolerable.
Allowing the appeals, the Court
HELD: 1.1 Article 20(2) of the Constitution, says that no
person shall b~ prosecuted and punished for the same offence
more than once. This is called the doctrine of double jeopardy.
Tbe objective of the Article is to avoid harassment, wbicb may
be caused by successive criminal proceedings, where the person
has committed only one crime. There is a law maxim related to
this, nemo debet bis vexari. This means that no man shall be put
twice' iri peril for the same offence. There are two aspects of
doctrine of jeopardy viz. Autre/ois convict and Autre/ois "cquit.
Autre/ois convict means that the person has been .previously
convicted in respect of tbe same offence. Autre/ois acquit means
that the person has been acquitted on a same charge on which he
is being prosecuted. Constitution bars double punishment for
the same offence. The conviction for such offence does not bar
for subsequent trial and conviction for another offence and it does
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not matter even if some ingredients of these two offences are
common. [Para 17](649-G-H; 650-A-B]
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1.2 Section 300 refers to Sections 220 and 221 Cr.P.C. No
doubt it appears that a person who has been convicted or acquitted
of the "same offence" cannot be tried again considering the said
provisions. Section 220(1) provides that if one series of acts is
so connected together as to form the same transaction, more
offences than one are committed by the same person, he may be
charged with and tried at one trial for every such offence. Section
221(1) is applicable where it is doubtful what offence has been
committed. When a single act or series of acts is of such a nature
that it is doubtful which of several offences the facts which can be
proved would constitute, the accused may be charged with having
committed all or any of such offences and such charges can be
tried together. [Paras 18, 19][651-C-D, E-G]
1.3 When the accused is charged with criminal breach of
trust or dishonest appropriation of money or other immovable
property, it shall be sufficient to specify the gross sum or describe
the moveable property in respect of which offence is alleged to
have been committed, and the dates between which the offence
is alleged to have been committed, without specifying particular
items of exact dates, and the charge so framed shall be deemed
to be a charge of one offence within the meaning of Section 219
provided that the time included between the first and last of such
dates shall not exceed one year. A charge shall contain ·such
particulars as to time and place of the alleged offence which is
material and time period shall not exceed one year. [Para 21]
(652-C-E]
1.4 Section 219 Cr.PC provides that three offences of same
kind within a year may be charged together. When a person is
accused of more offences than one of the same kind committed
within a period of one year, he may be charged with, and tried at
one trial for, any number of them not exceeding three for same
kind of offence under Section 219(1). It is apparent from Section
212 read with Section 219 that there have to be separate trials
for different years covering the period of more than one year.
Same kind of offence is a different thing than the "same offence"
for the purpose of Sections 219, 220 or 300. The scheme of law is
STATE OF JHARKHAND THROUGH SP, CBI v. LALU
633
PRASAD@ LALU PRASAD YADAV
clear that separate charges for distinct offences must be framed . A
separately and they cannot be clubbed together for more than
one year. [Paras 22, 23)[652-E-F; 653-C-D]
1.5 Section 218 deals with separate cbarges for distinct
offences. Section 219 provides that three offences of the same
kind can be clubbed in one trial committed within one year. Section
220 s·peaks of trial for more than one offence if it is the same
transaction. In the instant case, it cannot be said that defalcation
is same transaction as the transactions are in different treasuries
for different years, different amounts, different allotment letters,
supply orders and suppliers. Thus, the provision of Section 221
is not attracted in the instant case. There are different sets of
accused persons in different cases with respect to defalcation.
There may be a conspiracy in general one and a separate one.
There may be larger conspiracy and smaller conspiracy which
may develop in successive stages involving different accused
persons. [Paras 31, 32] [659-C-E]
1.6 In the instant case, offences arc not the same offence.
There can be different trials for the same offence if tried under
two different enactments altogether ancl comprised of two different
offences under different Acts/statutes without violation of the
provisions of Article 20(2) or Section 300 Cr.P.C.[Para 33] [660B]
1.7 Though there was one general charge of conspiracy,
which was allied in nature, the charge was qualified with the
substantive charge of defalcation of a particular sum from a
particular treasury in particular time period. The charge has to
be taken in substance for the purpose of defalcation from a
particular treasury in a particular financial year exceeding the
allocation made for the purpose of animal husbandry on the basis
of fake vouchers, fake supply orders etc. The sanctions made in
Budget were separate for each and every year. This Court has
already dealt with this matter when the prayers for amalgamation
and joint trial had been made and in view of the position of law
and various provisions, separate trials which are being made are
in accordance with provisions of law otherwise it would have
p1·ejudiced the accused persons considering the different
defalcations from different treasuries at different times with
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[2017] 3 S.C.R.
different documents. Whatever could be combined has already
been done. Each defalcation would constitute an independent
offence. Thus, by no stretch, it can be held to be in violation of
Article 20(2) of the Constitution or Section 300 Cr.P.C. Separate
trials in such cases is the very intendment of law. There is no
room to raise such a grievance. Though evidence of general
conspiracy has been adduced in cases which have been
concluded, it may be common to all the cases but at the same
time offences are different at different places, by different accused
persons. As and when a separate offence is committed, it becomes
punishable and the substantive charge which has to be taken is
that of the offence under the P.C. Act etc. There was conspiracy
hatched which was continuing one and has resulted into various
offences. It was joined from time to time by different accused
persons, so whenever an offence is committed in continuation of
the conspiracy, it would be punishable separately for different
periods as envisaged in Section 212(2), obviously, there have to
be separate trials. Thus, it. cannot be said to be a case of double
jeopardy at all. It cannot be said that for the same offence the
accused persons are being tried again. [Para 35] [664-E-H; 665A-D]
1.8 The modus operandi being the same would not make it
a single offence when the offences are separate. Commission of
offence pursuant to a conspiracy has to be punished. If conspiracy
is furthered into several distinct offences there have to be
separate trials. There may be a situation where in furtherance of
general conspiracy, offences take place in various parts of India
and several persons are killed at different times. Each trial has
· to be separately held and the accused to be punished separately
for the offence committed in furtherance of conspiracy. In case
there is only one trial for such conspiracy for separate offences,
it would enable the accused person to go. scotfree and commit
number of offences which is not the intendment oflaw. The concept
is of 'same offence' under Article 20(2) and Section 300 Cr.P.C.
In case. distinct offences are being committed there has to be
independent trial for each of such offence based on such
conspiracy and in the case of misappropriation as statutorily
mandated, there should not be joinder of charges in one trial for
more than one year except as provided in ·section 219. One general
STATE OF JHARKHAND THROUGH SP, CBI v. LALU
635
PRASAD@ LALU PRASAD YADAV
conspiracy from 1988 to 1996 led to various offences as such
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there have to be different trials for each of snch offence based
upon conspiracy in which different persons have 1Jarticipated at
different times at different places for completion of the offence.
[Para 39][671-C-F]
1.9 It is apparent that it is premature to raise the plea of
issue of estoppel before evidence is recorded for different sets
of accusations of different offences for different periods. Then it
is difficult to say that prosecution would be bound by the finding
in a previous trial on a similar issue of fact and there may not be
any contradiction if the periods are different and with respect to
culpability for different periods and without fear of contradiction,
separate findings can be recorded. In what manner the duty has
been carried on for different periods would be the question of
fact in each case and there is no question of double jeopardy in
such a case. [Para 49][677-C-D)
1.10 The same Judge had taken a different view in Dr. R's
case on the basis of same facts, and same question of law in the'
same cases. Judicial discipline requires that such a blatant
contradiction in such an important matter should have been
avoided. The order passed in the case of .Dr. R was on sound
basis and though the court had noted that there was some
overlapping of facts but the offences were different, it, however,
has taken a different view in the impugned order for the reasons
which are not understandable. The court ought to have been careful
while dealing with such matters and consistency is the hallmark
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of the court due to which people have faith in the system and it is
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not open to1he court to take a different view in the same matter "
with reference to different accused persons in the same facts and
same case. Such inconsistent decision-making ought to have been
avoided at all costs so as to ensure credibility of the system. The
impugned orders are palpably illegal, faulty and contrary to the
basic principles of law and Judge has ignored large number of
binding decisions of this Court while giving impermissible benefit
to the accused persons and delayed the case for several years.
Interference bad been made at the advanced stage of the case
which was wholly unwarranted and uncalled for. Let now amends
be made by expediting the trial without any further hindrance
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from any quarter. [Para 50] [677-E-H; 678-A]
State of Bihar & Anr. v. Ranchi Zila Samta Party & Anr.
[1996] 3 SCR 663 : (1996) 3 sec 682; CBI. AHD,
Patna v. Bra} Bhushan Prasad & Ors. [2001] 3 Suppl.
SCR 627 : (2001) 9 SCC 432: Lalu Prasad alias Lalu
Prasad Yadav v. State through CBI (A.HD.), Ranchi,
Jharkhand [2003] 2 Suppl. SCR 1032 : (2003) 11 SCC
786; Laloo Prasad @ Laloo Prasad Yadav v. State of
Jharkhand (2002) 9 SCC 372; T. T. Anthony v. State of
Kera/a (2~01) 6 SCC 181; Amitbhai Anilchandra Shah
v. CB.I. [2013] 6 .SCR 623 : (2013) 6 sec 348; Sidh
Nath Awasthi v. Emperor 1920 ILR 17; Natwar Lal
Sakar Lal Mody v. The State of Bombay 26 (1984) DLT
64; Ranchhod Lal v. State of Madhya Pradesh AIR 1965
SC 1248 : [1965] SCR 283; A P v. Cheemalapti
Ganeswara Rao & Anr. [1964] 3 SCR 297; Sardar
Sardul Singh Caveeshar v. State -of Maharashtra (1964]
2 SCR 378; State of Bombay v. S.L. Apte [1961] 3 SCR
107; Gopal Prasad Sinha v. State of Bihar [1971] 2
SCR 619 : (1970) 2 SCC905; Ram Lal Narang " Slate
(Delhi Administration)~(l979) 2 SCC 322; Mohd.
Hussain Umar Kochra etc. v. KS. Dalipsinghji & Anr.
AIR 1970 SC 45 : [1969] 3 SCR 130; Manipur
Administration, Manipur v. Thokchom Bira Singh AIR
1965 SC 87 : [1964] SCR 123; Assistant Collector of
Customs, Bombay & Anr. v. L.R.Melwani AIR 1970 SC
962 : [1969] SCR 438; Pritam Singh v. The Stale of
Punjab AIR 1956 SC 415; Emperor v. Jhabbar Mull
Lakkar (1922) ILR 49 Cal 924; State of Bombay v.
Umarsaheb Buransaheb lnamdar AIR 1962 SC 1153 :
[1962] Suppl. SCR .711; Gopal Prasad Sinha v. State
of Bihar [1971] 2 SCR 619; Masur Khan v. Stale of
U.P. [1974] 1 SCR 793; Ravinder Singh v. Sukhbir
Singh [2013] 1 SCR 243 : (2013) 9 SCC 245 - referred
to.
'· .
S. Swamirathnam v. State of Madras AIR 1957 SC 340;
Mohd. Hussain Umar Kochra etc. v. KS. Dalipsinghji
& Anr. AIR 1970 SC 45: [1969] 3 SCR 130; Srichand
STATE OF JHARKHAND THROUGH SP, CBI v. LALU
637
PRASAD@ LALU PRASAD YADAV
K. Khetwani v. The State of Maharashtra AIR 1967 SC
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450 : [1967) SCR 595 - distinguished.
Emperor v. Jhabbar Mull Lakkar 1922 ILR 49 Cal 924
- disapproved.
R. v. Griffith 1965 (2) AER 448; Sambasivan v. Public
Prosecutor (1950) AC 458; Mills v. Cooper (1967) 2
QB 459; R. v. Humph1ys (1976) 2 AER 497 - referred
to.
2.1 There is a delay of 113, 157 and 222 days in filing the
respective appeals by the CBI. The applications have been filed
for condonation of delay on account of the departmental,
administrative procedures involved in for filing the special leave
petition. It w.as submitted that unlike the private litigant the .
matters relating to the Government are required to be considered
at various levels and then only a decision is taken to file special
leave petition and the process of referring the particular file from
one department to another is a time consuming process and
decisions hav~ to be taken collectively. In view of the averments
made in the applications, delay has been sufficiently explained
and considering the facts and circumstances of the case, gravamen
of matter and also the divergent views taken by the same Judge
of the High Court in the same case vis-a-vis different accused
persons on same question, it is the duty of this Court not to throw
away petition on the ground of delay. The explanation offered by
the CBI of movement of file so as to condone the delay so as to
subserve the ends of justice, deserves to be accepted. It is
. regrettable that majority of the special leave petitions file4 in
this Court are barred by limitation not only on behalf of the
Government but also by the other private litigants. Not only that
the SL P's are preferred with the delay but in refiling also enormous
time is consumed and this Court in order to advance substantial
justice is not throwing away cases only on limitation. (Paras 51,
55) (678-B-C; 679-F-H; 680-A)
2.2 Sufficiency of cause has to be judged in ·a pragmatic
riianner so as to advance cause of justice. No doubt about it that
litigants are·supposed to act with circumspection within limitation
and that there should not be delay a'lld !aches and State machinery
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should not be differentiated vis-a-vis with the private individual
in the matter of filing the appeals, petitions etc., however, in the
facts and circumstances of the case and considering the averments
in the applications, it is appropriate to condone the delay in filing
the appeals in this Court. [Para 56)(680-B-C]
2.3 This Court. is surprised at the conduct of the CBI in
such important matters how such delay could take place. The
CBI ought to have bee1i careful in filing the Special Leave
Petitions within limitation considering the factual matrix of the
case. The criticism made by the counsel for respondent is not
wh'olly unjustified. CBI ought to be guided by its Manual. It is
expected of it to be more vigilant. It has failed to live up to its
reputation. In the instant case, lethargy on its part is intolerable.
If CBI fails' to act timely, peoples' faith would be shaken in its
effectiveness. The Director of CBI to look into the matter and
saddle the responsibility on a concerned person. In important
cases Director, CBI should devise· methodology which should
not be cumbersome as reflected in these cases, otherwise in
future, Director, CBI cannot escape the responsibility for delay
in such cases to be formed as deliberate one, which is intolerable.
Being the head of the institution it was the responsibility of the
Director, CBI to ensure that appeals were filed within limitation.
There should not have been delay in filing special leave petitions
at all. [Para 57)(680-D-F]
Postmaster General & Ors. v. Living Media India Ltd.
&Anr. (2012) 3 SCC 503; Sta.te of UP th1: Exe. Engineer
v. Amar Nath Yadav (2014) 2 SCC 422; Ajit Singh
Thakur & Anr. v. State of Gujarat [1981] 2 SCR 509-:
1981 (1) SCC 495; Pundlik Jalam Patil {DJ by Lrs. v.
Exe. Engg. Jalgaon Medium Project & Anr. [2008] 15
SCR 135 : (2008) 17 SCC 448; Binod Bihari Singh v.
Union of India [1992) 3 Suppl; SCR 468 : (1993) 1
SCC 572; Vineet Narain & Ors. v. Union of India &
Anr. [1997] 6 Suppl. SCR 595 : (1998) 1 SCC 226;
Japani Sahoo v. Chandra Sekhar Mohanty [2007] 8
SCR 582 : (2007) 7 SCC 394; Sajjan Kumar v. Union
of India [2010] 11 SCR 669 : (2010) 9 SCC 368; State
of Tamil Nadu v. M Suresh Rajan [2014] 1 SCR 135 :
~TATE OF IBARKHAND THROUGH SP, CBI v'. LALU
. 639
PRASAD@ LALU PRASAD YADAV
(2014) 11 SCC 709; Indian Oil Corporation Ltd. & Ors.
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v. Subrata Borah Chowlek, etc. 12010] 13 SCR 776 :
(2010) 14 SCC 419; State of Nagaland v. Lipok AO &
Ors. [2005) 3 SCR 108 : (2005) 3 SCC 752 - referred
to.
3. The impugned judgments passed by the High Court are
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set aside. The trial court is directed to expedite the trial and to
conclude the same within the stipulated period.[Para 581(680-G]
Case Law Reference
[1996) 3 SCR 663
·-
referred to
Pari:t2
[2001) 3 Suppl. SCR 627
referred to
Para2
c
[2003) 2 Suppl. SCR 1032
referred to
Paras
(2002) 9 sec 372
referred to
Para 14
(2001) 6 sec 181
referred to
Para 15
[2013) 6 SCR 623
referred to
Para 15
1920 ILR 17
referred to
Para 15
D
26 (1984) DLT 64
referred to
Para 24
[1965] SCR 283
referred to
Para25
[1964] 3 SCR 297
referred to
Para 27
(1964] 2 SCR 378
referred to
Para28
[1961) 3 SCR 107
.referred to
Para 28
E
[1971) 2 SCR 619
referred to
Para 29
(1979) 2 sec 322
referred to
Para 32
AIR 1957 SC 340
distinguished
Para 36
[1967) SCR 595
distinguished
Para 37
[1969) 3 SCR 130 ·
distinguished
Para 38
F
(1969) 3 SCR 130
referred to
Para 38
[1964) SCR 123
referred to
Para 40
{1969) SCR 438
referred to
Para 40
(1950) AC 458
referred to
Para 40
AIR 1956 SC 415 ·
referred to
Para 41
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1922 ILR 49 Cal 924
disapproved
Para 42
[1962] Suppl. SCR 711
referred to
Para 43
[1971] 2 SCR 619
referred to
Para 44
[1974] 1 SCR 793
referred to
Para 46
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SUPREME COURT REPORTS
[2017] 3 S.C.R.
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12013] 1 SCR 243
referred to
Para 48
(2012) 3 SCC 503
referred to
Para 52
(2014) 2 SCC 422
referred to
Para 52
J1981J 2 SCR 509
referred to
Para 53
120081 15 SCR 135
referred to
Para 53
B
[1992] 3 Suppl. SCR 468
referred to
Para 53
[1997] 6 Suppl. SCR 595
referred to
Para.53
120071 8 SCR 582
referred to
Para 54
120101 11 SCR 669
referred to
Para 54
J2014J 1 SCR 135
referred to
Para 54
C
120101 13 SCR 776
referred to
Para 54
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 394 of2017.
From the Judgment and Order dated 14.11.2014 of the High Court
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of Jharkhand at' Ranchi in Cr!. M. P. No. 1811 of 2014
WITH
Cr!. A. Nos. 393 and 395 of2017.
Ranjit Kumar, SG, Tushar Mehta, ASG, Ms. Vibha Datta Makhija,
Sr. Adv., R. S. Jena, Kumar Parimal, Ms. Binu Tamta, T. A. Khan,
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Mukesh Kumar Maroria, D. Shavaish, Advs. for the Appellant.
· Ram Jethmalani, Surendra Singh, Chitranjan Sinha, Dharnidhar
Jha, Sr. Advs., Adit S. Pujari, Surabhi Dhar, K. Awasthi, Senthil
Jagadeesan, D.S. Parmar, Susheel Tamar, Chirag Madan, Ajay Awasthi,
Ms. Kavitta Sharma, Ms. Abha R. Sharma, Nityanand Jha, R. K. Mishra,
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Fauzia Shakil, Nikhil Ranjan, Snehasish. Mukherjee, Advs. for the
Respondent.
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The Judgment of the Com1 was delivered by
ARUN MISHRA, J. I. The appeals arise out of three separate
judgments and orders oflearned Single Judge of High Court.of Jharkhand
at Ranchi discharging three accused persons namely; Lalu Prasad Yadav,
Sajal Chakraborty and Dr. Jagannath Mishra on the ground of their
conviction in one of the criminal cases arising out of fodder scam of
erstwhile State ofBihar. Applying the provision under Article 20(2) of
the Constitution oflndia and Section 300 of Code of Criminal Procedure,
H . 1973 (for short 'the Cr.PC'), the High Court has quashed RC No.64A/96
STATE OF JHARKHAND THROUGH SP, ·CBI v. LALU
PRASAD@ LALU PRASAD YADAV [ARUN MISHRA, J.]
against Lalu Prasad Yadav, four cases against Dr. Jagannath Mishra
being RC Nos.64A/96, 4 7 A/96, 68A/96 and 38A/96 and two cases against
Sajal Chakraborty being RC Nos.20A/96 and 68A/96 on the ground that
they have been convicted in one of the cases for offences involving the
same ingredients with respect to Chaibasa treasury.
2. In the wake oflarge scale defalcation of public funds, fraudulent
transactions and fabrication ofaccounts in Animal Husbandry Department
of State of Bihar popularly known as fodder scam, Central Bureau of
Investigation (for short, 'the CBI') investigation had been ordered by
this Court in State of Bihar & Am: 1( Ranchi Zila Samta Party & Anr.
(1996) 3 sec 682 to investigate corruption in public administratio~
misconduct by the bureaucracy, fabrication of official records,
misappropriation of public funds by an independent agency. This Cou11
directed CBI to do investigation and inform the Chief Justice of Patna
High Court. On the re-orgnisation of the State of Bihar by virtue of
Bihar Re-organisation Act, 2000, States of Bihar and Jharkhand were
formed. Question arose with respect to the place of trial of cases i.e.
whether in State of Bihar or State of Jharkhand. A Full Bench of High
Court of Patna took the view that none of the 36 cases which were of
Jharkhand to be transferred to Jharkhand. CBI preferred appeals before
this Court as well as Dr. R.K. Rana. Total 64 cases had been registered
relating to Bihar Fodder Scam. 52 cases involved withdrawal of huge
sums of money from Government treasuries falling within Jharkhand
State and in 36 out of 52 cases charge-sheet had been filed by CBI
·before the appointed day. This Court opined that the only court which
has the jurisdiction to try offences under Prevention of Corruption Act is
the Court of Special Judge appointed for areas withi1i which such offences
were committed. This Comi in CBI, AHD, Patna v. Braj Bhushan
Prasad & Ors. (2001) 9 SCC 432 has laid down thus:
"33. For that purpose it is useful to look at Section 3( I) of the
PC Act. It empowers the Government to appoint a Special Judge
to try two categories of offences. The first is, "any offence
punishable under this Act" and the second is, "any conspiracy to
commit or any attempt to commit or any abetment of any of the
offences specified" in the first category. So when a cou11 has
jurisdiction to try the offencuunishable under the PC Act on
the basis of the place where such offence was committed. the
allied offences such as conspiracy. attempt or abetment to commit
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that offence are only to be linked with the main offence. When
the main offence is committed and is required to be tried, it is
.rather inconceivable that jurisdiction of the court will be
determined on the basis of where the conspiracy or attempt or
abetment of such main offence was committed. It is only when
the main offence was not committed, but only the conspiracy to
commit that offence or the attempt or the abetment of it alone
was committed, then the question would arise whether the Court
of the Special Judge within whose area such conspiracy etc.
was committed could try the_ case. For our purpose it is
unnecessary to consider that aspect because the charges proceed
on the assumption that the main offence 'was committed."
(Emphasis Supplied)
,
3. This Court in Bra} Bhushan Prasad (supra) has laid down
that so far as offences under section 13( I)( c) and 13( I)( d) are concerned,
the place where the offences were committed could easily be identified
as the place where the treasury concerned was situate and laid down
thus:
"37. Thus, when it is ce11ain where exactly the offence under
Section 13 of the PC Act was committed it is an unnecessa1y
exercise to ponder over the other areas wherein certain allied
activities, such as conspiracy or preparation, or even the prefatoiy
or incidental acts were done, including the consequences that
ensued." (Emphasis Supplied)
"42. Thus, ifthe PC Act has stipulated any place for trial of the
offence under that Act the provisions of the Code would stand
displaced to that extent in regard to the pla~e of trial. We have,
therefore, no doubtthat when the offence is under Section 13( I)( c)
or Section 13(.l)(d) of the PC Act the sole determinative factor ·
regarding the court having jurisdiction is'the place where the
offence was committed."
(Emphasis Supplied)
4. With respect to adoption of evidence in various cases as
evidence with respect to conspiracy was to be common, this Court has
___ observed in Bra} Bhushan Prasad (supra) thus :
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STATE OF JHARKHAND THROUGH SP, CBI v. LALU
PRASAD@ LALU PRASAD YADAV [ARUN MISHRA, J.]
"50. To avoid the confusion and repetition of the exercise, we
make it clear that the evidence already recorded in any of the 36
cases will be treated as evidence recorded by the proper court
having jurisdiction. In other words, the Special Judge need not
call the witnesses already examined ovet again for repetition of
what has already come on record."
This Court has clearly observed that the place of trial has to be on
the basis of commission of offence where the defalcation has been made
and not on the basis of place of conspiracy. Submission to the contrary
had been negatived.
5. Subsequently, prayer was made for amalgamation of six cases
which were pending before Special Courts in the State of Jharkhand.
Matter was considered by this Comt with respect to joint trial of cases
including RC Nos.20A/96 and 64A/96 which were pending before the
Special Judge at Patna. This Court considered the matter iri Lalu Prasad
alias Latu Prasad Yadav v. State through CBI (A.HD.), Ranchi,
Jharkhand (2003) 11 SCC 786. It was urged on behalf of Lalu Prasad
Yadav, Dr. Jagannath Mishra and others that it was a case of only a
single conspiracy and therefore there should be amalgamation of trials
as per the provisions contained in section 223 Cr.PC. This Court opined
that charges were not framed at that stage. It is for trial court to decide
the prayer for joint trial. There were large number of accused persons.
It was also observed that main offence was under the PC Act and
conspiracy was an allied offence. This Court laid down thus :
"11. .... 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 th~ 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 offence 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
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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."
"14. Before we part it must be mentioned that it had been
complained that the appellants would be forcetl to hear the same
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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/
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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". (Emphasis Supplied)
This Court had noted the grievance that accused persons would
be forced to hear the same evidence 5-6 times, but ordered that they
may apply to the Special Judges that evidence recorded in one case and
the document marked as an exhibit in one case be used as evidence in
other cases also.
6. Lalu Prasad Yadav was prosecuted and convicted in RC
No.20(A)/96 with respect to aforesaid period 1.4.1994 to 31.1.1995
relating to Cha.ibasa treasury. The charges had been framed for
commission of offence of criminal conspiracy punishable under section
1208 read with sections409, 420, 467, 468, 471, 477, 477 A of the Indian
Penal Code, 1860 (for short, 'the IPC') and section 13(1)(c) read with
section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the
PC Act') where defalcation/general conspiracy was alleged between
1988 and 1996 and included various treasuries of erstwhile State ofBihar.
However, in RC No.20(A)/96 with respect to Chaibasa treasury, the
specific charge was with respect to the period 1.4.1994 to 31.1.1995 for
facilitating dishonest and fraudulent withdrawal of Government funds to
the tune ofRs.37,70,39,743/-. The case RCNo.64(A)/96 which is quashed
relates to Deoghar whereas the amount misappropriated is Rs.85 lakhs
as against actual allotment of funds for district ofRs.4, 73,400/- with the
help of250 vouchers and 17 fake allotment letters. Misappropriation is
alleged for the period 1991 to 1994. There are 38 accused persons and
one of them is Lalu Prasad Yadav.
7. In the case against Dr. Jagannath Mishra l\e has been sonvicted.
in RC No.20(A)/96 with respect to Chaibasa treasury in respect of
STATE OF JHARKHAND THROUGH SP, CBI v. LALU
645
PRASAD @ LALU PRASAD Y ADAY [ARUN MISHRA, J.]
misappropriation of Rs.3 7. 70 crores for the period 1994-95 whereas the · A
prosecution has been quashed with respect to RCNo.38(A)/96 relating·
to misappropriation ofRs.3.76 crores from Dumka treasury as against
actual allotment ofRs.1.5 lakhs with the help of96 fake vouchers in the
financial year 1995-96. In case RCNo.47(A)/96 misappropriation alleged
is that ofRs.139 .3 5 crores against actual allotment of Rs.1,97,90,000 by
fake vouchers numbering 4845,502 fake allotment orders and 2367 fake
supply orders in financial years 1991 to 1995. RC No.68(A)/96 relates
to Chaibasa treasury regarding misappropriation of Rs.37.62 crores
against actual allotment of Rs.7.10 lakhs with the help of 49S fake
vouchers, 67 fake allotment letters and 3870 fake supply orders during
the financial year 1992-93.
8. Sajal Chakraborty had been convicted by Trial Corn1 in RC
No.5 l(A)/96 relating to Chaibasa treasury regarding Rs.39.92 crores
misappropriation against actual allotment ofRs.4,09,750/-with the help
of 580 vouchers, 4 789 fake supply orders for the financial year 1993-94
on 14.7 .2008 but acquitted by the High Court in appeal. The prosecution
has been quashed vis a vis Sajal Chakraborty in RC No.20(A)/96 relating
to Chaibasa Treasury and RC No.68(A)/96 relating to Chaibasa Treasury
for misappropriation ofRs.3 7 .62 crores during the financial year 1992-93.
9. It was submitted on behalfofCBlthatthough the same learned
Judge of the High Court has quashed the proceedings in the aforesaid
cases with respect to Lalu Prasad Yadav, Dr. Jagannath Mishra and
Sajal Chakraborty owing to their conviction in one of the cases, however,
with respect to accused Dr. R.K. Rana, the same Judge in criminal W.P.
No.226/2011 has declined to quash the criminal prosecution in pending
six other cases owing to his conviction in RC No.22A/96. Prayer for
quashing·of criminal prosecution in RC Nos.20A/96, 33A/96, 38A/96,
47 A/96, 64A/96 and 68A/96 had been declined but the same very cases
have been quashed by taking a contrary view in the impugned judgment .
and order.
I 0. It was submitted by Shri Ranjit Kumar, learned Solicitor
General appearing for CBI that as the offences relate to different
treasuries for different financial years, for different amounts running
into several crores with the help of different fake allotment letters, supply
orders, different falsification of books of accounts, different suppliers,
.Article 20(2) of Constitution of India is not attracted as the offences
cannot be said to be the same. Similarly the provisions of section 300
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Cr.PC are not attracted. They are different offences and transactions.
Reliance has been placed upon section ·2 I 2(2) of the Cr.PC so as to
contend that the period of charge for offence of misappropriation shall
not exceed one year. There has to be different trials for different periods.
Reference has also been made to sections 2 I 9, 220 and 221 of Cr.PC.
There is difference between the same kind and the same offence. In
different treasuries, distinct offences have been committed though of
same kind by different sets of accused persons. There have to be separate
charges for distinct offences and, therefore separate trials are required
to be held. Principle of issue estoppel would not arise as parties are
different, duties were differentfor different times. Judgment of conviction
has also been placed on record by CBI.
I 1. Prayer has also been made to condone the delay in filing the
appeals in this Court for which reliance has been placed upon the
affidavits/explanation which has been offered. Thus, it was urged that
sufficient ground has been made out so as to condone the delay.
12. It was submitted by Shri Ram Jethmalani, learned senior
counsel appearing on behalf of respondent Lalu Prasad Yadav that the
delay has not been satisfactorily explained. There is no sufficient cause
so as to condone the delay. CBI has acted in flagrant violation of the
provisions contained in CBI Manual. Thus, no case is made out so as to
condone the delay ..
13. It was contended by Shri Surendra Singh, leari;ied senior
_,... ..... -
counsel on behalf ofLalu Prasad Yadav that the charge for conspiracy
against Lalli Prasad Yadav with respect to cases at Chaibasa, Patna,
- Ranchi, Bhagalpur l,!nd other places ofBihar, Calcutta and Delhi, was
not specific to the period of defalcation. The charges were general for
the period from 1988 to 1996. Thus, it was submitted that evidence has
been adduced with respect to the general conspiracy between 1988 and
1996 which included the Treasuries in question in the cases where
prosecution has been quashed. It was not the case put up under section
313 Cr.PC that there was separate conspiracy for the period I .4. I 994 to
30.1.1995. In RC No.64(A)/96 similar charges for conspiracy for the
years I 988 to 1996 at Deoghar, Dumka, Ranchi, Patna and other places
had been framed. In pursuance thereof an amount of Rs.89,27, I 64.15/-
has been withdrawn from Deogarh Treasury. As the conspiracy for
Chaibasa and Deogarh is the same the evidence has already been
adduced in the case relating to Chaibasa treasury. Thus for one and the
STATE OF JHARKHAND THROUGH SP, CBI v. LALU
647
PRASAD @ LALU PRASAD YADAV [ARUN MISHRA, f.]
same conspiracy respondent Lalu Prasad Yadav cannot be tried ove·r · A
again in view of Article 20(2) and section 300 Cr.PC. It was further
contended that the respondent is being prosecuted in two separate cases
arising out of the Chaibasa Treasury namely R.C. No.68 (A)/1996 and
R.C. No.20 (A)/1996. The first is when the money was siphoned out of
the Treasury in 1992-93 and the second is for the period from 1.4.1994
to 30.1.1995 when the money was withdrawn from the Treasury. In
other-words, it is the prosecution case itself that between 1992-1995
money was being regularly siphoned out of the Chaibasa Treasury. The
charge for conspiracy also states that the conspiracy was from 19901997. This is further proof of the fact that the conspiracy referred to by
the prosecution for the Treasuries of Chaibasa and Deogarh is one and
the same conspiracy and not different or distinct conspiracies.