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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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