In a major reprieve to RJD chief and Railway Minister Lalu Prasad and his wife Rabri Devi, the Supreme Court on Monday declined to cancel the bail granted to them in a disproportionate assets case and also dismissed two PILs seeking the change of the Special Judge in Patna trying the case.
The three-member bench of the court by a majority verdict of 2:1 dismissed the two PILs filed by senior BJP leader Sushil Kumar Modi and JD (U) leader Rajeev Ranjan Singh 'Lallan', in which they have also challenged the quashing of income tax cases against the Railway Minister and his wife.
The majority judgement delivered by Justice KG Balakrishnan and AR Lakshmanan said that the PIL was not maintainable.
In a dissenting judgement, Justice SH Kapadia said that the PIL was maintainable.
Justice Kapadia said that the Income Tax (IT) Department should have filed an appeal against the IT Appellate Tribunal order and he also said that the procedure adopted for the appointment of Additional District Judge Munni Lal Paswan as Special Judge to try disproportionate assets case was not proper.
However, Justice Balakrishnan said that there was no irregularity in the Income c. "There was no illegality in the appointment of Additional District Judge Munnilal Paswan as the Special Judge to try the case," he said. Allegations levelled against Paswan were not true, the judge added.
"This question of appointment of the judge cannot be gone into by this court," Justice Balakrishnan said adding that the issue was under the jurisdiction of the High Court.
He declined the prayer of the petitioners that the trial should be conducted by the prosecutor who had been associated with the case for a decade since it started.
Concurring with Justice Balakrishnan, Justice Lakshmanan said there could not be monitoring of the case after the charge sheet had been filed.
On the question of cancellation of bail, he said that no ground has been made out.
On the issue of change of the Special Judge, Justice Lakshmanan said though the ACR of Munni Lal Paswan shows poor service record; there was nothing to doubt his integrity.
On the change of prosecutors and officers connected with the case, he said it was the prerogative of the prosecuting agencies to appoint the lawyer for conducting the trial.
He said allegations made against the Central Board of Direct Taxes (CBDT), public prosecutors and ITAT members were one-sided.
"We cannot say that these authorities acted in a mala fide manner," the court said
Justice Lakshmanan said that the liberty of the accused could not be taken away except in accordance with law.
He said there was no role of Prasad in the appointment of the trial judge or the ITAT members.
While maintaining there was no merit in the writ petitions that were liable to be dismissed, Justice Lakshmanan said that the petitioners were waging a political battle against Prasad and his wife and the stage for such battles could not be this court.
Justice Kapadia, who pronounced the minority verdict, said that all the three issues- maintainability of the PILs, ITAT appeal and appointment of the Special Judge- were required to be looked jointly and in a consolidated manner and not separately.
While favouring that the IT Department should have filed an appeal against the ITAT order, Justice Kapadia said the Tribunal itself had stated that the case was very difficult and without assistance it could not have been heard. He asked why the appeal was not filed.
Justice Kapadia further said when the ITAT had given a remark that Income Tax Commissioner had acted in a biased manner, then in such a case appeal should have been filed under Section 260A of the Income Tax Act.
On the appointment of Paswan as Special Judge, Justice Kapadia said the procedure was not correct, as the inspecting judges did not duly attest his ACR.
He said in the selection process of two other judges as the inspecting judges duly attested ADJ. But no explanation was given by the Registrar General of the Patna High Court as to why there was no attestation regarding Paswan.