Appeal against Lalu8217;s acquittal maintainable: HC

Justice Ramesh Kumar Datta, who had on September 12 reserved his order on the petition filed by the state government, ruled that the appeal was maintainable and posted the matter for September 24 for hearing on the issue of admission.

Lalu Prasad and Rabri Devi, a former Bihar Chief Minister, had contested the state government8217;s appeal, saying it was not competent to file an appeal in the DA case and all other fodder scam cases which were investigated by the CBI, an agency under the Central government.

The bench said the appeal could be entertained under section 378 of the CrPC relating to a case of acquittal, with the leave of the High Court.

Special CBI judge Muni Lal Paswan had on December 18 last year acquitted the duo in the case that had charged Prasad with having amassed assets worth Rs 46 lakh beyond his known sources of income when he was Chief Minister between 1990 and 1997. Rabri Devi was made a co-accused in the case.

The state government had gone in appeal against the CBI court verdict after the central agency, which had probed the DA case, decided not to challenge the acquittal.

Arguing against the state government8217;s appeal senior Supreme Court lawyer and the counsel for Prasad and Rabri Devi, Ram Jethmalani had contended that since the case was probed by CBI, the Centre or the agency was competent to challenge the CBI court verdict.

Claiming that the state government8217;s action of appealing against the CBI court order was 8220;politically motivated8221;, Jethmalani had quoted Section 378 of CrPC, contending that in matters investigated by the CBI, which functions under the Delhi Special Police Establishment Act, the Centre alone has the power to direct the public prosecutor to make an appeal.

8220;The state government does not have the power to present an appeal against acquittal in a case investigated by the CBI8230; The Constitution also prohibits the state to legislate in fields in which the Central government alone is empowered to legislate.

8220;Since the CBI comes under list one of the 7th schedule, which is the Union list, the state government has no power to present an appeal against acquittal in a case probed by the agency,8221; he said.

Expressing similar views, Solicitor General G Vahanvati contended that as the state government was at no stage involved in the investigation of fodder scam cases, of which the DA case was an off-shoot, it was not empowered to challenge the acquittal by the CBI court.

8220;The fodder scam, of which the DA case is an off-shoot, was investigated by CBI by the order of the High Court. Since the state government agencies were not involved in the investigation, the Centre and CBI alone have the power to appeal against the CBI court8217;s verdict of acquittal,8221; Vahanvati said.

The state8217;s counsel and senior Supreme Court advocate Surendra Singh said since the DA case was Lalu-Rabri versus the state of Bihar, the latter was within its rights to go for an appeal. Singh said since the probe in the fodder scam cases was handed over to CBI by the High Court and as per the Constitution, the executive, legislature and the judiciary were part of the government, it would be considered that it was the government that had allowed the investigation.

8220;Had the case been probed by state agencies like the local police or the CID, it would have been in the exclusive domain of the state government to go in appeal. But as CBI investigated it, dual power has arisen in this case with both the Centre and the state competent to challenge the acquittal,8221; he contended.

The Patna High Court had on March 11, 1996, directed the CBI to investigate the fodder scam and the Supreme Court had endorsed the order on March 19, 1996.