This never-told-before inside story of the CBI’s complicity with Lalu Yadav’s political enemies when he was nailed in the fodder scam, now with Lalu making headlines all over India following his triumph in Bihar, will probably send shockwaves across the country.
For those who were active in Indian journalism during the 1980s and 1990s, AP Durai was a legendary figure. There were many like him. Nonetheless, that adjective was rarely used for a cop, especially in post-independence India in which the police force is by and large excoriated as corrupt or politically compromised.
The back flap of his new book, “Pursuit of Law And Order” (NotionPress) describes the author’s journey aptly: “As Durai raced through positions he held in Indian Oil Corporation, as Director of the SVP National Police Academy, Hyderabad, and as Director General of Karnataka police, as Director General Railway Protection Force, he left behind him many reforms and a new spirit of optimism and public service in the forces he commanded.”
But his journey was no bed of roses. His autobiography is sprinkled with tales of his struggle with politicians and jealous colleagues, of frequent transfers and humiliation. Nonetheless, it proclaims “the triumph of the human spirit imbued with the ideals of public service and professionalism. The book, therefore, would be a source of inspiration to all public servants involved in the governance of the country.”
There are tales of horror, of humanity, of deep spiritual introspection, of constitutional legalities, of courage, throughout this 238-page book written in flawless, often poetic prose and sensibility. Its clarity stems from its inherent honesty. One chapter that stands out and makes the reader’s hair stand on end is the extent of constitutional impropriety in which the CBI and its political masters conspired to capture Lalu Prasad Yadav in the infamous “fodder scam” by trying to bring in the Indian Army. This never-told-before story, now with Lalu making headlines all over India following his triumph in Bihar, will probably send shockwaves across the country
Following an outrageous attempt by the CBI officers in Patna— headed by UN Biswas, Joint Director, CBI from Calcutta— on 31st July 1997 to summon the assistance of the army authorities to arrest Lalu Prasad Yadav, former Chief Minister of Bihar, I was appointed by the Cabinet Secretariat to enquire into the incident and submit a report in ten days’ time. There had been uproar in the Parliament and to assuage the feelings of other MPs cutting across party lines, Prime Minister Gujral decided to institute an inquiry. How this assignment came my way while I was serving as DG RPF was a mystery to me. Perhaps it was a vindication (and recognition) of my consistently apolitical and independent stance in my career.
I visited Patna and recorded statements and collected the facts from concerned CBI officials and army authorities and submitted my report on 18th August 1997. In what came to be known as the Animal Husbandry Department scam, CBI had registered 49 cases and Lalu Prasad Yadav was involved in seven cases, including RC-20 (A) /A/96-Patna, which was a case of ‘larger conspiracy’ (a term invented by Joint Director Biswas obviously to rope in Lalu Prasad Yadav and a number of IAS officers) and the charge sheet had been filed against him in this case on 23rd June 1997 in the court of the Special Judge, CBI in Patna.
In the order issued by the Department of Personnel and Training on 1st August 1997, the Government said they had taken “serious note of the conduct of the CBI in requisitioning the army in the circumstances of this case.” From the very beginning the case against Lalu Prasad Yadav had become politicized and the opposition leader in the state assembly, SK Modi was carrying on a crusade due to which the Supreme Court had appointed two judges of Patna High Court as the ‘Monitoring Bench’ to oversee the investigation of the bunch of cases on a fortnightly basis. Although their jurisdiction had ceased once the charge sheet was laid in the Special CBI court, my enquiry revealed that the judges continued to monitor CBI’s efforts to arrest and disgrace Lalu Prasad. I would quote from the order of the Supreme Court in Union of India vs Sushil Kumar Modi and others on 24th January 1997: “In case of persons against whom a prima facie case is made out and a charge sheet is made out and a charge sheet is filed in the competent court which will then deal with that case on merits in accordance with law.
Assault on administrative structures
The second player in this scenario was the Director, CBI of the relevant period—who also seemed to show keen interest in the arrest of Mr Lalu Prasad but the same time, was helpless as Biswas had virtually declared independence from his Director. This collapse of the chain of command was due to the fact that the Monitoring bench had directed the Director, CBI not to ‘interfere’ with the work of the Joint Director (East). In addition, they had also injuncted the Director from transferring out Biswas from his present post. Thus a CBI within the CBI was created, violating all cannons of good administration. The Director should have fought this issue legally and in the worst case scenario, should have been resigned as he had been divested of control over his own subordinate. The Government of India should have taken all steps to uphold the primacy of the Director as chief of the organization, but during this period, one weakling government was followed by another, and the CBI’s unity of command was destroyed.
In my view, these are unhealthy precedents and dangerous experiments added to the arsenal of judicial activism, to take control of the executive functions of the state, which is not contemplated in our Constitution. These are populist devices and however much they are applauded at the moment, they tend to leave behind tears on the fabric of governance, upsetting the balance of power. The other organs of the government are overawed, and even terrorised by the judicial arm which tends to assume an aura of infallibility. Instead of saying, “The Law will take its course”, we are now compelled to say, “The courts will take their own course.” I would put the blame for this state of affairs not on the judiciary but on the political executive, their loyal bureaucracy and the police, all of whom have developed a nexus for mutual benefit. They have forfeited their right to govern and people at large see only the judiciary as their savior.
Courts appointing their own Special Investigating Teams (SITs) is also another step. I feel, in the wrong direction, as such teams supersede the authority of the state and central agencies, who are statutory authorities to maintain law and order or investigate crimes. The creation of extra-constitutional authorities sometimes headed by retired IPS officers needs to be reviewed for its constitutional validity. The existing agencies must be made to deliver by the courts and for the purpose, they should not hesitate to summon the political executive to the courts to explain their gross failures on the public order front. It is the political executive in India that had poached on police administration, resulting in miscarriage of justice and violation of the rule of law.
The third player was, of course, the media who carried on a campaign against Lalu and conducted a trial, and even convicted him in their newspapers. Under the Rule of Law, everyone accused of a crime is presumed to be innocent till he is pronounced guilty by the competent court. But the press and electronic media in this country have gradually become judges in cases which are pending investigation or pending trial.
The ‘lakshman rekha’ has been crossed by all players and the resultant victim is the rule of law in this country.
Biswas gears up for the arrest
To get back to the main story: Once the CBI had got a non-bailable warrant issued against him on 23rd July 1997 and his arrest was imminent, Lalu Prasad had quit office and installed his wife as chief minister. He then promptly announced his plan to surrender to the court in view of the non-bailable warrant issued against him. Joint Director UN Biswas and his CBI team in Patna, decided to thwart Lalu’s plan and arrest him on 30th July, but they could not do it thanks to the big gathering of Lalu’s supporters around his residence. This prompted Biswas to think of obtaining the Army’s assistance. If he had succeeded, the emotionally surcharged atmosphere would have exploded in Patna, placing the Government of India in a big mess.
Seeing that the state police did not share their zeal, the CBI officers consulted the monitoring judges ‘orally’ and sent a requisition to the army commander in Dhanapur to render help in arresting Lalu on the morning of 31st July 1997. UN Biswas and his legal counsel, Rakesh Kumar, were in constant touch with one of the judges of the monitoring bench. This they quoted in their statements before me during my enquiry as their authority for what they had attempted to do in contravention of the law of the land, and the laid down procedure to seek the assistance of the army—that is, they should have requested State Government to call in the Army! The letter addressed to the Army Brigadier was shown to one of the judges of the Monitoring Bench before it was taken by the emissary from the CBI. The Bench had no jurisdiction over the case as it had been charge sheeted and only the trial court had all the authority to pass orders on the issue. The trial judge when approached, had asked the CBI (and rightly so) to file an application in the court the next day and the CBI officers had panicked and resorted to the extra legal procedure of direct approach to the army.
The monitoring style adopted in this case by the Patna High Court was unusual, to say the least. In my entire service, I had never come across an instance of this kind where police/CBI officers could approach the judges outside their courts unofficially and seek ‘oral directions’. The DIG CBI, Patna, advised Biswas to taker Director’s clearance before taking this extreme step, but he was brushed aside. Biswas had earlier told him of his intentions, “I do not want to arrest small people. I want to arrest important people.”
During my inquiry, I made attempts to meet the two judges of the Monitoring Court, but the Registrar of the High Court communicated to me the message that their Lordships were not interested in meeting me. The Army Brigadier had phoned one of the judges for confirmation when he received the requisition from the CBI and he was told that the Judges had not given any such permission but had told the CBI that they may seek the assistance of the army if they wished to do so. The entire drama showed up serious fissures in our polity and proved that it could be manipulated by the concerned functionaries, driven by extraneous considerations besides garnering personal glory, as in the case of UN Biswas.
Ultimately, the Army Brigadier Nautiyal refused to depute his men to facilitate the arrest, but Biswas’s attempts to bypass the procedures and exceed his powers was taken serious notice of by the Parliament and the entire country.
In my report, I held that—
- The CBI need not have asked for issue of a non-bailable warrant against the accused. It would have sufficed if they had filed the chargesheet and asked the court to issue process to ensure the attendance of the accused. The earlier low key style of the CBI had now been abandoned for reasons unknown. The CBI need not have tried to execute the NBW themselves. They could have got it endorsed by the local police as the CBI do not have the wherewithal to effect the arrest.
- The CBI could have saved themselves (and others) a great deal of pressure and tension by allowing the accused to surrender to the court.
- In any event, the CBI did not have the authority to requisition the services of the Army.
In my recommendations, I suggested action against the Joint Director and his SP and the Standing Counsel of the CBI in Patna High Court, all of whom had crossed the boundaries of their mandate and caused a crisis, pitting the Centre against the State, I also suggested that CBI officers be selected with due care and that the Government might start from the top. I suggested that the selection of the Director should be a collegial process which would include the Prime Minister, the Union Home Minister, the Leader of the Opposition and a retired Judge of the Supreme Court and that a fixed tenure should be given to the Director.
About the Director’s status in the CBI, I said in the concluding part of my report—
“A study of the functioning of JD (East) Calcutta and his subordinates in relation to the handling of AHD scam cases would give an impression that it was time that the primacy of the Director CBI was reasserted to bring back professionalism and discipline among the officers concerned…. The CBI today has the power to destroy the careers of both officials and politicians and therefore, the personal character and affiliations of their investigators and supervisors should be subjugated to scrutiny from time to time.”
My report was treated by the Government as secret for some time and only some portions were made available to the press. Later, Buta Singh, MP, laid it on the table of the Parliament and it became a public document. On August 27th, Home Minister Indrajit Gupta convened a meeting which was attended by the Home Secretary, Director CBI, Secretary (Personnel), the Law Secretary and me. I stated my case for initiating disciplinary action against the erring CBI officers and the face of the Minister remained expressionless. When charges were framed subsequently against him, Biswas approached Calcutta High Court and got the proceedings quashed.
Lalu Prasad comes calling
My report was perhaps the quickest inquiry report ever submitted to the Government of India—within eighteen days! Another feature of this inquiry was that I did not try to meet Lalu Prasad and examine him and record his statement, as I did not want to introduce a political dimension in an administrative inquiry. My focus was only on the CBI’s attempt to summon the army to assist them in arresting Lalu Prasad. I retired in May 1998 and left Delhi. Six years later, while I was in Bangalore, there were calls from Lalu Prasad and his associates and I learnt that Lalu Prasad wished to have me as a defence witness in another case filed against him by the CBI subsequently. This time the charge was that he and his wife had amassed assets disproportionate to known sources of their income. I evaded the telephone calls, but one day I received the summons from the Special Judge, Patna. After Lalu Prasad talked to me and I told him I was bound to obey the summons. Lalu came down to Bangalore and telephoned from his hotel to say that he wanted to meet me. I told him he was welcome to come to my apartment in Frazer Town and he came and spent an hour with me and my family.
Lalu praised my report and expressed his gratitude for my having stated the facts boldly, which gave him a breather from the CBI. He gave instructions to his companions on how my travel to Patna and my accommodation should be taken care of. The court itself had stipulated in its orders that I should be granted facilities that I was entitled to, before my retirement. In my conversation with Lalu about the deterioration in administration due to political interference, I told him, “You might be Chief Minister or even Prime Minister, but you must allow officers to do their work without interference.” When Lalu Prasad became Railway Minister shortly thereafter, he seemed to have taken this advice in good spirit and his performance in the railway portfolio attracted public notice and admiration.
I went to Patna in February 2004 (if my memory serves me right) and deposed as defence witness. Before my examination in chief started, the Judge told me in the open court why I had been summoned, “The case of the defence is that the CBI found it difficult to go forward in the AHD case against Mr Lalu Prasad because of your inquiry report and so they have come up with a new case against him for disproportionate assets this time. Through you, they want to prove mala fides on the part of the CBI.” On the first day, Lalu himself accompanied me to the court and sat in the first row while I was examined. As my cross examination lasted another week, I had to continue to stay in the State Guest House, very close to the Chief Minister’s residence. Lalu took me around and showed his cows, horses and vegetable garden. I found him to be a man of earthly common sense and devoid of arrogance while interacting with people. He told me how he had entered into Jayaprakash Narayan’s movement while he was doing his law and went to jail during the Emergency with Nitish Kumar and others.
Apparently, Lalu Prasad wanted to show his appreciation or gratitude to me and when he became the Railway Minister, he spoke to me twice and asked me to take up an inquiry into the Godhra incident (2002) where a sleeper bogie in which Karsevaks and pilgrims returning from Ayodhya had been set fire to, allegedly by a Muslim mob, killing fifty-eight passengers. I declined it and later, a minister of his party offered me the position of Administrator in a failed Chit Fund company in Chennai. I declined again on ground that I was serving Shri Ram Chandra Mission on a full-time basis and could not give attention to anything else.