Lalu seeks to express his views on HC Bench

Railway Minister Lalu Prasad today made an unusual request to the Supreme Court by seeking to disclose certain things "in confidence" about the Bench that would hear a crucial appeal moved by him in the Patna High Court.

The Supreme Court had recently directed the high court to set up a Bench headed by Justice Aftab Alam to hear his appeal.

The other judge later nominated to hear the case is Justice Chandramauli Kumar Prasad. The apex court had asked the Bench to dispose of the minister's petition within 30 days.

Usually, the composition of the Bench is decided by the Chief Justice of the high court concerned. The naming of the judge to head the Bench by the apex court itself was rather unusual.

The order was passed by the Supreme Court in two public interest petitions moved by the minister's political rivals alleging that the hearing in the case was not moving forward.

According to them, Prasad and his wife, Rabri Devi, had challenged the sanction of their prosecution in the disproportionate assets case before the high court a long time ago but the petition remained undecided as Bench after Bench was refusing to hear it. The minister was citing this as a reason for getting adjournments in the main case.

The original case was one relating to alleged unaccounted wealth of Prasad. But if a minister is to be prosecuted, the governor's sanction is required under the Prevention of Corruption Act. Sanction for prosecution itself is under challenge.

The main issues can be gone into only after deciding this preliminary question. The two-judge Bench will decide the question of the sanction to prosecute Prasad. The minister, in his application, clarified that he had not objected to the nomination of Justice Alam during the last hearing of the Supreme Court on April 26.

"My counsel did not object when it was suggested that the other name will be found later. In fact, neither the advocate on record nor the senior counsel appearing for me could have had any objection to this course of view that certain facts were not known to them," Prasad said.

The application further said: "If Prasad's wishes and apprehensions in the matter have any relevance, he is prepared to communicate them in confidence for consideration in chambers and not in open court."

It is not illegal or abnormal to ask for a change in the composition of Benches. If a judge is shown to have an interest in the outcome of the decision (like holding shares of a company arraigned before him), he usually "recuses" himself. A party before the court can also point out such circumstances and get the Bench changed.

But in this particular case, the unusual circumstances surrounding the case have added to the legal drama enacted before the Supreme Court and the high court.

The Supreme Court had already expressed its disapproval of the quiet burial given to cases of huge income tax demands against Prasad and his wife. It had sought to know from the Central Board of Direct Taxes as to how the Patna income tax appellate tribunal "hurriedly" dismissed the cases against them.

It has also asked the Centre to state by May 10 as to how an additional solicitor-general had expressed the opinion that no appeal should be filed in these cases.