PATNA: The Patna High Court on Thursday issued notices to Railway Minister Lalu Prasad and his wife and the former Chief Minister, Rabri Devi, to explain why the Government's petition to challenge their acquittal in the disproportionate assets case by the trial court should not be admitted for hearing after turning down the CBI's opposition to the Government's prerogative in the matter.

The Bench of Justice R.K.Dutta issued the notices which are returnable within a fortnight.

The court, however, did not fix the next date of hearing. The Government had not named Mr. Prasad and his wife as a respondent in their original petition and had listed only the CBI as the respondent.

As Additional Solicitor-General Gopal Subramanian, representing the CBI, challenged the Government's right to go on appeal, Harish Salwe, on behalf of the petitioner, contended that only the two accused could oppose the move and not the investigating agency.

Justice Dutta turned down the CBI's contention that the Government had been excluded from the case when the Patna High Court in 1998 directed the CBI and the Income Tax Tribunal to investigate the sources of income of Mr. Prasad and Ms. Rabri Devi. The Bench maintained that the consent of the Government had been deemed to have been obtained.

Mr. Subramanian argued that only the CBI happened to be the prosecuting agency once a charge sheet had been filed in a case and that the Government could not interfere after that and that it was up to the CBI to approach either the Centre or the State Government to go on appeal.

In the present case it had followed the procedure by seeking the Centre's permission and that the same had been denied to it. He contended that taking away the right of prosecution from the CBI at a later stage would set a precedent.

On the other hand, Mr. Salwe argued that the Government happened to be the prosecuting agency and that the CBI had no role to play.

It would be ridiculous to think of a prosecuting agency to say that it did not intend to prosecute the accused and uphold their acquittal, he said.

He claimed that the CBI could not respond to his appeal and that only the two accused could challenge the Government's action.

When the Bench pointed out that he had named the CBI as the respondent, Mr. Salwe offered to withdraw the same.

Mr. Salwe also found infirmities with the trial court's verdict on the ground that it had relied on the findings of the IT Tribunal rather than go by the evidences before it. He contended that findings were not admissible.

Mr. Salwe was of the view that once Ms. Rabri Devi's income from dairy and agriculture of about Rs.10 lakh were set aside the charges of misappropriation would stand even if one took into account the trial court's claim that the assets and expenditure of the couple worked out to Rs.34.76 lakhs.

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