2g trial court order on swamy's plea against pc

 

The role of Union Home Minister P Chidambaram in the 2G spectrum allocation scam will not be investigated and he cannot be made a co-accused in the case, a Delhi court ruled on Saturday while dismissing Janata Party President Subramanian Swamy's petition.

Here is the full text of Special Central Bureau of Investigation (CBI) Judge OP Saini order on Swamy's plea against Chidambaram:

IN THE COURT OF O. P. SAINI: SPL. JUDGE, CBI (04)

(2G Spectrum Cases), NEW DELHI.

CC No. 01(A)/11

Dr. Subramanian Swamy Vs. A. Raja & others

04.02.2012

Present: Complainant Dr. Subramanian Swamy in person with Sh. Tarun Goomber, Mrs. (Dr.) Roxna Swamy and Sh. P. N. Mago Advocates.

ORDER:-

This order shall dispose of plea of the complainant for summoning Sh. P. Chidamabaram, the then Finance Minister, as an accused in this case.

2. The complainant claims to be a public spirited citizen, well versed in advanced economics, finance and mathematics, and he is also familiar with the current legal, social and political paradigm. He further claims that being a law abiding citizen, he bonafide believes that it is his duty to set into motion the legal process whenever instances of grave corruption impinging on national interests come to his attention. It is further claimed that the complainant wants the punishment of the offender in the interest of the society, being one of the objects behind the penal statutes for the larger good of the society.

3. It is alleged that accused A. Raja was Union Minister of Communications and Information Technology (he ceased to be by way of his resignation from the post on November 14, 2010), and other known/ unknown accused persons who are/ were involved in this larger conspiracy which was a skulduggery to take wrongful gain for themselves and to give the wrongful loss to the nation not only in monetary terms but also to pose a threat to India's national security. The above stated accused persons in connivance with presently unnamed others and some other unknown persons dishonestly and fraudulently misappropriated the nation's resources and wealth to take the wrongful gain for themselves and to give the wrongful loss to the nation by willful misallocation of 2 G Spectrum belonging to the nation and entrusted to accused A. Raja, which was under his control as Minister of Communications and Information Technology (MCIT), hence a public servant, by corrupt or illegal means by misusing his position, as a public servant, obtained for himself and for the other accused persons pecuniary advantage. All the accused persons are involved in these serious and grave offences and are liable to be tried and punished under the various provisions of The Prevention of Corruption Act, 1988 [for brief 'PCA'].

4. It is further alleged that the documents with the Petitioner, some of them included and published in his recent book "Corruption and Corporate Goverance in India: Satyam, Spectrum and Sundaram (Har Anand Publishers, 2009), as well as those available as public documents from the CBI (Central Bureau of Investigation), ED (Enforcement Directorate), CVC (Central Vigilance Commissioner) and CAG (Comptroller and Auditor General) and from RTI (Right to Information) applications, make out a strong prima facie case of corruption, of fraud and gross illegalities carried out by accused No. 1 A. Raja [alongwith his co-conspirators] as per CAG Report.

5. It is further alleged that : (a) at all releavant times in 2007-2008, accused A. Raja was Union Minister of Communications and Information Technology. He ceased to be so when he resigned from the post on Nobember 14, 2010, and which was immediately accepted by the President of India on recommendation of the Prime Minister.

(b) Thus, at all relevant times till resignation, accused A. Raja was a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act 1988, more particularly Section 2(c)(i) and (viii).

(c) On 14.11.2010, the accused ceased to be a Union Minister and hence, no more entitled to the safeguard of Sanction under Section 19 of the PCA.

6. It is further alleged that the matter comes within the scope of Sections 13(1)(c), (d) and (e) of the PCA. It arises primarily from the awarding by accused A. Raja and his co-conspirators, of new Unified Access Service (UAS) Licences (Licences for allotment of 2G Spectrum), to two unqualified and undeserving Real Estate Companies, Swan Telecom (now renamed Etisalat DB) and Unitech Wireless (renamed as Telenor operating as Uninor). This arose in the following manner:

(1) The Department of Telecommunications [DoT], is a department of the Ministry of Communications and Information Technology, Government of India, which Ministry at the relevant time in 2007-2008, was headed by accused A. Raja.

(2) On or about 24.09.2007, while inviting applications for these licences, DoT had announced that such applications would not be considered as were made after the cut-off date of 01.10.2007.

(3) The number of licence available for 2G spectrum (a scarce and extremely valuable national resource) was 122, spread over 22 service areas, called circles.

(4) By the cut-off date, the number of applications received was 575, made by some 41 corporations. Thus, it was necessary for DoT to evolve and execute a fair procedure for the allotment of these 122 licences among the 575 applications. Such fair procedure must necessarily promote the public interest.

(5) DoT had also to determine and announce the price at which these licences would be allotted. Earlier in 2001, the price prevailing had been determined by auction.

(6) But in 2001, there had been only approximately 4 million mobile telephones in operation, whereas by 2007-2008, the estimated number of mobiles was 350 million, and this number was growing at the rate of 10% per month.

(7) Thus, obviously allotting licences on the basis of 2001 prevailing prices would enable the allotees to make windfall profits, at the cost of the public exchequer: the public exchequer would only collect the 2001 price of spectrum, while the allotees would have the worth of 2008 market price of spectrum which judged by objectives standards was several multiples of the 2001 price.

(8) All concerned authorities: the Law Ministry, the Finance Secretary, the Secretary of the Ministry of Telecommunications, the Member (Finance) of DoT, and finally on 02.11.2007, even the Prime Minister, had expressed their views to accused A. Raja, recommending/directing consideration of:

(i) auction of licences wherever legally and technically feasible;

(ii) upward revision of entry fee, presently benchmarked at 2001 prices.

(9) The Law Minister, on being applied to for his advice had directed that in view of the importance of the case and various options indicated in the statement of the case, the whole issue must be first considered by an empowered Group of Ministers.

(10) By virtue of the mandatory Transaction of Business Rules, it was imperative for the First Accused to refer the matter to the Cabinet for a decision.

(11) As the Hon'ble Supreme Court observed while hearing this matter, that accused A. Raja even disregarded the written advice of the Prime Minister in an intemperate language.

7. It is further alleged that for no convincing reason at all, accused A. Raja ignored/ disobeyed all the directions/ advice set out in the previous paragraph subparas (8) and (9).

8. It is further alleged that both personally and through directions to his subordinates in DoT, accused A. Raja managed to get DoT to allot the aforesaid sought licences and the subsequent allotment thereon of Spectrum, on a fraudulently contrived basis of "first-come-first-served" at 2001 prices.

9. It is further alleged that the manouevres set out above, are made good from the documents available with the Complainant, which are copies of documents, the originals of which are with various Government agencies such as from the offices of the CVC (Chief Vigilance Commissioner), the CAG (Comptroller and Auditor General), the CBI (Central Bureau of Investigation), the ED (Enforcement Directorate) and the Registrar of Companies at Delhi, Mumbai and Chennai.

10. It is further alleged that a strong prima facie case for what is set emerges from the Performance Audit Report on the Issue of Licences and Allocation of 2G Spectrum by the Department of Telecommunications, Ministry of Communications and Information Technology, a Report of the Comptroller and Auditor General of India, prepared in 2010, submitted to the President of India and placed on the Table of both Houses of Parliament on 16.11.2010. Hereinafter, this report is referred to for brevity as the CAG Report.

11. It is further alleged that the "first-come-first-served" basis (hereinafter referred to as FCFS) of the allotment was not recommended in the instant facts and circumstances, by any regulatory body of the Telecom industry, and, in fact, the validity of such a basis has been rejected by a judgment of the Delhi High Court in 1993 [(1993) III AD Delhi 1013].

12. It is further alleged that in his capacity as Minister of Communications and Information Technology, accused A. Raja personally intervened and insisted (in definace of the recommendations/ directions of the functionaries enumerated in para 4 (8)) that the FCFS was adopted as the basis for allocation of limited and scarce 2G Spectrum.

13. It is further alleged that this basis itself was further rigged by accused A. Raja and his co-conspirators: it was interpreted to mean that all applicants would be considered not in the chronological order of their date of application, but in the order in which they fulfilled all the requirements contained in their letters of Allotment.

14. It is further alleged that accused A. Raja favoured two companies, Swan Telecom Pvt. Ltd., and Unitech Wireless Ltd., which not only had no experience in the field, but were actually ineligible to apply, e.g. they were not even registered, (as required by the rules), as Telecom companies at the time of allotment of the scarce 2G Spectrum; and their actual shareholding also made them ineligible to apply. The details of this manouevre are set out in detail in the CAG Report, which prima facie substantiates these details.

15. It is further alleged that the CAG Report has also found that no tender was invited or public auction was made nor a proper public notification was issued in this respect.

16. It is further alleged that in his D.O. No. 20-100/2007-AS.I dated 02.11.2007 to the Prime Minister, accused A. Raja even rejected the direction of the Law Minister that in view of the importance of the case and various options indicated in the Statement of the case, the whole issue must be first considered by an empoered Group of Ministers.

17. It is further alleged that under the Transaction of Business Rules of Government (Rule 7), it was required that when two Ministers disagree on a policy question, the matter be referred by the initiating Minister (in this case accused A. Raja) to the Cabinet for a decision. This accused A. Raja did not do.

18. It is further alleged that instead by his D.O No. 260/M(C&IT)/VIP/ 2007 dated 26.12.2007, accused merely informed the Prime Minister that the then Minister of External Affairs and the Solicitor General [who as Law Officer in this matter went against the Law Minister's decision] had encouraged him to go ahead and adopt the aforesaid FCFS basis; whereafter, in defiance of the Prime Minister's request that he delay the matter for a few days, the accused went ahead with the allotment.

19. It is further alleged that there is no ground for the accused to state, (as he does), that everything that he did in regard to the method of allotment of 2G spectrrum, and in regard to the determination of the rate at which it was alloted, was with the knowledge and approval of the Prime Minister.

20. It is further alleged that there was no urgency in the matter: the demand and applications for fresh spectrum had been pending since March 2006, yet, the necessary Cabinet approval was not taken for making allotment on a private basis. There is also no record that in the absence of a prior Cabinet approval, the action of the Minister had the categorical approval of the Prime Minister. In fact, on the contrary, by his letter dated 02.11.2007, the Prime Minister had suggested an auction of the 2G Spectrum and not its allotment on a FCFS basis, at the price prevailing for 1G spectrum in 2001 (when the mobile cell phone usuage was in its infancy).

21. It is further alleged that the entire episode of allotment of licences was conducted with subterfuge and in a hurry, when no such urgency can be seen by any person of prudence and integrity. All these skulduggery are documented in the CAG Report.

22. It is further alleged that this has resulted in a loss in revenue to the Government which the office of the Comptroller and Auditor General (CAG) of India in his Performance Audit Report No. 19 of 2010-11 has estimated at Rs. 1,76,000 crores, thus making it perhaps the largest scam in India's history, if not in that of the world.

23. It is further alleged that accused A. Raja caused this loss, first by limiting the number of licences to be awarded by advancing the cut-off date to September 25, 2007 (that is, prior to the earlier cut-off date of October 1, 2007), by personally getting issued a press note on January 10, 2008, which was posted only in the Ministry website. Second, by adopting the scheme of allocating the licences on the basis of first-come-first-served (FCFS) at an arbitrarily fixed lower price benchmarked to the price prevailing in 2001, instead of much higher price determined by an option in 2008.

24. It is further alleged that : (a) As far as the first step cited above is concerned, the Hon'ble Single Judge Bench and subsequently the Hon'ble Division Bench of the Delhi High Court held in 2009 that the advancing of the cut-off date was arbitrary, unreasonable and illegal. Hon'ble Supreme Court thereafter, declined to interfere with the judgment which thus has become final.

(b) As far as the FCFS basis for licence award is concerned, it was not recommended by any regulatory body of the telecom industry, and in fact, the validity of such a basis has been rejected by a judgment of Delhi High Court in 1993 [(1993) III AD Delhi 1013]. But, on accused A. Raja's insistence, not only the FCFS was adopted as the basis for allocation of limited and scarce 2 G Spetrum but the basis itself was rigged to favour two companies, Swan Telecom and Unitech Wireless which had no experience in the field and were not even registered (as required by the rules) as telecom companies at the time of allotment of the scarce 2 G Spectrum.

25. It is further alleged that in fact, the CAG report holds at least 85 of the 122 licences granted are illegal and void.

26. It is further alleged that the Central Bureau of Investigation had registered an FIR on the alleged commission of the aforesaid offence but has not named any accused including the first accused herein. Despite this, complainant bringing this aspect to the notice of Director of the CBI, the agency has so far failed to perform its statutory duty under the law.

27. It is further alleged that the above facts make out the ingredients of Section 13 (1) (d) of the PCA that:

(i) Accused A. Raja while holding office as a public servant

(ii) obtained for some other person/ converted for the use of any other person

(iii) valuable thing/ pecuniary advantage, the aforesaid licences (spectrum property),

(iv) entrusted to him/ under his control as a public servant

(v) and he did so dishonestly/ fraudulently and without any public interest.

28. It is further alleged that within a few months of the allotment of 2G Spectrum licences to them, these two favoured companies, Swan Telecom (P) Limited and Unitech Wireless Limited sold their controlling shares, at about seven to eight times what they had paid to the Government as fees for allotment of both licence and 2G Spectrum. On this basis, it is possible to get a measure of the loss in revenue that the public exchequer incurred by adopting the FCFS basis and pegging the entry fees at 2001 prices.

29. It is further alleged that a thorough technical analysis done by Dr. Rohit Prasad and published as "Value of 2 G Spectrum in India" in Economic and Political Weekly January 23, 2010, vol. XLV, No. 4, reveals that the market price of spectrum calculated on widely varying assumptions significantly exceeds the upfront fees charged from the operators, especially Swan Telecom (P) Limited, and Unitech Wireless Limited. The CAG, however, using different techniques has estimated presumptive loss of Rs. 140,000+ crores, the '+' including the CDMA conversion etc. The total presumptive loss is placed at Rs. 1.76 crores.

30. It is further alleged that all the above paras relevant to the ingredients are prima facie established in the CAG Report.

31. It is further alleged that reading the Executive Summary, the CAG, a Constitutionally empowered body, has found prima facie that accused personally got issued the Letters of Intent to 85 applicants who were not qualified and were not-eligible to receive these licences in the first place and that this caused a total national loss of Rs. 1,76,000 crores in revenue foregone.

32. It is further alleged that there is also evidence that accused had an indirect personal/ family pecuniary interest in some of the aforesaid sales:

(a) Swan Telecom (P) Limited was earlier owned by the corporate house and subsidiaries of Mr. Anil Ambani and was known as Swan Capital (P) Limited, incorporated on May 3, 2006. Swan Capital applied for GSM circle licence in January, 2007. It already held the CDMA licence then. In February 13, 2007, it changed its name to Swan Telecom (P) Limited.

(b) In October 2007, after Mr. A. Raja as Minister of Communications and Information Technology announced the Dual policy enabling conversion of CDMA to GSM, Anil Ambani sold his controlling shares to two Maharashtra based real estate operators, viz., Mr. Shahid Balwa (Managing Director) and Vinod Kumar Goenka (Director), who had taken over the charge of the company, but which was back dated to be incorporated in July 2007.

(c) Since at the time of the application for licence by Swan Telecom (P) Limited, this Corporate House had an interest of more than 10% in Swan Telecom (P) Limited, this made Swan Telecom (P) Limited, ineligible to apply at all for the licence; yet it did so apply. In October 2007, Anil Ambani -owned subsidiary of Reliance Communications quit Swan Telecom (P) Limited, after the DoT announced a new telecom policy to permit CDMA to cross over to GSM.

(d) In January to March 2008, Swan Telecom (P) Limited, with the connivance of accused, bagged an allotment of licences in 13 circles worth Rs. 1537 crores..

(e) Within weeks of the allotment, the new owners of Swan Telecom (P) Limited., "sold" a 45% stake in the company to Etisalat (a UAE giant corporation with Pakistan Telecom and Communication Ltd.-PTCL share holding) for approximately Rs. 4,500/- crore. The "sale" was disguised in the form of a merger of Swan Telecom (P) Limited and Etisalat. Earlier such mergers were not permitted to allottees; but by his Office Note, accused personally altered this requirement to enable merger to be permitted if duly applied for.

(f) On December 17, 2008, the now much expanded Swan Telecom (P) Limited allotted Rs. 380 crore worth of shares to the Chennai based Genex Exim Ventures, a company floated only just four months before the deal, with a meager capital of Rs. One Lakh. There is no record of Genex making any payment for the share acquisition.

(g) According to the documents available with the Registrar of Companies, Chennai, Genex Exim Ventures was incorporated on September 17, 2008 with two directors Mr. Mohammed Hassan (58) and Mr. Ahamed Shakir (41)- who came from Kilukarai, a small coastal village in Ramanathapuram district in Tamil Nadu. Ahmed Syed Salahuddin (32) who represented the company on the board of Swan Telecom (P) Limited also came from the same village.

(h) There is more indication of a Tamil Nadu link especially when the corporate veil is pierced, and which ultimately leads to the family members of the DMK President Mr. Karunanidhi. Mr. Ahmed Syed Salahuddin, represented the company on the board of Etisalat DB, the new name of Swan, and not the Genex Directors. Ahmed is the younger son of Mr. Syed Mohammed Salahuddin, an NRI businessman who heads the Dubai-based real estate conglomerate ETA Ascon Star Group.

(i) The elder Salahuddin figures in a racket to defraud public funds that was inquired into by Justice Sarkaria Commission in 1976, and the said Commission held that he and Mr. Karunanidhi had entered into a conspiracy to defraud public funds by favouring him to build a flyover at the Gemini crossing, in return for purchasing distributing rights to a film produced by Mr. Karunanidhi.

(j) This group, the ETA Star Group, began its Indian operations in 2006 by floating several real estate firms across the State. At that time, accused was Union environment Minister and his party DMK had assumed power in Tamil Nadu.

(k) ETA signed an MoU with the Tamil Nadu Government for setting up an IT Special Economic Zone worth Rs. 3,750 crore when Mr. A. Raja became Telecom Minister in May, 2007. Tamil Nadu Chief Minister Mr. Karunanidhi was present at the MoU singing ceremony for the proposed project at Kancheepuram, near Chennai, on a nearly 500 acre plot. Mr. Salahuddin was also awarded the contract to build the new TN Legislative Assembly building.

(l) This fact requires investigation that thus a large business group entered the Board of Swan Telecom (P) Limited, through a company with a meager Rs. One Lakh paid up capital. Incidentally, Genex Exim has not filed any documents with the authorities to show its source of income, even after acquiring Rs. 380 crore worth of shares from Swan Telecom (P) Limited.

(m) At other times too, accused, as Union Minister of Communications and Information Technology, had blatantly favoured Swan Telecom (P) Limited. This is evidenced, for example, from a most unusual deal struck between the said company and the state-owned BSNL, as follows:-

(I) The "intra-circle roaming deal" signed between the company and BSNL on September 13, 2008, was literally silent when it comes to money. According to the MoU, Swan Telecom could use spectrum, communication towers and the entire network of BSNL free of cost.

(II) Though the BSNL management suggested charging 52 paise per call, this clause was mysteriously absent in the MoU. BSNL was forced to sign this deal just 10 days before the sale of Swan's shares to Etisalat. It is not clear why an amount was not specified in the MoU and in the absence of a consideration what is the position of the Agreement entered into between the Company and BSNL. The arrangement helped swell Swan's coffers without the company investing a single rupee.

(III) BSNL Chairman and Managing Director, Mr. Kuldeep Goyal sought to quell the trouble by coining a new word for the agreement between Swan and BSNL as "Limited MoU", while they have never entered into an agreement in respect of "intra-circle roaming deal". The very descripttion of "Limited MoU" itself is fishy and confusing.

(n) It was also in "The Pioneer" newspaper that Swan Telecom (P) Limited had planned to invest on a dictated price of Rs. 1,000 crore (i.e. 49% stake) in Green House Promoters, in which the family members of the accused have a controlling stake. However, they have had to shelve it since the scam controversy broke out.

(o) After the accused became a Union Minister of Environment and Forests in 2004, many of his close relatives floated real estate companies, Green House Promoters, Equass Estates and Kovai Shelters Promoters all of which have brothers, nephews and nieces of accused as directors on their boards. It is to be noted that such real estate companies require clearance from the Environment Ministry for their real estate projects.

(p) Mrs. M. A. Parameswari, wife of accused, joined as director of the company Green House Promoters after three years of its incorporation i.e., in February, 2007. The Minister has not disclosed this fact to the Prime Minister nor disclosed the source of income and asset allocation and thereby has committed a breach of Conduct Rules.

(q) Mrs. M. A. Parameswari, the aforesaid wife of accused, resigned from the Board of Green House Promoters on February, 2008, as part of a damage control process envisaged by the accused. However, Mrs. Parameswari could not transfer her holding/ stake from the company on the said date of resignation, giving room for investigators to show explicit violation of the service rules. On a later day, the said shares were transferred to the nephew of accused A. Raja, who is also a Government Pleader in Tamil Nadu.

(r) Besides amounts deposited therein from various sources in India, the account in Canada Bank, T. Nagar Branch, Chennai, of Green House Promoters has received considerable sums from abroad. The authorities have not been given any proof or clarity on the sources of the fund and its remittances.

(s) In 2006, Green House Promoters also opened a branch office at Singapore in order to avoid or escape public scrutiny and cut down direct flow of funds into its Indian counter-part. For this purpose, accused A. Raja and his family members not only violated the existing rules in respect of Green House Promoters (P) Limited, but also promoted another company through his kith & kin viz., Equass Estate (P) Limited. The said company's turnover was Rs. 755 crore on completion of just one year. The company has not filed any proper documents with Registrar of Companies, as required under Form No. 23AC (to be filled by privately owned companies specifying information on sale of goods manufactured, sale of goods traded, sale of supply of services, etc.).

(t) Accused A. Raja has failed to disclose the business interest of his wife and other relatives in the areas/ subjects falling under his jurisdiction as a Minister of Environment and Forests and also now as Minister of Communications and information Technology.

33. It is clear from the taped telephonic conversations made by the DGIT and now in the custody of the CBI, of Ms. Niira Radia, with one of the wives of Mr. Karunanidhi, regarding the Telecom Ministership for accused A. Raja after the 2009 General Elections to Lok Sabha, that there was a clear nexus for sharing the bribe arising from the sale of licences for 2 G Spectrum.

34. It is further alleged that:

(a) Accused as a Union Minister, has also misled Parliament by stating that his decision on 2G Spectrum allocation were never objected to by TRAI (Telecom Regulatory Authority of India) or the Finance Ministry. By this, he has also committed breach of Parliamentary Privilege, which is also a matter of great collateral importance to this Complaint.

(b) Although, the Prime Minister was aware of the corrupt ways of the accused, it was perhaps the compulsions of coalition politics that kept the Prime Minister away from stepping in and setting things right.

(c) The Press has reported that whenever the accused was summoned by the Prime Minister, the Chief Minister of Tamil Nadu Mr. Karunanidhi (whom the accused has frequently announced to be his "Beloved Leader" and "Mentor"), used to fly from Chennai and sort things out with the Congress leadership.

(d) While serving as Minister for Environment and Forests, accused's nephew Dr. R. Sridhar was selected as Deputy Director in the same Ministry by flouting the Norms of Appointment. He back-dated his resignation letter from the post since "The Pioneer" news daily revealed that he was holding 15% shares in a real estate company incorporated as Kovai Shelters (P) Limited. Accused A. Raja's two nieces R. Anandabhuvaneshwari and R. Sanatanalakashmi held another 15% each. The MD of Kovai, C. Krishnamoorthy was charged by the CBI in a mark-sheet fraud in the Pondicherry University, and is an accused on bail in the murder of the whistle blower employee of the University. A judge of the Madras High Court went public that a Central Minister [presumed as accused Raja] had telephoned him to grant bail to the murder accused Krishnamoorthy.

(e) An investigation report published by the Newspaper "Pioneer", brings out the names of the following persons involved in the 2G Spectrum Scam or in the Misuse of Power by the Minister. All these persons are either related or closely associated with Mr. Raja as noted below:-

Persons involved are:-

Mrs. M. A. Parameswari (wife of the accused)

Mr. A. M. Sadhik Batcha [from same town of Perambaur as the accused]

Mrs. Reha Banu (wife of Sadhik Batcha)

Mr. R. P. Paramesh Kumar (Nephew of the accused)

Mr. A. Kaliaperumal (Brother of the accused), [already questioned by the CBI in January 2010, on an FIR filed following the directions of the Chief Vigilance Commissioner on this matter].

Mr. B. Ram Ganes [son of Mr. Ramachandran elder brother of the accused].

Smt. Malarvizhi Ram [Niece of the accused].

35. It is further alleged that: (a) Unitech, another real estate company, got 22 licences for 22 circles, for a total of Rs. 1651 crore. After acquiring these licences, Unitech sold them for a huge sum of Rs. 6120 crore to a Norwegian company, TELENOR, which is a major telecom player in Pakistan & Bangladesh. The company had applied for licences in several names. Unitech Infrastructure, Unitech Builders and Estates, Aska Projects, Nahan Properties, Hudson Properties, Volga Properties, Adonis Projects and Azare Properties among them. They were able to merge all their licences when the accused as Telecom Minister, signed another dubious notification allowing this to happen.

(b) In the above deal the entry of a foreign firm having wide operations in Pakistan and Bangladesh into Indian Telecom Industry has been facilitated, which could evidently pose a threat to India's National Security. It is significant that the Union Home Ministry has raised objection regarding the unacceptable foreign links of Mr. Shahid Balwa of Swan/ Etisalat DB and of Syed Salahuddin to Genex. The Home Ministry points to the suspected links of these two key players to Pakistan and the Chinese Army. This is, however, a matter for another complaint.

36. It is further alleged that even his party chief, mentor and Tamil Nadu Chief Minister Mr. M. Karunanidhi rubbished the allegations against the accused, saying that leaders of certain political parties could not tolerate the rise of a Dalit. This scurrilous comment indicates that Mr. Karunanidhi is abetting the accused to evade the law.

37. It is further alleged that all the facts stated in above paragraphs, are culled from the Records available with the Registrar of Company Affairs which make out (along with the earlier paragraphs) that all the ingredients of Section 13(1) (e) of the PCA are present:

(i) the accused, by corrupt or illegal means

(ii) obtained for himself/ other persons a valuable thing/ pecuniary advantage.

(iii) he did so by abusing his position as a public servant.

Furthermore alternately, above paragraphs also make out that

(iv) the accused dishonestly/ fraudulently misappropriated/ otherwise converted for his own use/ allowed any other person so to do,

(v) property entrusted to him/ under his control as a public servant.

38. Furthermore alternately, above paragraphs also make out that:

(vi) the accused/ any person on his behalf, is in possession/ has been at any time during the period of his office, in possession of pecuniary resources/ property;

(vii) and the accused cannot satisfactorily account for these pecuniary resources/ property;

(viii) and these pecuniary resources/ property are disproportionate to his known sources of income.

39. The Government has so far not proceeded to prosecute the case Court. Therefore, as a public spirited citizen the complainant wishes to take up the matter and to initiate prosecution proceedings against the accused.

40. That therefore:

(1) As summarized in above paras, the offences committed by accused A. Raja come under Section 13(1) (c), (d) and (e) of the Prevention of Corruption Act;

(2) The facts of these offences committed by the accused A. Raja are already prima facie established from the CAG Report annexed herewith besides the facts and evidence submitted herewith, and fortified by the documents in the custody of the CBI, CVC, ED and the Registrar of Companies.

41. Hence, it is prayed that this Court, being Special Judge, under the Prevention of Corruption Act [1988] may:

(a) take Cognizance u/s 5(1) of the Prevention of Corruption Act, 1988 r/w the Criminal Procedure Code, and to set into motion prosecution proceedings against accused A. Raja, for the offences under Sections 13(1) (d) and (e) of the Prevention of Corruption Act, 1988;

(b) appoint the Complainant as Prosecutor u/s 5(3) of the Prevention of Corruption Act, 1988;

(c) Direct the CBI, the ED and other prosecuting agencies of the Government to assist the Complainant in conducting the case after cognizance is taken;

(d) Keeping in view the facts, events and circumstances stated herein above, take cognizance/ summon/ try and punish accused A. Raja, in accordance with law, in the interest of justice;

(e) Pass such other and further orders as are necessary in the interest of justice.

 

 

42. Hence this complaint.

43. The complainant has examined himself, in support of allegations in the complaint, as CW 1, and has deposed on 07.01.2010 as under:

"I have been a Member of Union Cabinet. I have held Cabinet rank position twice and been a Member of Parliament five times. I have a Ph. D. in Economic from Harvard University. Presently, I am President of the Janata Party, which was founded by Sh. Jai Prakash Narayan in 1977.

Being a law abiding citizen and a public spirited citizen well versed in Finance and Legal matters, bonafide believe that it is my duty to set into motion legal processes particularly in this case which is said to be the biggest corruption case, namely, 2G Spectrum allocation. In this matter, the offences were committed beginning with the act of awarding 122 licences to nine applicants on January 11, 2008. This act of awarding licences was on orders of the then Minister of Communications and Information Technology Mr. A. Raja, whom I have named as accused in my complaint. I also proposed as I have said in my complaint to include later under the provisions of the CrPC other persons as accused as part of larger conspiracy to defraud the nation. The prima facie case of my complaint is fully endorsed and supported by the report of the Comptroller and Auditor General (CAG). Copy of which report has been annexed alongwith my complaint. My complaint is Ex CW 1/1, which bears my signature at point A. I have also filed an affidavit duly sworn before Oath Commissioner alongwith my complaint. The same is Ex CW1/2. It bears my signature at point A and B. List of witnesses filed by me and list of documents filed alongwith my complaint also bears my signature at point A on both the sheets. Copy of report of CAG is also on the Court record and is marked as Mark-A. The ingredients of the offences made out in my complaint are stated concisely on page 9 para 29 and page 19 paras 35 and 36. It is also confirmed by the CAG report and summarized in the executive summery of the report which is reproduced on page 30 to 35 of my complaint. It is also my complaint that two licences Swan Telecoms and Unitech Wireless were illegally sold to two foreign companies namely Etisalat DB and Telenor within a few months. I have also pointed out on page 267 of my complaint that the Union Home Ministry has held that Etisalat DB is a National Security risk since it has connections with ISI of Pakistan. Also one of the board members of Etisalat DB by name Shahid Balwa is alleged to be an associate of the terrorist and proclaimed offender Dawood Ibrahim. I will seek the permission of this Court to summon this report from Home Ministry.

I have also made out an offence of disproportionate assets of the accused named A. Raja U/s 13(1) (e) of the PC Act. This are on pages 187 to 213 of my complaint. I also have brought out in my complaint on page 3 para 8 that all concerned authorities such as the Law Ministry, the Finance Secretary, the Secretary of the Ministry of Telecom, the Member Finance of the Department of Telecommunications and even the Prime Minister had expressed their views that accused Mr. A. Raja was not following the procedures which were in the interest of the country. This is also a violation of the mandatory transactions of business rules framed under Article 77 of the Constitution wherein it is required that when Ministers disagree, the matter must be taken to the Cabinet for the decision. This is attested by the CAG report which is at page 56 in this complaint in para 4.3.1. Accused Mr. A. Raja is according to the CAG report caused a loss to the nation of Rs. 1,76,000 crores by his arbitrary and deliberate advancing of the cut-off date and second, rejecting the advice of all concerned authorities to auction the licences and thereby, favoured a few of his intimate friends. In fact, the CAG report holds that at least 85 of the 122 licences granted on the orders of accused Mr. A. Raja are illegal and void. The Delhi High Court both at the level of Hon'ble Single Judge and Hon'ble Division Bench held the arbitrary fixing of the cut-off date as unreasonable and illegal. The judgments of the two benches are on pages 284 to 293 for the single bench judgment and page 294 to 315 for the Division Bench judgment. In my complaint, I have also provided evidence that the accused had indirect personal/ family/ party pecuniary interest in the awarding of the licences. I have provided evidence of the sharp rise in the assets of Mr. A. Raja, which are on pages 187 to 213 of the complaint and pages 216 to 220. Mr. A. Raja also favoured indirectly two companies, namely, Genex Exim Ventures and Green House Promoters and other connected interlocking companies. In the first named company Genex Exim Ventures, the real owner Mr. Ahmed Syed Salahuddin is an NRI businessman based in Dubai but has been given all the prestigious construction contract in Tamil Nadu by the DMK President and Chief Minister Mr. Karunanidhi. The recent construction of the Tamil Nadu Assembly building is also constructed by Mr. Salahuddin. In the second company, namely, Green House Promoters, for a time the wife of accused A. Raja, Mrs. Parmeswari was a Director. This is substantiated in the complaint on pages 214 to 227 and further pages 237 to 282. Both these companies assets have vastly increased and they have been able to buy shares in Swan Telecom whose new name is Etisalat DB, which is a UAE Corporation with 26% shares in the Pakistan Government owned company called PTCL.

In this connection, I humbly state that I had informed the CBI vide letter dated 30.11.2010, copy of which is contained in page 150 of my complaint informing the CBI that I intend to file a criminal complaint against the now former Telecom Minister Mr. A. Raja before a Special Judge in a designated Court, under the PC Act. The CBI has not taken any steps to register an FIR, specifically in the name of A. Raja. Copy of the letter which I written to CBI dated 30.11.2010 is annexure-11. I have put my signature again today at point A on the same. The said is Ex CW 1/3. I received a reply from CBI dated 08.12/13.12.10. The same is on the Court record and is Ex CW 1/4. Copy of the RC registered by CBI is Mark-B.

In view of all these evidence which I have submitted in the statement in brief, but is contained in details in my 375 pages complaint a strong prima facie case supported by documents and confirmed by the findings of the CAG report necessitates the cognizance of my complaint and a proper prosecution of the matter."

44. He further deposed on 17.12.2011 as under:

"This hon'ble Court has framed two charges of misconduct against accused A. Raja and recorded as follows:

Charge 1: Spectrum licences were issued at a very nominal price that was fixed in the year 2001. This is on the pages 21 and 22 of the charges. These were, however, not licences issued, but letters of intent. Licences according to the record began to be issued from 27.02.2008 and not from January 10th, 2008. In my documents volume II, page 59, Ex CW 1/5, there is a list of new UAS Licences, issued since 11.11.2003. This has to be read with volume III, page 11, Mark C. At page 23 of this document, there is an answer given to the Public Accounts committee regarding sale of stake by M/s Swan Telecom (P) Limited, wherein it is stated "that Swan Telecom was incorporated on July 13th, 2006. It received licences for 13 telecom circles in February/ March 2008. Similarly, in next paragraph of this document, it states "M/s Unitech Wireless Tamil Nadu (P) Limited was incorporated on August 10, 2007. It received licences for 22 telecom circles in February, 2008." A letter of intent is an intention of the Government provided the conditions are met of the licence to award the licence. This is also stated in the press release issued by the DoT on 10.01.2008. The second charge, which is charge No. 5 and on page 32 of the charges, it is recorded that Swan and Unitech were allowed to off-load their shares to Etisalat and Telenor respectively even before the roll-out and by selling their shares at several times what they paid to the Government for the licences.

I further state, as in my application paras 13 to 15, that accused A. Raja could not be guilty of these charges alone, but committed these offences with the active connivance of Sh. P. Chidambram, presently Home Minister, Government of India. As far as the first charge is concerned, both Sh. Chidambram and Sh. A. Raja, Ex PW-officio, were empowered by a 2003 Cabinet decision dated 31.10.2003, now Ex CW 1/6, to determine the spectrum price jointly and the relevant clause reads as under:

"Sub-clause (3) The Departmental of Telecom and the Ministry of Finance would discuss and finalize spectrum pricing formula, which will include incentive for efficient use of spectrum as well s disincentive for suboptimal usages".

Sh. Chidambram was aware of this empowerment. In his letter dated 15.01.2008, which is in volume I at page 55 in para 6 of the documents, addressed to the PM and the same is now Ex CW 1/7. Through this letter, he informed the Hon'ble Prime Minister vide para 6, sub-para(i) that "DoT and MoF would discuss and finalize the pricing formula for spectrum, which will include incentive for the efficient use of spectrum".

In his letter dated 21.04.2008, page 60 of Volume I, to Sh. A. Raja, now Ex CW 1/8, it was stated by Sh. Chidambram in para 2 that "after you have had an opportunity to examine the same may we meet and discuss and reach some conclusions? These conclusions could then be presented to the Hon'ble Prime Minister". This is further corroborated by paragraph 2 of the office memorandum dated 25.03.2011, which begins on page 43 Volume II, and a photocopy of the same is Mark D. The Hon'ble Prime Minister has also corroborated this in his statement made on the floor of Rajya Sabha on 24.02.2011. A computerized copy of the same is Ex CW 1/9. On page 9, last line, it is stated that "the Government's policy on the pricing of spectrum was taken on the basis of the Cabinet decision of 2003, which specifically left this issue to be determined by the Ministry of Finance and Ministry of Telecommunications". The paragraph further reads "The two Ministers had agreed on this because of legacy considerations and I accepted their recommendation." As per para 7 of Ex CW 1/7, Sh. Chidambram informs the Hon'ble Prime Minister that "it is therefore clear that there are three separate concepts: (i) entry fee; (ii) charges for spectrum; and (iii) revenue share".

Therefore, in pursuance of this empowerment, the two Ministers, Sh. Chidambram and Sh. A. Raja, met on four occasions. The first meeting is dated 30.01.2008, the second meeting is dated 29.05.2008 and the third meeting on 12.06.2008 and then subsequently after an agreement was reached and meeting of minds took place, they together met the Hon'ble Prime Minister on 04.07.2008 and conveyed their agreement on the question of spectrum price in all three aspects, that is, entry fee, spectrum price and annual charges. The minutes of the meeting are available for 30.01.2008. A photocopy of the minutes is Mark E, in Volume II page 39. In the first paragraph of the said minutes, it is stated "Minister for Communications met the Finance Minister today on the subject of spectrum charges. Secretary, DoT, Advisor (Wireless) and I (Sh. D. Subbarao, the then Finance Secretary), were present." in paragraph 5 of the said Minutes, it is recorded that ''FM said that for now we are not seeking to revisit the current regimes for entry fee or for revenue share''. This is corroborated by letter Ex CW 1/7. In paragraph 13 of the said letter, that is, Ex CW 1/7, it is stated by Sh. Chidambram that ''this leaves the question about licencees who already hold spectrum over and above the start of spectrum. In such cases, the past may be treated as a closed chapter........''.

The CAG report Ex CW 1/10, page 26, refers to this letter of Sh. Chidambram to the Hon'ble Prime Minister dated 15.01.2008 at point A on this page. On page 27, the CAG concludes with the following observation:

''The Ministry of Finance should have insisted for Cabinet decision, in view of the following:

* Treating the authorization allowed by the Cabinet in 2003 for calculation of entry fee for migration of existing operators (BSOs and CMPs) to UASL regime based on the formula given by the TRAI (October 2003) as an open-ended one was a wrong interpretation of the DoT and particularly when Cabinet in the same decision had defined the role of MoF in the matter of spectrum pricing.

* Government of India (Transaction of Business) Rules 1961 provided for necessity of matter being placed before the Cabinet in case either involving financial implication on which the Minister of Finance desires or a difference of opinion arises between two or more Ministers.''

A photocopy exact of Government of India (Transaction of Business) Rules, running into three pages, is Ex CW 1/11.

I further state that Sh. Chidambram was aware at least on 09.01.2008 of what Sh. A. Raja was planning to do on 10.01.2008. Paragraphs 9, 10 and 11 of document Mark D make it clear that Sh. Chidambram had all along been apprised by his officials of unsuitability of fixing the price of spectrum at 2001 level and providing to licencees spectrum at zero price. It also confirms in paragraph 12 that a meeting was held on 30.01.2008 between the Ministers of Finance and Telecommunications and wherein it is stated "it was noted by the then Finance Minister that he was for now not seeking to revisit the current regimes for entry fee or revenue shares". Para 14 of the same document further states to corroborate that "spectrum up to 6.2 MHz may not be priced". Para 17 of the same document further states that "there was a way out by invoking clause 5.1 of the UAS Licence, which inter alia, provide for modification at any time the terms and conditions of the licence , if in the opinion of the Licensor it is necessary and expedient to do so in public interest or in the interest of security of State or for the proper conduct of the telegraphs". As far as the second charge against Sh. A. Raja is concerned, namely, that Swan and Unitech were allowed to offload their shares to Etisalat and Telenor. This is also stated in documents dated 05.11.2008, now Ex CW 1/12. In this it is stated, inter alia, "in the meeting Hon'ble Finance Minister clarified that dilution of shares to attract foreign investment for expansion did not allow sale of licence and, as such, these companies did their share dilution as per the corporate laws". I further state that MHA had raised objections regarding financial transactions with Etisalat in India. In support thereof I place on record a computerized copy of document, pages 97 to 104, which I myself downloaded from the website of Etisalat and computerized copy is now Ex CW 1/13."

45. He further deposed on 07.01.2012 as under:

"I have brought certified copies of some documents and I may be allowed to place the same on record, which were earlier referred to in my examination. A certified copy of the memorandum, running into thirteen pages, dated 21.07.2010 is Ex CW 1/14 collectively. Another certified copy of an office memorandum dated 25.03.2011, running into twelve pages, is collectively Ex CW 1/15. The certified copy of the minutes of the meeting between the then Finance Minister and the then MOC&IT dated 30.01.2008 is Ex CW 1/16. A certified copy of the order dated 03.03.2011 passed by the Hon'ble Supreme Court is Ex CW 1/17. The certified copy of the minutes of another meeting between the Hon'ble Prime Minister and the then Finance Minister and then MOC&IT, running into six pages, is collectively Ex CW 1/18. A photocopy of the seizure memo prepared by the CBI on 22.10.2009 is Ex CW 1/19, as an original copy of the same is already on record of this Court. A certified copy of the Cabinet resolution dated 31.10.2003 is Ex CW 1/20, pages, 59 to 84, and its covering note dated 03.11.2003 is Ex CW 1/21. A certified copy of the letter dated 15.01.2008 written by the then Finance Minister to the Hon'ble Prime Minister is Ex CW 1/22. Certified copy of a letter dated 21.10.2011 addressed to me by Dr. P. G. S. Rao is Ex CW 1/23. Certified copy of documents received by me under RTI Act is Ex CW 1/24. A certified copy of the communication dated 21.12.2010 received by me by the Prime Minister's office is Ex CW1/25. Certified copy of the notes dated 06.11.2008 and 07.11.2008 of Sh. Madan Chaurasia are Ex CW 1/26 and 1/27 respectively. Certified copy of another note dated 10.11.2008 of Sh. Santok Singh is Ex CW 1/28. Photocopy of extracts of reports of committee presided over by Hon'ble Mr. Justice Shivraj V. Patil is mark F. This evidence reveals the connivance, collusion and the consent of the then Finance Minister Sh. P. Chidambram in the decisions taken by the then telecom Minister in the matter of:

A. Fixing the price of the spectrum licence; and

B. In the matter of permitting two companies, which received the licence, namely, Swan and Unitech, in dilution of shares even before roll-out of their services.

That is, the evidence brings on record the commission of offences under the Prevention of Corruption Act for which Sh. A. Raja has already been charged by this Court. I have also brought on record evidence to show that Sh. Chidambram is also guilty of breach of trust in question of national security for not disclosing that Etisalat and Telenor were black listed by Home Ministry Advisory.

I do not wish to add anything more and close my statement."

46. I may add that the complaint did not contain any allegations against Mr. P. Chidambaram, as is clear from a bare reading of the facts, extracted above in detail. Similarly, no evidence was initially led by complainant against Mr. P. Chidambaram, when he examined himself on 07.01.2011. However, on 15.09.2011, the complainant filed an application under Section 311 CrPC for summoning/ recalling of witnesses for examination on behalf of the complainant and in that application only allegations were levelled against Mr. P. Chidambaram. The said application was allowed vide order dated 08.12.2011 and thereafter, the complainant examined himself on 17.12.2011 and 07.01.2012. He has not examined any other witness in support of the allegations in the complaint.

47. I have deliberately extracted the allegations in the complaint and evidence on oath in detail to make things clear and understandable.

48. I have heard the arguments at the bar in detail and have carefully gone through the file.

49. It is submitted by the complainant in person that UAS Licences were issued at a very low price, which were discovered in 2001. It is further submitted by him that Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) Limited were allowed to offload their shares to Etisalat and Telenor even before roll-out. It is further submitted that the companies sold their shares at prices several times high of what they paid to the Government for licences. It is further submitted by him that as per Cabinet decision dated 31.10.2003, spectrum pricing formula was to be decided by the Finance Minister and the Telecom Minister and at the relevant time Mr. P. Chidambaram was Finance Minister and Mr. A. Raja was Minister, Telecommunications. It is further submitted that Mr. P. Chidambaram was aware of this empowerment. It is further submitted that Mr. P. Chidambaram had informed the Hon'ble Prime Minister that DoT and MoF would discuss and finalize the pricing formula for spectrum and he also wrote a letter to Mr. A. Raja in this regard and told him that after he (Mr. A. Raja) had an opportunity to examine the same, they (Mr. P. Chidambaram and Mr. A. Raja) may meet and discuss and reach some conclusion. It is further submitted that the Hon'ble Prime Minister also made a statement in Rajya Sabha about the two Ministers deciding on pricing of spectrum on the basis of Cabinet decision of 2003 and also told that they agreed to this because of legacy considerations. It is further submitted that Mr. P. Chidambaram met Mr. A. Raja on four occasions, that is, on 30.01.2008, 29.05.2008, 12.06.2008 and 04.07.2008. It is further submitted both had conveyed their agreement on the question of spectrum pricing to the Hon'ble Prime Minister and this covered all three aspects, that is, entry fee, spectrum price and annual charges. It is further submitted that not only this Mr. P. Chidambaram had stated that he was not seeking to revisit the current regime for entry fee or for revenue share. It is further submitted that Mr. P. Chidambaram was fully aware at least on 09.01.2008 as to what Mr. A. Raja was planning to do on 10.01.2008 and he was also aware of the unsuitability of fixing the price of spectrum at 2001 level.

It is further submitted that Mr. P. Chidambaram also allowed Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) Limited to offload their shares to Etisalat and Telenor. It is further submitted that in meeting with Mr. A. Raja, he clarified that dilution of shares to attract foreign investment for expansion did not amount to sale of licence and the companies did their dilution as per corporate laws.

My attention has been invited to the various documents placed on record, including CW 1/1 to 1/28, to emphasize that all these acts were done by accused A. Raja in connivance, collusion and consent of Mr. P. Chidambaram, the then Finance Minister. It is repeatedly submitted that Mr. P. Chidambaram is guilty of commission of offences under PC Act, for which accused A. Raja is facing trial. It is further submitted that Mr. P. Chidambaram is also guilty of breach of trust on question of national security for not disclosing that Etisalat and Telenor were black-listed by the Home Ministry.

It is repeatedly submitted that there is enough incriminating material on record to warrant summoning of Mr. P. Chidambaram as an accused in the case.

He has also placed on record written submissions.

My attention has been invited to the following authorities:

(1) Anil Saran Vs. State of Bihar and another, (1995) 6 SCC 142;

(2) Chandra Deo Singh Vs. Prokash Chandra Bose alias Chabi Bose and another, AIR 1963 Supreme Court 1430;

(3) Helios and Matheson Information Technology Limited and others Vs. Rajeev Sawhney and another with Pawan Kumar Vs. Rajeev Sawhney and another, (2012) 1 SCC 699;

(4) Centre for Public Interest Litigation and others Vs. Union of India and others, (2011) 1 SCC 560;

(5) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947;

(6) D. N. Bhattacharjee and others Vs. State of West Bengal and another, AIR 1972 SC 1607;

(7) Abhishek Agrawalla Vs. Bootmalt NV and another, Crl. Rev. P. No. 8/2010, decided on 14.02.2011;

(8) J. R. D. Tata Vs. Payal Kumar and another, 1987 Cri. L.J 447;

(9) Jia Lal Sharma, New Delhi Vs. The State and another, 1982 Cri. LJ 1913; and

(10) Nirmaljit Singh Hoon Vs. The State of West Bengal and another, AIR 1972 SC 2639.

50. The gist of the allegations as well as the evidence on record is contained on page 2 of the evidence led on 07.01.2012 by the complainant as CW1 and which is extracted as under for ready reference:

"............................................................ This evidence reveals the connivance, collusion and the consent of the then Finance Minister Sh. P. Chidambram in the decisions taken by the then telecom Minister in the matter of:

A. Fixing the price of the spectrum licence; and

B. In the matter of permitting two companies, which received the licence, namely, Swan and Unitech, in dilution of shares even before roll-out of their services.

That is, the evidence brings on record the commission of offences under the Prevention of Corruption Act for which Sh. A. Raja has already been charged by this Court. I have also brought on record evidence to show that Sh. Chidambram is also guilty of breach of trust in question of national security for not disclosing that Etisalat and Telenor were black listed by Home Ministry Advisory............................."

51. Section 13(1)(d) and (e) of the PCA reads as under:

(1) A public servant is said to commit the offence of criminal misconduct,-

..........................................................................................................................................................................................................(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during that period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."

52. Let me make a brief survey of law relating to conspiracy.

53. In an authority reported as Kehar Singh and others Vs. State (Delhi Administration) (1998) 3 SCC 609, it was observed by the Hon'ble Supreme Court in paragraphs 275 and 276 as under:-

"275. Generally a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition :

Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties ''actually came together and agreed in terms'' to pursue the unlawful object : there need never have been an express verbal agreement, it being sufficient that there was ''a tacit understanding between conspirators as to what should be done''.

276. I share this opinion, but hasten to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard."

54. In an another authority reported as State Vs. Nalini and others (1999) 5 SCC 253, it was observed by the Hon'ble Supreme Court in paragraph 583 as under:-

"Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.

 

 

 

1. Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accuse merely entertained a wish, howsoever, it may be, that offence be committed.

2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

3. Conspiracy is hatched in private or secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.

4. Conspirators may for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrella-spoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.

5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.

6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.

7. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against very accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand ''this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders''.

8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.

10. A man join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.

55. Furthermore, in an authority reported as State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, it was observed by the Hon'ble Supreme Court in paras 98 to 101, as under:

"98. As pointed out by Fazal Ali, J., in V. C. Shukla v. State (Delhi Admn) : (SCC pp. 669-70, para 8)

"In most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence."

In this context, the observations in the case of Noor Mohammad Mohd. Yusuf Momain v. State of Maharashtra are worth noting : (SCC pp.669-700, para 7)

"In most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."

99. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. (Vide Esher Singh v. State of AP.)

100. Lord Bridge in R. v. Anderson aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In Daniel Youth v. R. the Privy Council warned that in a joint trial case must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only against other. "A co-defendant in a conspiracy trial", observed Jackson, J, (US p.454), "occupies an uneasy seat" and "it is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together". (Vide Alvin Krulewitch v. United States of America.)

In Nalini case Wadhwa, J. pointed out, at p. 517 of SCC, the need to guard against prejudice being caused to the accused on account of joint trial with other conspirators. The learned Judge observed that: (SCC p. 517, para 583)

"There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy."

The pertinent observation of Judge Hand in U.S. v. Falcone was referred to: (SCC p. 511, para 572)

"The distinction is especially important today when so many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders."

At para 518, Wadhwa, J., pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows: (SCC p. 518, para 583)

"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."

101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K. J. Shetty, J., pointed out in Kehar Singh case that : (SCC p. 773, para 276)

The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict."

56. In another case reported as R. Venkatakrishnan Vs. Central Bureau of Investigation, AIR 2010 SC 1812, law relating to acts or things which were inherently unlawful was stated in paragraph 86 as under:-

''In some case, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This Court is State of Maharashtra v. Som Nath Thapa opined that it is not necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use, stating:

''..............to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.''

57. What is misconduct? This point was reiterated by the Hon'ble Supreme Court in an authority reported as State of Madhya Pradesh Vs. Sheetla Sahai and others, (2009) 8 SCC 617, in paragraph 46 as under:-

''10. In State of Punjab v. Ram Singh it was stated:

'5. Misconduct has been defined in Black's Law Dictionary, 6th Edn., at p. 999, thus:

''Misconduct.-A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.''

Misconduct in office has been defined as:

''Misconduct in office- Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the fact of an affirmative duty to act.''

11. In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at p. 3027, the term 'misconduct' has been defined as under:

'Misconduct.-The term ''misconduct'' implies a wrongful intention, and not a mere error of judgment.

MISCONDUCT is not necessarily the same thing as conduct involving moral turpitude.

The word ''misconduct'' is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being, construed. ''Misconduct'' literally means wrong conduct or improper conduct.'

58. To make conduct, criminal misconduct within the meaning of PC Act, it was observed in paragraphs 35 and 47 as under:-

''35. Section 13 of the Act provides for criminal misconduct by a public servant. Such an offence of criminal misconduct by a public servant can be said to have been committed if in terms of Sections 13(1)(d)(ii)-(iii) a public servant abuses its position and obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. Sub-section (2) of Section 13 provides that any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.

47. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as a public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that Respondents 1 to 7 either had abused position or had obtained pecuniary advantage for Respondents 8, 9, and 10, which was without any public interest.''

(All underlinings by me for supplying emphasis).

59. A bare perusal of the allegations and the evidence, led in support thereof, reveals that neither are there any allegations nor is evidence against Mr. P. Chidambaram to the effect that he played any role in the subversion of the process of issuance of letters of intent (LOI), UAS Licences and allocation of spectrum in the years 2007-08. The subversion of the process of issuance of letters of intent, UAS Licences and allocation of spectrum included arbitrary fixation of the cut-off date, filing and procuring of applications for UAS Licences on behalf of ineligible companies, violation of first-come first-served policy in the issuance of LOIs, UAS Licences and allocation of spectrum and payment and receipt of bribe. All these incriminating acts were allegedly done by the Minister/ officials of Department of Telecommunications, Ministry of Information and Broadcasting, Government of India and by private persons.

60. Now the question arises as to what is the role of Mr. P. Chidambaram. The acts attributed to him by the complainant are, his complicity in fixing the price of the spectrum licence at 2001 level and permitting two companies, which received the licence, namely, Swan and Unitech, to dilute their shares even before roll-out of their services.

61. However, both of these acts, attributed to him, are not per se illegal or violative of any law. He agreed with Mr. A. Raja not to revise or revisit the entry fee or spectrum charge as discovered in 2001. Non-revision of prices is not an illegal act by itself. The competent authority is always at liberty to decide in its discretion to not to revise the prices or fee for any goods or services. The same entry fee/ spectrum charges continued even after 2007-08. Same is the case with dilution of equity by a company. It is not per se illegal nor was it prohibited at the relevant time. However, such acts may acquire criminal colour/ overtones when done with criminal intent.

62. The case of the complainant is that Mr. P. Chidambaram consented to non-revision of entry fee/ spectrum charges and dilution of equity by the companies as he was in criminal conspiracy with A. Raja. It is further his case that dilution of equity was a ruse to transfer UAS Licence at a premium and thereby earn undeserved profit. In this regard, he has invited my attention to the charges framed against accused A. Raja and other accused, wherein these two facts have also been mentioned.

63. However, I may add that these two acts find mention in the charge for the reason that these acts were accompanied by further acts of subverting the established policy and procedure for grant of UAS Licences and the payment and receipt of bribe by other accused, who stand charged and are facing trial.

64. The crucial questions are:

(i) Whether entry fee for the UAS Licences and the price of spectrum was jointly determined by Mr. A. Raja and Mr. P. Chidambaram?

(ii) Whether they have deliberately fixed a low entry fee, discovered in 2001 auction, for spectrum licences?

(iii) Whether Mr. P. Chidambaram deliberately allowed dilution of equity by the two companies, that is, Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) Limited?

(iv) If so, whether these facts prima facie show criminal culpability of Mr. P. Chidamabaram also alongwith Mr. A. Raja?

(v) Whether there is any material on record to show criminal culpability of Mr. P. Chidambaram?

65. In a case of criminal conspiracy, the Court has to see whether two persons are independently pursuing the same end or they are acting together in pursuit of an unlawful act. One may be acting innocently and other may be actuated by criminal intention. Innocuous, inadvertent or innocent acts do not make one party to the conspiracy.

66. As per Cabinet note dated 31.10.2003, the decision regarding spectrum pricing was to be taken by Finance Minister and MOC&IT and after this decision was taken, Mr. P. Chidambaram agreed that it would be the price as discovered in the year 2001 and also told Mr. A. Raja that there is no need to revisit the same. This decision was subsequently conveyed to the Hon'ble Prime Minister also. To that extent, there is material on record.

67. However, there is no material on record to show that Mr. P. Chidambaram was acting malafide in fixing the price of spectrum at the 2001 level or in permitting dilution of equity by the two companies. These two acts are not per se illegal and there is no further material on record to show any other incriminating act on the part of Mr. P. Chidambaram. A decision taken by a public servant does not become criminal for simple reason that it has caused loss to the public exchequer or resulted in pecuniary advantage to others. Merely attending meetings and taking decisions therein is not a criminal act. It must have the taint of use of corrupt or illegal means or abuse of his official position by public servant for obtaining pecuniary advantage by him for himself or for any other person or obtaining of pecuniary advantage by him without any public interest. There is no material on record to suggest that Mr. Chidambaram was acting with such corrupt or illegal motives or was in abuse of his official position, while consenting to the two decisions. There is no evidence that he obtained any pecuniary advantage without any public interest. I may add that there is such incriminating material against other accused persons, who stand charged and are facing trial.

68. There is no evidence on record to suggest that there was an agreement between him and Mr. A. Raja to subvert telecom policy and obtain pecuniary advantage for himself or for any other person. There is no evidence of any substantive act being committed by him. A bit of evidence here and a bit there does not constitute prima facie evidence for showing prima facie existence of a criminal conspiracy. Anybody and everybody associated with a decision in any degree cannot be roped as an accused. The role played by the decision maker, circumstances in which the decision was taken and the intention of the decision maker are the relevant facts. Intention is to be inferred from the facts and circumstances of the case. One cannot be held guilty merely by association with a decision and a decision by itself does not indicate criminality. There must be something more than mere association. Innocent and innocuous acts done in association with others do not make one a partner in crime, unless there is material to indicate otherwise, which is lacking in this case.

69. In the end, Mr. P. Chidambaram was party to only two decisions, that is, keeping the spectrum prices at 2001 level and dilution of equity by the two companies. These two acts are not per se criminal. In the absence of any other incriminating act on his part, it cannot be said that he was prima facie party to the criminal conspiracy. There is no evidence on record that he was acting in pursuit to the criminal conspiracy, while being party to the two decisions regarding non-revision of the spectrum pricing and dilution of equity by the two companies.

70. Accordingly, I do not find any sufficient ground for proceeding against Mr. P. Chidambaram. The plea is without any merit and the same is dismissed.

Announced in open Court,

today on February 04, 2012. (O. P. SAINI)

Spl. Judge/ CBI(04)(2G Spectrum Cases)/ND