court order dismissing subramanian swamy's plea against chidambaram

8/3/2019 Court order dismissing Subramanian Swamy's plea against Chidambaram

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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

04.02.2012Present: 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 toIndia'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


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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 andpunished 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, offraud 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 InformationTechnology. 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


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(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


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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


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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 agenciessuch 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


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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 onlyhad 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 wasinvited 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


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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 wasalloted, 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. Rajacaused 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


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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 DelhiHigh 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


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(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 possibleto 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 assumptionssignificantly 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


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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 ofCDMA 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, ineligibleto 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


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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 thecompany 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.


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(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, communicationtowers 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


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description 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 partof 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


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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 jurisdictionas 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


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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 Scamor 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


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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 anotherdubious 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 suspectedlinks 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


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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/ hasbeen 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


18/46

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 theGovernment 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


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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 mysignature 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 35and 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


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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 CAGreport 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


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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 againstthe 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 ofA. 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

isEx

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


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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 thelicence. 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 accusedA. 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


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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 ofEx 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 forspectrum; 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 areavailable 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


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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 calculationof 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


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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

Honble 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 Honble Supreme Court is Ex CW 1/17. The certified copy of

the minutes of another meeting between the Honble Prime Minister andthe 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


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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 Honble 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

Ministers 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 Honble Mr. Justice Shivraj V. Patil is mark F. This evidencereveals 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


27/46

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 Honble 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 Honble 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 Honble Prime Minister and this covered all three aspects, that

is, entry fee, spectrum price and annual charges. It is further submitted that not only thisMr. 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


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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 nationalsecurity 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, AIR1976 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/


29/46

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 andthe 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 Etisalatand Telenor were black listed by Home Ministry

Advisory.............................

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


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(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, obtainsfor 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 knownsources 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 itmay 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


31/46

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 latterdoes. 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 theact 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.


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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 intentionto 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 offenceof 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


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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; andall 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 theyknow 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


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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 isotherwise 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


35/46

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 whohave 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 maybe 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


36/46

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 ingroups 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 commitsan 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 Honble 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)


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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 foundedon 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


38/46

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 convincingevidence 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


39/46

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 ofevidence 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 shouldnot 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 ofMaharashtra 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:


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''..............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 ofthe 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.''


41/46

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 ofjudgment.

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 orstatute 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


42/46

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 orholding 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/


43/46

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 pricesis not an illegal act by itself. The competent authority is always at liberty

to decide in its discretion to not to revise the prices

court order dismissing subramanian swamy's plea against chidambaram

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