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. TarunGoomber, Mrs. (Dr.) Roxna Swamy and Sh. P. N. Mago Advocates.

ORDER:-

This order shall dispose of plea of the complainant forsummoning Sh. P. Chidamabaram, the then Finance Minister, as anaccused in this case.

2. The complainant claims to be a public spirited citizen, wellversed in advanced economics, finance and mathematics, and he is alsofamiliar with the current legal, social and political paradigm. Hefurther claims that being a law abiding citizen, he bonafide believesthat it is his duty to set into motion the legal process wheneverinstances of grave corruption impinging on national interests come tohis attention. It is further claimed that the complainant wants thepunishment of the offender in the interest of the society, being oneof the objects behind the penal statutes for the larger good of thesociety.

3. It is alleged that accused A. Raja was Union Minister ofCommunications and Information Technology (he ceased to be by way ofhis 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 forthemselves and to give the wrongful loss to the nation not only inmonetary terms but also to pose a threat to India's national security. The above stated accused persons in connivance with presently unnamedothers and some other unknown persons dishonestly and fraudulentlymisappropriated the nation's resources and wealth to take the wrongfulgain for themselves and to give the wrongful loss to the nation bywillful misallocation of 2 G Spectrum belonging to the nation andentrusted to accused A. Raja, which was under his control as Ministerof Communications and Information Technology (MCIT), hence a publicservant, by corrupt or illegal means by misusing his position, as apublic servant, obtained for himself and for the other accused personspecuniary advantage. All the accused persons are involved in theseserious and grave offences and are liable to be tried and punishedunder the various provisions of The Prevention of Corruption Act, 1988[for brief 'PCA'].

4. It is further alleged that the documents with the Petitioner, someof them included and published in his recent book “Corruption andCorporate Goverance in India: Satyam, Spectrum and Sundaram (Har AnandPublishers, 2009), as well as those available as public documents fromthe CBI (Central Bureau of Investigation), ED (EnforcementDirectorate), 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 in2007-2008, accused A. Raja was Union Minister of Communications and

Information Technology. He ceased to be so when he resigned from thepost on Nobember 14, 2010, and which was immediately accepted by thePresident of India on recommendation of the Prime Minister.

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

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

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

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

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

(3) The number of licence available for 2G spectrum (a scarce andextremely valuable national resource) was 122, spread over 22 serviceareas, 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 evolveand execute a fair procedure for the allotment of these 122 licencesamong the 575 applications. Such fair procedure must necessarilypromote the public interest.

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

(6) But in 2001, there had been only approximately 4 million mobiletelephones in operation, whereas by 2007-2008, the estimated number ofmobiles was 350 million, and this number was growing at the rate of10% per month.

(7) Thus, obviously allotting licences on the basis of 2001 prevailingprices would enable the allotees to make windfall profits, at the costof the public exchequer: the public exchequer would only collect the2001 price of spectrum, while the allotees would have the worth of2008 market price of spectrum which judged by objectives standards wasseveral multiples of the 2001 price.

(8) All concerned authorities: the Law Ministry, the FinanceSecretary, the Secretary of the Ministry of Telecommunications, theMember (Finance) of DoT, and finally on 02.11.2007, even the PrimeMinister, 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 directedthat in view of the importance of the case and various optionsindicated 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 wasimperative for the First Accused to refer the matter to the Cabinetfor 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 PrimeMinister 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 outin the previous paragraph subparas (8) and (9).

8. It is further alleged that both personally and through directionsto his subordinates in DoT, accused A. Raja managed to get DoT toallot the aforesaid sought licences and the subsequent allotmentthereon 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 madegood from the documents available with the Complainant, which arecopies of documents, the originals of which are with variousGovernment agencies such as from the offices of the CVC (ChiefVigilance Commissioner), the CAG (Comptroller and Auditor General),the CBI (Central Bureau of Investigation), the ED (EnforcementDirectorate) and the Registrar of Companies at Delhi, Mumbai andChennai.

10. It is further alleged that a strong prima facie case for what isset emerges from the Performance Audit Report on the Issue of Licencesand Allocation of 2G Spectrum by the Department of Telecommunications,Ministry of Communications and Information Technology, a Report of theComptroller and Auditor General of India, prepared in 2010, submitted

to the President of India and placed on the Table of both Houses ofParliament on 16.11.2010. Hereinafter, this report is referred to forbrevity 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 recommendedin the instant facts and circumstances, by any regulatory body of theTelecom industry, and, in fact, the validity of such a basis has beenrejected by a judgment of the Delhi High Court in 1993 [(1993) III ADDelhi 1013].

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

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

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

15. It is further alleged that the CAG Report has also found that notender was invited or public auction was made nor a proper publicnotification was issued in this respect.

16. It is further alleged that in his D.O. No. 20-100/2007-AS.I dated02.11.2007 to the Prime Minister, accused A. Raja even rejected thedirection of the Law Minister that in view of the importance of thecase and various options indicated in the Statement of the case, thewhole issue must be first considered by an empoered Group ofMinisters.

17. It is further alleged that under the Transaction of BusinessRules of Government (Rule 7), it was required that when two Ministersdisagree on a policy question, the matter be referred by theinitiating Minister (in this case accused A. Raja) to the Cabinet fora 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 thePrime Minister that the then Minister of External Affairs and theSolicitor General [who as Law Officer in this matter went against theLaw Minister's decision] had encouraged him to go ahead and adopt theaforesaid FCFS basis; whereafter, in defiance of the Prime Minister'srequest that he delay the matter for a few days, the accused wentahead with the allotment.

19. It is further alleged that there is no ground for the accused tostate, (as he does), that everything that he did in regard to themethod of allotment of 2G spectrrum, and in regard to thedetermination of the rate at which it was alloted, was with theknowledge 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 sinceMarch 2006, yet, the necessary Cabinet approval was not taken formaking allotment on a private basis. There is also no record that inthe absence of a prior Cabinet approval, the action of the Ministerhad the categorical approval of the Prime Minister. In fact, on thecontrary, by his letter dated 02.11.2007, the Prime Minister had

suggested an auction of the 2G Spectrum and not its allotment on aFCFS basis, at the price prevailing for 1G spectrum in 2001 (when themobile cell phone usuage was in its infancy).

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

22. It is further alleged that this has resulted in a loss in revenueto the Government which the office of the Comptroller and AuditorGeneral (CAG) of India in his Performance Audit Report No. 19 of2010-11 has estimated at Rs. 1,76,000 crores, thus making it perhapsthe 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 advancingthe cut-off date to September 25, 2007 (that is, prior to the earliercut-off date of October 1, 2007), by personally getting issued a pressnote on January 10, 2008, which was posted only in the Ministrywebsite. Second, by adopting the scheme of allocating the licences onthe basis of first-come-first-served (FCFS) at an arbitrarily fixedlower price benchmarked to the price prevailing in 2001, instead ofmuch higher price determined by an option in 2008.

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

(b) As far as the FCFS basis for licence award is concerned, it wasnot recommended by any regulatory body of the telecom industry, and infact, the validity of such a basis has been rejected by a judgment ofDelhi High Court in 1993 [(1993) III AD Delhi 1013]. But, on

accusedA. Raja's insistence, not only the FCFS was adopted as the basis forallocation of limited and scarce 2 G Spetrum but the basis itself wasrigged to favour two companies, Swan Telecom and Unitech Wirelesswhich had no experience in the field and were not even registered (asrequired by the rules) as telecom companies at the time of allotmentof the scarce 2 G Spectrum.

25. It is further alleged that in fact, the CAG report holds at least85 of the 122 licences granted are illegal and void.

26. It is further alleged that the Central Bureau of Investigationhad registered an FIR on the alleged commission of the aforesaidoffence but has not named any accused including the first accusedherein. Despite this, complainant bringing this aspect to the noticeof Director of the CBI, the agency has so far failed to perform itsstatutory duty under the law.

27. It is further alleged that the above facts make out theingredients 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 allotmentof 2G Spectrum licences to them, these two favoured companies, SwanTelecom (P) Limited and Unitech Wireless Limited sold theircontrolling shares, at about seven to eight times what they had paidto the Government as fees for allotment of both licence and 2GSpectrum. On this basis, it is possible to get a measure of the lossin revenue that the public exchequer incurred by adopting the FCFSbasis and pegging the entry fees at 2001 prices.

29. It is further alleged that a thorough technical analysis done byDr. 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 varyingassumptions significantly exceeds the upfront fees charged from theoperators, especially Swan Telecom (P) Limited, and Unitech WirelessLimited. The CAG, however, using different techniques has estimatedpresumptive loss of Rs. 140,000+ crores, the '+' including the CDMAconversion etc. The total presumptive loss is placed at Rs. 1.76crores.

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

31. It is further alleged that reading the Executive Summary, theCAG, a Constitutionally empowered body, has found prima facie thataccused personally got issued the Letters of Intent to 85 applicantswho were not qualified and were not-eligible to receive these licencesin 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 accusedhad an indirect personal/ family pecuniary interest in some of theaforesaid sales:

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

(b) In October 2007, after Mr. A. Raja as Minister of Communicationsand Information Technology announced the Dual policy enablingconversion of CDMA to GSM, Anil Ambani sold his controlling shares totwo Maharashtra based real estate operators, viz., Mr. Shahid Balwa(Managing Director) and Vinod Kumar Goenka (Director), who had takenover the charge of the company, but which was back dated to beincorporated 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% inSwan Telecom (P) Limited, this made Swan Telecom (P) Limited,ineligible to apply at all for the licence; yet it did so apply. InOctober 2007, Anil Ambani -owned subsidiary of Reliance Communicationsquit Swan Telecom (P) Limited, after the DoT announced a new telecompolicy to permit CDMA to cross over to GSM.

(d) In January to March 2008, Swan Telecom (P) Limited, with theconnivance of accused, bagged an allotment of licences in 13 circlesworth 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 giantcorporation with Pakistan Telecom and Communication Ltd.-PTCL share

holding) for approximately Rs. 4,500/- crore. The ''sale'' wasdisguised in the form of a merger of Swan Telecom (P) Limited andEtisalat. Earlier such mergers were not permitted to allottees; butby his Office Note, accused personally altered this requirement toenable 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 basedGenex Exim Ventures, a company floated only just four months beforethe deal, with a meager capital of Rs. One Lakh. There is no recordof Genex making any payment for the share acquisition.

(g) According to the documents available with the Registrar ofCompanies, Chennai, Genex Exim Ventures was incorporated on September17, 2008 with two directors Mr. Mohammed Hassan (58) and Mr. AhamedShakir (41)- who came from Kilukarai, a small coastal village inRamanathapuram district in Tamil Nadu. Ahmed Syed Salahuddin (32) whorepresented the company on the board of Swan Telecom (P) Limited alsocame from the same village.

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

(i) The elder Salahuddin figures in a racket to defraud public fundsthat was inquired into by Justice Sarkaria Commission in 1976, and thesaid Commission held that he and Mr. Karunanidhi had entered into a

conspiracy to defraud public funds by favouring him to build a flyoverat the Gemini crossing, in return for purchasing distributing rightsto a film produced by Mr. Karunanidhi.

(j) This group, the ETA Star Group, began its Indian operations in2006 by floating several real estate firms across the State. At thattime, accused was Union environment Minister and his party DMK hadassumed power in Tamil Nadu.

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

(l) This fact requires investigation that thus a large business groupentered the Board of Swan Telecom (P) Limited, through a company witha meager Rs. One Lakh paid up capital. Incidentally, Genex Exim hasnot filed any documents with the authorities to show its source ofincome, even after acquiring Rs. 380 crore worth of shares from SwanTelecom (P) Limited.

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

(I) The ''intra-circle roaming deal'' signed between the companyand 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 percall, this clause was mysteriously absent in the MoU. BSNL was forcedto sign this deal just 10 days before the sale of Swan's shares toEtisalat. It is not clear why an amount was not specified in the MoUand in the absence of a consideration what is the position of theAgreement entered into between the Company and BSNL. The arrangementhelped swell Swan's coffers without the company investing a singlerupee.

(III) BSNL Chairman and Managing Director, Mr. Kuldeep Goyalsought to quell the trouble by coining a new word for the agreementbetween Swan and BSNL as ''Limited MoU'', while they have neverentered into an agreement in respect of ''intra-circle roaming deal''. The very 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 membersof the accused have a controlling stake. However, they have had toshelve it since the scam controversy broke out.

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

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

(q) Mrs. M. A. Parameswari, the aforesaid wife of accused, resignedfrom the Board of Green House Promoters on February, 2008, as part ofa damage control process envisaged by the accused. However, Mrs.Parameswari could not transfer her holding/ stake from the company onthe said date of resignation, giving room for investigators to showexplicit violation of the service rules. On a later day, the saidshares were transferred to the nephew of accused A. Raja, who is alsoa 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 HousePromoters has received considerable sums from abroad. The authoritieshave not been given any proof or clarity on the sources of the fundand its remittances.

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

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

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

34. It is further alleged that:

(a) Accused as a Union Minister, has also misled Parliament bystating that his decision on 2G Spectrum allocation were neverobjected to by TRAI (Telecom Regulatory Authority of India) or theFinance Ministry. By this, he has also committed breach ofParliamentary Privilege, which is also a matter of great collateralimportance to this Complaint.

(b) Although, the Prime Minister was aware of the corrupt ways of theaccused, it was perhaps the compulsions of coalition politics thatkept the Prime Minister away from stepping in and setting thingsright.

(c) The Press has reported that whenever the accused was summoned bythe Prime Minister, the Chief Minister of Tamil Nadu Mr. Karunanidhi(whom the accused has frequently announced to be his ''BelovedLeader'' and ''Mentor''), used to fly from Chennai and sort things outwith the Congress leadership.

(d) While serving as Minister for Environment and Forests, accused'snephew Dr. R. Sridhar was selected as Deputy Director in the sameMinistry by flouting the Norms of Appointment. He back-dated his

resignation letter from the post since ''The Pioneer'' news dailyrevealed that he was holding 15% shares in a real estate companyincorporated as Kovai Shelters (P) Limited. Accused A. Raja's twonieces R. Anandabhuvaneshwari and R. Sanatanalakashmi held another 15%each. The MD of Kovai, C. Krishnamoorthy was charged by the CBI in amark-sheet fraud in the Pondicherry University, and is an accused onbail 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 themurder accused Krishnamoorthy.

(e) An investigation report published by the Newspaper ''Pioneer'',brings out the names of the following persons involved in the 2GSpectrum Scam or in the Misuse of Power by the Minister. All thesepersons are either related or closely associated with Mr. Raja asnoted 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), [alreadyquestioned by the CBI in January 2010, on an FIR filed following thedirections 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 estatecompany, got 22 licences for 22 circles, for a total of Rs. 1651crore. After acquiring these licences, Unitech sold them for a hugesum of Rs. 6120 crore to a Norwegian company, TELENOR, which is amajor telecom player in Pakistan & Bangladesh. The company hadapplied for licences in several names. Unitech Infrastructure,Unitech Builders and Estates, Aska Projects, Nahan Properties, HudsonProperties, Volga Properties, Adonis Projects and Azare Propertiesamong them. They were able to merge all their licences when theaccused as Telecom Minister, signed another dubious notificationallowing this to happen.

(b) In the above deal the entry of a foreign firm having wideoperations in Pakistan and Bangladesh into Indian Telecom Industry hasbeen facilitated, which could evidently pose a threat to India'sNational Security. It is significant that the Union Home Ministry hasraised 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 keyplayers to Pakistan and the Chinese Army. This is, however, a matterfor another complaint.

36. It is further alleged that even his party chief, mentor andTamil Nadu Chief Minister Mr. M. Karunanidhi rubbished the allegationsagainst the accused, saying that leaders of certain political partiescould not tolerate the rise of a Dalit. This scurrilous commentindicates that Mr. Karunanidhi is abetting the accused to evade thelaw.

37. It is further alleged that all the facts stated in above

paragraphs, are culled from the Records available with the Registrarof 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 todo,

(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 possessionof pecuniary resources/ property;

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

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

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

40. That therefore:

(1) As summarized in above paras, the offencescommitted 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 theaccused A. Raja are already prima facie established from the CAGReport annexed herewith besides the facts and evidence submittedherewith, 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, underthe Prevention of Corruption Act [1988] may:

(a) take Cognizance u/s 5(1) of the Prevention of Corruption Act, 1988r/w the Criminal Procedure Code, and to set into motion prosecutionproceedings against accused A. Raja, for the offences under Sections13(1) (d) and (e) of the Prevention of Corruption Act, 1988;

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

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

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

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

42. Hence this complaint.

43. The complainant has examined himself, in support of allegationsin 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 Cabinetrank position twice and been a Member of Parliament five times. Ihave a Ph. D. in Economic from Harvard University. Presently, I amPresident of the Janata Party, which was founded by Sh. Jai PrakashNarayan in 1977.

Being a law abiding citizen and a public spirited citizenwell versed in Finance and Legal matters, bonafide believe that it ismy duty to set into motion legal processes particularly in this casewhich is said to be the biggest corruption case, namely, 2G Spectrumallocation. In this matter, the offences were committed beginningwith the act of awarding 122 licences to nine applicants on January11, 2008. This act of awarding licences was on orders of the thenMinister of Communications and Information Technology Mr. A. Raja,whom I have named as accused in my complaint. I also proposed as Ihave said in my complaint to include later under the provisions of theCrPC other persons as accused as part of larger conspiracy to defraudthe nation. The prima facie case of my complaint is fully endorsedand 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. Ihave also filed an affidavit duly sworn before Oath Commissioneralongwith my complaint. The same is Ex CW1/2. It bears my signatureat point A and B. List of witnesses filed by me and list of documentsfiled alongwith my complaint also bears my signature at point A onboth the sheets. Copy of report of CAG is also on the Court recordand is marked as Mark-A. The ingredients of the offences made out inmy complaint are stated concisely on page 9 para 29 and page 19 paras35 and 36. It is also confirmed by the CAG report and summarized inthe executive summery of the report which is reproduced on page 30 to35 of my complaint. It is also my complaint that two licences Swan

Telecoms and Unitech Wireless were illegally sold to two foreigncompanies namely Etisalat DB and Telenor within a few months. I havealso pointed out on page 267 of my complaint that the Union HomeMinistry has held that Etisalat DB is a National Security risk sinceit has connections with ISI of Pakistan. Also one of the boardmembers of Etisalat DB by name Shahid Balwa is alleged to be anassociate of the terrorist and proclaimed offender Dawood Ibrahim. Iwill seek the permission of this Court to summon this report from HomeMinistry.

I have also made out an offence of disproportionate assetsof the accused named A. Raja U/s 13(1) (e) of the PC Act. This are onpages 187 to 213 of my complaint. I also have brought out in mycomplaint on page 3 para 8 that all concerned authorities such as theLaw Ministry, the Finance Secretary, the Secretary of the Ministry ofTelecom, the Member Finance of the Department of Telecommunicationsand even the Prime Minister had expressed their views that accused Mr.A. Raja was not following the procedures which were in the interest ofthe country. This is also a violation of the mandatory transactionsof business rules framed under Article 77 of the Constitution whereinit is required that when Ministers disagree, the matter must be takento the Cabinet for the decision. This is attested by the CAG reportwhich 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 thecut-off date and second, rejecting the advice of all concernedauthorities to auction the licences and thereby, favoured a few of hisintimate friends. In fact, the CAG report holds that at least 85 ofthe 122 licences granted on the orders of accused Mr. A. Raja areillegal and void. The Delhi High Court both at the level of Hon'bleSingle Judge and Hon'ble Division Bench held the arbitrary fixing ofthe cut-off date as unreasonable and illegal. The judgments of thetwo benches are on pages 284 to 293 for the single bench judgment andpage 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. Ihave 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 EximVentures and Green House Promoters and other connected interlockingcompanies. In the first named company Genex Exim Ventures, the realowner Mr. Ahmed Syed Salahuddin is an NRI businessman based in Dubaibut has been given all the prestigious construction contract in TamilNadu by the DMK President and Chief Minister Mr. Karunanidhi. Therecent construction of the Tamil Nadu Assembly building is alsoconstructed by Mr. Salahuddin. In the second company, namely, GreenHouse Promoters, for a time the wife of accused A. Raja, Mrs.Parmeswari was a Director. This is substantiated in the complaint onpages 214 to 227 and further pages 237 to 282. Both these companiesassets have vastly increased and they have been able to buy shares inSwan Telecom whose new name is Etisalat DB, which is a UAE Corporationwith 26% shares in the Pakistan Government owned company called PTCL.

In this connection, I humbly state that I had informed theCBI vide letter dated 30.11.2010, copy of which is contained in page150 of my complaint informing the CBI that I intend to file a criminalcomplaint against the now former Telecom Minister Mr. A. Raja before aSpecial Judge in a designated Court, under the PC Act. The CBI hasnot 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 isannexure-11. I have put my signature again today at point A on thesame. The said is Ex CW 1/3. I received a reply from CBI dated08.12/13.12.10. 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 pagescomplaint a strong prima facie case supported by documents andconfirmed by the findings of the CAG report necessitates thecognizance 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 misconductagainst accused A. Raja and recorded as follows:

Charge 1: Spectrum licences were issued at a very nominal price thatwas fixed in the year 2001. This is on the pages 21 and 22 of thecharges. These were, however, not licences issued, but letters ofintent. Licences according to the record began to be issued from27.02.2008 and not from January 10th, 2008. In my documents volumeII, page 59, Ex CW 1/5, there is a list of new UAS Licences, issuedsince 11.11.2003. This has to be read with volume III, page 11, MarkC. At page 23 of this document, there is an answer given to thePublic Accounts committee regarding sale of stake by M/s Swan Telecom(P) Limited, wherein it is stated ''that Swan Telecom was incorporatedon July 13th, 2006. It received licences for 13 telecom circles inFebruary/ March 2008. Similarly, in next paragraph of this document,it states ''M/s Unitech Wireless Tamil Nadu (P) Limited wasincorporated on August 10, 2007. It received licences for 22 telecomcircles in February, 2008.'' A letter of intent is an intention ofthe Government provided the conditions are met of the licence to awardthe licence. This is also stated in the press release issued by theDoT on 10.01.2008. The second charge, which is charge No. 5 and onpage 32 of the charges, it is recorded that Swan and Unitech wereallowed to off-load their shares to Etisalat and Telenor respectivelyeven before the roll-out and by selling their shares at several timeswhat they paid to the Government for the licences.

I further state, as in my application paras 13 to 15, thataccused A. Raja could not be guilty of these charges alone, butcommitted these offences with the active connivance of Sh. P.

Chidambram, presently Home Minister, Government of India. As far asthe first charge is concerned, both Sh. Chidambram and Sh. A. Raja, ExPW-officio, were empowered by a 2003 Cabinet decision dated31.10.2003, now Ex CW 1/6, to determine the spectrum price jointly andthe relevant clause reads as under:

''Sub-clause (3) The Departmental of Telecom and the Ministry ofFinance would discuss and finalize spectrum pricing formula, whichwill include incentive for efficient use of spectrum as well sdisincentive for suboptimal usages''.

Sh. Chidambram was aware of this empowerment. In hisletter dated 15.01.2008, which is in volume I at page 55 in para 6 ofthe 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 para6, sub-para(i) that ''DoT and MoF would discuss and finalize thepricing formula for spectrum, which will include incentive for theefficient use of spectrum''.

In his letter dated 21.04.2008, page 60 of Volume I, toSh. A. Raja, now Ex CW 1/8, it was stated by Sh. Chidambram in para 2that ''after you have had an opportunity to examine the same may wemeet and discuss and reach some conclusions? These conclusions couldthen be presented to the Hon'ble Prime Minister''. This is furthercorroborated 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 MarkD. The Hon'ble Prime Minister has also corroborated this in hisstatement made on the floor of Rajya Sabha on 24.02.2011. Acomputerized copy of the same is Ex CW 1/9. On page 9, last line, itis stated that ''the Government's policy on the pricing of spectrumwas taken on the basis of the Cabinet decision of 2003, which

specifically left this issue to be determined by the Ministry ofFinance and Ministry of Telecommunications''. The paragraph furtherreads ''The two Ministers had agreed on this because of legacyconsiderations and I accepted their recommendation.'' As per para 7 ofEx CW 1/7, Sh. Chidambram informs the Hon'ble Prime Minister that ''itis therefore clear that there are three separate concepts: (i) entryfee; (ii) charges for spectrum; and (iii) revenue share''.

Therefore, in pursuance of this empowerment, the twoMinisters, Sh. Chidambram and Sh. A. Raja, met on four occasions. Thefirst meeting is dated 30.01.2008, the second meeting is dated29.05.2008 and the third meeting on 12.06.2008 and then subsequentlyafter an agreement was reached and meeting of minds took place, theytogether met the Hon'ble Prime Minister on 04.07.2008 and conveyedtheir agreement on the question of spectrum price in all threeaspects, that is, entry fee, spectrum price and annual charges. Theminutes of the meeting are available for 30.01.2008. A photocopy ofthe minutes is Mark E, in Volume II page 39. In the first paragraphof the said minutes, it is stated ''Minister for Communications metthe Finance Minister today on the subject of spectrum charges.Secretary, DoT, Advisor (Wireless) and I (Sh. D. Subbarao, the thenFinance Secretary), were present.'' in paragraph 5 of the saidMinutes, it is recorded that ''FM said that for now we are not seekingto 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 saidletter, that is, Ex CW 1/7, it is stated by Sh. Chidambram that ''thisleaves the question about licencees who already hold spectrum over andabove the start of spectrum. In such cases, the past may be treatedas a closed chapter........''.

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

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

* Treating the authorization allowed by the Cabinet in 2003 forcalculation of entry fee for migration of existing operators (BSOs andCMPs) to UASL regime based on the formula given by the TRAI (October2003) as an open-ended one was a wrong interpretation of the DoT andparticularly when Cabinet in the same decision had defined the role ofMoF in the matter of spectrum pricing.

* Government of India (Transaction of Business) Rules 1961 providedfor necessity of matter being placed before the Cabinet in case eitherinvolving financial implication on which the Minister of Financedesires or a difference of opinion arises between two or moreMinisters.''

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

I further state that Sh. Chidambram was aware at least on09.01.2008 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 ofunsuitability of fixing the price of spectrum at 2001 level andproviding to licencees spectrum at zero price. It also confirms inparagraph 12 that a meeting was held on 30.01.2008 between theMinisters of Finance and Telecommunications and wherein it is stated“it was noted by the then Finance Minister that he was for now notseeking to revisit the current regimes for entry fee or revenueshares”. Para 14 of the same document further states to corroboratethat “spectrum up to 6.2 MHz may not be priced”. Para 17 of the samedocument further states that “there was a way out by invoking clause5.1 of the UAS Licence, which inter alia, provide for modification atany time the terms and conditions of the licence , if in the opinionof the Licensor it is necessary and expedient to do so in publicinterest or in the interest of security of State or for the properconduct of the telegraphs”. As far as the second charge against Sh.

A. Raja is concerned, namely, that Swan and Unitech were allowed tooffload their shares to Etisalat and Telenor. This is also stated indocuments dated 05.11.2008, now Ex CW 1/12. In this it is stated,inter alia, “in the meeting Hon’ble Finance Minister clarified thatdilution of shares to attract foreign investment for expansion did notallow sale of licence and, as such, these companies did their sharedilution as per the corporate laws”. I further state that MHA hadraised objections regarding financial transactions with Etisalat inIndia. In support thereof I place on record a computerized copy ofdocument, pages 97 to 104, which I myself downloaded from the websiteof 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 beallowed to place the same on record, which were earlier referred to inmy examination. A certified copy of the memorandum, running intothirteen pages, dated 21.07.2010 is Ex CW 1/14 collectively. Anothercertified copy of an office memorandum dated 25.03.2011, running intotwelve pages, is collectively Ex CW 1/15. The certified copy of theminutes of the meeting between the then Finance Minister and the thenMOC&IT dated 30.01.2008 is Ex CW 1/16. A certified copy of the orderdated 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 theHon’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 theseizure memo prepared by the CBI on 22.10.2009 is Ex CW 1/19, as anoriginal copy of the same is already on record of this Court. Acertified copy of the Cabinet resolution dated 31.10.2003 is Ex CW1/20, pages, 59 to 84, and its covering note dated 03.11.2003 is Ex CW1/21. A certified copy of the letter dated 15.01.2008 written by thethen 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 meunder RTI Act is Ex CW 1/24. A certified copy of the communicationdated 21.12.2010 received by me by the Prime Minister’s office is ExCW1/25. Certified copy of the notes dated 06.11.2008 and 07.11.2008 ofSh. Madan Chaurasia are Ex CW 1/26 and 1/27 respectively. Certifiedcopy of another note dated 10.11.2008 of Sh. Santok Singh is Ex CW1/28. Photocopy of extracts of reports of committee presided over byHon’ble Mr. Justice Shivraj V. Patil is mark F. This evidence revealsthe connivance, collusion and the consent of the then Finance MinisterSh. P. Chidambram in the decisions taken by the then telecom Ministerin the matter of:

A. Fixing the price of the spectrum licence; and

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

That is, the evidence brings on record the commission ofoffences under the Prevention of Corruption Act for which Sh. A. Rajahas already been charged by this Court. I have also brought on recordevidence to show that Sh. Chidambram is also guilty of breach of trustin question of national security for not disclosing that Etisalat andTelenor 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 allegationsagainst Mr. P. Chidambaram, as is clear from a bare reading of thefacts, extracted above in detail. Similarly, no evidence was initiallyled by complainant against Mr. P. Chidambaram, when he examinedhimself on 07.01.2011. However, on 15.09.2011, the complainant filedan application under Section 311 CrPC for summoning/ recalling ofwitnesses for examination on behalf of the complainant and in thatapplication only allegations were levelled against Mr. P. Chidambaram.

The said application was allowed vide order dated 08.12.2011 andthereafter, the complainant examined himself on 17.12.2011 and07.01.2012. He has not examined any other witness in support of theallegations in the complaint.

47. I have deliberately extracted the allegations in the complaintand evidence on oath in detail to make things clear andunderstandable.

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

49. It is submitted by the complainant in person that UAS Licenceswere issued at a very low price, which were discovered in 2001. It isfurther submitted by him that Swan Telecom (P) Limited and UnitechWireless (Tamil Nadu) Limited were allowed to offload their shares toEtisalat and Telenor even before roll-out. It is further submittedthat the companies sold their shares at prices several times high ofwhat they paid to the Government for licences. It is further submittedby him that as per Cabinet decision dated 31.10.2003, spectrum pricingformula was to be decided by the Finance Minister and the TelecomMinister and at the relevant time Mr. P. Chidambaram was FinanceMinister and Mr. A. Raja was Minister, Telecommunications. It isfurther submitted that Mr. P. Chidambaram was aware of thisempowerment. It is further submitted that Mr. P. Chidambaram hadinformed the Hon’ble Prime Minister that DoT and MoF would discuss andfinalize the pricing formula for spectrum and he also wrote a letterto 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 andMr. A. Raja) may meet and discuss and reach some conclusion. It isfurther submitted that the Hon’ble Prime Minister also made astatement in Rajya Sabha about the two Ministers deciding on pricingof spectrum on the basis of Cabinet decision of 2003 and also told

that they agreed to this because of legacy considerations. It isfurther submitted that Mr. P. Chidambaram met Mr. A. Raja on fouroccasions, that is, on 30.01.2008, 29.05.2008, 12.06.2008 and04.07.2008. It is further submitted both had conveyed their agreementon the question of spectrum pricing to the Hon’ble Prime Minister andthis covered all three aspects, that is, entry fee, spectrum price andannual charges. It is further submitted that not only this Mr. P.Chidambaram had stated that he was not seeking to revisit the currentregime for entry fee or for revenue share. It is further submittedthat Mr. P. Chidambaram was fully aware at least on 09.01.2008 as towhat Mr. A. Raja was planning to do on 10.01.2008 and he was alsoaware of the unsuitability of fixing the price of spectrum at 2001level.

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

My attention has been invited to the various documents placed onrecord, including CW 1/1 to 1/28, to emphasize that all these actswere done by accused A. Raja in connivance, collusion and consent ofMr. P. Chidambaram, the then Finance Minister. It is repeatedlysubmitted that Mr. P. Chidambaram is guilty of commission of offencesunder PC Act, for which accused A. Raja is facing trial. It is furthersubmitted that Mr. P. Chidambaram is also guilty of breach of trust onquestion of national security for not disclosing that Etisalat andTelenor were black-listed by the Home Ministry.

It is repeatedly submitted that there is enough incriminatingmaterial on record to warrant summoning of Mr. P. Chidambaram as anaccused 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 andanother, 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 andanother, (2012) 1 SCC 699;

(4) Centre for Public Interest Litigation and others Vs. Union ofIndia 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 andanother, 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 thecomplainant as CW1 and which is extracted as under for readyreference:

“............................................................ Thisevidence reveals the connivance, collusion and the consent of the thenFinance Minister Sh. P. Chidambram in the decisions taken by the thentelecom Minister in the matter of:

A. Fixing the price of the spectrum licence; and

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

That is, the evidence brings on record the commission ofoffences under the Prevention of Corruption Act for which Sh. A. Rajahas already been charged by this Court. I have also brought on recordevidence to show that Sh. Chidambram is also guilty of breach of trustin question of national security for not disclosing that Etisalat andTelenor were black listed by Home MinistryAdvisory.............................”

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

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

................................................................................................................

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

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

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

(iii) while holding office as a public servant, obtains for any personany 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 anytime during that period of his office, been in possession for whichthe public servant cannot satisfactorily account, of pecuniaryresources or property disproportionate to his known sources ofincome.”

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 theHon'ble Supreme Court in paragraphs 275 and 276 as under:-

“275. Generally a conspiracy is hatched in secrecy and it may bedifficult to adduce direct evidence of the same. The prosecution willoften rely on evidence of acts of various parties to infer that theywere done in reference to their common intention. The prosecution willalso more often rely upon circumstantial evidence. The conspiracy canbe undoubtedly proved by such evidence direct or circumstantial. Butthe court must enquire whether the two persons are independentlypursuing the same end or they have come together in the pursuit of theunlawful object. The former does not render them conspirators but thelatter does. It is, however, essential that the offence of conspiracyrequires some kind of physical manifestation of agreement. Theexpress agreement, however, need not be proved. Nor actual meeting oftwo persons is necessary. Nor it is necessary to prove the actualwords of communication. The evidence as to transmission of thoughtssharing the unlawful design may be sufficient. Gerald Orchard ofUniversity of Canterbury, New Zealand explains the limited nature ofthis proposition :

Although it is not in doubt that the offence requires somephysical manifestation of agreement, it is important to note thelimited nature of this proposition. The law does not require that theact of agreement take any particular form and the fact of agreementmay be communicated by words or conduct. Thus, it has been said thatit is unnecessary to prove that the parties ''actually came togetherand agreed in terms'' to pursue the unlawful object : there need neverhave been an express verbal agreement, it being sufficient that therewas ''a tacit understanding between conspirators as to what should bedone''.

276. I share this opinion, but hasten to add that the relative acts orconduct of the parties must be conscientious and clear to mark theirconcurrence as to what should be done. The concurrence cannot beinferred by a group of irrelevant facts artfully arranged so as togive an appearance of coherence. The innocuous, innocent orinadvertent events and incidents should not enter the judicialverdict. 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 inparagraph 583 as under:-

“Some of the broad principles governing the law of conspiracy may besummarized though, as the name implies, a summary cannot be exhaustiveof the principles.

1. Under Section 120-A IPC offence of criminal conspiracy is committedwhen two or more persons agree to do or cause to be done an illegalact or legal act by illegal means. When it is a legal act by illegalmeans overt act is necessary. Offence of criminal conspiracy is anexception to the general law where intent alone does not constitutecrime. It is intention to commit crime and joining hands with personshaving the same intention. Not only the intention but there has to beagreement to carry out the object of the intention, which is an

offence. The question for consideration in a case is did all theaccused have the intention and did they agree that the crime becommitted. It would not be enough for the offence of conspiracy whensome 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 maytend 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 theconspiracy like giving shelter to an absconder.

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

4. Conspirators may for example, be enrolled in a chain – A enrollingB, B enrolling C, and so on; and all will be members of a singleconspiracy if they so intend and agree, even though each member knowsonly the person who enrolled him and the person whom he enrols. Theremay be a kind of umbrella-spoke enrolment, where a single person atthe centre does the enrolling and all the other members are unknown toeach other, though they know that there are to be other members.These are theories and in practice it may be difficult to tell whichconspiracy in a particular case falls into which category. It mayhowever, even overlap. But then there has to be present mutualinterest. Persons may be members of single conspiracy even thougheach is ignorant of the identity of many others who may have diverseroles to play. It is not a part of the crime of conspiracy that allthe 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 carryout their common purpose, a crime is committed by each and every one

who joins in the agreement. There has thus to be two conspirators andthere may be more than that. To prove the charge of conspiracy it isnot necessary that intended crime was committed or not. If committedit may further help prosecution to prove the charge of conspiracy.

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

7. A charge of conspiracy may prejudice the accused because it forcesthem into a joint trial and the court may consider the entire mass ofevidence against very accused. Prosecution has to produce evidencenot only to show that each of the accused has knowledge of the objectof conspiracy but also of the agreement. In the charge of conspiracythe court has to guard itself against the danger of unfairness to theaccused. Introduction of evidence against some may result in theconviction of all which is to be avoided. By means of evidence inconspiracy, which is otherwise inadmissible in the trial of any othersubstantive offence prosecution tries to implicate the accused notonly in the conspiracy itself but also in the substantive crime of thealleged conspirators. There is always difficulty in tracing theprecise contribution of each member of the conspiracy but then therehas to be cogent and convincing evidence against each one of theaccused charged with the offence of conspiracy. As observed by JudgeLearned Hand ''this distinction is important today when manyprosecutors seek to sweep within the dragnet of conspiracy all thosewho have been associated in any degree whatever with the mainoffenders''.

8. As stated above it is the unlawful agreement and not itsaccomplishment, which is the gist or essence of the crime ofconspiracy. Offence of criminal conspiracy is complete even thoughthere is no agreement as to the means by which the purpose is to beaccomplished. It is the unlawful agreement which is the gravamen ofthe crime of conspiracy. The unlawful agreement which amounts to a

conspiracy need not be formal or express, but may be inherent in andinferred from the circumstances, especially declarations, acts andconduct of the conspirators. The agreement need not be entered intoby all the parties to it at the same time, but may be reached bysuccessive actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a partnership incrime, and that there is in each conspiracy a joint or mutual agencyfor the prosecution of a common plan. Thus, if two or more personsenter into a conspiracy, any act done by any of them pursuant to theagreement is, in contemplation of law, the act of each of them andthey are jointly responsible therefor. This means that everythingsaid, written or done by any of the conspirators in execution orfurtherance of the common purpose is deemed to have been said, done orwritten by each of them. And this joint responsibility extends notonly to what is done by any of the conspirators pursuant to theoriginal agreement but also to collateral acts incidental to andgrowing out of the original purpose. A conspirator is notresponsible, however, for acts done by a co-conspirator aftertermination of the conspiracy. The joinder of a conspiracy by a newmember does not create a new conspiracy nor does it change the statusof the other conspirators, and the mere fact that conspiratorsindividually or in groups perform different tasks to a common end doesnot split up a conspiracy into several different conspiracies.

10. A man join a conspiracy by word or by deed. However, criminalresponsibility for a conspiracy requires more than a merely passiveattitude towards an existing conspiracy. One who commits an overt actwith knowledge of the conspiracy is guilty. And one who tacitlyconsents to the object of a conspiracy and goes along with otherconspirators, actually standing by while the others put the conspiracyinto effect, is guilty though he intends to take no active part in thecrime.

55. Furthermore, in an authority reported as State (NCT of Delhi) Vs.Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600, it was observed

bythe 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 (DelhiAdmn) : (SCC pp. 669-70, para 8)

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

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

“In most cases proof of conspiracy is largely inferentialthough the inference must be founded on solid facts. Surroundingcircumstances and antecedent and subsequent conduct, among otherfactors, constitute relevant material.”

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

100. Lord Bridge in R. v. Anderson aptly said that the evidence fromwhich a jury may infer a criminal conspiracy is almost invariably tobe found in the conduct of the parties. In Daniel Youth v. R. thePrivy Council warned that in a joint trial case must be taken toseparate the admissible evidence against each accused and the judicialmind should not be allowed to be influenced by evidence admissibleonly against other. “A co-defendant in a conspiracy trial”, observedJackson, J, (US p.454), “occupies an uneasy seat” and “it is difficultfor the individual to make his own case stand on its own merits in theminds of jurors who are ready to believe that birds of a feather areflocked together”. (Vide Alvin Krulewitch v. United States ofAmerica.)

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

“There is always difficulty in tracing the precise contributionof each member of the conspiracy but then there has to be cogent andconvincing evidence against each one of the accused charged with theoffence of conspiracy.”

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

“The distinction is especially important today when so manyprosecutors seek to sweep within the dragnet of conspiracy all thosewho have been associated in any degree whatever with the mainoffenders.”

At para 518, Wadhwa, J., pointed out that the criminalresponsibility for a conspiracy requires more than a merely passiveattitude towards an existing conspiracy. The learned Judge then setout the legal position regarding the criminal liability of the personsaccused of the conspiracy as follows: (SCC p. 518, para 583)

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

101. One more principle which deserves notice is that the cumulativeeffect of the proved circumstances should be taken into account indetermining the guilt of the accused rather than adopting an isolatedapproach to each of the circumstances. Of course, each one of thecircumstances should be proved beyond reasonable doubt. Lastly, inregard to the appreciation of evidence relating to the conspiracy, theCourt must take care to see that the acts or conduct of the parties

must be conscious and clear enough to infer their concurrence as tothe common design and its execution. K. J. Shetty, J., pointed out inKehar Singh case that : (SCC p. 773, para 276)

The innocuous, innocent or inadvertent events and incidentsshould not enter the judicial verdict.”

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

''In some case, intent of unlawful use being made of the goods orservices in question may be inferred from the knowledge itself. ThisCourt is State of Maharashtra v. Som Nath Thapa opined that it is notnecessary for the prosecution to establish that a particular unlawfuluse was intended, so long as the goods or services in question couldnot be put to any lawful use, stating:

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

57. What is misconduct? This point was reiterated by the Hon'bleSupreme 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 LawDictionary, 6th Edn., at p. 999, thus:

''Misconduct.-A transgression of some established anddefinite 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 orcarelessness.''

Misconduct in office has been defined as:

''Misconduct in office- Any unlawful behavior by a publicofficer 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 anaffirmative 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 wrongfulintention, and not a mere error of judgment.

MISCONDUCT is not necessarily the same thing as conductinvolving moral turpitude.

The word ''misconduct'' is a relative term, and has to beconstrued with reference to the subject-matter and the context whereinthe term occurs, having regard to the scope of the Act or statutewhich is being, construed. ''Misconduct'' literally means wrongconduct or improper conduct.'

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

''35. Section 13 of the Act provides for criminal misconduct by apublic servant. Such an offence of criminal misconduct by a publicservant can be said to have been committed if in terms of Sections13(1)(d)(ii)-(iii) a public servant abuses its position and obtainsfor himself or for any other person any valuable thing or pecuniaryadvantage; or while holding office as a public servant, obtains forany person any valuable thing or pecuniary advantage without anypublic interest. Sub-section (2) of Section 13 provides that anypublic servant who commits criminal misconduct shall be punishablewith imprisonment for a term which shall be not less than one year butwhich may extend to seven years and shall also be liable to fine.

47. Even under the Act, an offence cannot be said to have beencommitted only because the public servant has obtained either forhimself or for any other person any pecuniary advantage. He must doso by abusing his position as a public servant or holding office as apublic servant. In the latter category of cases, absence of anypublic interest is a sine qua non. The materials brought on record donot suggest in any manner whatsoever that Respondents 1 to 7 eitherhad abused position or had obtained pecuniary advantage forRespondents 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 insupport thereof, reveals that neither are there any allegations nor isevidence against Mr. P. Chidambaram to the effect that he played anyrole 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, UASLicences and allocation of spectrum included arbitrary fixation of thecut-off date, filing and procuring of applications for UAS Licences onbehalf of ineligible companies, violation of first-come first-servedpolicy in the issuance of LOIs, UAS Licences and allocation of

spectrum and payment and receipt of bribe. All these incriminatingacts were allegedly done by the Minister/ officials of Department ofTelecommunications, 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, hiscomplicity in fixing the price of the spectrum licence at 2001 leveland permitting two companies, which received the licence, namely, Swanand Unitech, to dilute their shares even before roll-out of theirservices.

61. However, both of these acts, attributed to him, are not per seillegal or violative of any law. He agreed with Mr. A. Raja not torevise or revisit the entry fee or spectrum charge as discovered in2001. Non-revision of prices is not an illegal act by itself. Thecompetent authority is always at liberty to decide in its discretionto not to revise the prices or fee for any goods or services. The sameentry fee/ spectrum charges continued even after 2007-08. Same is thecase with dilution of equity by a company. It is not per se illegalnor was it prohibited at the relevant time. However, such acts mayacquire criminal colour/ overtones when done with criminal intent.

62. The case of the complainant is that Mr. P. Chidambaram consentedto non-revision of entry fee/ spectrum charges and dilution of equityby the companies as he was in criminal conspiracy with A. Raja. It isfurther his case that dilution of equity was a ruse to transfer UASLicence at a premium and thereby earn undeserved profit. In thisregard, he has invited my attention to the charges framed againstaccused A. Raja and other accused, wherein these two facts have alsobeen 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 ofsubverting the established policy and procedure for grant of UASLicences and the payment and receipt of bribe by other accused, whostand charged and are facing trial.

64. The crucial questions are:

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

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

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

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

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

65. In a case of criminal conspiracy, the Court has to see whethertwo persons are independently pursuing the same end or they are actingtogether in pursuit of an unlawful act. One may be acting innocentlyand 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 regardingspectrum pricing was to be taken by Finance Minister and MOC&IT andafter this decision was taken, Mr. P. Chidambaram agreed that it wouldbe the price as discovered in the year 2001 and also told Mr. A. Rajathat there is no need to revisit the same. This decision was

subsequently conveyed to the Hon’ble Prime Minister also. To thatextent, 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 the2001 level or in permitting dilution of equity by the two companies.These two acts are not per se illegal and there is no further materialon record to show any other incriminating act on the part of Mr. P.Chidambaram. A decision taken by a public servant does not becomecriminal for simple reason that it has caused loss to the publicexchequer or resulted in pecuniary advantage to others. Merelyattending meetings and taking decisions therein is not a criminal act.It must have the taint of use of corrupt or illegal means or abuse ofhis official position by public servant for obtaining pecuniaryadvantage by him for himself or for any other person or obtaining ofpecuniary advantage by him without any public interest. There is nomaterial on record to suggest that Mr. Chidambaram was acting withsuch corrupt or illegal motives or was in abuse of his officialposition, while consenting to the two decisions. There is no evidencethat he obtained any pecuniary advantage without any public interest.I may add that there is such incriminating material against otheraccused persons, who stand charged and are facing trial.

68. There is no evidence on record to suggest that there was anagreement between him and Mr. A. Raja to subvert telecom policy andobtain pecuniary advantage for himself or for any other person. Thereis no evidence of any substantive act being committed by him. A bit ofevidence here and a bit there does not constitute prima facie evidencefor showing prima facie existence of a criminal conspiracy. Anybodyand everybody associated with a decision in any degree cannot be ropedas an accused. The role played by the decision maker, circumstances inwhich the decision was taken and the intention of the decision makerare the relevant facts. Intention is to be inferred from the facts andcircumstances of the case. One cannot be held guilty merely byassociation 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 notmake one a partner in crime, unless there is material to indicateotherwise, 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 ofequity by the two companies. These two acts are not per se criminal.In the absence of any other incriminating act on his part, it cannotbe said that he was prima facie party to the criminal conspiracy.There is no evidence on record that he was acting in pursuit to thecriminal conspiracy, while being party to the two decisions regardingnon-revision of the spectrum pricing and dilution of equity by the twocompanies.

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

Announced in open Court,

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

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