Extracts of Order dated 04.02.

2012

(2G Spectrum Cases), NEW DELHI. CC No. 01(A)/11 Dr. Subramanian Swamy Vs. A. Raja & others Present: Complainant Dr. Subramanian Swamy in person with Sh. Tarun Goomber, Mrs. (Dr.) Roxna Swamy and Sh. P. N. Mago Advocates.

ORDER:-

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

41. Hence, it is prayed that this Court, being Special Judge, under the Prevention of Corruption Act [1988] may: (a) take Cognizance u/s 5(1) of the Prevention of Corruption Act, 1988 r/w the Criminal Procedure Code, and to set into motion prosecution proceedings against accused A. Raja, for the offences under Sections 13(1) (d) and (e) of the Prevention of Corruption Act, 1988; (b) appoint the Complainant as Prosecutor u/s 5(3) of the Prevention of Corruption Act, 1988; (c) Direct the CBI, the ED and other prosecuting agencies of the Government to assist the Complainant in conducting the case after cognizance is taken; (d) Keeping in view the facts, events and circumstances stated herein above, take cognizance/ summon/ try and punish accused A. Raja, in accordance with law, in the interest of justice;

46. I may add that the complaint did not contain any allegations against Mr. P. Chidambaram, as is clear from a bare reading of the facts, extracted above in detail. Similarly, no evidence was

initially led by complainant against Mr. P. Chidambaram, when he examined himself on 07.01.2011. However, on 15.09.2011, the complainant filed an application under Section 311 CrPC for summoning/ recalling of witnesses for examination on behalf of the complainant and in that application only allegations were levelled against Mr. P. Chidambaram. The said application was allowed vide order dated 08.12.2011 and thereafter, the complainant examined himself on 17.12.2011 and 07.01.2012. He has not examined any other witness in support of the allegations in the complaint.

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

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

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

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

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

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

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

64. The crucial questions are: (i) Whether entry fee for the UAS Licences and the price of spectrum was jointly determined by Mr. A. Raja and Mr. P. Chidambaram? (ii) Whether they have deliberately fixed a low entry fee, discovered in 2001 auction, for spectrum licences? (iii) Whether Mr. P. Chidambaram deliberately allowed dilution of equity by the two companies, that is, Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) Limited? (iv) If so, whether these facts prima facie show criminal culpability of Mr. P. Chidamabaram also alongwith Mr. A. Raja? (v) Whether there is any material on record to show criminal culpability of Mr. P. Chidambaram?

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

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

67. However, there is no material on record to show that Mr. P. Chidambaram was acting malafide in fixing the price of spectrum at the 2001 level or in permitting dilution of equity by the two companies. These two acts are not per se illegal and there is no further material on record to show any other incriminating act on

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

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

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

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

Announced in open Court, today on February 04, 2012.

Sd/(O. P. SAINI) Spl. Judge/ CBI(04)(2G Spectrum Cases)/ND

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