IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : May 30, 2011
Decided on : June 08, 2011
BAIL APPLICATION NO. 723/2011
SHARAD KUMAR ....PETITIONER
Through: Mr. Altaf Ahmed, Sr. Advocate with Mr. R. Shunmughasundaram, Sr. Advocate, Mr. V.G. Pragasam, Advocate, Mr. S.J. Aristotle, Advocate & Mr. Sudershan Rajan, Advocate.
Versus
CENTRAL BUREAU OF INVESTIGATION ….RESPONDENT
Through: Mr. U.U. Lalit, Sr.Advocate/Special Public Prosecutor with Ms. Sonia Mathur, Advocate & Mr. Sushil Dubey, Advocate.
WITH
BAIL APPLICATION NO. 724/2011
KANIMOZHI KARUNANITHI ....PETITIONER
Through: Mr. Altaf Ahmed, Sr. Advocate with Mr. R. Shunmughasundaram, Sr. Advocate, Mr. V.G. Pragasam, Advocate, Mr. S.J. Aristotle, Advocate & Mr. Sudershan Rajan, Advocate.
Versus
CENTRAL BUREAU OF INVESTIGATION ....RESPONDENT
Through: Mr. U.U. Lalit, Sr.Advocate/Special Public Prosecutor with Ms. Sonia Mathur, Advocate & Mr. Sushil Dubey, Advocate.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
AJIT BHARIHOKE, J.
1. Accused Ms. Kanimozhi Karunanithi and Sharad Kumar vide above referred applications under Section 439 Cr.P.C. are seeking bail in case FIR No.RC-DAI-2009-A-0045 P.S. ACB, CBI New Delhi.
2. Briefly stated, facts relevant for the above bail applications are that on 21.10.2009, the Central Bureau of Investigation, Anti Corruption Branch, New Delhi registered a case No.RC DAI-2009-A-0045 on the allegations of criminal conspiracy and criminal misconduct against unknown officials of Department of Telecommunications, Govt. of India, unknown private persons/companies and others under Section 120-B IPC, 13(2) read with 13(a)(d) of P.C. Act, in respect of allotment of Letters of Intent, Unified Access Services (UAS) Licences and 2G spectrum by the Department of Telecommunications.
3. First charge sheet was filed on 02.04.2011 in the court of Special Judge, Patiala House, New Delhi against 12 accused persons including M/s. Swan Telecom Pvt. Ltd. and its directors Shahid Balwa and Vinod Goenka for the offences punishable under Section 120-B, 420, 468, 471 of IPC and Section 109 read with 420 IPC, as also under Section 13(2) read with 13(1)(d) of P.C. Act, 1988.
4. A supplementary charge sheet was filed in the above mentioned
case on 25.04.2011 against five accused persons including the petitioners for offences under Section 120B IPC read with Section 7/11 and 12 of P.C. Act, 1988.
5. Briefly put, case of the prosecution is that earlier to accused A.Raja taking over as Minister for Communications and Information Technology, the departmental policy of DOT regarding grant of Unified Access Services Licence (UASL) was first come first serve subject to eligibility and after the issue of Letter of Intent (LOI) to the successful applicant, he was given sufficient time to comply with the conditions of LOI and deposit of the licence fee.
6. In order to achieve the end of conspiracy, accused R.K. Chandolia on 24th September 2007 inquired from the concerned officer of “Access Services Cell” of Department of Telecommunication if the applications of Unitech Group of Companies for grant of UAS Licences were received and instructed that after the receipt of their applications, no further applications be accepted. PW Avdesh Kumar Srivastava, DDG(AS-I) told R.K. Chandolia that it may not be proper/fair to abruptly refuse to receive the applications. A note dated 24th September, 2007 in this regard was initiated by the Department on instructions of R.K. Chandolia. Accused A.Raja approved the note and ordered issue of press note informing public about the cut off date 01.10.2007 for acceptance of the applications for UASL. A Press Release was accordingly published in Newspapers on 25th September, 2007. Though hundreds of applications were received after 25th September, 2007, those applications were not considered for issue of UAS Licence.
7. Charge sheet also disclose that as per the existing policy, the allottees of Letters of Intent (LOI) were given sufficient time to comply with the conditions of LOI. The licences were issued on the basis of seniority of the date of applications and after the issue of UAS Licences, the licensee could apply for allocation of spectrum.
8. On 2nd November, 2007, Director (AS-I) DOT initiated a note seeking for issue of Letters of Intent as per the existing policy of first come first served. The then Telecom Secretary returned the file with the noting, “action may be initiated after orders of MOC & IT are obtained on the issue. He had expressed his desire to discuss this further.” A fresh note was put up by Director (AS-I) of DOT on 7th November, 2007 highlighting the existing policy and pointing out that a policy statement in that regard was made in Rajya Sabha on 23rd August, 2007. A draft Letter of Intent was also put up along with the note for approval of the Minister. Accused A.Raja approved the note, but deliberately replaced Para 3 of the draft LOI with the following: ”the date of payment of entry fee would be priority date for signing the licence agreement. If the date of payment of entry fee in more than one case is the same, then the licence will be first signed with the applicant whose application was received earlier.”
9. It is alleged that on 23rd November, 2007, the Licensing Finance Branch of DOT objected to change made in LOI by accused A.Raja and suggested that it appears logical to keep the date of applications as date of priority for issue of licence provided the applicant is able to establish that he is eligible on the date of application and is also eligible when the LOI is issued. This note was endorsed by Member(Finance), Telecom Commission and Secretary(Telecom) also suggesting the revision of entry fee for new licences in line with revision of fee for dual technology spectrum as suggested by Ministry of Finance in its letter. Accused A.Raja, however, ignored the advice to keep the date of application as date of priority for issue of licence or to review and enhance the licence fee and this resulted in a loss to the tune of almost of 30000 crores to the State exchequer.
10. That while putting up a note dated 7th January, 2008 for processing UASL application received upto 25th September, 2007, Director (AS-I) reiterated the existing policy and noted, “sequence of granting of LOIs/UAS Licence has been maintained till now to the date of respective application for a particular service area.” In his note DDG(AS-I) raised the issue of eligibility and clarified that the eligibility on the date of application needs to be considered. When the matter was put up before accused Siddhartha Behura, he attached a draft press release for the approval of the Minister. Accused A.Raja, MOC & IT asked Secretary (Telecom) to show the draft press release to the Solicitor General and seek his legal opinion. Accused Siddhartha Behura personally took the file to the Solicitor General of India, who advised “I have seen the matter. Issues regarding new LOIs are not before any court. What is proposed is fair and reasonable. The press release makes for transparency. This seems to be in order.” However, after obtaining the advice of Solicitor General, accused A.Raja in conspiracy with accused Siddhartha Behura dishonestly deleted the last paragraphs of the approved press release shown to the Solicitor General which recorded, “However, if more than one applicant complies with LOI condition on the same date, the inter-se seniority would be decided by the date of application” and approved the amended draft of press release. This was done to portray as if the amended draft had the approval of the Solicitor General.
