Justice O.P.Saini has concluded as under:
64. The crucial questions are:
(i) Whether entry fee for the UAS Licences and the price of spectrum
was jointly determined by Mr. A. Raja and Mr. P. Chidambaram?
(ii) Whether they have deliberately fixed a low entry fee, discovered
in 2001 auction, for spectrum licences?
(iii) Whether Mr. P. Chidambaram deliberately allowed dilution of
equity by the two companies, that is, Swan Telecom (P) Limited and
Unitech Wireless (Tamil Nadu) Limited?
(iv) If so, whether these facts prima facie show criminal culpability
of Mr. P. Chidamabaram also alongwith Mr. A. Raja?
(v) Whether there is any material on record to show criminal
culpability of Mr. P. Chidambaram?
65. In a case of criminal conspiracy, the Court has to see whether
two persons are independently pursuing the same end or they are acting
together in pursuit of an unlawful act. One may be acting innocently
and other may be actuated by criminal intention. Innocuous,
inadvertent or innocent acts do not make one party to the conspiracy.
66. As per Cabinet note dated 31.10.2003, the decision regarding
spectrum pricing was to be taken by Finance Minister and MOC&IT and
after this decision was taken, Mr. P. Chidambaram agreed that it would
be the price as discovered in the year 2001 and also told Mr. A. Raja
that there is no need to revisit the same. This decision was
subsequently conveyed to the Hon’ble Prime Minister also. To that
extent, there is material on record.
67. However, there is no material on record to show that Mr. P.
Chidambaram was acting malafide in fixing the price of spectrum at the
2001 level or in permitting dilution of equity by the two companies.
These two acts are not per se illegal and there is no further material
on record to show any other incriminating act on the part of Mr. P.
Chidambaram. A decision taken by a public servant does not become
criminal for simple reason that it has caused loss to the public
exchequer or resulted in pecuniary advantage to others. Merely
attending meetings and taking decisions therein is not a criminal act.
It must have the taint of use of corrupt or illegal means or abuse of
his official position by public servant for obtaining pecuniary
advantage by him for himself or for any other person or obtaining of
pecuniary advantage by him without any public interest. There is no
material on record to suggest that Mr. Chidambaram was acting with
such corrupt or illegal motives or was in abuse of his official
position, while consenting to the two decisions. There is no evidence
that he obtained any pecuniary advantage without any public interest.
I may add that there is such incriminating material against other
accused persons, who stand charged and are facing trial.
68. There is no evidence on record to suggest that there was an
agreement between him and Mr. A. Raja to subvert telecom policy and
obtain pecuniary advantage for himself or for any other person. There
is no evidence of any substantive act being committed by him. A bit of
evidence here and a bit there does not constitute prima facie evidence
for showing prima facie existence of a criminal conspiracy. Anybody
and everybody associated with a decision in any degree cannot be roped
as an accused. The role played by the decision maker, circumstances in
which the decision was taken and the intention of the decision maker
are the relevant facts. Intention is to be inferred from the facts and
circumstances of the case. One cannot be held guilty merely by
association with a decision and a decision by itself does not indicate
criminality. There must be something more than mere association.
Innocent and innocuous acts done in association with others do not
make one a partner in crime, unless there is material to indicate
otherwise, which is lacking in this case.
69. In the end, Mr. P. Chidambaram was party to only two decisions,
that is, keeping the spectrum prices at 2001 level and dilution of
equity by the two companies. These two acts are not per se criminal.
In the absence of any other incriminating act on his part, it cannot
be said that he was prima facie party to the criminal conspiracy.
There is no evidence on record that he was acting in pursuit to the
criminal conspiracy, while being party to the two decisions regarding
non-revision of the spectrum pricing and dilution of equity by the two
companies.
70. Accordingly, I do not find any sufficient ground for proceeding
against Mr. P. Chidambaram. The plea is without any merit and the same
is dismissed.
Announced in open Court,
today on February 04, 2012. (O. P. SAINI)
Spl. Judge/ CBI(04)(2G Spectrum Cases)/ND
The judge has also stated in the same ruling:
"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"
Subramanian Swamy has also recorded the following in this case:
"That is, the evidence brings on record the commission of
offences under the Prevention of Corruption Act for which Sh. A. Raja
has already been charged by this Court. I have also brought on record
evidence to show that Sh. Chidambram is also guilty of breach of trust
in question of national security for not disclosing that Etisalat and
Telenor were black listed by Home Ministry
Advisory.............................”"
The issue regarding breach of trust has not been addressed by the court.
64. The crucial questions are:
(i) Whether entry fee for the UAS Licences and the price of spectrum
was jointly determined by Mr. A. Raja and Mr. P. Chidambaram?
(ii) Whether they have deliberately fixed a low entry fee, discovered
in 2001 auction, for spectrum licences?
(iii) Whether Mr. P. Chidambaram deliberately allowed dilution of
equity by the two companies, that is, Swan Telecom (P) Limited and
Unitech Wireless (Tamil Nadu) Limited?
(iv) If so, whether these facts prima facie show criminal culpability
of Mr. P. Chidamabaram also alongwith Mr. A. Raja?
(v) Whether there is any material on record to show criminal
culpability of Mr. P. Chidambaram?
65. In a case of criminal conspiracy, the Court has to see whether
two persons are independently pursuing the same end or they are acting
together in pursuit of an unlawful act. One may be acting innocently
and other may be actuated by criminal intention. Innocuous,
inadvertent or innocent acts do not make one party to the conspiracy.
66. As per Cabinet note dated 31.10.2003, the decision regarding
spectrum pricing was to be taken by Finance Minister and MOC&IT and
after this decision was taken, Mr. P. Chidambaram agreed that it would
be the price as discovered in the year 2001 and also told Mr. A. Raja
that there is no need to revisit the same. This decision was
subsequently conveyed to the Hon’ble Prime Minister also. To that
extent, there is material on record.
67. However, there is no material on record to show that Mr. P.
Chidambaram was acting malafide in fixing the price of spectrum at the
2001 level or in permitting dilution of equity by the two companies.
These two acts are not per se illegal and there is no further material
on record to show any other incriminating act on the part of Mr. P.
Chidambaram. A decision taken by a public servant does not become
criminal for simple reason that it has caused loss to the public
exchequer or resulted in pecuniary advantage to others. Merely
attending meetings and taking decisions therein is not a criminal act.
It must have the taint of use of corrupt or illegal means or abuse of
his official position by public servant for obtaining pecuniary
advantage by him for himself or for any other person or obtaining of
pecuniary advantage by him without any public interest. There is no
material on record to suggest that Mr. Chidambaram was acting with
such corrupt or illegal motives or was in abuse of his official
position, while consenting to the two decisions. There is no evidence
that he obtained any pecuniary advantage without any public interest.
I may add that there is such incriminating material against other
accused persons, who stand charged and are facing trial.
68. There is no evidence on record to suggest that there was an
agreement between him and Mr. A. Raja to subvert telecom policy and
obtain pecuniary advantage for himself or for any other person. There
is no evidence of any substantive act being committed by him. A bit of
evidence here and a bit there does not constitute prima facie evidence
for showing prima facie existence of a criminal conspiracy. Anybody
and everybody associated with a decision in any degree cannot be roped
as an accused. The role played by the decision maker, circumstances in
which the decision was taken and the intention of the decision maker
are the relevant facts. Intention is to be inferred from the facts and
circumstances of the case. One cannot be held guilty merely by
association with a decision and a decision by itself does not indicate
criminality. There must be something more than mere association.
Innocent and innocuous acts done in association with others do not
make one a partner in crime, unless there is material to indicate
otherwise, which is lacking in this case.
69. In the end, Mr. P. Chidambaram was party to only two decisions,
that is, keeping the spectrum prices at 2001 level and dilution of
equity by the two companies. These two acts are not per se criminal.
In the absence of any other incriminating act on his part, it cannot
be said that he was prima facie party to the criminal conspiracy.
There is no evidence on record that he was acting in pursuit to the
criminal conspiracy, while being party to the two decisions regarding
non-revision of the spectrum pricing and dilution of equity by the two
companies.
70. Accordingly, I do not find any sufficient ground for proceeding
against Mr. P. Chidambaram. The plea is without any merit and the same
is dismissed.
Announced in open Court,
today on February 04, 2012. (O. P. SAINI)
Spl. Judge/ CBI(04)(2G Spectrum Cases)/ND
The judge has also stated in the same ruling:
"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"
Subramanian Swamy has also recorded the following in this case:
"That is, the evidence brings on record the commission of
offences under the Prevention of Corruption Act for which Sh. A. Raja
has already been charged by this Court. I have also brought on record
evidence to show that Sh. Chidambram is also guilty of breach of trust
in question of national security for not disclosing that Etisalat and
Telenor were black listed by Home Ministry
Advisory.............................”"
The issue regarding breach of trust has not been addressed by the court.
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