UNDERSTANDING ORDER OF JUDGE O P SAINI
ON APPLICATION OF DR SWAMY ON MR P CHIDAMBARAM
PART III : GIST OF THE ORDER
By Anirban Roy, Advocate
1. In December 2010, Dr Swamy filed his Private Criminal Complaint charging Mr A Raja (AR) with offences under Sections 13 (1) (c ), (d) & (e) of the Prevention of Corruption Act, 1988 which deal with an offence of “criminal misconduct”. The gist of the provisions of the above Sections are as follows:
a. Under Section 13 (1) (c ), a Public Servant commits an offence of “criminal misconduct” when he dishonestly / fraudulently misappropriates a property entrusted to him for his own use.
b. Under Section 13 (1) (d), a Public Servant commits an offence of “criminal misconduct” when he obtains a valuable thing or pecuniary advantage for himself or any other person either by corrupt or illegal means / abusing his position as a Public Servant. Or he obtains a valuable thing or pecuniary advantage without any public interest for any person while holding office as a Public Servant.
c. Under Section 13 (1) (e), a Public Servant commits an offence of “criminal misconduct” when he possesses pecuniary resources or property disproportionate to his known sources of income which he cannot account satisfactorily.
2. Dr Swamy produced documents from his sources as well as official documents obtained under Right to Information Act to show how AR ignored the recommendations of the Prime Minister and others to auction the licenses and revise the entry fee upwards, how AR persisted with First Come First Served Basis, how AR persisted with 2001 prices, how AR rigged even the First Come First Served Basis, how licenses were awarded to two unqualified and undeserving real estate companies namely Swan Telecom and Unitech Wireless, how these two companies offloaded their controlling shares Etisalat and Telenor at seven to eight times the fee, how these two companies were otherwise benefited, how these two companies were connected to persons close to AR including his wife and so on. Based on these materials, Dr Swamy prayed that a process be issued against AR and he be prosecuted.
3. In his Private Criminal Complaint as well as in his examination in support of his Complaint which took place in January 2011, Dr Swamy restricted his case to AR only. He had not made any allegation against Mr P Chidambaram (PC) or had not produced any materials against him.
4. Subsequently Dr Swamy enlarged his case to cover PC as well.
5. By way of further examination in December 2011 and January 2011, Dr Swamy alleged that AR could not have committed these offences alone and that the same were committed with the active connivance, collusion and consent of PC in respect of the following two things:
a. Fixation of the price of the license
b. Permitting Swan and Unitech to dilute their shares even before roll out of their services.
Dr Swamy produced several documents in support of the above two contentions.
6. The allegations against PC pertained to conspiracy alone and that too in respect of the above two areas only.
7. On the aspect of conspiracy, the Court cited several judgments on the issue and observed that in an allegation for conspiracy, one ought to see whether two persons were independently pursuing the same end or whether they came together intentionally in pursuit of an illegal object. The former is not criminal conspiracy while the latter is. Further in case of the latter it has to be seen whether there was a physical manifestation of agreement.
8. In the facts of the present case, the Court accepted the documents produced by Dr Swamy at face value and the contentions of Dr Swamy that the prices were indeed fixed by AR and PC jointly and that PC allowed the two companies to offload their shares.
9. The Court however held that there were no allegations or materials whatsoever that PC played any role in rigging the process or in allocating the licenses to ineligible companies or that he had received any bribe. In contrast, there were such allegations and incriminating materials against AR and others.
10. The Court also held that the acts allegedly done by PC were not per se criminal although they might acquire criminal colour when done with criminal intent. However there were no materials to show that they were malafide or that PC was acting with corrupt or illegal motives or was abusing his official position.
11. The Court also held that there was no evidence on record to suggest that there was any agreement between PC and AR to subvert the process and obtain any pecuniary advantage. Everyone participating in the decision making process with an accused cannot be roped in as an accused. Mere association is not enough and there has to be more than mere association. The role played, the circumstances in which decision was taken and the intention are relevant facts which have to be judged from the facts and circumstances of the case. In this case, the materials are lacking.
12. In these circumstances it was held that there are no materials to show that PC was acting in a criminal conspiracy with AR while being party to two decisions regarding non-revision of pricing and dilution of equity. The Application of Dr Swamy to add PC as an accused to his Private Criminal Complaint was therefore dismissed.
Anirban Roy
February 10, 2012
Email: anirban@royslawfirm.com
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