Cut & Thrust: The Artful Dodge
The O.P. Saini judgment may have absolved all the accused of any criminality, but the fine print indicts the role of the bureaucracy including those in the PMO for misrepresenting facts, even as it slams the prosecution for a well choreographed charge sheet

Special CBI trial court judge O.P. Saini brought the Patiala House court complex down when he acquitted all the 2G scam accused in one fell swoop. It is what he said during his judgment that made it more startling. He stated that some people “artfully” arranged few selected facts and created a scam “when there was none” in a well-choreographed charge sheet containing incorrect facts. His indictment of the way the prosecution conducted the case was an eye opener when he said that he waited every day for seven years for evidence and none came. It is very important to understand the nuance involved in Saini’s judgment for he scathingly fulminates against the CBI. “In the beginning, the prosecution started the case with great enthusiasm and ardour. However, as the case progressed, it became highly cautious and guarded in its attitude making it difficult to find out what the prosecution wanted to prove. By the end, the quality of prosecution totally deteriorated and it became directionless and diffident. Not much is required to be written as the things are apparent from the perusal of the evidence itself. A few instances would suffice to indicate the behaviour of the prosecution. Several applications and replies were filed in the court on behalf of the prosecution...in the latter and also in the final phase of the trial, no senior officer or prosecutor was willing to sign these applications or replies and the same used to be signed by the junior most officer.”

Locked up arbitrarily

Let us also remember that if no crime was committed, why were several of the accused incarcerated? It is only after the Madhu Koda judgment where it said that bail is the norm and jail is the exception that they were freed. It was a strange time for these accused were not even under trials (for the trial began later), they were merely accused in a charge sheet and yet they were packed off to Tihar Jail. Questions can then be raised about the veracity of the criminal justice system, for it was unprecedented that a set of people was locked up arbitrarily. The only analogous reference for this can be the Indira Gandhi Emergency years where people opposed to her were summarily packed off.

These are strong words from the CBI trial judge and they reflect poorly on the shoddiness of the investigation and the conduct of the CBI which itself claimed a loss of Rs 30,985 crore to the exchequer. Furthermore, it is a resounding slap on the agency’s face, coming as it does after the Allahabad High Court’s acquittal of the Talwars in the Arushi murder case. Counterpoint is provided by the legal precedent established by the Supreme Court in February 2012 when it cancelled the 122 licenses citing arbitrariness in allocation due to the flawed first-come-first-served policy followed by A. Raja where he chose to give away unified access service licenses in 2008 at 2003 prices without resorting to market discovered pricing mechanism. The Supreme Court also ordered Tata Teleservices, Unitech Wireless Group and Etisalat DB Telecom to pay Rs 5 crore as fine as they “benefited by a wholly arbitrary and unconstitutional action taken by the DoT for the grant of UAS (unified access service) licences and allocation of spectrum in 2G band and who off-loaded their stakes for many thousand crore in the name of fresh infusion of equity or transfer of equity”. Which means mala fide was established and all the CBI had to do was to make an iron clad case to establish quid pro quo and criminality. It failed abysmally. Why? As Saini himself expostulates – lack of will, lack of zeal, lack of commitment or a combination of all three. I would not like to speculate on anything else, but presumptions and assumptions can be made.

This verdict flies in the face of the Supreme Court judgment – Declaring the allocation of 2G spectrum by the Congress-led United Progressive Alliance (UPA) government “illegal” and an example of the arbitrary exercise of power, the court cancelled all 122 telecom licences. Holding that spectrum was a natural resource, the court said natural resources “are vested with the government as a matter of trust in the name of the people of India, and it is the solemn duty of the state to protect the national interest, and natural resources must always be used in the interests of the country and not private interests.” This paved the way for auctions in spectrum and coal. Perhaps the most damaging statement from the court was: “In matters involving award of contracts or grant of licence or permission to use public property, the invocation of the first-come, first-served principle has inherently dangerous implications.” Which once again begs the question, who is responsible for CBI’s shameful ineptitude and lassitude? Post facto, to say that that Judge Saini has not examined the evidence adduced to substantiate the charges by the prosecution has not been appreciated in its proper perspective is now a bit of a hoot. I have personally read the charge sheets and while in many instances, the cases are water tight, some of the charges are laughable. But that a fallacious and faulty procedural process was followed is irrevocable. That A. Raja himself hit the ground running and changed the rules of engagement also cannot be challenged.

Yes, what could be challenged is the money trail or a strong case of quid pro quo? That doesn’t exist, after the mysterious suicide of the conduit Sadiq Batcha, a close associate of A. Raja. The role of the bureaucracy has once again been thrown into stark relief by Saini’s judgment – D.S. Mathur’s (then telecom secretary) flip-flop about the need and timing for issue is reflected in his deposition...in his cross examination dated 19.4.2012, he could not recall if the recommendations were to be sought for a new category of licence and not for introduction of new operators in an existing category. This shows that D.S. Mathur was not just passing his time but was irresponsible also in the sense that he could recall facts as per his convenience.

Cross examination of IO

There is another intriguing part of the judgment which deals with Pulok Chatterjee’s role in the PMO, which is even more incendiary. The judgment states – This cross examination of Investigating Officer Vivek Priyadarshi as well as the note dated 6.1.2008 recorded by Pulok Chatterjee shows that he had spoken to secretary telecom (Siddharth Behura) and during that he gave go ahead to DoT, but LATER ON, ENTIRE BLAME WAS SHIFTED TO A. RAJA. Does this mean that Chatterjee, a key functionary in Dr Manmohan Singh’s PMO, misinformed the PM and gave carte blanche to Raja and then even nailed him for the indiscretions. The IO’s own admission – It is wrong to suggest that I did not seize this file on account of noting of Sh Chatterjee at page 5/N and a chit at page 7/N, already Ex PW 82/DC-6 as this material would have gone against the prosecution case. I did not examine Pulok Chatterjee to find out as to what conversation he had with new secretary Siddharth Behura. It is wrong to suggest that for these reasons this file was most RELEVANT. It is wrong to suggest that PMO was aware of the goings on in DoT regarding the issuance of letters of intent and licences through this file prior to 10.1.2008. It is wrong to suggest that I am deposing falsely on this point as noting of Sh Chatterjee is dated 6.1.2008. This leaves you with a feeling that smoke and mirrors always tip toed softly around the sordid happenings when policy was twisted to suit certain individuals and entities.

Like in the Arushi murder case, the murder most foul took place, but there is no murderer, similarly, in 2G there is a scam, but there are no scamsters and no convictions. In both celebrated cases, there are only acquittals, but there is no mention of who did it. In many ways, it is like Agatha Christie’s monumental ‘Murder on the Orient Express’, a classic whodunit, where everyone is a suspect barring Hercule Poirot himself. With the prosecution failing to prove charges beyond reasonable doubt, there are many nuggets which require further dissemination, none more pertinent than the role of the PMO.

A Raja’s letter

It is the case of the prosecution that the facts were misrepresented to the then PM Manmohan Singh by A. Raja, which contention has already been rejected. Whether there was any misrepresentation of the facts to the then PM, and if so, by whom? The judgment points out categorically:

It was not A. Raja, but Pulok Chatterjee, in consultation with TKA Nair as he had suppressed the most relevant and controversial part of the letter of A. Raja from the then PM. If the words – WANTS PMO TO BE AT ARM’S LENGTH are read in the context of the case, it is clear they are aimed at officials of PMO and not A Raja. Why? because whatever Raja intended to do relating to telecom licences was conveyed by him to the PM in his letter, but the PMO presented only a PARTIAL VIEW to then PM on 7.1.2008 vide note dated 6.1.2008. Accordingly, DoT issued 120 LoIs on 10.1.2008. Thus the record shows that the facts were misrepresented to the PM by the officials of PMO and NOT RAJA. The counter argument to this comes from the I.O. Vivek Priyadarshi and it smacks of gross negligence:

I had visited PMO on 9.3.2011...I had seen this file during my visit to PMO, but did not seize it because I did not find IT RELEVANT TO THE CASE for the reason that it did not reveal any communication of decision or views of the PMO to MoC&IT other than which it had already conveyed vide letter dated 2.11.2007, and because it is also revealed that the matter was yet under consideration at PMO when the LoIs were issued by DoT on 10.1.2008.

Saini found no evidence was produced indicating any criminality by the accused and that the charge sheet “is based mainly on misreading, selective reading, non-reading and out of context reading of the official record”. “Further, it is based on some oral statements made by the witnesses during investigation, which the witnesses have not owned up in the witness box. Lastly, if statements were made orally by the witnesses, the same were contrary to the official record and thus, not acceptable in law.” Finally, I would like to end with the most savage and searing comments made by Saini: “It is also to be noted that there are many representations on record made by various prominent public spirited persons before various authorities relating to wrongdoing in the instant case. However, none of them also volunteered to enter the witness­ box. What does all this mean? Apparently this means that nobody had any good or first hand material in his possession. The fate of the case thus depended upon witnesses from DoT and from the companies of the accused. The witnesses from DoT were either highly guarded, and if I may say so hesitant, in their deposition, and also went against official record rendering themselves unreliable.”

“I may also add that for the last about seven years, on all working days, summer vacation included, I religiously sat in the open court from 10 am to 5 pm, awaiting for someone with some legally admissible evidence in his possession, but all in vain. Not a single soul turned up. This indicates that everybody was going by public perception created by rumour, gossip and speculation. However, public perception has no place in judicial proceedings.”

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Columnist: 
Sandeep Bamzai