NEW DELHI: Special CBI court judge OP Saini has given a refined definition of criminal conspiracy in the 2G scam case. His order delineates a criminal conspiracy and an act of innocence even if the latter means financial loss to the public exchequer.
Applying his definition, Saini ruled that Union home minister P Chidambaram was not part of a criminal conspiracy in the scam, and hence doesn't need to be prosecuted.
"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," Saini said in his order.
The court admits that "there is material on record" to show that Chidambaram agreed with A Raja about fixing the spectrum pricing at 2001 rate. "However, there is no material on record to show that P Chidambaram was acting mala-fide 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 P Chidambaram," the judge said.
Saini said that even if a public servant's decision leads to loss to exchequer or pecuniary advantage to someone it need not become criminal always. "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," he said.
"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," he said.
Saini argued that there was no material on record to suggest that 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," Saini said, drawing distinction between the accused Raja and others, and Chidambaram.
He pointed out that there was no evidence on record to suggest that there was an agreement between Chidambaram and Raja to subvert telecom policy and obtain pecuniary advantage for himself or for anyone else.
"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," Saini said.
The judge said the role played by a decision maker, circumstances in which the decision was taken and the intention of the decision maker are all relevant facts.
In his judgment rejecting demand to prosecute Union home minister P Chidambaram in the 2G scam, Special CBI judge O P Saini raised five "crucial questions". And they decided if Chidambaram is part of the criminal conspiracy. Answering them, Saini concluded, "Accordingly, I do not find any sufficient ground for proceeding against P Chidambaram."
5 questions judge OP Saini raised
1. Whether entry fee for the UAS licences and the price of spectrum was jointly determined by A Raja and P Chidambaram?
2. Whether they have deliberately fixed a low entry fee, discovered in 2001 auction, for spectrum licences?
3. Whether P Chidambaram deliberately allowed dilution of equity by the two companies, that is, Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) Limited?
4. If so, whether these facts prima-facie show criminal culpability of P Chidambaram along with A Raja?
5. Whether there is any material on record to show criminal culpability of P Chidambaram?
Applying his definition, Saini ruled that Union home minister P Chidambaram was not part of a criminal conspiracy in the scam, and hence doesn't need to be prosecuted.
"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," Saini said in his order.
The court admits that "there is material on record" to show that Chidambaram agreed with A Raja about fixing the spectrum pricing at 2001 rate. "However, there is no material on record to show that P Chidambaram was acting mala-fide 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 P Chidambaram," the judge said.
Saini said that even if a public servant's decision leads to loss to exchequer or pecuniary advantage to someone it need not become criminal always. "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," he said.
"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," he said.
Saini argued that there was no material on record to suggest that 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," Saini said, drawing distinction between the accused Raja and others, and Chidambaram.
He pointed out that there was no evidence on record to suggest that there was an agreement between Chidambaram and Raja to subvert telecom policy and obtain pecuniary advantage for himself or for anyone else.
"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," Saini said.
The judge said the role played by a decision maker, circumstances in which the decision was taken and the intention of the decision maker are all relevant facts.
In his judgment rejecting demand to prosecute Union home minister P Chidambaram in the 2G scam, Special CBI judge O P Saini raised five "crucial questions". And they decided if Chidambaram is part of the criminal conspiracy. Answering them, Saini concluded, "Accordingly, I do not find any sufficient ground for proceeding against P Chidambaram."5 questions judge OP Saini raised
1. Whether entry fee for the UAS licences and the price of spectrum was jointly determined by A Raja and P Chidambaram?
2. Whether they have deliberately fixed a low entry fee, discovered in 2001 auction, for spectrum licences?
3. Whether P Chidambaram deliberately allowed dilution of equity by the two companies, that is, Swan Telecom (P) Limited and Unitech Wireless (Tamil Nadu) Limited?
4. If so, whether these facts prima-facie show criminal culpability of P Chidambaram along with A Raja?
5. Whether there is any material on record to show criminal culpability of P Chidambaram?
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